The Lie of the Land

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An investigation finds Odisha state government ministers misusing their discretionary quota to allot land to judges and bureaucrats

It took place in the span of a decade from 2000 to 2010. Three cabinet ministers in the Naveen Patnaik-led Odisha state government—namely, Housing and Urban Development Minister Samir Dey (of the BJP), Urban Development Minister Kanak Vardhan Singh Deo (also BJP), and his successor Badri Narayan Patra (of the BJD)—used their discretionary quota to allot land to judges, ministers, IAS/IPS officers, and other powerful politicians and residents of the state in areas under the Cuttack Development Authority (CDA) and Bhubaneswar  Development Authority (BDA).

The land was given away at marginal prices, about a tenth of the market rates then: at Rs 245 per sq ft or less, by the CDA, while the market was charging Rs 2,000 per sq ft (a rate that has risen to around Rs 2,500 per sq ft now).

Among other prominent people, Singh Deo used his discretionary power to allot land to Justice Madan Mohan Das, Justice Sanju Panda, Justice Laxmikant Mohapatra and Justice Nityanand Prusty (who was allotted the land in 2007, retired in 2008, and is now a member of Odisha’s State Administrative Tribunal).

Singh Deo, of course, was not alone in making such allotments. In 2000, Samir Dey used his discretionary authority to allot land to Justice Bimal Prasad Das, Justice Prafulla Kumar Tripathi (who retired from the Orissa High Court in 2009) and Justice Radhakrishna Patra (who retired from the court in 2003 and is now chairperson of the Odisha Human Rights Commission). In 2002, Samir Dey allotted land to Justice Debapriya Mohapatra.

Justice Arun Kumar Parichha, who retired in 2008, got land in his wife’s name in 2006. Significantly, even the former Chief  Justice of India Gopal Ballav Patnaik (who retired on 8 November 2002) got 4,000 sq ft of land (plot no 1B/22, Sector 11, CDA) allotted to him in 2000. He was then a Supreme Court judge. He paid Rs 2.5 lakh at a time that the property’s market price was Rs 20 lakh; it would now be worth about Rs 80 lakh.

Of those mentioned, Justice Bimal Prasad Das, Justice Madan Mohan Das, Justice Sanju Panda and Justice Laxmikant Mohapatra are still sitting judges at the Odisha High Court in Cuttack.

Apart from these men of law, Singh Deo and Badri Narayan Patra made use of their discretionary power to allot land to the Odisha government’s Law Minister Bikram Keshari Arukha and his wife Jayalaxmi Arukha. In fact, Arukha himself wrote to his party BJD minister Patra for the allotment of a plot.

The Orissa Development Authorities Act of 1982, on which the state’s Housing and Urban Development Authority is based, and the Housing Board Act of 1968 have no provision for such discretionary allotments by the Executive. These powers have been settled by various High Court and Supreme Court judgments.

In 2002, a judgment delivered by the Orissa High Court stated that ‘reservation of plots/houses for categories like Green Card holders, Scheduled Castes, Scheduled Tribes, and the like, and for staff of development authorities, is not permissible in law. However, reservation of some plots/houses for defence personnel, retiring/retired government servants and reservation of some plots/houses for allotment under the discretionary quota has to be strictly in accordance with the principles and guidelines framed for the purpose in the light of the judgments of the Apex Court in V Purusottam Rao’s case and Centre for Public Interest litigation (1995).’

A 2001 Supreme Court judgment states that: ‘When a State property as distinct from a private property is being dealt with by a Minister, then it is of paramount importance that such public property must be dealt with for public purpose and in the public interest.’ It further states: ‘The disposal of a public property undoubtedly takes the character of a trust and, therefore, in the matter of such disposal, there should not be any suspicion of lack of principle.’

According to the Supreme Court, such discretion (Centre for Public Interest Litigation vs Union of India, SCC.382) can be used only to allot land to: ‘The dependent of a person who has made a supreme sacrifice for the nation, but has not been properly rehabilitated so far, member of a family which has been a victim of unforeseen circumstances (terrorist attack, earthquake, flood etc), physically handicapped person, defence/paramilitary/police personnel/ other Central/State government employees who are permanently disabled on duty, immediate next of kin, namely widow, parents, children of those who lost their lives in abnormal circumstances, eminent professionals, outstanding sportsmen, artists, literary personnel and women of high achievement in distress, and individual cases of extreme hardship, which in the opinion of the government are extremely compassionate and deserve sympathetic consideration in view of special circumstances of the cases’.

Interestingly, the number of such ‘deserving’ beneficiaries of ministerial discretion in Odisha is unknown. Nor have CDA/BDA allotments been transparent overall. Some sectors in these areas of Cuttack and Bhubaneswar did not have any draw-of-lots, the standard procedure when applications exceed plot availability. Several litigants approached the High Court, demanding to know why no draw was held and why their application money was refunded out of hand. This, even as the high and mighty in the state have had no trouble getting allotments.

So brazenly have court judgments been twisted to suit special interests that it appears to have been the norm. Many sitting judges actually wrote letters to the authorities requesting land allotments. Justice Nityanand Prusty wrote to the Housing and Urban Minister on his official High Court letterhead: ‘I do not have any plot in CDA (sector areas). After my retirement, I desire to settle in the Sector Area. Kindly allot me a suitable ‘B’ category plot, preferably Sector-13, out of discretionary quota.’

Not only Justice Prusty, another sitting High Court judge, Justice Laxmikant Mohapatra, wrote on his official letterhead to the Chairman of the CDA (and Housing and Urban Development Minister ), asking for land: ‘I understand that some plots of land of Cuttack Development Authority are available for allotment to individuals within Cuttack Municipal Area. I have no land at Markat Nagar, Abhinaba Bidanasi, Cuttack, either in my name or in the name of any of my family members. I, therefore, request you to allot a ‘B’ category plot in Sector-11, CDA in my favour for the purpose of construction of a residential house.’ 

Justice Madan Mohan Das, another sitting judge of the Odisha High Court, who already had a plot in favour of his wife, asked the then Chairman and Minister of Housing and Urban Development, for land: ‘Dear Mr Singh Deo, I have earlier requested your good-self to allot me a ‘B’ category plot in Abhinaba Bidanasi Project Area, preferably in Sector-6, 7, 8 and 9, from your discretionary quota. I am willing to have a plot in Sector 10 also on payment of the price at fixed by the CDA. In case of allotment of a ‘B’ category plot in my favour, as already stated in my earlier letter, the ‘C’ category plot along with the structure which stands in the name of my wife, will be disposed of by way of a third party transfer with due permission of the CDA.’

One of the letters even came from the wife of a sitting judge. Shree Parichha, wife of Justice AK Parichha, wrote the Urban Minister and Chairman of the CDA: ‘My husband is a sitting judge of the High Court of Orissa and we desire to stay at Cuttack after his retirement. We have no land in Cuttack. If land in Markat Nagar, Abhinab Bidanasi, Cuttack is allocated in my favour, we can utilise the same for [our] residential purposes only. I request you kindly allot a plot in Markat Nagar, Abhinab Bidanasi, Cuttack, preferably in sector 11, [on] discretionary quota [at] the usual price fixed by the authority in my favour to use the same for residential purposes.’

The deeds of the Odisha judges draw sharp reactions from members of India’s legal fraternity. The IBN-Cobrapost team contacted several retired judges of the Delhi High Court and Supreme Court for their views on the findings of the investigation. While some speak about the strict guidelines laid down by the Supreme Court in this regard, some lambast the High Court judges for taking undue favours from state ministers.

Says former Chief Justice of India VN Khare: “I have always maintained that discretion is the source of corruption. I have said this many times—that discretion should be eliminated. If there are financial implications [of the use of government land], the matter must be decided by a group of ministers, and not individual ministers or bureaucrats. If the discretionary power that is not governed by any rule or law rests with a bureaucrat or minister, it will lead to corruption. For example, if hundreds of applicants are there, and plots are given to a few, one who has a discretionary quota at his disposal may give it by virtue of your good looks. This is wrong.”

The judges come in for particularly heavy criticism for writing letters on official letterheads. Justice SN Dhingra of the Delhi High Court, asked for his views on the revelations, says: “It is against our professional ethics. It is against all canons of judicial standards. I would say this is absolute corruption. You just cannot do this. To stop such things, guidelines have already been laid down. Quite an elaborate guideline has been prepared by the Supreme Court [as part of] the judges’ code of ethics. The Supreme Court prepared it and circulated it to all high courts. It is clearly stated that judges cannot have direct contact with ministers or bureaucrats. This was precisely to stop such activities. It is an absolute case of conflict of interest. Judges enjoy a lot of discretion themselves. If they take obligations from a minister or bureaucrat, it will never be without a reason. It is bound to be a give-and-take process. Judges have absolute discretion in giving or refusing bail. They have discretion on whether to issue a stay in a case or not. They have absolute discretion over the final judgment itself. In that case, if they take obligations under the discretionary quota of a minister or bureaucrat, the minister or bureaucrat in turn will take advantage of their discretion. Nothing comes free. But time and again, such unfortunate things keep recurring. These are not isolated cases. Judges, after all, come from the same society that bureaucrats and others do. We have come to a [point] where the Judiciary is no different from the bureaucracy.”

Discretionary quota property being passing on to children also draws reproach. Taking note of the series of events in Odisha, says former Delhi High Court Chief Justice AP Shah: “Judges being allotted plots [via] discretionary quotas is an unhealthy practice. Eventually, it may lead to conflicts of interest. Judges… should follow rules and norms as per the law. The practice of acquiring land and passing it on to children should be stopped. The process should be at par with [that in] other societies and [for] individuals. There should be some provision [on such practices] in the Judicial Accountability Bill. There is a separate chapter on judicial ethics. This should be made part of it.”

Of course, as mentioned earlier, judges are not the only beneficiaries. Arukha, the Odisha government’s law minister, also sought land from his cabinet colleague Badri Narayan Patra. As Arukha wrote in a letter to the latter: ‘It is learnt that there are still a few HIG (duplex) houses left for distribution by the Hon’ble Minister Urban Development, Orissa, out of his discretionary quota. I would, therefore, request you kindly to consider the above facts and allot me a HIG (duplex) house from ‘A’ Block in the above scheme [under the]... quota.’

The law minister even provided an affidavit that he had read all the terms and conditions of the brochure in detail and agreed to abide by them. Under these terms and conditions, a person cannot be allotted two residential plots within the Bhubaneswar Municipal area; but Arukha managed to grab two plots—one in his name and another for his wife Jayalaxmi. According to his declaration-of-assets when his nomination papers were filed for his Assembly election, as on 27 March 2009, he only had a fixed deposit of Rs 5.5 lakh, cash of Rs 3 lakh, and a savings bank balance of Rs 5 lakh. He also stated that his wife had only Rs 6 lakh. But the minister paid Rs 59 lakh in February 2010, and another Rs 50,000 in May 2010 for the house allotments.

Later, Arukha issued a clarification saying that his wife had paid Rs 7 lakh for her Subudhipur BDA house in the city’s Kalinga Bihar Housing Scheme. But, according to Odisha Assembly records, his wife paid Rs 12 lakh. The state’s law minister has therefore filed two false affidavits: one while getting his house allotted by the BDA, and the other when his nomination papers were filed for the 2009 Assembly polls.

Besides, it raises a vexing question: how can a minister avail of a cabinet colleague’s discretionary quota? Though the minister supposedly paid Rs 59 lakh for the property, the actual market price of the house would be above Rs 1.2 crore. Another politician, Debendra Pradhan, an ex-minister and father of BJP General Secretary Dharmendra Pradhan, got 2,400 sq ft of land for only Rs 3 lakh. The market price is now about Rs 70 lakh.

Samir Dey, when confronted with his trail of discretionary quota allotments, admits that there is no such provision under the law. Says Dey: “There is no such quota in Odisha. It’s a simple calculation that whatever land has been given under the BDA, 10 per cent of it, and land given under the CDA, 5 per cent of it is under the minister’s discretion. There is nothing specified on record about how this land is to be given by the minister, who is also the chairman. The land has been given on this basis.”

If Dey is blasé about its lack of legal sanction, he is equally adamant that the “quota” gives him the right to allot land to “anybody” he wants. “There is no pressure on the chairman to allot land under the minister’s discretionary quota,” he adds, “It’s a prerogative of the chairman…Those who fulfill the guidelines automatically fall under the discretionary quota of the minister. I cannot tell whether the beneficiary has been an IAS officer or judge. We cannot be compelled to allot land to anyone. It’s up to the minister, whom he wants to give the land to.”

Kanak Vardhan Singh Deo, who granted a flat to Arukha’s wife, tries to use the Supreme Court as a shield when asked about the allotments. “As an urban development minister,” says Odisha’s former Urban Development Minister, “whatever schemes were launched by the CDA and BDA, and the allotments that were made from 2004 to 2009, a Supreme Court ruling clearly stated that persons who will not be allotted land through the lottery system, only those would be entertained under the discretionary quota of the minister, which would not be more than 5 per cent. In the same way, land was allotted in Bhubaneswar. There were so many requests for consideration under the discretionary quota. As far as I remember, there were many plots in Cuttack that had no takers even in the plotted scheme.”

Singh Deo cites this figure as a sign of propriety: “During my tenure as minister, not more than 5 per cent was given under the discretionary quota, as there was a clear guideline of the Supreme Court in this context, so we didn’t go beyond that limit.”

What Deo forgets to add is that the Supreme Court explicitly lays down who can be deemed as deserving of the State’s largesse, as executed via ministerial discretion on land allotment, and it is amply clear that judges and bureaucrats do not satisfy those criteria by any stretch of the definition of a ‘supreme sacrifice’, ‘extreme hardship’, or any other such circumstance specified in the judgment.

Badri Narayan Patra, who parcelled out land to his ministerial colleague Arukha, puts the blame on ministers of earlier cabinets in general and the Congress in particular. Says Patra: “In the Congress’ time, there was a lot of misuse of rules. I was present in the department for only two years. Ministers prior to me, I have heard, distributed plots through their discretionary quota beyond their limits. But I have only given three plots… all these can be verified… if somebody gives a affidavit that he doesn’t have a plot, what can we do? We work on affidavits.”

But where there are rules, in Odisha, there are waivers. The BDA’s current Vice-chairman Deoranjan Kumar Singh admits that at one point of time, there was even a waiver of the ‘one-person, one-allotment’ rule. Says Deoranjan Singh: “As per my knowledge, at that time, the rules were waived on only two schemes. One was the Kamara Housing Scheme at Netaji Subhash Enclave; as there was low acceptability of the flats, the criterion was waived so that other people could also purchase the flats. The second was the HIG quarters at Pokhariput. As the cost of the flats here was quite high and beyond the reach of general people, and as the number of applicants was not too high and we still needed to sell them, some rules were waived.”

Deoranjan Singh goes on to talk about how, if a person becomes a beneficiary through one housing scheme, he cannot avail of a plot of land in another scheme. But he also adds that even this criterion was waived by officials. Says the BDA vice-chairman: “Not only for the discretionary quota, but even for the allotment, if a person has benefitted through one scheme for acquiring land, he will not be a beneficiary in the second scheme and will not get a plot. This is a standard procedure. From 2010, this has been standardised in the allotment procedure manual prepared by the government and is being strictly followed. Generally, in previous years, it was only a general procedure [printed] on the scheme brochure. According to it, if you already happen to own property, then you cannot apply under such schemes. But later, officials thought of waiving this procedure, as the cost of such plots was higher and there were only a few takers. Such schemes of the government did not go well with the people.”

Interestingly, the BDA claims that the authority never prepared a document listing how many times such waivers were granted. The BDA also refuses to disclose information on the names of people who applied for assorted housing or plot schemes. In fact, Deoranjan says, he can only remember two occasions when exceptions were made. The one-person one-plot criterion was waived by the BDA for the Pokhariput HIG housing scheme. Interestingly, this is the same scheme where Law Minister Arukha got a house under his cabinet colleague’s discretionary quota. The question is whether this special waiver was made specially to facilitate Arukha’s application.

It is worthwhile to mention here that Sangita Kumari Singh Deo, wife of Kanak Vardhan Singh Deo (who was Urban Development Minister then), declared in an affidavit that three criminal cases were pending against her. In case No 7/2004, she was accused of offences under Sections 294, 506, 34 of the Indian Penal Code, read with Section 3 (1) (x) of the Prevention of Atrocities Act, 1989. She approached the Orissa High Court and got a stay on the proceedings against her (CRLMC 203 of 2005).

In another case, under Sections 294, 323 and 506, read with Section 3 (1)(x) of the Prevention of Atrocities Act, 1989, she was again successful in obtaining a stay on the proceedings against her by virtue of the same court order in 2006.

Moreover, she was also a co-accused along with her husband Kanak Vardhan Singh Deo, vide GR case No 758 of 2007. All these criminal matters are still pending in the names of the former minister Singh Deo and his wife Sangita. While Singh Deo allotted plots to judges and senior police officers during the period 2005 to 2008, Sangita was a member of the Lok Sabha (her term: 2004-2009).

Samir Dey, who also stands accused of allotting plots to judges during his tenure, is additionally accused of criminal offences under Sections 341, 353 and 34, since 1991. While Dey was Odisha’s Urban Development Minister during the first term of the Naveen Patnaik government, Singh Deo held the same portfolio during the regime’s second term.

Says an advocate who practises in the Odisha High Court: “It’s a matter of record whether cases involving the ministers or their kin came before the judges who were beneficiaries of the discretionary quota of ministers.”

In February this year, the widespread misuse of ministerial discretionary quotas was raised as an issue by Congress MLA Naba Kishore Das in the Odisha Assembly. But Chief Minister Naveen Patnaik has taken no action so far.  Says Naba Kishore Das: “Everybody in Odisha, including the Chief Minister, says that he has a clean image. He does not indulge into corrupt practices. So many ministers and bureaucrats have been given prime land under the minister’s discretionary quota, which makes it amply clear that even the Chief Minister is not free of corruption. This means all these people are hand in glove. Everything would be revealed if an inquiry is ordered in this case. This government belongs to a handful of corrupt people. This is not a government for the common man. The present government wants to influence a handful of people this way… This land was to be given to widows of Army men who lost their lives, to farmers, and to people who really needed it. This is a corrupt government.”

Bureaucrats on the take

Bureaucrats have been big beneficiaries of ministerial largesse too. Here’s a list:

» IAS officer Nikhunja Bihari Dhal got a housing plot (No 13-2B/275) in Markat Nagar in Cuttack for Rs 10 lakh (market price: Rs 90 lakh). He also paid only Rs 2.88 lakh for plot No 82/A in Chandrasekharpur Prachi enclave, worth Rs 70 lakh. That’s two plots for the same person.

» IAS officer Vishal Kumar Dev, commissioner, Bhubaneswar Municipal Corporation, got BDA land under the minister’s discretionary quota. He paid only Rs 2.88 lakh (market price: about Rs 70 lakh).

» IAS officer Alka Panda paid Rs 3.6 lakh for a 7,875 sq ft plot (No HIG-K-8-B) in Bhubaneswar worth over Rs 1 crore.

» 1996 batch IPS officer BK Sharma, Commissioner of Police, Bhubaneswar-Cuttack, got a plot (No B/738) in 2007.

» IPS officer Sudhanshu Sarangi got a CDA plot (No 3B/1293) in Sector 13 for Rs 9.9 lakh, sold it for Rs 23 Lakh and booked an Antriksh Heights flat, Sector 84, Gurgaon.

» 1982 batch IPS officer Binoy Kumar Behara got a plot (No C/6GH/1150/C-18) for under Rs 1 lakh (market price: Rs 75 lakh).

» 1988 batch IPS officer Binayanand Jha got a CDA plot (No 3B/1334) in Sector 13, and did not submit mandatory information as part of his Immovable Property Return. He works as a joint director in the Ministry of Home Affairs in New Delhi. According to the Odisha government website, he is posted as joint director, IB, in SIB Imphal.

» IPS officer M Akhay, an Inspector General of the Orissa Police, got 2,700 sq ft of CDA land (plot no 1378/4) in Sector 6, Markat Nagar, for Rs 3 lakh (market price: about Rs 50 lakh).

» IPS officer Prakash Mishra, an additional DGP, got a 2,700 sq ft housing plot (No 1377/4) in 2001. He paid Rs 1.8 lakh (current market price: about Rs 50 lakh).

» IAS officer Bishnupad Sethi, director, Census Operation, Odisha, was allotted a 3,750 sq ft plot in BDA’s Kalinga Vihar development scheme in 2008. He paid Rs 5 lakh (current market price: about Rs 70 lakh). He has also been allotted land in Puri by the Orissa Cooperative Housing Corporation Ltd.

» IAS officer Raj kumar Sharma, secretary, Revenue and Disaster Management, got a 2,400 sq ft BDA residential plot (No 130) in Prachi Enclave, Chandrasekharpur, for only Rs 3.6 lakh.

» IAS officer Suresh Chandra Mohapatra got a plot in Kalinga Vihar (HIG-393)

Another notable point is that the Kalinga Vihar Housing Scheme, Phase I and Phase II, was developed by the BDA in the period 1994-2000 without the required approvals from the Ministry of Environment & Forests. The BDA ended up allotting the developed land to beneficiaries at very low prices. After the Environment Ministry raised questions, some of the ‘connected’ allottees exchanged their allotted plots with land under other schemes. For instance, in 2000, IAS officer Alka Panda got 6,750 sq ft of land under the Kalinga Vihar Housing Scheme (plot No K-8-91). But in 2006, she got another HIG plot (7,875 sq ft) in exchange for the earlier plot. This exchange is illegal and she got more land than allotted earlier.     

Top bureaucrats are appalled by all this. Says former Cabinet Secretary of India TSR Subramanian: “I will go to the extent of saying that this practice of discretionary quotas should be completely stopped now. It is not serving any purpose. I also took a piece of land in Lucknow way back in 1993 because, as I said, I wanted to stay there post-retirement. But when I decided to move to Delhi, I returned the plot to the government, saying ‘I will not be using it personally’. So, in my view, the practice of discretionary quotas must be stopped immediately, and ministers or bureaucrats using or benefitting from such quotas should be prosecuted.” On some bureaucrats having converted their allotted plots into commercial buildings, he adds: “It’s wrong. It is misuse of authority. You see, earlier, officers used to get Diwali gifts like a pack of sweets or maybe a bottle of whisky. To that extent, it is okay. But now I hear officers are given free holiday trips to Mauritius and Hong Kong. Officers are being given gold pendants or things like that. We earlier used to think that it’s a small matter, let us not interfere. But now this should be stopped... We are exceeding limits. In fact, not even a pack of sweets should be allowed, let alone a flat or plot. Action should be taken against officers who indulge in such practices.”