Among those who benefited from the Bhubaneswar Development Authority and Cuttack Development Authority chairmens discretionary quotas in land and plot allotments were 10 judges,all of whom were sitting judges at the time,and family members of at least two others. The quotas were scrapped last month.
A case that stands out is of former high court judge Justice (retd) Pradyumna Kumar Mohanty. In 2002,hearing a petition challenging the discretionary quota of the then BDA chairman,a bench including Justice Mohanty held that while reservation in some categories was impermissible in law,it would not be just and proper to interfere with the allotments already made due to the long lapse of time. Two years earlier,in March 2000,Justice Mohanty had himself got a plot in Sector 11 of Cuttack Development Authority (CDA) under the urban development minister,who is the ex-officio chairman of both the Cuttack and Bhubaneswar Development Authorities.
When contacted,Justice Mohanty,who retired from the high court in January 2007 and now heads the commission inquiring into the Kalinga Nagar police firing,said he did not remember the exact judgment,but there could not be a conflict of interest as the case related to the BDA,and he had got CDA land. Asked whether it was right for him to get the plot under the quota,Mohanty said: Under the provisions of development authorities,some discretionary quota is permissible if it serves some purpose.
Justice P C Naik,who is retired and lives in Jabalpur and who was part of the bench that heard the matter,told The Indian Express that he could not remember the judgment offhand as so much time has passed.
As revealed by the government in a query over the quota in the Orissa Assembly on December 9,between 1985 and 2009,the BDA gave away plots and core houses to 832 under the discretionary quota available with the urban development minister. Following a row over two houses being allotted to the family of a minister,Chief Minister Naveen Patnaik scrapped the quota last month.
Among those whose names figure in the list of beneficiaries under the discretionary quota,in replies given by the government in the Assembly in 2008 as well as 2011,is Gopal Ballav Patnaik. Then a sitting Supreme Court judge,he served briefly as the chief justice of India and is now retired.
Justice Patnaik,however,denied getting his 4,000 sq ft of land in Sector 11 of CDA under the discretionary quota. It was a normal allotment. I even have an RTI reply to prove my case, the former CJI told The Indian Express. However,the name of the former chief justice figures in the discretionary quota list in the replies given by urban development ministers in State Assembly in 2008 and 2011.
Other judges who got land under the quota and are still serving are Justice Madan Mohan Das,Justice Bimal Prasad Das,Justice Sanju Panda,Justice Laxmikant Mohapatra and Justice Nityanand Prusty (who is now chairman of the Orissa State Administrative Tribunal).
Shree Parichha,wife of Justice Arun Kumar Parichha,who retired in 2008,got land in 2006.
The judges now retired who got land under the quota are former high court judge Prafulla Kumar Tripathy,former Supreme Court judge Deba Priya Mohapatra and former high court judge Chira Ranjan Pal. Advocate Dipak Samantray,son of former high court judge Arun Samantray,too got a plot under the quota.
Former judge of the Orissa High Court and former chief justice of the Sikkim High Court,Justice Radha Krushna Patra,got a 4,000 sq ft plot in Cuttack under the discretionary quota. Now retired,Patra has been appointed chairman of the Orissa Human Rights Commission.
The petition against the discretionary quota of the BDA chairman that was heard by Justices Mohanty and Naik was filed by Jadunath Panda in 1993. Panda had challenged the BDA quota policy in plotted development scheme for SC/STs and green card holders (those who have undergone operations for family planning) as well as the policy of reserving 1 per cent allotments for BDA staff and another 1 per cent to be given on the discretion of the chairman.
While there is no provision for discretionary allotments under the Orissa Development Authorities Act,1982,the discretionary quota scheme was launched in 1985,under the Congress J B Patnaik regime,and perpetuated by successive ministers. The provisions make people in any kind of distress eligible for the quota.
In their 2002 judgment,Justices Mohanty and Naik held 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 judgments of the Apex Court in V Purusottam Raos case and Centre for Public Interest litigation (1995).
The judges added: In the case at hand,even though we have found that reservation in respect of certain categories (was) impermissible in law,in view of long lapse of time,since the allotments have been made and possession delivered,it will not be just and proper at this stage to interfere with the said allotments.
When asked whether there was a conflict of interest in Justice Mohanty hearing the case and whether he should have recused himself,Justice Naik said he would have to read the 2002 judgment first.
Orissa State Bar Council president Gopal Krushna Mohanty said that as a lawyer he couldnt criticise a judgment. For journalists its okay to criticise,not for lawyers like us, he said.
However,the president of the Orissa HC Bar Association,Jayant Das,said the issue of discretion was well-settled by law. The judge could have recused himself from the bench as he had availed a plot under discretionary quota, said Das.