Time to do away with discretionary quota and opt for auction of public properties, plots: SC

The Supreme Court made the observation while setting aside an order of the Orissa High Court closing a criminal case against three government employees accused of conspiring in allotting 10 commercial plots to their family members and relatives in Bhubaneswar.

In a significant verdict, the top court said many a time the guidelines on fair and transparent allotment are hardly followed and ''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.'' A bench comprising Justices M R Shah and B V Nagarathna also said that quashing of a criminal case by high courts should be ''an exception rather than any ordinary rule” and expressed its unhappiness over passing of such orders without much due diligence.

It was critical of the courts for quashing the criminal cases without due diligence and said closing of a complaint or an FIR should be “an exception rather than any ordinary rule” and the courts in exercise of such a wide power should be more cautious as they are not required to go into the merits of the allegations at initial stages.

The bench allowed the appeal of the state government against the quashing of criminal proceedings against the three accused who were working with the Bhubaneswar Development Authority (BDA) -- Pratima Mohanty, S Prakash Chandra Patra and Rajendra Kumar Samal -- in the 2005 case. The then state minister Samer Dey is also facing trial in the matter.

It held that the allegations against the accused are very serious, including hatching a criminal conspiracy in allotment of 10 plots in the discretionary quota arbitrarily and to their own family members or relatives.

There are specific allegations with respect to a huge loss caused to the BDA as, according to the prosecution, the plots were allotted at throwaway prices and all these aspects are required to be considered at the stage of trial, it said, adding that wrongful losses to the tune of Rs 30.27 lakh and Rs 71.57 lakh have been caused to the state exchequer.

''Before parting, we may observe that now 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. Government and/or the public authorities like BDA are the custodian of public properties,” Justice Shah, writing the judgment for the bench, said.

Allotment of public properties must be transparent and has to be fair and non-arbitrary and in such matters public interest only has to be the prime guiding consideration, it said, adding that idea is to get “the best or maximum price so that it may serve the public purpose” so as to avoid loss to the exchequer.

“The allotment of plots in the discretionary quota cannot be at the whims of the persons in power and/or the public servants who are dealing with the allotment of plots in the discretionary quota. 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 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,” it said.

Referring to the power under the CrPC on setting aside of criminal proceedings, the verdict said it is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases.

''As per settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint,” the 25-page judgment read.

Referring to judgments, it said the power to quash a criminal case is very wide and hence, such an authority requires the courts to be more cautious and it casts an “onerous and more diligent duty” on them.

''Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 CrPC when after a thorough investigation the chargesheet has been filed. At the stage of discharge and/or considering the application under Section 482 CrPC, the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducting the mini-trial,” it said.

The verdict came on an appeal of the state government against the judgment of the high court which had quashed the criminal proceedings against the three accused.