STATE OF ODISHA versus PRATIMA MOHANTY ETC. on 11 December 2021

[2021] 9 S.C.R. 335

STATE OF ODISHA

v.

PRATIMA MOHANTY ETC.

(Criminal Appeal Nos. 1455 - 1456 of 2021)

DECEMBER 11, 2021

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973 – s. 482 – An FIR waslodged u/s. 420 r/w.120B IPC and ss.13(2) and 13(1)(d) of thePrevention of Corruption Act, 1988 against the public servantsoccupying crucial positions in Bhubaneswar Development Authority(BDA) and in Housing and Development Department of the State,alleging that they entered into a criminal conspiracy, abusing theirofficial position distributed prime plots among themselves and theirrelatives at minimal rates – Five Accused persons approached HighCourt u/s.482 Cr.P.C. to quash the criminal proceedings – The HighCourt partly allowed the applications and quashed the criminalproceedings against original accused Nos.3,4 and 5 mainly on theground that the said accused have not dealt with the allotment filein any manner and there is no material that any of these accusedhad influenced any co-accused or any officer of BDA or H&UD.Deptt. for getting the plots illegally – On appeal, held: The HighCourt has entered into the merits of the allegations and hasconducted the mini-trial by weighing the evidence in detail which,as such, as observed and held by the Supreme Court in its variousdecisions is wholly impermissible – Looking to the allegations inthe present case against the respondents-accused and consideringthe fact that charge-sheet was filed by the Vigilance Cell after athorough investigation, it cannot be said that the case falls withinany of the exceptions as carved out by this Court in the case ofBhajan Lal – The allegations against the respondents-accused arevery of serious nature, as there are specific allegations with respectto huge loss caused to the BDA and the public exchequer, asaccording to the prosecution the plots were allotted at throw awayprices – All these aspects are required to be considered at the stageof trial and not while considering the application u/s.482 Cr.P.C. –Thus, the impugned judgment and order passed by the High Court

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Aquashing the criminal proceedings against the respondent-accusedno.3,4 and 5 is quashed and set aside.

Code of Criminal Procedure, 1973 – s. 482 – Quashing under– Held: The power of quashing should be exercised sparingly andwith circumspection and in rare cases – As per settled propositionBof law while examining an FIR/complaint quashing of which issought, the court cannot embark upon any enquiry as to thereliability or genuineness of allegations made in the FIR/complaint– Quashing of a complaint/FIR should be an exception rather thanany ordinary rule – Normally, the criminal proceedings should notbe quashed in exercise of powers u/s. 482 Cr.P.C. when after aCthorough investigation the charge-sheet has been filed.

Public Property – Allotment of plots – Held: Government and/or the public authorities like B.D.A. are the custodian of publicproperties – Allotment of public properties must be transparent andhas to be fair and non-arbitrary – In such matters, public interestDonly has to be the prime guiding consideration – In order to get thebest or maximum price so that it may serve the public purpose andpublic interest so as to avoid loss to the authority and/or the publicexchequer – The allotment of plots in the discretionary quota cannotbe at the whims of the persons in power and/or the public servantsEwho are dealing with the allotment of plots in the discretionary quota.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. At the outset, it is required to be noted that bythe impugned judgment and order the High Court in exercise ofits powers under Section 482 Cr.P.C. has quashed the criminalFproceedings for the offences under Section 13(2) read with Section13(1)(d) of the Act and Section 420 read with Section 120B IPC.From the impugned judgment and order passed by the High Court,it appears that the High Court has entered into the merits of theallegations and has conducted the mini-trial by weighing theGevidence in detail which, as such, as observed and held by thisCourt in a catena of decisions is wholly impermissible. As heldby this Court in the case of State of Haryana And Ors. vs Ch.Bhajan Lal And Ors., AIR 1992 SC 604:[1990] 3 Suppl. SCR 259,the powers under Section 482 Cr.P.C. could be exercised eitherto prevent an abuse of process of any court and/or otherwise toH

secure the ends of justice. In the said decision this Court hadcarved out the exceptions to the general rule that normally inexercise of powers under Section 482 Cr.P.C. the criminalproceedings/FIR should not be quashed. [Para 6][343-F-H;344-A-B]

2. Looking to the allegations in the present case againstthe respondents – accused and considering the fact that charge-sheet has been filed by the Vigilance Cell after a thoroughinvestigation, it cannot be said that the case falls within any ofthe exceptions as carved out by this Court in para 102 in thecase of Bhajan Lal (supra). It cannot be said that the criminalproceedings initiated against the respondents – accused are anabuse of process of any court. On the contrary, the allegationsare an instance of abuse of the powers with a mala fide intentionand allotment of the plots to the family members by hatching acriminal conspiracy and to allot the plots to the family membersat throw away price causing loss to the B.D.A. and the publicexchequer. [Para 6.1][345-C-E]

3. It is trite that the power of quashing should be exercisedsparingly and with circumspection and in rare cases. As per settledproposition of law while examining an FIR/complaint quashing ofwhich is sought, the court cannot embark upon any enquiry as tothe reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exceptionrather than any ordinary rule. Normally the criminal proceedingsshould not be quashed in exercise of powers under Section 482Cr.P.C. when after a thorough investigation the charge-sheet hasbeen filed. At the stage of discharge and/or considering theapplication under Section 482 Cr.P.C. the courts are not requiredto go into the merits of the allegations and/or evidence in detailas if conducing the mini-trial. As held by this Court the powersunder Section 482 Cr.P.C. is very wide, but conferment of widepower requires the court to be more cautious. It casts an onerousand more diligent duty on the Court. [Para 6.2][345-E-H]

4. The allegations against the respondents – accused arevery serious including hatching a criminal conspiracy in allotmentof 10 plots in the discretionary quota arbitrarily and to their own A

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Afamily members/relatives. There are specific allegations withrespect to huge loss caused to the B.D.A and the publicexchequer, as according to the prosecution the plots were allottedat throw away prices. All these aspects are required to beconsidered at the stage of trial and not while considering theapplication under Section 482 Cr.P.C. [Para 7][346-G-H]B

5. The High Court has embarked upon an enquiry as to thereliability and genuineness of the evidence collected during theinvestigation as if the High Court was conducting the mini-trial.Therefore, as such the impugned judgment and order passed bythe High Court quashing the criminal proceedings against theCrespondents herein - original accused Nos. 4, 5 and 3 isunsustainable, both, in law and/or facts and the same deserves tobe quashed and set aside. [Para 9][349-F-G]

6. Government and/or the public authorities like B.D.A.are the custodian of public properties. Allotment of publicDproperties must be transparent and has to be fair and non-arbitrary.In such matters public interest only has to be the prime guidingconsideration. The aforesaid principle is in order to get the bestor maximum price so that it may serve the public purpose andpublic interest so as to avoid loss to the authority and/or theEpublic exchequer. The allotment of plots in the discretionary quotacannot be at the whims of the persons in power and/or the publicservants who are dealing with the allotment of plots in thediscretionary quota. When a democratic government in exerciseof its discretion selects the recipients for its largess, thendiscretion should be exercised objectively, rationally, intelligibly,Ffairly and in a non-arbitrary manner and it should not be subjectiveand according to the private opinion and/or the whims andfancies of the persons in power and/or the public servants.[Para 11][350-C-F]

State of Haryana And Ors. v. Ch. Bhajan Lal AndGOrs., AIR 1992 SC 604 : [1990] 3 Suppl. SCR 259 –relied on.

K. Raju v. Bangalore Development Authority decidedby the Karnataka High Court in Writ Petition No.11102 of 2008 – referred to.

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Case Law Reference

[1990] 3 Suppl. SCR 259relied onPara 6

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.1455-1456 of 2021.

From the Judgment and Order dated 04.09.2019 of the High Courtof Orissa in CRLMC No.3177 of 2017 and CRLMC No.4804 of 2015.

Gaurav Khanna, Adv. for the Appellant.

Bhakti Vardhan Singh, Tirth Kumar Sahu, Soumya Ranjan Paikray,Rajesh Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Orissa dated 04.09.2019 passedin Criminal Miscellaneous Application No.3177of 2017 and CriminalMiscellaneous Application No.4804 of 2015 by which the High Courthas allowed the said applications under Section 482 of Cr.P.C. and hasquashed the criminal proceedings against the private respondents herein- original accused Nos. 4, 5 and 3 – Smt. Pratima Mohanty, Shri PrakashChandra Patra and Shri Rajendra Kumar Samal, the State of Odishahas preferred the present appeals.

2. That an FIR was lodged by the Deputy Superintendent of Police,Vigilance, Vigilance Cell Unit Office, Bhubaneswar before theSuperintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswaralleging inter alia that on preliminary enquiry it was found that certainpublic servants occupying crucial positions in Bhubaneswar DevelopmentAuthority (hereinafter referred to as ‘B.D.A.’) and in the Housing andUrban Development Department, Government of Odisha (hereinafterreferred to as, ‘H.&U.D. Deptt.’) surreptitiously distributed prime plotsin Commercial Complex District Centre, Chandrasekharpur,Bhubaneswar. It was alleged that in pursuance of the criminal conspiracyand by abusing their official positions, the officials of the B.D.A. and ofthe H.&U.D. Deptt., Government of Odisha, surreptitiously distributedprime plots. That at the relevant time the original accused No.4 - Smt.Pratima Mohanty was serving as Steno to Vice-Chairman, B.D.A.Original accused No.5 - Shri Prakash Chandra Patra was serving as Jr.

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AAssistant Allotment Section, B.D.A and original accused No.3 - ShriRajender Kumar Samal was the Dealing Assistant, Allotment Section -II, B.D.A. and Personal Assistant to Minister, Housing and UrbanDevelopment (original accused No.6). Apart from the criminal conspiracyraised by all the accused persons it was further alleged that there wasno advertisement in providing opportunity to general public regardingBavailability of B.D.A. plots for sale and their sale prices. It was allegedthat keeping the general public in dark, the public servants in B.D.A.(accused) who had access to such information as insiders, distributedthe prime plots among themselves or their relatives and that too at minimalrates as compared to the prevalent rates in the area and thereby causingCundue pecuniary advantage to the allottees and corresponding loss tothe B.D.A. and the public exchequer without any public interest.

2.1 It was further alleged that the wrongful loss caused to theB.D.A. was to the tune of Rs.30,27,849.80 and Rs.71,57,055.00.Therefore, it was alleged that all the accused persons have committedDthe offences under Section 120B IPC and Section 13(2) read with Section13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referredto as ‘the Act’). The FIR was numbered as PS Case No.31 of 2005.Since all the accused persons were Government servants working inB.D.A., Bhubaneswar, sanction orders for prosecution were obtained.After conclusion of the investigation, the investigating agency filed theEcharge-sheet against all the accused persons along with the then Minister,H.&U.D. Deptt. on the accusation that they had entered into criminalconspiracy and committed criminal misconduct by abusing their officialposition showing undue official favour to their relatives and allowed illegalpecuniary advantage to the allottees in allotting 10 plots. As a result,FB.D.A. sustained huge loss and thereby making the accused liable forthe offences under Section 13(2) read with Section 13(1)(d) of the Actand Section 420 read with Section 120B IPC. Five accused namely ShriBibhuti Bhushan Ray, Shri Parsuram Biswal, Smt. Pratima Mohanty,Shri Rajendra Kumar Samal and Shri Prakash Chandra Patra approachedthe High Court by way of Criminal Miscellaneous Applications Nos.3177Gof 2017 and 4804 of 2015 and prayed to quash the criminal proceedingsagainst them in exercise of powers under Section 482 Cr.P.C.

2.2 By impugned common judgment and order the High Courthas partly allowed the aforesaid applications and has quashed the criminalproceedings against Smt. Pratima Mohanty (original accused No.4), ShriH

Prakash Chandra Patra (original accused No.5) and Shri Rajendra KumarSamal (original accused No.3)mainly on the ground that the said accusedhave not dealt with the allotment file in any manner and there is nomaterial that any of these accused hadinfluenced any co-accused orany officer of B.D.A. or H.&U.D. Deptt. for getting the plots illegally infavour of their family members. It was also further observed that thereis no material on record that these accused acted with a pre-concertmind and they were in criminal conspiracy with the other co-accused toget the vacant plots.

2.3 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court quashing the criminalproceedings against the private respondents herein - original accusedNos.4, 5 and 3 for the offences under Section 13(2) read with Section13(1)(d) of the Act and Section 420 read with Section 120B IPC, theState has preferred the present appeals.

3. Learned Counsel appearing on behalf of the appellant – Statehas vehemently submitted that in the present case the High Court haserred in quashing the criminal proceedings for the offences under Section13(2) read with Section 13(1)(d) of the Act and Section 420 read withSection 120B IPC in exercise of powers under Section 482 Cr.P.C.

3.1 It is submitted that while quashing the criminal proceedingsagainst the respondents – accused the High Court has exceeded itsjurisdiction vested under Section 482 Cr.P.C.

3.2. It is submitted that the High Court has not at all appreciatedand considered the fact that at the stage of considering the applicationunder Section 482 Cr.P.C., the minute details of the case are not requiredto be gone into at all. It is submitted that in the present case it was foundthat the allotment of the 10 plots were made by the accused in connivancewith each other arbitrarily and the plots were allotted to the relatives ofthe accused – public servants. It is submitted that no advertisement wasissued by the B.D.A. inviting the applications from intending purchasers.The accused– officers deliberately concealed the matter from the generalpublic and thus avoided competition. It is submitted that it was foundthat on the undated applications the plots were allotted to the relatives ofthe accusedherein and public servants. It is submitted that therefore, theFirst Information Report was filed by the Vigilance Cell against theaccused for the aforesaid offences. It is submitted thatafter a thorough A

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Ainvestigation a charge-sheet has been filed before the learned SpecialJudge (Vigilance), Bhubaneswar. It is submitted that having found primafacie case and being satisfied that a case for the offences under Section13(2) read with Section 13(1)(d) of the Act and Section 420 read withSection 120B IPC was made out, the learned Special Judge (Vigilance),Bhubaneswar has taken cognizance. It is submitted thereforethe HighBCourt ought not to have exercisedthe powers under Section 482 Cr.P.C.and not ought to have quashed the criminal proceedings.

3.3 It is submitted that as such the High Court quashed the criminalproceedings by scrutinising the FIR/material on record in detail as if theHigh Court was conducting a mini trial which is not permissible at theCstage of exercising the powers under Section 482 Cr.P.C. It is submittedthat the aforesaid approach is wholly impermissible as per the law laiddown by this Court in a catena of decisions.

3.4 It is further submitted that even otherwise while quashing thecriminal proceedings the High Court has not at all appreciated andDconsidered the fact that the allegation was of hatching a criminalconspiracy by the public servants who all were connected one way orthe other with allotment of the plots in the discretionary quota and thatthe allegations were for the offences under Section 120B IPC. It issubmitted that the High Court by the impugned judgment and order hasEquashed the criminal proceedings mainly by observing that therespondents - accused have not dealt with the allotment file in any mannerand that there is no material that any of the respondents - accused hereininfluenced any co-accused or any officer of B.D.A. or H.&U.D. Deptt.for getting the plots illegally in favour of their family members. It issubmitted that the aforesaid aspects are required to be considered,Festablished and proved at the time of trial. It is submitted that only aprima facie case is required to be considered at this stage and it is to beconsidered whether any prima facie case is made out for the offencesalleged or not. It is submitted that in the present case there are specificallegations of favouritism and misusing the powers in allotting the plotsGto the family members and that a huge loss has been caused to theB.D.A. and the public exchequer. It is specifically alleged that relativesof the respondents – accused and other co-accused public servants,pursuant to a conspiracy, submitted applications on plain papers (not inthe form prescribed in the brochure) and even some of the applicationswere undated. It is submitted that it has been found that the allotment ofH

the 10 plots were made arbitrarily and the respondents – accused gotthe plots allotted to the family members at throw away prices. It is urgedthat the High Court has erred in quashing the criminal proceedings againstthe respondents - accused for the serious allegations of corruption whileallotting 10 plots arbitrarily to their family members by hatching thecriminal conspiracy.

4. Learned counsel appearing on behalf of the respondents –original accused Nos. 4, 5 and 3 has vehemently submitted that in thefacts and circumstances of the case and having found that (i) therespondents - accused have no role in the fixation of price of 10 vacantplots; (ii) the respondents – accused have not dealt with the allotmentfile in any manner; (iii) there is no material that any of the three accusedinfluenced any co-accused or any officer of B.D.A. or H.&U.D. Deptt.for getting the plots illegally in favour of their family members, the HighCourt has rightly quashed the criminal proceedings against them. It issubmitted that having observed so the High Court has rightly quashedthe criminal proceedings against the respondents – accused in exerciseof its powers under Section 482 Cr.P.C.

4.1 It is submitted that the High Court on appreciation of thematerial on record which was part of the charge-sheet has quashed thecriminal proceedings and therefore the same may not be interfered withby this Court.

5. We have heard learned counsel for the respective parties atlength.

6. At the outset, it is required to be noted that by the impugnedjudgment and order the High Court in exercise of its powers under Section482 Cr.P.C. has quashed the criminal proceedings for the offences underSection 13(2) read with Section 13(1)(d) of the Act and Section 420read with Section 120B IPC. From the impugned judgment and orderpassed by the High Court, it appears that the High Court has enteredinto the merits of the allegations and has conducted the mini-trial byweighing the evidence in detail which, as such, as observed and held bythis Court in a catena of decisions is wholly impermissible. As held bythis Court in the case of State of Haryana And Ors. vs Ch. BhajanLal And Ors., AIR 1992 SC 604, the powers under Section 482 Cr.P.C.could be exercised either to prevent an abuse of process of any courtand/or otherwise to secure the ends of justice. In the said decision this A

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ACourt had carved out the exceptions to the general rule that normally inexercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. Exceptions to the above general rule arecarved out in para 102 in Bhajan Lal (supra) which reads as under:

“102. In the backdrop of the interpretation of the various relevantBprovisions of the Code under Chapter XIV and of the principlesof law enunciated by this Court in a series of decisions relating tothe exercise of the extraordinary power under Article 226 or theinherent powers under Section 482 of the Code which we haveextracted and reproduced above, we give the following categoriesof cases by way of illustration wherein such power could beCexercised either to prevent abuse of the process of any court orotherwise to secure the ends of justice, though it may not be possibleto lay down any precise, clearly defined and sufficientlychannelized and inflexible guidelines or rigid formulae and to givean exhaustive list of myriad kinds of cases wherein such powerDshould be exercised.

(1) Where the allegations made in the first information report orthe complaint, even if they are taken at their face value andaccepted in their entirety do not prima facie constitute any offenceor make out a case against the accused.

E(2) Where the allegations in the first information report and othermaterials, if any, accompanying the FIR do not disclose a cognizableoffence, justifying an investigation by police officers under Section156(1) of the Code except under anorder of a Magistrate withinthe purview of Section 155(2) of the Code.

F(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the same donot disclose the commission of any offence and make out a caseagainst the accused.

(4) Where, the allegations in the FIR do not constitute a cognizableGoffence but constitute only a non-cognizable 42 PART E offence,no investigation is permitted by a police officer without an orderof a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which no prudentH

person can ever reach a just conclusion that there is sufficientground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under which acriminal proceeding is instituted) to the institution and continuanceof the proceedings and/or where there is a specific provision inthe Code or the concerned Act, providing efficacious redress forthe grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with anulterior motive for wreaking vengeance on the accused and witha view to spite him due to private and personal grudge.”

6.1 Looking to the allegations in the present case against therespondents – accused and considering the fact that charge-sheet hasbeen filed by the Vigilance Cell after a thorough investigation, it cannotbe said that the case falls within any of the exceptionsas carved out bythis Court in para 102 in the case of Bhajan Lal (supra). It cannot besaid that the criminal proceedings initiated against the respondents –accused are an abuse of process of any court. On the contrary, theallegations are an instance of abuse of the powers with a mala fideintention and allotment of the plots to the family members by hatching acriminal conspiracy and to allot the plots to the family members at throwaway price causing loss to the B.D.A. and the public exchequer.

6.2 It is trite that the power of quashing should be exercisedsparingly and with circumspection and in rare cases. As per settledproposition of law while examining an FIR/complaint quashing of whichis sought, the court cannot embark upon any enquiry as to the reliabilityor genuineness of allegations made in the FIR/complaint. Quashing of acomplaint/FIR should be an exception rather than any ordinary rule.Normally the criminal proceedings should not be quashed in exercise ofpowers under Section 482 Cr.P.C. when aftera thorough investigationthe charge-sheet has been filed. At the stage of discharge and/orconsidering the application under Section 482 Cr.P.C. the courts are notrequired to go into the merits of the allegations and/or evidence in detailas if conducing the mini-trial. As held by this Court the powers underSection 482 Cr.P.C. is very wide, but conferment of wide power requiresthe court to be more cautious. It casts an onerous and more diligent dutyon the Court.

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A6.3 In the present case the allegations were with respect toallotment of 10 plots which were required to be allotted under thediscretionary quota. It is not in dispute that at the relevant time therespondents – accused were connected with the Department concernedwith regard to allotment of the plots directly or indirectly. Accused No.4- Smt. Pratima Mohanty was serving as Steno to Vice-Chairman, B.D.A.BAs per the case of the prosecution an undated application for allotmentof plots on plain paper was received from Shri Pradyumna KumarMohanty, brother of the accused - Smt. Pratima Mohanty. It is also thecase on behalf of the prosecution that though the plot was applied in thename of her brother, after the allotment of the plot she is in possession ofCthe same. So far as accused No.5 – Shri Prakash Chandra Patra isconcerned, as per the case on behalf of the prosecution,an applicationon plain paper for allotment of plot of Ms. Rajalaxmi Samal, sister-in-law of the respondent – Shri Prakash Chandra Patra (accused No.5)was forwarded by the Minister of Housing Urban Development – Mr.Samer Dey (accused No.6) to Shri P.K. Pattanaik, Secretary, B.D.A. ItDis noted that at the relevant time the said accused was working as Jr.Assistant, Allotment Section, B.D.A. Pursuant to the aforesaid applicationthe sister-in-law of the said accused has been allotted a plot.So far asaccused No.3 - Rajendra Kumar Samal is concerned, as per the case ofthe prosecution and as alleged, an application was made for allotment ofEplot in favour of his wife who was Dealing Assistant, Allotment SectionII, B.D.A. and Personal Assistant to Minister, Housing and UrbanDevelopment. It is noted that even the then Minister is the original accusedNo.6. As per the allegation the application was without any date and onthe basis of such undated application, the plot has been allotted in favourof his wife.F

7. Therefore, considering the aforesaid it cannot be said that thecriminal proceedings against the respondents – accused were in anyway an abuse of process of law and/or the Court. The allegations againstthe respondents – accused are very serious including hatching a criminalconspiracy in allotment of 10 plots in the discretionary quota arbitrarilyGand to their own family members/relatives. There are specific allegationswith respect to huge loss caused to the B.D.A and the public exchequer,as according to the prosecution the plots were allotted at throw awayprices. All these aspects are required to be considered at the stage oftrial and not while considering the application under Section 482 Cr.P.C.

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8. At this stage, the decision of the Karnataka High Court in thecase of K. Raju vs. Bangalore Development Authority in WritPetition No.11102 of 2008 decided on 15.12.2010 dealing with asomewhat similar situation with respect to the allotment of plots indiscretionary quota is required to be referred to. In that case also it wasa case of allotment of the plots illegally and arbitrarily in the discretionaryquota. Speaking from the Bench Justice S. Abdul Nazeer, J. as he thenwas has observed and held as under:

“It is well established that a public body invested with statutorypowers has to take care not to exceed or abuse its powers. Itmust act within the limits of authority committed to it.”

“31. BDA is the custodian of public properties. It is not as free asan individual in selecting the recipients for its largess. For allotmentof the properties, a transparent, and objective criteria/procedurehas to be evolved based on reason, fair play and non-arbitrariness.In such action, public interest has to be the prime guidingconsideration. In Ramana Dayaram Shetty v. The InternationalAirport Authority of India, AIR 1979 SC 1628, the Apex Courthas held that it must therefore be taken to be the law that even inthe matter of grant of largesses including award of jobs, contracts,quotas, licences, the Government must act in fair and just mannerand any arbitrary distribution of wealth would violate the law ofland. In Common Cause, A Registered Society v. Union of India,(1996) 6 SCC 530, the Apex Court has held as under The Government today - in a welfare State -provides large numberof benefits to the citizens. It distributes wealth in the form ofallotment of plots, houses, petrol pumps, gas agencies, mineralleases in contracts, quotas and licences etc., Governmentdistributes largesses in various forms. A Minister who is theexecutive head of the department concerned distributes thesebenefits and largesses. He is elected by the people and is elevatedto a position where he holds a trust on behalf of the people. Hehas 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 peopleIn Onkar Lal Bajaj and Ors. v. Union of India, (2003) 2 SCC 673,the Apex Court has summarised the cardinal principles ofgovernance, which is as follows:

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35. The expression “public interest” or “probity in governance”cannot be put in a straitjacket. “Public interest” takes into itsfold several factors. There cannot be any hard-and-fast ruleto determine what is public interest. The circumstances in eachcase would determine whether government action was takenin public interest or 02-12-2021 (Page 14 of 23)www.manupatra.com Hon’ble Mr. Justice M.R. Shah wastaken to uphold probity in governance.

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36. The role model for governance and decision taken thereofshould manifest equity, fair play and justice. The cardinalprinciple of governance in a civilized society based on rule oflaw not only has to base a transparency but must create animpression that the decision making was motivated on theconsideration of probity. The Government has to rise abovethe nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to be withstand the testof judiciousness and impartiality and avoid arbitrary or capriciousactions. Therefore, the principles of governance has to be testedon the touchstone of justice, equity and fair play and if thedecision is not based on justice, equity and fair play and hastaken into consideration other matters, though on the face of it,the decision may look legitimate but as a matter of fact, thereasons are not based on values but to achieve popular accolade,that decision cannot be allowed to operate.”

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8.1 It is further observed after referring to the decision of thisCourt in the case of Common Cause, A Registered Society (supra)that if a public servant abuses his office whether by his act of omissionFor commission, and the consequence of that is injury to an individual orloss of public property, an action may be maintained against such publicservant. It is further observed that no public servant canarrogate to himselfpowers in a manner which is arbitrary. In this regard we wish to recallthe observations of this Court as under:G

“The concept of public accountability and performance offunctions takes in its ambit, proper and timely action in accordancewith law. Public duty and public obligation both are essentials ofgood administration whether by the State or itsinstrumentalities.”[See Delhi Airtech Services (P) Ltd. vs.State of U.P., (2011) 9 SCC 354]

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“The higher the public office held by a person the greater is thedemand for rectitude on his part.” [See Charanjit Lamba vs.Army Southern Command, (2010) 11 SCC 314]

“The holder of every public office holds a trust for public goodand therefore his actions should all be above board.” [See Padmavs. Hiralal Motilal Desarda, (2002) 7 SCC 564]

“Every holder of a public office by virtue of which he acts onbehalf of the State or public body is ultimately accountable to thepeople in whom the sovereignty vests. As such, all powers sovested in him are meant to be exercised for public good andpromoting the public interest. This is equally true of all actionseven in the field of contract. Thus, every holder of a public officeis a trustee whose highest duty is to the people of the country and,therefore, every act of the holder of a public office, irrespectiveof the label classifying that act, is in discharge of public duty meantultimately for public good.” [See Shrilekha Vidyarthi (Kumari)vs. State of U.P., (1991) 1 SCC 212]

“Public authorities should realise that in an era of transparency,previous practices of unwarranted secrecy have no longer a place.Accountability and prevention of corruption is possible only throughtransparency.” [See ICAI vs. Shaunak H. Satya, (2011) 8 SCC781]

Therefore, action has to be initiated against the officials who areprima facie responsible for the illegality in the allotment of the plots tothe relatives and/or family members resulting in huge loss to the B.D.A.and the public exchequer.

9. While quashing the criminal proceedings the High Court hasnot at all adverted to itself the aforesaid aspects and has embarked uponan enquiry as to the reliability and genuineness of the evidence collectedduring the investigation as if the High Court was conducting the mini-trial. Therefore, as such the impugned judgment and order passed by theHigh Court quashing the criminal proceedings against the respondentsherein - original accused Nos. 4, 5 and 3 – Smt. Pratima Mohanty, ShriPrakash Chandra Patra and Shri Rajendra Kumar Samal is unsustainable,both, in law and/or facts and the same deserves to be quashed and setaside.

10. In view of the above and for the reasons stated above presentappeals succeed. Impugned common judgment and order passed by the A

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AHigh Court dated 04.09.2019 passed in Criminal MiscellaneousApplication No.3177 of 2017 and Criminal Miscellaneous ApplicationNo.4804 of 2015 are hereby quashed and set aside in so far as quashingthe criminal proceedings against original Accused Nos.4, 5 & 3 isconcerned.

BRespondent Nos.4, 5 & 3 to face trial along with other co-accused.Present Appeals are accordingly allowed.

11. Before parting we may observe that now theday has come todo away with allotment of government largess on the basis ofdiscretionary quota as this inevitably leads to corruption, nepotism andCfavouritism. Government and/or the public authorities like B.D.A. arethe custodian of public properties. Allotment of public properties mustbe transparent and has to be fair and non-arbitrary. In such matterspublic interest only has to be the prime guiding consideration. Theaforesaid principle is in order to get the best or maximum price so that itmay serve the public purpose and public interest so as to avoid loss toDthe authority and/or the public exchequer. The allotment of plots in thediscretionary 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 thediscretionary quota.

When a democratic government in exercise of its discretion selectsEthe recipients for its largess, then discretion should be exercisedobjectively, rationally, intelligibly, fairly and in a non-arbitrary mannerand 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 publicservants. Even if guidelines are issued to be followed while allotment ofthe plots under the discretionary quota and it is found that many a timeFthey are hardly followed or are manipulated to suit the particularcircumstances. Therefore, the best thing is to do away with suchdiscretionary quota and allotments of the public properties/plots must bethrough public auction by and large. Even in the case where the policydecision is taken to allot the plots to a particular class – downtroddenGclass etc. in that case also the guidelines must be strictly followed and asobserved hereinabove the allotment must reflect the fair play and non-arbitrariness and should have objective, criteria/procedure.

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Ankit Gyan