At the root of many irregularities and frauds related to land is the blatant abuse of discretionary powers vested in State governments, particularly those relating to allotment and change of land use. But whether it was questionable allotments in Haryana, the impunity with which a select group of people obtained exemption from the rules in the Adarsh Cooperative Housing case in Mumbai, or the manipulation of legal provisions in cities such as Bhopal and Kolkata to offer land as largesse to a few, State governments have always manipulated discretionary powers to help the powerful and the favoured. Most Acts on land use provide for making rules on the fly and offer powers to exempt. The provisions — known as “Henry VIII clauses”, after the English monarch’s habit of getting parliament to give him more powers through proclamations — have been opposed by citizens’ groups as they privilege a few at the cost of common good and subvert organised development. Exemptions rightly raise questions about the rationale for permitting a few to stay outside rules that are meant for everyone. Why does the State not amend an Act if it is inadequate to address recurring problems, rather than slyly resorting to exemptions?
In their defence, policymakers say no legislation can exhaustively provide for all contingencies and that frequent amendments to the statute are impractical. Hence officials must be empowered to respond to new developments. While there could be some merit in these arguments, the repeated and unjustified use of such powers is a matter of concern. As one noted jurist insightfully remarked, discretionary provisions appear constructive in theory but are destructive in practice. For instance, in 1999, the Tamil Nadu government, using the discretionary powers embedded in the Town and Country Planning Act, exempted buildings from a series of deviations including land use changes and permissible floor area. When this was challenged in the Supreme Court, the exemptions were upheld as a one-time response to contingencies arising then. But in the last 13 years, the State government has evoked the same powers several times to repeatedly regularise violations. Discretionary powers have to be used as rarely as possible and cautiously. The Supreme Court noted in the above-mentioned case that exemptions cannot be given for the “mere asking” or “in the extra statutory field” and certainly not as an act of “benevolence.” Before exemptions are granted, projects should pass the test of public good and must not deny equitable access to common resources. To discourage misuse, all land and building related exemptions should be made transparent and put to unrestricted public scrutiny.