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THE CARDINAL PRINCIPLE OF GOVERNANCE IN A CIVILIZED SOCIETY BASED ON RULE OF LAW NOT ONLY HAS TO BASE A TRANSPARENCY BUT MUST CREATE AN IMPRESSION THAT THE DECISION MAKING WAS MOTIVATED ON THE CONSIDERATION OF PROBITY: SUPREME COURT

This particular decision is upheld by the Supreme Court of India through the division bench of Justice M. SHAH in the case of State of Odisha v Pratima Mohanty etc (CRIMINAL APPEAL NOS. 1455­1456 OF 2021)

 FACTS

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Orissa dated 04.09.2019 passed in Criminal Miscellaneous Application No.3177 of 2017 and Criminal Miscellaneous Application No.4804 of 2015 by which the High Court has allowed the said applications under Section 482 of Cr.P.C. and has quashed the criminal proceedings against the private respondents herein original accused Nos. 4, 5 and 3 – Smt. Pratima Mohanty, Shri Prakash Chandra Patra and Shri Rajendra Kumar Samal, the State of Odisha has preferred the present appeals.

That an FIR was lodged by the Deputy Superintendent of Police, Vigilance, Vigilance Cell Unit Office, Bhubaneswar before the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar alleging inter alia that on preliminary enquiry it was found that certain public servants occupying crucial positions in Bhubaneswar Development Authority (hereinafter referred to as ‘B.D.A.’) and in the Housing and Urban Development Department, Government of Odisha (hereinafter referred to as, ‘H.&U.D. Deptt.’) surreptitiously distributed prime plots in Commercial Complex District Centre, Chandrasekharpur, Bhubaneswar.

JUDGEMENT

The expression “public interest” or “probity in governance” cannot be put in a straitjacket. “Public interest” takes into its fold several factors. There cannot be any hard-and-fast rule to determine what is public interest. The circumstances in each case would determine whether government action was taken in public interest or 02122021 (Page 14 of 23) www.manupatra.com Hon’ble Mr. Justice M.R. Shah was taken to uphold probity in governance.

The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base a transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing.

The act of governance has to be withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principles of governance have to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.”

Before parting we may observe that now the day has come to do away with allotment of government largess on the basis of discretionary quota as this inevitably leads to corruption, nepotism and favouritism. Government and/or the public authorities like B.D.A. are the custodian of public properties. Allotment of public properties must be transparent and has to be fair and no arbitrary. In such matters public interest only has to be the prime guiding consideration.

The aforesaid principle is in order to get the best or maximum price so that it may serve the public purpose and public interest so as to avoid loss to the authority and/or the public exchequer. The allotment of plots in the discretionary 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 the discretionary quota. When a democratic government in exercise of its discretion selects the recipients for its largess, then discretion should be exercised objectively, rationally, intelligibly, fairly and in a no arbitrary manner and 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 public servants.

JUDGEMENT REVIEWED BY NAISARGIKA MISHRA

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