'G' site: Focus on govt's discretionary powers

'G' site: Focus on govt's discretionary powers

The resignation of S Suresh Kumar as law minister over allegations of furnishing a false affidavit to secure a ‘G’ category site has turned the focus on the scope of the authority of the State government to issue directions to a local body, such as the Bangalore Development Authority.

The Supreme Court, in many a cases, has frowned upon the exercise of discretionary powers by persons in constitutional positions.

Section 65 of the Bangalore Development Authority Act, 1976, empowers the State government to issue directions to the Authority.

In the case of Bangalore Development Authority (BDA) and others vs R Hanumaiah and others (2005), the apex court had observed that “the powers of the government under Section 65 of the Bangalore Development Authority Act, 1976, was not unrestricted and the directions, which could be issued, were those which were to carry out the objective of the Act and not those which are contrary to the Act.”

It further held that “the directions issued by the chief minister to release land were destructive of the purpose of the Act and the purpose for which the BDA  was created”.

A similar view was reiterated by the Supreme Court in the Poonam Verma and Others vs the Delhi Development Authority, questioning the Central government direction to make the allotment of a flat out of turn.

With such a strong observation by the apex court, the letter despatched by Suresh Kumar to then chief minister B S Yeddyurappa, and further directions to the BDA based on this letter, appear to contravene the apex court directions.

Meanwhile, as recently as March 26, 2012, an observation by a bench of Justices G S Singhvi and Sudhanshu Jyoti Mukhopadhaya, said: “The concept of the ‘State’, as it was known before the commencement of the Constitution and as it was understood for about two decades after January 26, 1950, has undergone drastic change in recent years.

Today, the State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. Now, the government is a regulator and dispenser of special services and provides to the large public benefits, including jobs, contracts, licences, quotas, mineral rights, etc.

“The law has also recognised the changing character of the governmental functions and the need to protect individual interest as well as public interest. The discretion of the government has been held to be not unlimited.

The government cannot give, or withhold largesse, in its arbitrary discretion or according to its sweet-will. The government cannot now say that it will transfer the property (land, etc) or will give jobs or enter into contracts or issue permits or licences only in favour of certain individuals.”

The Bench quoting the V Punanan Thomas vs State of Kerala, observed: “The government is not and should not be as free as an individual in selecting recipients for its largesse.

Whatever its activities, the government is still the government and will be subject to the restraints inherent in its position in a democratic society. A democratic government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.”

With such high precedents set by the apex court, it is yet to be seen whether successive governments, caught in the discretionary allotment of stray sites, as presumed legalised by the Government Circular of August 6, 1997, holds any authenticity.

Under the garb of ‘G’ category sites, it has been claimed that as many 67 MLAs/MPs have been allotted sites in high-value locations.

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