IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
Writ Petition (Civil) No. ……………….. of 2013
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
1. CENTRE FOR PUBLIC INTEREST LITIGATION
43, LAWYER’S CHAMBERS,
SUPREME COURT OF INDIA,
…PETITIONER NO. 1
2. COMMON CAUSE
THROUGH ITS DIRECTOR
5, INSTITUTIONAL AREA
NELSON MANDELA ROAD
VASANT KUNJ, NEW DELHI-110070
…PETITIONER NO. 2
3. JAYANTI DAS
W/O- KUMUDABANDHU DAS
…PETITIONER NO. 3
1. STATE OF ODISHA
THROUGH ITS CHIEF SECRETARY
GOVERNMENT OF ODISHA
…RESPONDENT NO. 1
2. BHUBANESWAR DEVELOPMENT AUTHORITY
THROUGH ITS CHAIRMAN
…… RESPONDENT NO. 2
3. CUTTACK DEVELOPMENT AUTHORITY
THROUGH ITS CHAIRMAN
… RESPONDENT NO. 3
4. STATE OF GUJARAT
THROUGH ITS CHIEF SECRETARY
NEW SACHIVALAYA COMPLEX
GANDHI NAGAR- 382010
… RESPONDENT NO. 4
5. CENTRAL BUREAU OF INVESTIGATION
THROUGH ITS DIRECTOR
CGO COMPLEX, LODHI ROAD
… RESPONDENT NO. 5
6. UNION OF INDIA
THROUGH ITS CABINET SECRETARY
CABINET SECRETARIAT, GOVERNMENT OF INDIA
NEW DELHI – 110 004
… RESPONDENT NO. 6
A WRIT PETITION IN PUBLIC INTEREST UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING CANCELLATION OF THE ENTIRE ALLOTMENT OF PLOTS OF LAND BY BHUBNESWAR DEVELOPMENT AUTHORITY AND CUTTACK DEVELOPMENT AUTHORITY TO GOVERNMENT OFFICIALS, M.P.S, M.L.A.S, JUDGES AND OTHERS THROUGH DISCRETIONARY QUOTA SINCE 1991 AND SEEKING A THOROUGH COURT MONITORED CBI INVESTIGATION OF ABUSE OF OFFICIAL POSITION BY CONCERNED OFFICIALS AND MINISTER(S) IN ODISHA STATE IN ALLOTMENT OF LAND THROUGH DISCRETIONARY QUOTA
SEEKING CANCELLATION OF ALLOTMENT OF PLOTS OF LAND TO JUDGES OF HIGH COURT OF GUJARAT BY STATE OF GUJARAT PURSUANT TO POLICY DECISION DATED 06.11.2008 WHICH IS IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION AND FOR THE ENFORCEMENT OF THE RULE OF LAW AND THE RIGHTS GUARANTEED UNDER ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA
THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE HON’BLE SUPREME COURT OF INDIA The
Humble Petition of the Petitioners above-named
MOST RESPECTFULLY SHOWETH: –
1. The petitioners have filed the instant writ petition in public interest challenging the arbitrary and discriminatory distribution of state largesse by way of allotment of plots of land at concessional rates by State governments of Odisha and Gujarat. The plots of land have been allotted to high ranking public servants, Members of Parliament and State Legislatures, Judges of High Courts and Subordinate Courts either through discretionary quota, without following any statutory regulation / guidelines, or through questionable policy decisions. The Petitioners submit that in either case such allotments are in violation of public trust and Article 14 and 21 of the Constitution. The Petitioners are constrained to seek interference of this Hon’ble Court as even Hon’ble Judges of High Courts have been co-opted as beneficiaries in such colourable exercise of executive power. The Petitioners submit that such unconstitutional distribution of State largesse to all three organs of State has adverse ramifications on the Rule of Law, independence of judiciary and separation of powers, which are components of the basic structure of our Constitution.
1 A That the Petitioner No. 3 has made several representations against allotment of plots of land through discretionary quota in Odisha. The representation of Petitioner No. 3 and related documents are annexed herewith as Annexure P-21 (Colly) to P- 29 (Colly). However, no concrete action has been taken on the representations. No representation has been made by Petitioners regarding allotment of plots of land to Hon’ble Judges in Gujarat.
2. THE PETITIONERS
a) That the petitioner No. 1 is a registered society formed for the purpose of taking up causes of grave public interest and conducting public interest litigation in an organized manner. Its founder President was the late Shri V.M. Tarkunde and founder members consisted of several senior advocates including Shri Fali S. Nariman, Shri Shanti Bhushan, Shri Anil Divan, Shri Rajinder Sachar, Shri Colin Gonsalves among others. Ms. Kamini Jaiswal is the General Secretary of the petitioner and is authorized to institute petitions on behalf of the petitioner. The requisite certificate and authority letter is filed with the Vakalatnama. The petitioner No. 1 has filed several notable PILs in the past in the Hon’ble Supreme Court and in the High Court of Delhi.
b) Petitioner No. 2 is a registered society (No. S/11017). It was founded in 1980 by late Shri H. D. Shourie for the express purpose of ventilating the common problems of the people and securing their resolution. It has brought before this Hon’ble Court various Constitutional and other important issues and has established its reputation as a bona fide public interest organization fighting for an accountable, transparent and corruption-free system. Mr. Kamal Kant Jaswal, Director of Common Cause and a former Secretary to the Government of India, is authorized to file this PIL. The requisite Certificate & Authority Letter are filed along with the vakalatnama.
c) Petitioner No. 3 is a public spirited citizen of India residing in Cuttack, Odisha. She is a housewife and an RTI activist. She has filed several PILs in Orissa High Court, Cuttack on issues of public importance. Since 2011-12, she has obtained crucial information relating to the subject matter of the present PIL through RTI applications. She has made several representations in relation to the allocation of plots of land through discretionary quota by the Bhubaneswar Development Authority and the Cuttack Development Authority (Respondents No. 2 and 3 herein).
THE CASE IN BRIEF
3. The Orissa Development Authority Act, 1982 (Act 14 of 1982) was enacted to provide for the development of urban and rural areas in the State of Orissa according to plan, and for matters ancillary thereto. It came into force in different areas of the State of Orissa by notification of the State Government. The Act, under section 3(1), empowers the State Government to declare the area under notification as Development Area for proper development of such areas. Under Section 3(3) of the Act the State Government is empowered to constitute a body corporate by the name of the development area. According to Section 5 of the Act, the Chairman, Vice Chairman and members of the Development Authority are appointed by the State Government and they hold office during the pleasure of the State Government. Section 7 of the Act provides that the object of the Authority shall be to promote and secure the development of the Development Area according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property. The Authority undertakes development in any area under its jurisdiction by framing and executing development schemes. Under section 21(3) (k) of the Act, the Development Scheme provides for undertaking housing schemes for different income groups, commercial areas, industrial estates and similar type of development. Similarly, town planning schemes are prepared by the Authority. Under section 72 of the Act, the State Government may acquire any land for the development purpose under the provisions of Land Acquisition Act, 1894. The land so acquired is transferred to the Authority or Local Authority for the purpose for which the land has been acquired.
4. In exercise of the powers conferred by Section 123 of the Orissa Development Act, 1982 the State Government framed the Orissa Development Authorities Rules, 1983. Rule 52 provides for the disposal of property by Development Authority. Rule 53 states, “Nothing in these rules shall be construed as enabling the Authority to dispose of land by way of gift, mortgage or charge”. Rule 54 provides for lease or disposal of property at a value not below the market value of the property. It reads, “If any property belonging to the Authority is let out or disposed under Rules 52 and 53, it shall not be at a value below the letting value or the market value of the property, as the case may be, such value being fixed by the Authority.”
A true copy of the relevant portion (Management and Disposal of Lands and Properties) of Orissa Development Authorities Rules, 1983 is annexed herewith as Annexure P/1 (Pages_________)
5. The Bhubaneswar Development Authority (hereinafter referred to as BDA) and the Cuttack Development Authority (hereinafter referred to as CDA) were established by the Government of Orissa in the year 1983 under the Orissa Development Authorities Act, 1982, w.e.f. 01.09.1983.
6. Despite there being no legal provision either under the Orissa Development Authority Act, 1982 or under the Rules of 1983, made thereunder, it appears from the various RTI replies supplied to Petitioner No. 3 that the BDA and CDA had been allotting plots of land under the discretionary quota of the Chairman of BDA and CDA till 2011. The Chairman of these Development Authorities had been the Minister of Urban Development, Government of Odisha. The RTI replies also reveal that no public notice or advertisement regarding allotment under the Discretionary quota (D/Q) of the BDA and CDA was ever issued. Moreover, there was no procedure or guidelines for allocation of plots under the D/Q (Discretionary Quota).
True copies of the RTI application of Petitioner No. 3 dated 09.11.2011 seeking a copy of the guidelines followed in allotments under the Minister’s Quota and the eligibility criteria for allotment under D/Q, and the reply of BDA dated 25.11.2011 stating that no such guidelines were available, are annexed herewith as Annexure P/2 (Colly) (Pages__________).
The Orissa State Housing Board office order dated 20.12.2007 stated that the Govt. had approved enhancement of discretionary quota of Chairman, Orissa State Housing Board from 5% to 10%, which was at par with Chairman, BDA. This information was supplied to Petitioner No.3 in response to her RTI application dated 17.01.2012. A copy of Orissa State Housing Board office order dated 20.12.2007 is annexed herewith as Annexure P/3(Pages_______).
A true copy of RTI reply of BDA dated 13.02.2012, wherein it has been stated that allotment under D/Q was being considered as per terms and condition of brochure and there was no provision to publish any press note/advertisement for public awareness regarding the allotment under D/Q of the Authority, is annexed herewith as Annexure P/4 (Pages___________).
A true copy of RTI reply of CDA dated 30.3.2012, giving a list of 38 persons (including Judges, IAS and IPS officers) who were allotted plots in Bidanasi Project Area during 1990 to 2011 by CDA, is annexed herewith as Annexure P5 (Pages________). The reply also states that there is no guideline or eligibility norm for allotment of plots under D.Q. of the Chairman, CDA.
True copies of RTI reply dated 21.03.2012 of Odisha State Housing Board in response to RTI application of Petitioner No. 3 dated 16.01.2012, RTI reply dated 18.04.2012 and Reply dated 05.05.2012 stating that no press note/ advertisement has been published for applicants under the discretionary quota by Govt., are annexed herewith as Annexure P/6 (Colly) (Pages__________).
True copy alongwith true typed copy of RTI reply of BDA dated 05.06.2012 wherein a list of IAS, IPS, Judges/ Judicial Officers, MLAs/ MPs (23 plus 5 persons) who were allotted plots in Baramunda Housing Scheme, Kalinga Nagar Plotted Development Scheme (HIG category), Kalinga Vihar Housing Scheme and in Prachi Enclave Plotted Development Scheme from the discretionary quota by BDA is annexed herewith as Annexure P/7 (Pages__________).
7. The Petitioners submit that while IAS and IPS officers were readily allotted plots under the so called discretionary quota of the Minister, the Government found it difficult to allot land or provide houses to the next of kin of the police personnel who died while discharging their duties in anti-Naxalite operations. A letter dated 25.02.2012 of AIG Police (Provisioning), Odisha Police State Headquarter Cuttack, states that 108 Police Personnel had died in these operations from 2001 to 2012. The letter further states that the provision of homestead land was a time-consuming process and that action was under process for provision of the same to the next of kin of the martyrs as early as possible. A copy of the letter dated 25.02.2012 of AIG Police, Odisha Police Head Quarters is annexed herewith as Annexure P/8 (Pages__________). A copy of the letter dated 24.03.2012 written to Petitioner No. 3 by Deputy Secretary to Government of Odisha, wherein it is stated that there was no ‘Discretionary Quota’ for allotment of Govt. land to landless Jawans, Ex- Servicemen and Defense Personnel and to the next of kin of the State Police personnel killled in anti-naxalite operations, is annexed herewith as Annexure P/9 (Pages__________).
8. Through information received under RTI, it has come to light that several IAS, IPS officers including Hon’ble Judges of High Court of Orissa had requested the Cuttack Development Authority (CDA)/ Minister, Urban Development, Odisha, on their letter heads for allotment of plots of land under the discretionary quota. Most of these letters bear official notings for allotment.
True copies of request letters written to Chairman, CDA by high ranking officials including Hon’ble Judges are annexed herewith as Annexure P/10 (Colly).
True copy of RTI reply of BDA dated 02.08.2012, annexing request letters of several IAS, IPS officials which became basis for allotment of plots, are annexed herewith as Annexure P/11 (colly) (Pages__________).
9. Documents disclose that one of the Ministers got a plot allotted to himself in 2009 in Pokharipur (Ananta Vihar) Housing Scheme on his request dated 04.08.2009, although his wife had already been allotted a similar plot in 2007 in Subudhipur (Kalinga Vihar) Housing Scheme.
A copy of letter dated 24.08.2009 written by the then Minister is annexed herewith as Annexure P/12(Pages_________).
10. The Petitioners submit that the above list of request letters for allotment of land written by Judges, IAS/ IPS officers, MLA, Ministers etc., is not exhaustive. Several other requests were made by high ranking public servants and politicians seeking allotment of plots under D/Q.
True copies of letter dated 16.09.2000 by wife of a BJD Minister and letter dated 27.06.2000 by Chief of News Bureau of Indian Expresss, are annexed as Annexure P/13 (Colly) (Pages __________).
True copies of request letters of allotment of 3 persons hailing from different areas and bearing the same date of 24.07.2000 are annexed herewith as Annexure P/14 Colly (Pages________). These letters lead to the inference that middlemen, who were aware of the availability of vacant land, had drafted the request letters for all the three applicants
True copy of a request letter dated nil with file noting dated 31.01.08 submitted by a fresh law graduate, who was allotted land, is annexed herewith as Annexure P/15 (Pages_________).
11. The Petitioners further submit that in most of the request letters the applicants state that they are in the knowledge of allocation of land by BDA and CDA through discretionary quota, although no advertisement/public notice was ever published to bring this fact to the notice of the general public. The Petitioners submit that such an exercise of untrammeled discretion is fraught with the possibility of corruption. It is further submitted that Shri Kanak Vardhan Singh Deo, who had been Minister of Urban Development for most of the period under reference, is facing criminal cases under various sections of IPC such as GR case No. 758 of 2007, Balangir PS case No. 288 of 2007 u/s 147/148/323/294/506/341/149 of IPC. True copy of affidavit dated 28.03.2009 filed by Shri Kanak Vardhan Singh Deo along with his nomination paper before the Returning Officer for election to the Legislative Assembly of Orissa are annexed herewith as Annexure P/16 (Pages________).
12. The proceedings of the Allotment Committee Meeting held on 09.10.2006 by CDA indicate that prices of the allotted plots were fixed in an arbitrary manner and that they were much below the market value. A true copy of RTI reply of CDA dated 21.08.2013, enclosing a list of 35 IAS/IPS officers and Judges, who were allotted land under discretionary quota during 1990-2011 and the proceedings of allotment committee meeting held on 09.10.2006, is annexed herewith as Annexure P/17 (Colly) (Pages_________).
13. The petitioners are given to understand that an advocate practicing in the Cuttack High Court had filed Writ Petition (C) No. 26393 of 2011 in the Orissa High Court at Cuttack seeking CBI enquiry as to i) whether the eligibility of the beneficiaries was verified before making allotments under the Discretionary Quota, ii) whether individual statements of beneficiaries were recorded to substantiate the need for an allotment from the Chairman’s Discretionary Quota, and iii) whether the allottees of the plots in question were required to be exempted from the rules applicable to the general public. The High Court by its judgment dated 24.11.2011 dismissed the writ petition, inter alia, on the ground , that there was no bona fide intention on the part of the Petitioner to espouse the public cause in the purported PIL. The High Court held,
“36. The aforesaid subsequent events and the conduct of the petitioner in filing the Misc. Cases would clearly go to show that the PIL is not filed with a bona fide intention to prevent any public injury or protect public interest. Therefore, the legal principles laid down by the Apex Court in catena of decisions referred to in the case of State of Uttaranchal v. Balwant Singh Chaufal referred to supra in all force are applicable to the fact situation of the case at hand and compel us to record a finding that absolutely there are no bonafides on the part of the petitioner to espouse the public cause in this purported PIL as claimed by the petitioner in this writ petition.”
A copy of order dated 08.12.2011 in W.P. (C) No. No. 26393 of 2011 passed by Orissa High Court at Cuttack is annexed herewith as Annexure P/18 (Pages________)
A copy of recent RTI reply dated 15.10.2013 provided by CDA enclosing request letters dated 26.09.2007 and 08.01.08 is annexed herewith as Annexure P/19 (Pages_______). The information was supplied in response to the RTI application of Petitioner No. 3 dated 04.09.2013.
14. CAG report – Report of Comptroller and Accountant General on General and Social Sector- Vol-2 (Report No. 4- Government of Odisha- Report for the year ending 31st March2012) gives details of arbitrariness and discrimination in land allotment by Government of Odisha. Chapter 2 of the said report contains the findings of Performance Audit on Allotment of Government land by General Administration (GA) department in Bhubaneswar city for various purposes. Para 2.1.10 of the Report, which deals with the policy and procedure governing the allotment of land, states as under;
“During 2000-12, GA department allotted 464.479 acres of land. Despite such a huge volume of land being allotted during the period, there was no policy or procedure framed by the Government for allotment of Government land in Bhubaneswar.”
“In absence of any rules framed under the Government Grants Act, 1895 (GG Act) and lack of stated criteria to guide the discretion of the State, the process of allotment of land was prone to arbitrariness and lack of transparency.”
The Report observes in Para 126.96.36.199, “… Basic data such as allotment of land through alienation/ lease indicating serial numbers of application, date of application, name and address of lessee, area leased, purpose, terms and conditions of allotment, amount of premium charged and paid and land use status, as necessary under Orissa OGLS (Government Land Settlement Act, 1962) Rules 1983 (Rule 5) were not available in the GA department.” The Report states in Para 188.8.131.52 that plots in urban area were to be divided into five categories under rule 3 of OGLS Rules, 1983 ; i) land reserved for poor people; ii) land reserved for middle class people; iii) land required for future requirement for Government and other public purposes; iv) land to be settled by public auction, and v) land to be reserved for setting up small and medium scale industries. The Report further states, “ As the department did not categorize the Government land available at different locations under Bhubaneswar Municipal Corporation (BMC), no land was reserved for the urban poor, thereby, depriving them of the opportunity to settle in the capital city though their presence was essential for the general interest of the public and business, trade or profession or any other legitimate reasons directly connected with their livelihood. In absence of earmarked area for urban poor, the possibilities of encroachment of Government land and development of slum in capital cannot be ruled out. The BMC identified (August 2009) 377 slums developed under BMC area with a population of 3.07 lakh.”
The CAG found that in respect of 154.473 acres of land out of the 424.200 acres allotted, allotments were made on suo motu applications. As the applicants did not belong to any of the categories i), ii), iii) and v) mentioned above, these lands should have been put to auction (category iv), which was not done.
Audit scrutiny revealed that although the premium was to be revised every three years, the GA department had not revised the rate of lease premium of Government land under BMC area for a period of 11 years from May 1998 to December 2009.
A true copy of relevant chapter 2 of CAG Report 4 of 2013 (Government of Odisha) is annexed herewith as Annexure P/20 (Pages____________)
15. The Petitioner No. 3 made several representations to various authorities, including State and Central Governments, regarding the rampant corruption in the allotment of plots under the discretionary quota. The Department of Personnel and Training forwarded the grievance petition dated 25.05.2012 to the CBI for appropriate action. A copy of the letter dated 27.11.2012 addressed by Under Secretary, Department of Personnel and Training, to the Director, CBI is annexed herewith as Annexure P/21(Pages_________). The Petitioner No. 3 made a representations dated 28.03.2012 and dated 30.03.2012 to the Chief Minister of Odisha, requesting for an inquiry into the allotment of land to IAS/IPS officers and Judges under the Minister’s discretionary quota between 1990-2011 without following any guidelines, as revealed by RTI replies of CDA and BDA and for appropriate step to preserve the independence of the judiciary. A copy of the representations dated 28.03.2012 and 30.03.2012 is annexed herewith as Annexure P/22 Colly (Pages__________). A copy of representation of Petitioner No. 3 dated 07.05.12 to Chief Minister Odisha and to the Prime Minister complaining against the DQ allotment to S.P. Vigilance, Lokayukta Judge etc. is annexed herewith as Annexure P/23 (Pages____________). A copy of complaint of Petitioner No. 3 dated 27.09.2012 to the Prime Minister of India and to the Vice President of India, complaining against the DQ allotment to DGP of Odisha Police, whose name was proposed for the post of Director, CBI, is annexed herewith as Annexure P/24 (Pages __________). The Vice President’s office forwarded the representation of Petitioner No. 3 to the DOPT for necessary action by letter dated 05.10.2012 which is annexed herewith as Annexure P/25 (Pages_________). The Petitioner No. 3 made several other representations to the Vice President of India complaining against the discretionary allotment of plots of land to IAS and IPS officers and the corruption involved in such allotment; all these representations were forwarded to the Chief Secretary, Government of Odisha. True copies of letters dated 28.06.2012, 17.07.2012, 01.08.2012, 13.08.2012 and 14.08.2012 are annexed herewith as Annexure P/26 (Colly) (Pages___________). True copies of a letter forwarded from the office of Governor, Odisha to the Commissioner- cum Secretary to Government, Department of Housing & UD annexing a representation of Petitioner No. 3 is annexed herewith as Annexure P/27 (Pages___________). True copies of letters dated 25.06.2012 and 27.06.2012 from the Prime Minister’s office to the Chief Secretary, Govt of Orissa forwarding complaints of Petitioner No. 3 is annexed as Annexure P/28 (Pages____________).
16. The Petitioners submit that the Petitioner No. 3 has been diligently making representations to various authorities since she started receiving reliable information through RTI, for action against the arbitrary and discriminatory allocation of plots of land. However, no action was taken on the aforesaid representations made by the Petitioner No. 3 against misuse of official position by IAS, IPS officials and loss caused to the public exchequer through the discretionary allotment of plots of land. It is further submitted that the BDA has recently amended its procedure for allotment of assets in 2012. Chapter 8 of the Procedure book states, “Allotment under discretionary quota of the Authority has been abolished vide Government’s Housing and UD department letter dated 20.12.2011. Henceforth, there will be no provision for allotment of assets under discretionary quota of assets.”
14. Arbitrary allotment of plots of land to MPs, MLAs and IAS, IPS officers at Gandhinagar has been the subject matter of adjudication in the High Court of Gujarat in a suo motu proceeding (SCA No. 13550/2000). The High Court had passed interim orders dated 03.04.2001, 11.04.2001 and 26.04.2001 restraining the Government of Gujarat from further allotment of plots at Gandhinagar to Government servants and MLAs/MPs. The State of Gujarat filed SLP No. 8726-8728/2001 challenging the interim orders of stay of allotment of plots of lands passed in the suo motu case. This Hon’ble Court stayed the interim orders passed by the High Court and granted leave in the SLPs. The matter was finally disposed of by order dated 06.12.2007 passed by this Hon’ble Court in Civil appeal No. 7915-7917 of 2001 arising out of the said SLP filed by the Respondents. This Court remanded the matter back to the High Court of Gujarat for final disposal and requested expeditious adjudication of the suo motu case by its order dated 06.12.2007. A copy of the order dated 06.12.2007 passed by this Hon’ble Court in Civil appeal No. 7915-7917 of 2001 is annexed herewith as Annexure P/ 29(Pages_________).
15. It appears that after this Hon’ble Court’s order dated 06.12.2007 for expeditious disposal of the suo motu proceedings, the Government of Gujarat passed a Resolution dated 06.11.2008 for allotment of plots of land at concessional rates to the serving Chief Justice/ Judges of the High Court of Gujarat and to the Hon’ble Judges of the Supreme Court of India elevated from the High Court of Gujarat. The resolution stated that demands for allotment of land in Ahmedabad had been made by sitting Judges of the Gujarat High Court and former Judges of the High Court who had been elevated to the Supreme Court. A true translated copy of the Resolution of Govt. of Gujarat dated 06.11.2008 is annexed herewith as Annexure P/30 (Pages_________).
16. Pursuant to the resolution dated 06.11.2008 the Government of Gujarat by order dated 11.09.2009 allotted 25,538 sq. mtrs of land to the sitting Judges of High Court and to the sitting judges of Supreme Court elevated from the High Court of Gujarat, as per the condition of the resolution dated 06.11.2008. A copy of the order dated 11.09.2009 passed by Government of Gujarat, Revenue Department is annexed herewith as Annexure P/31 (Pages_________).
17. The District Collector of Ahmedabad by order dated 06.01.2010 ordered allotment of plot of lands to 23 individual judges named in the order. The order states that the land was resolved to be allotted as per the Government resolution dated 06/11/08 and as per the meetings of the Judges held on 26/08/09 and 27/08/09 with a view to ensuring that the entire land was allotted at the same place. The order details the procedure followed in the allotment process and the conditions of allotment. By this order, the Collector gave directions for entering the order of allotment of plots in the village records. A true copy of order dated 06.01.2010 passed by District Collector, Ahmedabad, is annexed herewith as Annexure P/32 (Pages__________).
18. Another PIL (Writ Petition No. 5 of 2010) was filed in the High Court of Gujarat to challenge the allotment of land to MPs and MLAs. The High Court summarily dismissed the PIL on the ground that no public interest was involved in the matter. The Petitioner in the said PIL challenged the order of dismissal in this Hon’ble Court by way of SLP (c) No. 896 of 2012. This SLP is pending adjudication in this Hon’ble Court. This Hon’ble Court on 02.11.2012 while hearing the SLP (c) No. 896 of 2012 was pleased to pass the following order:
“ Having heard learned counsel for the parties at some length, we feel that it would be proper and expedient if the High Court is requested to dispose of the Special Civil Application No. 13550 of 2000 expeditiously.
It is pointed out that the aforesaid application was last listed on 29.11.2010. However, it appears that since 08.04.2008, no effective orders have been passed by the High Court. In that view of the matter, we request the High Court to take up the aforesaid application for final disposal as expeditiously as possible. The High Court would be free to pass any order or issue such directions as may be considered necessary for adjudication of the subject issue.
We, however, direct that till the High Court disposes of the Suo Motu action, no further allotments or permission to transfer the plots already allotted under the Government Resolutions in question, would be granted without the leave of the High Court. It may be noted that according to learned counsel appearing for the respondent, the State Government has not made any afresh allotments after the year 2000 and as a matter of fact, the entire policy for such allotments is being re-examined.
Call for directions after six months.”
A copy of order dated 02.11.2012 passed by this Hon’ble Court in SLP (c) No. 896 of 2012 is annexed herewith as Annexure P/33 (Pages___________).
19. The Petitioners submit that the SCA 13550 of 2000 (Suo Motu case) is still pending in the High Court. Four Hon’ble Judges of the High Court have recused themselves from hearing the SCA so far. True copies of orders dated 26.02.2013, 12.03.2013, 01.04.2013 and 05.04.2013 passed by the Hon’ble High Court of Gujarat and latest status report as on 05.12.2013 of SCA 13550 of 2000 are annexed herewith as Annexure P/34 (Colly).
20. The Petitioners submit that arbitrary and discriminatory allocation of government land to persons in authority and their relatives is a common phenomenon in other States as well. Such non transparent and discriminatory alienation of a finite and scarce national resource in almost every State in favour of the members of the executive, the judiciary and the legislatures is a flagrant violation of public trust. Some of the governments also allot land to appease influential media persons. Thus, all the four pillars of democracy are being compromised by bestowing State largesse in the form of plots of land in premium urban localities, putting in jeopardy the larger public good and the rule of law.
i) That the allotment of land through Discretionary Quota in the absence of statutory regulations or guidelines based on the doctrine of equality is an unconstitutional, illegal, and arbitrary exercise of discretionary power by the State Government of Odisha and/ or the Chairman of BDA and CDA. Such allotments are liable to be quashed as they are violative of Article 14 of Constitution. .
In Common Cause, A Registered Society v. Union of India (1996) 6 SCC 530, a two Judge Bench of this Hon’ble Court considered the legality of the discretionary powers exercised by the then Minister of State for Petroleum and Natural Gas in the matter of allotment of petrol pumps and gas agencies. While declaring that allotments made by the Minister were wholly arbitrary, nepotistic and motivated by extraneous considerations the Court said:
“ 22. The Government today – in a welfare State – provides large number of benefits to the citizens. It distributes wealth in the form of allotment of plots, houses, petrol pumps, gas agencies, mineral leases, contracts, quotas and licenses etc. Government distributes largesses in various forms. A Minister who is the executive head of the department concerned distributes these benefits and largesses. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the people’s property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people.”
“24. … While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category.”
ii) That the allotment of plots of land at concessional rates or without auction to the privileged sections of society, such as IAS and IPS officers, Judges, MPs, and MLAs, is inconsistent with Article 38 (2) [to minimize the inequalities of income] and Article 39 (b) [material resources of the community are so distributed to subserve the common good] of the Directive Principles of State Policy enshrined in the Constitution and hence, such a distribution of State largesse is unreasonable and violative of Public Trust. In Kasturi Lal Lakshmi Reddy v. State of J And K (1980) 4 SCC 1, Bhagwati J. speaking for the Court observed:
“12 … The Directive Principles concretise and give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21 and other Articles enumerating the fundamental rights. By defining the national aims and the constitutional goals, they setforth the standards or norms of reasonableness which must guide and animate governmental action. Any action taken by the Government with a view to giving effect to any one or more of the Directive Principles would ordinarily, subject to any constitutional or legal inhibitions or other over-riding considerations, qualify for being regarded as reasonable, while an action which is inconsistent with or runs counter to a Directive Principle would incur the reproach of being unreasonable.
14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest.”
In Shri Sachidanand Pandey and Anr. Vs. The State of West Bengal and Ors. (1987)2 SCC 295, this Court has held,
“40. On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established. State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.”
iii) That the allotment of plots of land by State Governments to Judges, MPs, MLAs, IAS and IPS officers, journalists, even within the framework of a policy, is unconstitutional and violative of public trust, as it fails to satisfy the test of reasonableness and therefore, the same is liable to be quashed. In Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and Ors. (2011)5 SCC 29 this Hon’ble Court has held,
“31. What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a nondiscriminatory or non-arbitrary method irrespective of the class or category of persons proposed to be benefitted by the policy. The distribution of largesse like allotment of land, grant of quota, permit license etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
32. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organizations or institutions de hors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organizations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
33. This, however, does not mean that the State can never allot land to the institutions/organizations engaged in educational, cultural, social or philanthropic activities or are rendering service to the Society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions/organizations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organizations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution.
In Shrilekha Vidyarthi v. State of U.P. : (1991) 1 SCC 212, the Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed:
“It can no longer be doubted at this point of time that Article of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See Ramana Dayaram Shetty v. The International Airport Authority of India (1979) 3 SCR 1014 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 3 SCR 1338 In Col. A.S. Sangwan v. Union of India (1980 (Supp) SCC 559)”
iv) That every State organ is a repository of public trust. However, the function of judiciary is distinctly different in the sense that its function approaches the divine. This Court has held, “Because of the power he wields, a Judge is being judged stricter than others”. It is submitted that the discriminatory distribution of state largesse in the form of plots of land to Judges creates an adverse public perception about the independence of the judiciary. This is bound to have a serious implication for the rule of law. In Tarak Singh and Anr.Vs.Jyoti Basu and Ors. (2005)1SCC201, this Hon’ble Court has held,
“22. Again, like any other organ of the State, judiciary is also manned by human beings – but the function of judiciary is distinctly different from other organs of the State – in the sense its function is divine. Today, judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors failed people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields, a Judge is being judged with more stricter than others. Integrity is the hall-mark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that temple of justice do not crack from inside, which will lead to catastrophe in the justice delivery system resulting in the failure of Public Confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside.
23. Since the issue involves in the present controversy will have far reaching impact on the quality of judiciary, we are tempted to put it on record which we thought it to be a good guidance to achieve the purity of Administration of Justice. Every human being has his own ambition in life. To have an ambition is virtue. Generally speaking, it is a cherished desire to achieve something in life. There is nothing wrong in a Judge to have ambition to achieve something, but if the ambition to achieve is likely to cause compromise with his divine judicial duty, better not to pursue it. Because if a judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be tendency to compromise between his divine duty and his personal interest. There will be conflict in between interest and duty.”
v) That the unreasonable distribution of State largesse to high ranking officials of the executive, the judiciary and the legislatures adversely affects the concepts of rule of law and separation of powers, which concepts are part of the basic structure of our Constitution. All the organs of the State viz., executive, legislatures and judiciary, are repository of public trust. The legislatures and the judiciary are duty bound to check and balance the functions of the executive. When they become the beneficiaries of illegal distribution of state largesse, there is a reasonable apprehension of collusion among the three organs in the public mind. By becoming the beneficiaries of illegal gratification by the executive, they compromise their capacity to check the unlawful action of the executive.
vi) That the discretionary allocation of plots of land by BDA and CDA and the allotment of land by the State of Gujarat to undeserving persons at concessional rate has caused a huge loss to the public exchequer. In several cases, the land allotted is transferred/ sold by the allottees for private gain at the cost of public exchequer. Such allotments also cast an undue economic burden on the original land owners, who are deprived of their livelihood when their lands are acquired in the name of public purpose, but are ultimately distributed to a select group of persons for private gain.
vii) That the allotment of land through discretionary quota to IAS and IPS officers on the basis of requests made by such officers is in violation of the conduct rules of their services. This also amounts to an abuse of official position punishable under the Prevention of Corruption Act. A thorough Court-monitored inquiry by the CBI or by a Committee appointed by this Hon’ble Court is warranted to establish the wrong doing on the part of the Minister(s) and Govt officials so that those found guilty may be prosecuted for abuse of their official position.
viii) That the prevailing lack of probity in high public offices seriously impairs the right of the people of this country to live in a corruption free society governed by the rule of law. This is a violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society which is free from crime and corruption.
ix) That the distribution of State largesse in the form of discretionary allocation of plots of land to Judges, MPs, MLAs, IAS and IPS officers suffers from the vice of arbitrariness, because there is no rational nexus between the class differential and the object sought to be achieved through such classification. Any advantage to the class of highly placed public servants, except in terms of their service conditions, has no rational nexus with the object sought to be achieved by such classification. That the distribution of State largesse in the present matter is being done beyond the scope of the terms and conditions of service of the beneficiary public servants.
x) That a token distribution of State largesse in favour of the weaker or deserving sections of society cannot compensate for the enrichment of highly placed beneficiaries, because the clubbing of deserving persons with the affluent sections would amount to treating unequals as equals.
15. The Petitioners have not filed any other writ, complaint, suit or claim regarding the matter of dispute in this Hon’ble court or in any other court or tribunal throughout the territory of India.
16. That the Petitioners have no other alternative efficacious remedy available except to approach this Hon’ble Court.
In view of the facts and circumstances stated above, it is most respectfully prayed that this Hon’ble Court may in public interest be pleased to: –
a. Appoint a committee functioning under direct supervision of this Hon’ble Court to scrutinize all the cases of discretionary allotments after hearing parties and based upon this committee’s report issue an appropriate writ and/or direction in the nature of mandamus quashing/ cancelling all the allotments of Government lands by State of Odisha and /or BDA and CDA under discretionary quota;
b. Issue an appropriate writ to direct a thorough investigation by CBI into the abuse of official position by public servants and Minister(s) of State of Odisha in the entire allotment of plots of land through discretionary quota of Minister of Housing & Urban development, Government of Odisha or through the Discretionary quota of Chairman BDA and Chairman CDA; and
c. Issue appropriate writ quashing/ cancelling allotment of plots of land by order dated 11.09.2009 issued by Government of Gujarat, Revenue Department pursuant to resolution dated 06.11.2008 for allotment of plots of land at concessional rates; and
d. Issue appropriate writ and/ or direction directing the State of Odisha and State of Gujarat to recover the windfall gains that may have accrued through sale/ transfer of plots allotted through discretionary quota in Odisha and through sale/ transfer of plots allotted pursuant to resolution dated 06.11.2008 of the State of Gujarat; and
e. Issue or pass any writ, direction or order, which this Hon’ble court may deem fit and proper in the facts of the case and in the interest of probity and rule of law.
(COUNSEL FOR THE PETITIONERS)
Drawn By: Ramesh K Mishra, Adv.
Drawn On: 5th December 2013
Filed On: December 2013