The end of an INC land scandal in Chhattisgarh

During the previous Congress regime, some changes were introduced to the land allocation procedure through the order FA 4-07/Seven-1/2019 . It gave powers to the collector to allot upto 7500 square feet of land for upto 30 years on lease and if the lease holder wanted to convert his leased land to Bhumiswami rights (full owner) he could do so upon the discretion of the collector by additional payment of 2% of the applicable rates.

The crux of the scam is, that the general public was not  informed that a certain land is being auctioned. It was a mechanism where the interested parties were expected to apply though application, though it mentions that the data of vacant government lands should be uploaded on Bhuiyaan Software, but such website/softawae also malfunctions from time to time.

The result was that the applications were not invited though ads in the newspapers etc. and only when a individual was selected for allocation, information was decimated though newspapers calling for objections. This reveals the secretive nature of the policy, which is  violative of Article 14 of the Indian Constitution.

As a result of this scam many congress members, businessmen and the organization itself were benefited which includes the then cabinet minister Shiv Dahariya, businessman Yash Tuteja and District Congress Committees of Dhamtari, Durg, Rajnandgaon, Korba, Jashpur etc. Some beneficiaries were relatives, which also gave rise to the possibility of them joining the lands for large commercial purposes. It is notable that no other political organization appears to have benefited with the policy except for INC.

It also gave absurd powers to the district collector to settle the encroachment on government land, where if the lease owner pays rent for fifteen years at once then the rent for the next fifteen years will be waived off. The provision also discriminated between government bodies and private parties in participation, where govt. bodies could only be allotted lands if they had resources to construct a boundary while no such conditions were required for a private party.

It should be asked that while the size of an EWS quarter is around 450 sq ft and a residential MIG has a size of 1500 sq ft., allotting 7500 sq ft. of land to individuals especially ,it can not justify such allotments especially when Chhattisgarh has 7,13,654 notified slums as per the census of 2011, with unimaginable living conditions and highly small living areas which in all probabilities would have increased since 2011.

These provisions were becoming a way for easy and cheap acquisition of land in prominent locations and thus was challenged by social activist Mr. Shushant Shukla who now serves as the MLA for Bilaspur through the case of Shushant Shukla Vs. State Of Chhattisgarh.

Breen v. Amalgamated Engineering Union (1971) 2 QB 175, Lord Denning MR said:

"The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevantly. It its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless, the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law."

Kasturi Lal Lakshmi Reddy v. State of J And K (1980) 4 SCC 1, Bhagwati J. speaking for the Court observed:

"Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so.”

Thus the discretion of the collector can not hamper Article 14 by the way of non-advertisement of the land auctioning and by accepting applications without giving equal opportunity to all.

This mistake in itself is fatal to the policy, for it violates multiple case laws such as Akhil Bhartiya Upbhogta Congress Vs State Of MP and Ors. (2011(5) SCC 29) which underlines that sufficient advertisement is prerequisite for any such allotment and in this particular case allotment by applications has been criticized by the Hon’ble SC.

31. What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefitted by the policy. The distribution of largesse like allotment of land, grant of quota, permit license etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.

The court then went on to criticize the idea of allotment by mere application without proper advertisement

32. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organizations or institutions de hors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organizations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.

And Manohar Lal Sharma vs. Principle Secretary (2014) 9 SCC 516 where it was held

“Obviously, therefore, such allocation has to meet the twin constitutional tests, one the distribution of natural resources that vests in the state is to subserve the common good and two, the allocation is not violative of Article 14”.

The provision in discussion is also violative of Article 246 where the state legislature alone has the powers to make laws in regards to rights over land under entry 18 and lands vested in the state under entry 35 of list II of the seventh schedule of the constitution, where provisions were substantially changed without it being passed by the state legislature.

The provisions are also violative of Forest Rights Act and PESA Act where it doesn’t exempt forest and tribal areas, which requires the permission of Gram Sabha for changing the nature of the land and for allotment to private individuals, which may have had negative consequences to the culturally sensitive and vulnerable communities.

The case has been dismissed as of today by the Hon’ble High Court Of Chhattisgarh after the counsel for the state has informed that the new government is revisiting the policy. It is interesting that the party which  talks of ‘Nyaay’ meaning socio-economic justice and Sampatti Vitran to allot land to the poors, was involved in a land scam. Mr. Rahul should again takeout his red cover Indian Constitution and see whether his subordinates have removed out pages from Part III and Article 14 in particular.


Article by




Shreeacharya Mishra
Younginker
Law Student