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• The issue in this case concerns allotment of flats to public servants working in Bhubaneshwar Development Authority and Housing and Urban Development Department, Government of Odisha who were alleged to have surreptitiously   distributed   prime   plots   in the Commercial   Complex   District  Centre, Chandrasekharpur.

• Court allowed the appeal filed by State of Odisha against High Court's order, quashing Corruption charges against the public servants.

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The Supreme Court is of the opinion that the day has come to do away with allotment of government largess on the basis of discretionary quota as this inevitably leads to corruption, nepotism and favouritism.

A bench of Justices MR Shah and BV Nagarathana has observed that it is best to do away with a discretionary quota for allotment of public properties/plots as even if guidelines are issued to be followed for the allotments, they are hardly followed or are manipulated to suit the particular circumstances. 

“Therefore, the best thing is to do away with such discretionary quota and allotments of the public properties/plots must be through public auction by and large. Even in the case where the policy decision is taken to allot the plots to a particular class – downtrodden class etc. in that case also the guidelines must be strictly followed and …the allotment must reflect the fair play and non­arbitrariness and should have objective, criteria/procedure”, added the Court.

Court stated that when a democratic government in exercise of its discretion, selects the recipients for its largess, then discretion should be exercised objectively, rationally, intelligibly, fairly and in a non­ arbitrary  manner and it should not be subjective and according to the private opinion and/or the whims and fancies of the persons in power and/or the public servants.

These observations were made by the top court while allowing an appeal filed by the State of Orissa against an order of the High Court, whereby it had quashed the criminal proceedings against Smt. Pratima Mohanty, Shri Prakash Chandra Patra and Shri Rajendra Kumar Samal, both occupying crucial positions at the Bhubaneswar Development Authority (‘B.D.A.’) and in the Housing and Urban Development Department, Government of Odisha (‘H.&U.D. Deptt.’). 

An FIR was lodged by the Deputy Superintendent of Police, Vigilance, Vigilance Cell Unit Office, Bhubaneswar, before the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar   alleging that on preliminary   enquiry   it   was   found   that   certain   public servants   occupying   crucial   positions   in   Bhubaneswar Development Authority (‘B.D.A.’) and in the Housing and Urban Development Department, Government of Odisha (‘H.&U.D. Deptt.’)   surreptitiously   distributed   prime   plots   in Commercial   Complex   District   Centre, Chandrasekharpur, Bhubaneswar.   

It was further alleged that there was no advertisement in providing opportunity to general public regarding availability of B.D.A. plots for sale and their sale prices and by keeping the general public in dark, the public servants in B.D.A. (accused) who had access to such information as insiders, distributed the prime plots among themselves or their relatives at minimal rates causing loss to the B.D.A. and the public exchequer without any public interest.

They were thus alleged to have committed the offences under Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

“…..it appears that the High Court has entered into the merits of the allegations and has conducted the mini­trial by weighing the evidence in detail which, as such, as observed and held by this Court in a catena of decisions is wholly impermissible”, noted the top court.

The Court further noted that there were specific allegations of causing loss to the B.D.A and the public exchequer, and all these aspects were required to be considered at the stage of trial and not while considering the application under Section 482 Cr.P.C.

While allowing the appeal, the bench observed that government and/or the public authorities like B.D.A. are the custodian of public properties and allotment   of   public   properties   must   be transparent and has to be fair and non­arbitrary. 

In conclusion the bench said,

“In such matters public interest only has to be the prime guiding consideration. The aforesaid principle is in order to get the best or maximum price so that it may serve the public purpose and public interest so as to avoid loss to the authority and/or the public exchequer.”

Case Title: State Of Odisha V Pratima Mohanty Etc.