LOK PRAHARI THROUGH ITS GENERAL SECRETARY versus THE STATE OF UTTAR PRADESH & ORS. on 7 May 2018

[2018] 6 S.C.R.

ALOK PRAHARI THROUGH ITS GENERAL SECRETARY

v.

THE STATE OF UTTAR PRADESH & ORS.

(Writ Petition (C) No. 864 of 2016)

BMAY 07, 2018

[RANJAN GOGOI AND R. BANUMATHI, JJ.]

Uttar Pradesh Ministers (Salaries, Allowances andMiscellaneous Provisions) Act, 1981 – s.4(3) (as inserted by the2016 Amendment) – Under the provision, former Chief MinistersCof the State were entitled to allotment of government accommodationfor their life time – Challenge to the validity of – Held: Presentpetitioner had earlier approached Supreme Court u/Art.32 in LokPrahari vs. State of UP and Ors., challenging the validity of the1997 Rules providing for allotment of govt. accommodation toDformer Chief Ministers – Not only the said writ petition wasentertained but, the 1997 Rules were struck down –Insertion ofs.4(3) by the 2016 Amendment as a substantive provision of thestatute when the 1997 Rules to the same effect were declared invalidby Supreme Court would require the curing of the invalidity foundby Supreme Court in the matter of allotment of governmentEaccommodation to former Chief Ministers – The defect found earlierpersists – Impugned legislation, therefore, is an attempt to overreachthe judgment of Supreme Court in Lok Prahari – Natural resources,public lands and the public goods like government bungalows/official residence are public property that belongs to the people ofFthe country – Chief Minister, once he/she demits the office, is at parwith the common citizen, though by virtue of the office held, he/shemay be entitled to security and other protocols, but allotment ofgovernment bungalow, to be occupied during his/her lifetime, wouldnot be guided by the constitutional principle of equality – s.4(3) isultra vires the Constitution of India and is, therefore, liable to beGstruck down – 2016 Amendment (UP Act No. 22 of 2016) – U.P Ex-Chief Ministers Residence Allotment Rules, 1997 – Uttar PradeshMinisters and State Legislature, Officers and Members AmenitiesLaws (Amendment) Act, 1990 – s.(1-A) – Uttar Pradesh Ministersand State Legislature, Officers and Members Amenities LawsH(Amendment) Act, 1997 – s.4-A – Societies Registration Act, 1860 –

Constitution of India – Arts.14, 32, 162 and 366A – Doctrine ofEquality.

Constitution of India – Art.14 – Test of reasonableclassification – s.4(3) of the 1981 Act allowing retention of officialaccommodation by former Chief Ministers of the State after theyhad demitted office, if violates Art.14 – Held: s.4(3) creates aseparate class of citizens for conferment of benefits by way ofdistribution of public property on the basis of the previous publicoffice held by them – Once such persons demit the public officeearlier held by them there is nothing to distinguish them from thecommon man – Test of reasonable classification, therefore, has tofail – s.4(3) of the 1981 Act is ultra vires the Constitution of India asit transgresses the equality clause u/Art.14 – Uttar Pradesh Ministers(Salaries, Allowances and Miscellaneous Provisions) Act, 1981 –s.4(3).

Allowing the Writ petition, the Court

Conclusion

Allowing the Writ petition, the Court

HELD: 1.1 The preamble to the Constitution of Indiaembodies, inter alia, the principles of equality and fraternity andit is on the basis of these principles of equality and fraternity thatthe Constitution recognizes only one single class of citizens withone singular voice (vote) in the democratic process subject toprovisions made for backward classes, women, children, SC/ST,minorities, etc. A special class of citizens, subject to the exceptionnoted above, is abhorrent to the constitutional ethos. The resolveof ‘the People of India’ to have a republican form of Governmentis a manifestation of the constitutional philosophy that does notrecognize any arbitrary sovereign power and domination of citizensby the State. The republican liberty and the doctrine of equalityis the central feature of the Indian democracy. It is, therefore,axiomatic that in a democratic republican government, publicservants entrusted with duties of public nature must act in amanner that reflects that ultimate authority is vested in thecitizens and it is to the citizens that holders of all public officesare eventually accountable. Such a situation would only be possiblewithin a framework of equality and when all privileges, rights andbenefits conferred on holders of public office are reasonable,rational and proportionate. [Paras 16-18][1088-C-F]

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A1.2 The allocation of government bungalows toconstitutional functionaries enumerated in Section 4(3) of the 1981Act after such functionaries demit public office(s) would be clearlysubject to judicial review on the touchstone of Article 14 of theConstitution of India. This is particularly so as such bungalowsconstitute public property which by itself is scarce and meant forBuse of current holders of public offices. The above is manifestedby the institution of Section 4-A in the 1981 Act by the AmendmentAct of 1997 (Act 8 of 1997). The questions relating to allocationof such property, therefore, undoubtedly, are questions of publiccharacter and, therefore, the same would be amenable for beingCadjudicated on the touchstone of reasonable classification as wellas arbitrariness. The present petitioner had earlier approachedSupreme Court under Article 32 of the Constitution challengingthe validity of the U.P Ex-Chief Ministers Residence AllotmentRules, 1997. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this CourtDhad, inter alia, considered the validity of the 1997 Rules in thelight of Article 14 of the Constitution of India. The insertion ofSection 4(3) by the 2016 Amendment as a substantive provisionof the statute when the 1997 Rules to the same effect weredeclared invalid by the Court would require the curing of theEinvalidity found by Supreme Court in the matter of allotment ofgovernment accommodation to former Chief Ministers. Thedefect found earlier persists. The impugned legislation,therefore, can very well be construed to be an attempt tooverreach the judgment of Supreme Court. [Paras 36, 37][1097-B-G]F

1.3 Natural resources, public lands and the public goodslike government bungalows/official residence are public propertythat belongs to the people of the country. The ‘Doctrine ofEquality’ which emerges from the concepts of justice, fairnessmust guide the State in the distribution/allocation of the same.GThe Chief Minister, once he/she demits the office, is at par withthe common citizen, though by virtue of the office held, he/shemay be entitled to security and other protocols. But allotment ofgovernment bungalow, to be occupied during his/her lifetime,would not be guided by the constitutional principle of equality.HSection 4(3) of the 1981 Act would have the effect of creating a LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THESTATE OF UTTAR PRADESH

LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THESTATE OF UTTAR PRADESH

separate class of citizens for conferment of benefits by way ofdistribution of public property on the basis of the previous publicoffice held by them. Once such persons demit the public officeearlier held by them there is nothing to distinguish them fromthe common man. The public office held by them becomes amatter of history and, therefore, cannot form the basis of areasonable classification to categorize previous holders of publicoffice as a special category of persons entitled to the benefit ofspecial privileges. The test of reasonable classification, therefore,has to fail. Not only that the legislation i.e. Section 4(3) of the1981 Act recognizing former holders of public office as a specialclass of citizens, viewed in the aforesaid context, would appearto be arbitrary and discriminatory thereby violating the equalityclause. It is a legislative exercise based on irrelevant and legallyunacceptable considerations, unsupported by any constitutionalsanctity. [Paras 38, 39][1097-G-H; 1098-A-D]

1.4 Section 4(3) of the 1981 Act cannot pass the test ofArticle 14 of the Constitution of India and is, therefore, liable tobe struck down. Section 4(3) of the 1981 Act is ultra vires theConstitution of India as it transgresses the equality clause underArticle 14. [Para 40][1098-E]

Budhan Choudhry and others v. State of Bihar AIR 1955SC 191 : [1955] SCR 1045; E.P. Royappa v. State ofTamil Nadu and another (1974) 4 SCC 3 : [1974] 2 SCR 348; Shayara Bano v. Union of India and others(2017) 9 SCC 1 – followed.

Lok Prahari v. State of Uttar Pradesh and others (2016)8 SCC 389 : [2016] 4 SCR 1026; Vineet Narain andothers vs. Union of India and another (1998) 1 SCC226: [1997] 6 Suppl. SCR 595; Akhil BhartiyaUpbhokta Congress vs. State of Madhya Pradesh andothers (2011) 5 SCC 29 : [2011] 5 SCR 77;Sachidanand Pandey and another vs. State of WestBengal and others (1987) 2 SCC 295 : [1987]2 SCR 223; Centre for Public Interest Litigation andothers v. Union of India and others (2012) 3 SCC 1 :[2012] 3 SCR 147; Natural Resources Allocation, inRe, Special Reference No. 1 of 2012 (2012) 10 SCC 1

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: [2012] 9 SCR 311 – relied on.

Shiv Sagar Tiwari v. Union of India and others (1997)1 SCC 444 : [1996] 10 Suppl. SCR 925; ShriRaghunathrao Ganpatrao v. Union of India AIR 1993SC 1267: [1993] 1 SCR 480; Victorian Granites (P)Ltd. v. P. Rama Rao and others (1996) 10 SCC 665:[1996] 5 Suppl. SCR 692; Ramana Dayaram Shetty v.International Airport Authority of India and others(1979) 3 SCC 489 : [1979] 3 SCR 1014; SharmaTransport v. Govt. of A.P. and others (2002) 2 SCC188 : [2001] 5 Suppl. SCR 390; Kumari ShrilekhaVidyarthi and others v. State of U.P. and others (1991)1 SCC 212 : [1990] 1 Suppl. SCR 625; State of Punjaband another v. Brijeshwar Singh Chahal and another(2016) 6 SCC 1 : [2016] 4 SCR 685 – referred to.

Case Law Reference

LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THESTATE OF UTTAR PRADESH

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.864 of 2016.

Under Article 32 of the Constitution of India.

Aman Lekhi, ASG, A. Mariarputham, Adv. Genl. Sikkim, AnilGrover, Adv. Genl., Haryana, Ajay Kumar Mishra, AAG, U.P., AnilGrover, AAG, Haryana, Saurabh Mishra, AAG, Gopal Subramanium, Sr.Adv., Gopal Sankaranarayanan, Pavan Bhushan, Shrutanjaya, Ms. VeeraMahuli, Ardhendumauli Kumar Prasad, Ms. Priyanka Das, Sanjai KumarPathak, Raj Bahadur, Ms. Aruna Mahur, Avneesh Arputham, Ms.Anuradha Arputham, Ms. Simran Jeet, Ms. Noopur Singhal, Sanjay Kr.Visen, Samir Ali Khan, Shuvodeep Roy, Sayooj Mohandas M., ArjunGarg, Ms. K. Enatoli Sema, V. N. Raghupathy, Bhupesh Narula, K. V.Jagdishvaran, MS. G. Indira, V. G. Pragasam, S. Prabu Ramasubramanian,S. Manuraj, G. Prakash, Jishmu M. L., Ms. Priyanka Prakash, Ms. BeenaPrakash, Vijay Shankar V. L., Vijaya Mohan V., Advs. for the appearingparties.

S. N. Shukla (In-person).

The Judgment of the Court was delivered by RANJAN GOGOI, J. 1. This writ petition under Article 32 ofthe Constitution of India raises a challenge to the validity of Section 4(3)of the Uttar Pradesh Ministers (Salaries, Allowances and MiscellaneousProvisions) Act, 1981 (hereinafter referred to as “the 1981 Act”), asamended in 2016.

2. The case has a somewhat chequered history. Suffice it will beto recapitulate that as former Chief Ministers of the State of Uttar Pradeshcontinued to occupy their official accommodation even after demittingoffice, in clear breach of Section 4 of the 1981 Act as it had then existed,a writ petition was filed before the High Court of Allahabad by the presentpetitioner. During the pendency of the said writ petition, a set of Rulesnamely “U.P. Ex-Chief Ministers Residence Allotment Rules, 1997”(hereinafter referred to as “the 1997 Rules”) were framed to providefor allotment of government accommodation to former Chief Ministers.The writ petition was accordingly amended to challenge the validity ofthe provisions of the 1997 Rules. However, the same was closed by theHigh Court on a statement made on behalf of the State of Uttar Pradeshthat former Chief Ministers would be henceforth allotted only Type Vbungalows and that too on payment of rent etc.

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A3. In the aforesaid situation, the present petitioner had filed WritPetition (C) No.657 of 2004 (Lok Praharivs. State of Uttar Pradeshand others) before this Court challenging the validity of the aforesaid1997 Rules. By judgment and order dated 1[st] August 2016[1], the aforesaidwrit petition was answered by this Court by striking down the 1997Rules, inter alia, on the ground that the provision for accommodationBfor ex-Chief Ministers as made under the aforesaid 1997 Rules was indirect conflict with the provisions of Section 4 of the 1981 Act. Paragraphs33, 37 and 38 of the said report in Lok Prahari (supra) would be relevantto notice:

“33. We may now turn to the issue whether the impugned 1997CRules are ultra vires Article 14 of the Constitution of India and alsorepugnant to the provisions of the 1981 Act. The relevant extract of the1997 Rules is as under:

“4. Allotment of residence.—A residence on falling vacant willbe allotted by the Estate Officer to such ex-Chief Minister whoDhas given an application under these Rules. There will be no rightfor allotment of a house outside Lucknow under these Rules.

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6. Period for which allotment subsists.—The allotment ofEresidence to ex-Chief Ministers shall be effective only during theirlifetime. The allotment shall be deemed to be automaticallycancelled upon the death of ex-Chief Minister and family membersresiding therein will have to invariably hand over the possessionof the residence concerned to the Estate Department within 3months from the date of death. If the family members residing inFthe residence do not hand over the possession, recovery rent,damages, etc. shall be taken under the provisions of the U.P. PublicPremises (Eviction of Unauthorised Occupants) Act, 1972.”

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37. If we look at the position of other constitutional post holderslike Governors, Chief Justices, Union Ministers, and Speaker, etc.all of these persons hold only one “official residence” during theirtenure. The respondents have contended that in a federal set-up, 1 (2016) 8 SCC 389H

like the Union, the State has also power to provide residentialbungalow to the former Chief Minister. The above submission ofthe respondent State cannot be accepted for the reason that the1981 Act does not make any such provision and the 1997 Rules,which are only in the nature of executive instructions and contraryto the provisions of the 1981 Act, cannot be acted upon.

38. Moreover, the position of the Chief Minister and the CabinetMinisters of the State cannot stand on a separate footing afterthey demit their office. Moreover, no other dignitary, holdingconstitutional post is given such a facility. For the aforestatedreasons, the 1997 Rules are not fair, and more so, when the subjectof “salary and allowances” of the Ministers, is governed by Section4(2)(a) of the 1981 Act.”

4. Section 4 of the 1981 Act was amended in the year 2016.Under Section 4(3) brought in by the 2016 Amendment (U.P. Act No.22of 2016), former Chief Ministers of the State became entitled to allotmentof government accommodation for their life time. The validity of theaforesaid Section 4(3), as amended, has been questioned by the writpetitioner, a registered body, which claims to be “committed to upholdingof the Constitution and enforcement of the Rule of law”.

5. Section 4 of the 1981 Act as originally enacted and as amendedin the year 2016 by 2016 Amendment is in the following terms:

Section 4 of the Act, as originally Section 4 of the Act, as amended enacted in the year 2016 by 2016 Amendment (U.P Act No. 22 of 2016) 4.Residence.-(1) Each Minister shall be 4. For section 4 of the principal Act, entitled without payment of any rent to the following sections shall be the use throughout the term of his office substituted, namely:- and for period of fifteen days thereafter, of a residence at Lucknow which shall be 4(1) The Chief Minister and each Minister shall be entitled, without furnished and maintained at public expenses at the prescribed scale. payment of any rent to the use, throughout the term of his office and for a period of fifteen days thereafter, of a residence at Lucknow which shall be furnished and maintained at public expense at (2) Where a Minister has not been the prescribed scale. provided with a residence in accordance A

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Awith sub-Section (1), or does not avail of (2) Where the Chief Minister or a the benefit of the said sub section, he Minister has not been provided with a shall be entitled to a compensatory residence in accordance with sub-allowance at the rate of- section(1) or does not avail of the benefit of the said sub-section, he shall be entitled (a) three hundred rupees per month in to a compensatory allowance at the rate of Bthe case of Deputy Minister, and – (b) five hundred rupees per month in any (a) ten thousand rupees per month in the other case. case of the Chief Minister, a Minister, a Minister of State (Independent Charge) and a Minister of State; C(b) eight thousand rupees per month in the case of a Deputy Minister. (3) A government residence shall be Dallotted to a former Chief Minister of Uttar Pradesh, at his/her request, for his/her life time, on payment of such rent as may be determined from time to time by the Estate Department of the State Government. E

6. The 1981 Act was amended by the Uttar Pradesh Ministersand State Legislature, Officers and Members Amenities Laws(Amendment) Act, 1990 (U.P. Act No.5 of 1990) (hereinafter referredto as “1990 Amendment”) by insertion of sub-section (1-A) to Section 4which is in the following terms:

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“(1-A) Each Minister for whose use a residence at Lucknow hasbeen provided under sub-section (1) shall immediately after theexpiration of the period referred to in that sub-section, vacatesuch accommodation and an officer authorized by the StateGovernment in this behalf may take possession of theGaccommodation and may for the purpose use such force as maybe necessary in the circumstances.

Explanation – For the purposes of this sub-section ‘Minister’includes a person who has ceased to be a Minister”, and alsoincludes a person who was given the status of a Minister.”

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7. By another amendment to the 1981 Act by the Uttar PradeshMinisters and State Legislature, Officers and Members Amenities Laws(Amendment) Act, 1997 (U.P. Act No.8 of 1997) (hereinafter referredto as “1997 Amendment”) Section 4-A was inserted, which is to thefollowing effect:

“4-A. Special provisions regarding certainaccommodations.- (1) On and from the commencement of theUttar Pradesh Ministers and State Legislature Officers andMembers Amenities Laws (Amendment) Act, 1997, the StateGovernment may, with a view to ensuring timely availability ofresidence to a Minister under sub-section (1) of Section 4, by anotified order, specify any type-VI accommodation or anaccommodation in which a Minister was in occupation at anytime, under the control and Management of the Estate Departmentof the State Government, as Minister’s residence and anaccommodation so specified shall be allotted to a Ministeronly and not to any other person.

(2) The State Government, or an officer authorized by it in thisbehalf may, if a person other than a Minister referred to in sub-section (1-A) of Section 4 is in occupation of an accommodationspecified as Minister’s residence under sub-section (1) on thebasis of any allotment order or otherwise, cancel the allotmentorder of such person, if any, and by notice in writing require suchperson to vacate the said accommodation within fifteen days fromthe date of service upon him of such notice, and if such personfails to vacate the said accommodation within the said period, anofficer authorized by the State Government in this behalf maytake possession of the accommodation and may for the purposeuse such force as may be necessary in the circumstances”.

8. It will be worthwhile to note at this stage that while Section4(1-A) of the 1981 Act has been deleted by the 2016 Amendment Section4-A continues to remain on the statute book.

9. Section 4-A(2) of the 1981 Act, extracted above, visualize thatif any person other than the Minister is in occupation of accommodationspecified as Minister’s residence under sub-section (1) of Section 4-A(Type VI accommodation) the allotment order of such person shall becancelled and the occupant would be required to vacate the saidaccommodation within fifteen days from the date of service of notice, A

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Afailing which, the Authorized Officer would be competent in law to takepossession of the accommodation, if necessary, by use of such force, asmay be required.

10. Having noted the salient features of the provisions of the 1981Act the question that arises for determination in the present proceedingsBmay be summarized as follows:

“Whether retention of official accommodation by thefunctionaries mentioned in Section 4(3) of the 1981 Act after theyhad demitted office violate the equality clause guaranteed by Article14 of the Constitution of India.”C

11. The petitioner - body which is a registered society under theSocieties Registration Act, 1860 is represented in these proceedings byits Secretary Shri S.N. Shukla, who is a retired I.A.S. Officer. ThoughShri Shukla had advanced his arguments and contentions with great clarity,yet, having regard to the importance of the question raised we had thoughtDit proper to take the assistance of Shri Gopal Subramanium, learnedSenior Counsel of this Court and to assist him we had thought it properto request Shri Gopal Sankaranarayanan, learned counsel, a member ofthe Supreme Court Bar Association. Both Shri Gopal Subramanium,learned Senior Counsel and Shri Gopal Sankaranarayanan, learnedcounsel have rendered their valuable assistance to this Court whichEassistance is being acknowledged by the Court at the very outset of thepresent order.

12. Though the issue in the present proceeding is strictly confinedto the provisions of the 1981 Act, having regard to the fact that theremay be similar/pari materia provisions in force in different States/UnionFTerritories and also in the Union we had thought it proper to inform,through the learned Amicus Curiae, the law officers of the Union andall the States/Union Territories of the pendency of the present writ petitionand the issues arising therein. Pursuant thereto, the responses of theUnion and the States of Assam, Bihar, Tamil Nadu and Odisha haveGbeen received. Shri Aman Lekhi, learned ASG has submitted that theGovernment Accommodation is provided to former Presidents, Vice-Presidents, Prime Ministers of the country. The issue had come up forconsideration in this Court in Shiv Sagar Tiwarivs. Union of Indiaand others2 wherein this Court has approved the action taken in the

matter of provision of official accommodation to the aforesaid dignitariesunder the extant Rules in the following manner:

“72. Keeping in view the very high constitutional position occupiedby the President, Vice-President and Prime Minister, we feel nodifficulty in stating that they should be accommodated ingovernment premises after demitting of office by them, so thatproblem of suitable residence does not trouble them in the eveningof life. What should be the terms of the same is a matter to bedecided by the Government.”

13. Insofar as the States of Tamil Nadu and Odisha are concerned,it is clear from the communications received from the Advocate Generalsof the said States by the office of the learned Amicus Curiae Shri GopalSubramanium that no provision for official accommodation to formerChief Ministers has been made by the said two states whereas in thecase of States of Bihar and Assam such provision has been made byexecutive instructions issued by the State under Article 162of theConstitution of India.

14. We had thought it proper to request the learned Amicus Curiaeto sound the Advocate Generals of the States on the pendency of thiswrit petition to enable the States to render assistance to the Court inthe matter of adjudication of the validity of Section 4(3) of the 1981Act in view of the fact that some of the States may have pari materiaprovisions in force. No such contest by the States with regard to thevalidity of the Section 4(3) of the 1981 Act had been forthcoming exceptto the extent mentioned hereinabove on behalf of the Union of India.We, therefore, proceed to undertake the present exercise which, wemake it clear, is confined to the issue of validity of Section 4(3) of the1981 Act.

15. It would be appropriate to initiate the discourse by rememberingthe preamble to the Constitution of India which is in the following terms.

WE, THE PEOPLE OF INDIA, having solemnly resolvedto constitute India into a SOVEREIGN SOCIALISTSECULAR DEMOCRATIC REPUBLIC and to secure toall its citizens:

JUSTICE, social, economic and political;

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1088SUPREME COURT REPORTS

ALIBERTY, of thought, expression, belief, faith and worship;EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and theBunity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixthday of November, 1949, DO HEREBY ADOPT, ENACT ANDGIVE TO OURSELVES THIS CONSTITUTION.

16. The preamble to the Constitution of India embodies, interCalia, the principles of equality and fraternity and it is on the basis ofthese principles of equality and fraternity that the Constitution recognizesonly one single class of citizens with one singular voice (vote) in thedemocratic process subject to provisions made for backward classes,women, children, SC/ST, minorities, etc. A special class of citizens,Dsubject to the exception noted above, is abhorrent to the constitutionalethos.

17. The resolve of ‘the People of India’ to have a republican formof Government is a manifestation of the constitutional philosophy thatdoes not recognize any arbitrary sovereign power and domination ofcitizens by the State. The republican liberty and the doctrine of equalityEis the central feature of the Indian democracy.

18. It is, therefore, axiomatic that in a democratic republicangovernment public servants entrusted with duties of public nature mustact in a manner that reflects that ultimate authority is vested in the citizensand it is to the citizens that holders of all public offices are eventuallyFaccountable. Such a situation would only be possible within a frameworkof equality and when all privileges, rights and benefits conferred on holdersof public office are reasonable, rational and proportionate.

19. It may be necessary herein to recapitulate the Seven Principlesof Public Life Report by Lord Nolan which find mention in the judgmentGof this Court in Vineet Narain and othersvs. Union of India andanother3(paragraph 54). This Court in paragraph 55 of the report inVineet Narain(supra) had observed:

“These principles of public life are of general application in everydemocracy and one is expected to bear them in mind whilescrutinizing the conduct of every holder of a public office.”

The seven principles of public life stated in the Report by LordNolan are as follows:

“THE SEVEN PRINCIPLES OF PUBLIC LIFE

Selflessness

Holders of public office should take decisions solely in terms ofthe public interest. They should not do so in order to gain financialor other material benefits for themselves, their family, or theirfriends.

Integrity

Holders of public office should not place themselves under anyfinancial or other obligation to outside individuals or organisationsthat might influence them in the performance of their official duties.

Objectivity

In carrying out public business, including making publicappointments, awarding contracts, or recommending individualsfor rewards and benefits, holders of public office should makechoices on merit.

Accountability

Holders of public office are accountable for their decisions andactions to the public and must submit themselves to whateverscrutiny is appropriate to their office.

Openness

Holders of public office should be as open as possible about allthe decisions and actions that they take. They should give reasonsfor their decisions and restrict information only when the widerpublic interest clearly demands.

Honesty

Holders of public office have a duty to declare any private interestsrelating to their public duties and to take steps to resolve anyconflicts arising in a way that protects the public interest.

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ALeadership

Holders of public office should promote and support theseprinciples by leadership and example.”

20. It would be significant to note that the legislative anxiety tobring in a classless society, a constitutional vision, inter alia, foundBmanifestation in the Twenty-sixth (26[th]) Amendment to the Constitutionof India by which Articles 291 and 362 were repealed and a new Article366A was incorporated, resulting in depriving the Rulers of PrincelyStates the recognition accorded to them and declaring the abolition ofthe privy purse. In the resultant challenge by a co-Ruler of an erstwhilesovereign Indian State of Kurundwad Jr. this Court in ShriCRaghunathrao Ganpatrao vs. Union of India4while dealing with thechallenge, inter alia, spoke as follows:

“96. Permanent retention of the privy purse and the privileges ofrights would be incompatible with the sovereign and republicanform of Government. Such a retention will also be incompatibleDwith the egalitarian form of our Constitution. That is the opinionof the Parliament which acted to repeal the aforesaid provisionsin exercise of its constituent power. The repudiation of the right toprivy purse privileges, dignities etc. by the deletion of Articles 291and 362, insertion of Article 363-A and amendment of clause (22)Eof Article 366 by which the recognition of the Rulers and paymentof privy purse are withdrawn cannot be said to have offendedArticle 14 or 19(g) [sic 19(1)(f)] and we do not find any logic insuch a submission. No principle of justice, either economic, politicalor social is violated by the Twenty-sixth Amendment. Politicaljustice relates to the principle of rights of the people, i.e. right toFuniversal suffrage, right to democratic form of Government andright to participation in political affairs. Economic justice isenshrined in Article 39 of the Constitution. Social justice isenshrined in Article 38. Both are in the directive principles of theConstitution. None of these rights are abridged or modified byGthis Amendment. We feel that this contention need not detain usany more and, therefore, we shall pass on to the next point indebate.”

21. An instance of State action inconsistent with the constitutionalgoal to secure socio-economic justice was dealt with by this Court in 4 AIR 1993 SC 1267H

Victorian Granites (P) Ltd. Vs. P. Rama Rao and others5. In the saidcase, the state action approving the assignment of a lease granted to anindividual on expiry thereof in favour of a private Company, at the requestof the outgoing lessee, without any publicity and without inviting objectionsfrom others was explicitly disapproved by this Court by holding thatsuch a transfer was opposed to the common good and the constitutionalobjective of securing socio-economic justice which was described asthe arch of the Constitution. Material resources of the community mustbe distributed to sub-serve the common good, this Court had opined.

22. Similarly, in Akhil Bhartiya Upbhokta Congressvs. Stateof Madhya Pradesh and others6this Court held that:

“48. Part IV contains “directive principles of State policy” whichare fundamental in the governance of the country and it is theduty of the State to apply these principles in making laws. Article39 specifies certain principles of policy which are required to befollowed by the State. Clause (b) thereof provides that the Stateshall, in particular, direct its policy towards securing that theownership and control of the material resources of the communityare so distributed as best to subserve the common good. Parliamentand legislatures of the States have enacted several laws and theGovernments have, from time to time, framed policies so that thenational wealth and natural resources are equitably distributedamong all sections of people so that have-nots of the society canaspire to compete with haves.”

23. In Akhil Bhartiya (supra), this Court examined the legalityof the action of the Madhya Pradesh Government to allot twenty acresof land to an Institution on the basis of application made by the Trust.This Court held that the distribution of State largesse allocation of land,grant of permit, licence etc. should always be in a fair and equitablemanner. It was held that the elements of favouritism or nepotism shallnot influence the exercise of discretion by the decision maker. Observingthat every action of the public authority should be guided by public interest,free from arbitrariness, in para (65), it was held as under:- “65.What needs to be emphasised is that the State and/or itsagencies/instrumentalities cannot give largesse to any personaccording to the sweet will and whims of the political entities and/

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Aor officers of the State. Every action/decision of the State and/orits agencies/instrumentalities to give largesse or confer benefit-must be founded on a sound, transparent, discernible and welldefined policy, which shall be made known to the public bypublication in the Official Gazette and other recognised modes ofpublicity and such policy must be implemented/executed byB--adopting a nondiscriminatory and nonarbitrary methodirrespective of the class or category of persons proposed to bebenefited by the policy. The distribution of largesse like allotmentof land, grant of quota, permit licence, etc. by the State and itsagencies/instrumentalities should always be done in a fair andCequitable manner and the element of favouritism or nepotism shallnot influence the exercise of discretion, if any, conferred upon theparticular functionary or officer of the State.

(Underlining is ours)

24. In Sachidanand Pandey and anothervs.State of WestDBengal and others7,this Court after referring to some of the availableprecedents, laid the following principles:-

“40. On a consideration of the relevant cases cited at the Bar thefollowing propositions may be taken as well established: State--owned or publicowned property is not to be dealt with at theEabsolute discretion of the executive. Certain precepts and principleshave to be observed. Public interest is the paramount consideration.One of the methods of securing the public interest, when it isconsidered necessary to dispose of a property, is to sell the propertyby public auction or by inviting tenders. Though that is the ordinaryrule, it is not an invariable rule. There may be situations whereFthere are compelling reasons necessitating departure from therule but then the reasons for the departure must be rational andshould not be suggestive of discrimination. Appearance of publicjustice is as important as doing justice. Nothing should be donewhich gives an appearance of bias, jobbery or nepotism.”

(Underlining is ours)

G (Underlining is ours)25. After Akhil Bhartiya(supra) and Sachidanand Pandey(supra), in Centre for Public Interest Litigation and othersv.Unionof India and others8,it was held as under:- 7 (1987) 2 SCC 295H 8 (2012) 3 SCC 1

“89. In conclusion, we hold that the State is the legal owner ofthe natural resources as a trustee of the people and although it isempowered to distribute the same, the process of distribution mustbe guided by the constitutional principles including the doctrine ofequality and larger public good.”

26. In Natural Resources Allocation, in Re, Special Reference9No. 1 of 2012, while considering the allocation of 2G Spectrum, thisCourt observed that as natural resources are public goods, the ‘Doctrineof Equality’ which emerges from the concepts of justice and fairnessmust guide the State in determining the actual mechanism for distributionof natural resources. Any further detailed reference to the opinionrendered is being avoided as the principles evolved are in furtherance ofwhat has been had been laid down earlier, as noticed above.

27. Coming back to the issue in hand a brief look at the contentionsadvanced may be appropriate at this stage. The State of Uttar Pradeshhas sought to defeat the writ petition by contending that the same beingunder Article 32 of the Constitution of India a direct infringement of thefundamental rights of the petitioner must be established which is nowhereapparent even on a close scrutiny. The writ petition, therefore, is notmaintainable. Alternatively, it has been argued that infringement of theequality clause under Article 14 of the Constitution of India is a far cryas there is an intelligible differentia to justify a separate and exclusivetreatment to former Chief Ministers who form a class of their own.

28. While it is true that Article 32 of the Constitution is to beinvoked for enforcement of the fundamental rights of a citizen or a noncitizen, as may be, and there must be a violation or infringement thereofwe have moved away from the theory of infringement of the fundamentalrights of an individual citizen or non citizen to one of infringement ofrights of a class. In fact, the above transformation is the foundation ofwhat had developed as an independent and innovative stream ofjurisprudence called “Public Interest Litigation” or class action. Thoughevolved much earlier, a Solemn affirmation of the aforesaid principle isto be found in paragraph 48 of the report in Vineet Narain (supra)which would be eminently worthy of recapitulation and, therefore, isextracted below:

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A“48. In view of the common perception shared by everyoneincluding the Government of India and the Independent ReviewCommittee (IRC) of the need for insulation of the CBI fromextraneous influence of any kind, it is imperative that some actionis urgently taken to prevent the continuance of this situation witha view to ensure proper implementation of the rule of law. This isBthe need of equality guaranteed in the Constitution. The right toequality in a situation like this is that of the Indian polity and notmerely of a few individuals. The powers conferred on this Courtby the Constitution are ample to remedy this defect and to ensureenforcement of the concept of equality.”

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(Underlining is ours)

29. Along with the aforesaid shift in the judicial thinking there hasbeen an equally important shift from the classical test (classificationtest) for the purpose of enquiry with regard to infringement of the equalityclause under Article 14 of the Constitution of India to, what may beDtermed, a more dynamic test of arbitrariness. The shift which depictstwo different dimensions of a challenge on the anvil of Article 14 is bestdemonstrated by a comparative reading of the judgments of this Court in10the case of Budhan Choudhry and others vs. State of Bihar, and11E.P. Royappa vs. State of Tamil Nadu and another.

E30. In Budhan Choudhry(supra), the classical test based on areasonable classification to give legitimacy to an act of differentialtreatment was expounded in the following terms:

“……It is now well established that while Article 14 forbids classlegislation, it does not forbid reasonable classification for theFpurposes of legislation. In order, however, to pass the test ofpermissible classification two conditions must be fulfilled, namely,(i) that the classification must be founded on an intelligibledifferentia which distinguishes persons or things that are groupedtogether from others left out of the group and, (ii) that differentiaGmust have a rational relation to the object sought to be achievedby the statute in question. The classification may be founded ondifferent bases; namely, geographical, or according to objects oroccupations or the like. What is necessary is that there must be anexus between the basis of classification and the object of the 10 AIR 1955 SC 191H 11 (1974) 4 SCC 3

Act under consideration. It is also well established by the decisionsof this Court that Article 14 condemns discrimination not only bya substantive law but also by a law of procedure.”

31. The more dynamic version came two decades later in thecase ofE.P. Royappa (supra) wherein Bhagwati, J. expanded the scopeof Article 14 of the Constitution of India in the following terms:

“85…….From a positivistic point of view, equality is antithetic toarbitrariness. In fact equality and arbitrariness are sworn enemies;one belongs to the rule of law in a republic while the other, to thewhim and caprice of an absolute monarch. Where an act isarbitrary, it is implicit in it that it is unequal both according to politicallogic and constitutional law and is therefore violative of Article14, and if it effects any matter relating to public employment, it isalso violative of Article 16. Articles 14 and 16 strike at arbitrarinessin State action and ensure fairness and equality of treatment. Theyrequire that State action must be based on valid relevant principlesapplicable alike to all similarly situate and it must not be guided byany extraneous or irrelevant considerations because that wouldbe denial of equality. Where the operative reason for State action,as distinguished from motive inducing from the antechamber ofthe mind, is not legitimate and relevant but is extraneous and outsidethe area of permissible considerations, it would amount to malafide exercise of power and that is hit by Articles 14 and 16. Malafide exercise of power and arbitrariness are different lethalradiations emanating from the same vice: in fact the lattercomprehends the former. Both are inhibited by Articles 14 and 16.”

32. The evolution of the dynamic facet of Article 14 of theConstitution of India was carried forward in numerous pronouncementsof this Court of which reference must be made, illustratively, toRamanaDayaram Shetty vs. International Airport Authority of India andothers12;Sharma Transport vs. Govt. of A.P. and others13;KumariShrilekha Vidyarthi and othersvs. State of U.P. and others14;State15of Punjab and another vs. Brijeshwar Singh Chahal and another.

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A33. Paragraph 23 and 35 of Kumari Shrilekha(supra) may beextracted with profit only to notice the absolute clarity in carrying forwardthe principle laid down by Hon. Bhagwati J., in Royappa(supra).

“23. Thus, in a case like the present, if it is shown that the impugnedState action is arbitrary and, therefore, violative of Article 14 ofBthe Constitution, there can be no impediment in striking down theimpugned act irrespective of the question whether an additionalright, contractual or statutory, if any, is also available to the aggrievedpersons.

…………C35.

35. It is now too well settled that every State action, in order tosurvive, must not be susceptible to the vice of arbitrariness whichis the crux of Article 14 of the Constitution and basic to the rule oflaw, the system which governs us. Arbitrariness is the very negationof the rule of law. Satisfaction of this basic test in every StateDaction is sine qua non to its validity and in this respect, the Statecannot claim comparison with a private individual even in the fieldof contract. This distinction between the State and a privateindividual in the field of contract has to be borne in the mind.”

34. The “final” culmination is in Shayara Bano vs. Union ofEIndia and others16where two members of the Bench (Hon’ble R.F.Nariman and Uday Umesh Lalit, JJ.) wrote as follows:

“101. It will be noticed that a Constitution Bench of this Court inIndian Express Newspapers (Bombay) (P) Ltd. v. Union ofIndia stated that it was settled law that subordinate legislationcan be challenged on any of the grounds available for challengeFagainst plenary legislation. This being the case, there is no rationaldistinction between the two types of legislation when it comes tothis ground of challenge under Article 14. The test of manifestarbitrariness, therefore, as laid down in the aforesaid judgmentswould apply to invalidate legislation as well as subordinateGlegislation under Article 14. Manifest arbitrariness, therefore, mustbe something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when somethingis done which is excessive and disproportionate, such legislationwould be manifestly arbitrary. We are, therefore, of the view that H 16 (2017) 9 SCC 1

arbitrariness in the sense of manifest arbitrariness as pointed outby us above would apply to negate legislation as well underArticle 14.”

35. The above view received support of a third member of theConstitution Bench (Hon’ble Kurian Joseph, J.)

36. In the light of the above views the allocation of governmentbungalows to constitutional functionaries enumerated in Section 4(3) ofthe 1981 Act after such functionaries demit public office(s) would beclearly subject to judicial review on the touchstone of Article 14 of theConstitution of India. This is particularly so as such bungalows constitutepublic property which by itself is scarce and meant for use of currentholders of public offices. The above is manifested by the institution ofSection 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of1997). The questions relating to allocation of such property, therefore,undoubtedly, are questions of public character and, therefore, the samewould be amenable for being adjudicated on the touchstone of reasonableclassification as well as arbitrariness.

37. The present petitioner, as already noticed in the openingparagraphs of this judgment, had earlier approached this Court underArticle 32 of the Constitution challenging the validity of the 1997 Rules.Not only the said writ petition was entertained but the 1997 Rules were,in fact, struck down. In doing so, this Court had, inter alia, consideredthe validity of the 1997 Rules in the light of Article 14 of the Constitutionof India. The insertion of Section 4(3) by the 2016 Amendment as asubstantive provision of the statute when the 1997 Rules to the sameeffect were declared invalid by the Court would require the curing ofthe invalidity found by this Court in the matter of allotment of governmentaccommodation to former Chief Ministers. The defect found earlierpersists. The impugned legislation, therefore, can very well be construedto be an attempt to overreach the judgment of this Court in Lok Prahari(supra).

38. Natural resources, public lands and the public goods likegovernment bungalows/official residence are public property that belongsto the people of the country. The ‘Doctrine of Equality’ which emergesfrom the concepts of justice, fairness must guide the State in thedistribution/allocation of the same. The Chief Minister, once he/shedemits the office, is at par with the common citizen, though by virtue of A

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Athe office held, he/she may be entitled to security and other protocols.But allotment of government bungalow, to be occupied during his/herlifetime, would not be guided by the constitutional principle of equality.

39. Undoubtedly, Section 4(3) of the 1981 Act would have theeffect of creating a separate class of citizens for conferment of benefitsBby way of distribution of public property on the basis of the previouspublic office held by them. Once such persons demit the public officeearlier held by them there is nothing to distinguish them from the commonman. The public office held by them becomes a matter of history and,therefore, cannot form the basis of a reasonable classification tocategorize previous holders of public office as a special category ofCpersons entitled to the benefit of special privileges. The test of reasonableclassification, therefore, has to fail. Not only that the legislation i.e.Section 4(3) of the 1981 Act recognizing former holders of public officeas a special class of citizens, viewed in the aforesaid context, wouldappear to be arbitrary and discriminatory thereby violating the equalityDclause. It is a legislative exercise based on irrelevant and legallyunacceptable considerations, unsupported by any constitutional sanctity.

40. Consequently, we hold that Section 4(3) of the 1981 Act cannotpass the test of Article 14 of the Constitution of India and is, therefore,liable to be struck down. We, therefore, hold that the aforesaid SectionE4(3) of the Uttar Pradesh Ministers (Salaries, Allowances andMiscellaneous Provisions) Act, 1981 is ultra vires the Constitution ofIndia as it transgresses the equality clause under Article 14. The writpetition in question, therefore, is allowed.

FDivya Pandey

Writ Petition allowed.

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