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Tuesday, August 2, 2016

government bungalows occupied by former Chief Ministers of the State of Uttar Pradesh.= it is held that the 1997 Rules so far as they are not in consonance with the provisions of the 1981 Act are bad in law. The government bungalows allotted to the respondents is held to be bad in law and the concerned respondents shall hand over possession of the bungalows occupied by them within two months from today and the respondent-Government shall also recover appropriate rent from the occupants of the said bungalows for the period during which they were in unauthorized occupation of the said bungalows.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                    WRIT PETITION (CIVIL) NO.657 OF 2004


Lok Prahari                                  ... Petitioner

                                   Versus

State of U.P. & Ors.                               ... Respondents


                               J U D G M E N T

ANIL R. DAVE, J.



1.    A short but serious and significant issue  has  been  raised  in  this
public interest litigation, which pertains to government bungalows  occupied
by former Chief Ministers of the State of Uttar Pradesh.

2.     The  Petitioner  is  a  Society  registered   under   the   Societies
Registration Act with objects pertaining to public  welfare,  etc.  and  the
petition has been filed through  its  General  Secretary,  who  appeared  in
person.  He is a former officer of All India  Services  and  has  ventilated
grievances which are definitely serious one, touching  the  State  exchequer
and conduct of the persons who were Chief Ministers of the  State  of  Uttar
Pradesh.  The main submission made in the petition is  that  several  former
Chief Ministers had occupied Government bungalows  of  Type  VI  even  after
demitting office of the Chief Minister for several years without  any  right
to retain the same, which is not only immoral and illegal, but it also  does
not befit persons who were Chief Ministers of the State.

3.    At the time when the petition was  admitted  on  13th  January,  2006,
this Court had passed the following Order:
“The challenge in this petition is to the  validity  of  Ex-Chief  Ministers
Residence Allotment Rules, 1997.  The petitioner claims it  to  be  illegal,
malafides and colourable exercise of power.  It is  also  claimed  that  the
Rules, which are non-statutory, could not have been framed in the  light  of
the provisions of the Uttar  Pradesh  Ministers  (Salaries,  Allowances  and
Miscellaneous Provisions) Act, 1981.

      On the other hand, it has been, inter alia,  contended  on  behalf  of
the State that in the federal structure, there is no  bar  if  provision  is
made for allotment of residential accommodation  to  ex-Chief  Ministers  of
the State.  It is also contended that the matter  deserves  to  be  examined
further in the light of the provisions of the  President’s  (Emoluments  and
Pension) Act, 1951.  The further contention is that  the  former  Presidents
and the Prime Ministers are also allotted  residential  accommodation  after
they cease to hold those positions.

      In our view, the  writ  petition  raises  important  questions,  which
require deeper consideration.  Accordingly, while issuing  Rule,  we  direct
that  notice  be  issued  to  the   Union   of   India   and   other   State
Governments/Union Territories.”

Thus, we have to  examine  whether  the  provisions  of  Ex-Chief  Ministers
Residence Allotment Rules, 1997    (hereinafter referred  to  as  ‘the  1997
Rules’) are valid or  contrary  to  the  provisions  of  the  Uttar  Pradesh
Ministers (Salaries, Allowances  and  Miscellaneous  Provisions)  Act,  1981
(hereinafter referred to as the ‘the 1981 Act’).

4.    As several former Chief Ministers had occupied  government  bungalows,
a petition, in the nature  of  a  Public  Interest  Litigation,  being  Writ
Petition  No.1313  (M/S)  of  1996  was  filed  before  the  High  Court  of
Judicature at  Allahabad  by  Janhit  Sangathan,  a  registered  Society  of
retired senior Civil Servants.  At the  time  when  the  said  petition  was
filed, there were no Rules or Regulations permitting former Chief  Ministers
to occupy government bungalows.

5.    In the aforestated circumstances, the State of  U.P.  i.e.  respondent
no.1 framed the 1997 Rules during the pendency of the said  petition.    The
1997 Rules are not statutory Rules and they are in the nature  of  executive
instructions.  The 1997 Rules provide that former Chief Ministers should  be
provided government bungalows for their residence  for  the  life  and  upon
their death, the family members occupying  the  bungalow  should  hand  over
vacant possession of the bungalow within 3  months  from  the  date  of  the
death of the former Chief Minister and failing which they  would  be  liable
to pay penal rent. The 1997 Rules do not provide for allotment of  bungalows
either to the family members of the former Chief Ministers or to  any  Trust
or Society concerned with any former Chief Minister.

6.    As the 1997 Rules were framed during the  pendency  of  Writ  Petition
No.1313 (M/S) of 1996, the aforestated Writ Petition was amended  so  as  to
challenge the validity of the 1997 Rules on the ground that the  1997  Rules
were not only unconstitutional and illegal, but were also violative  of  the
provisions of Article 14 of the Constitution of India.

7.    At the time of hearing of the said petition, a statement was  made  by
the learned Additional Advocate General appearing for respondent  no.1  that
only Type V bungalows would be allotted to the former  Chief  Ministers  and
the former Chief Ministers will have  to  make  some  payment  of  rent  for
occupying such bungalows.  Some other provisions with regard to  expenditure
to be incurred for maintenance of the bungalows were  also  referred  to  by
him.  The learned Additional Advocate General  had  further  submitted  that
possession of bungalows allotted to private trusts  or  organizations  would
be taken back by the government as there was no  provision  with  regard  to
making     allotment     of      government      bungalows      to      such
trusts/societies/organizations etc.  Ultimately, the petition  was  disposed
of on 20th August, 2001 without deciding the validity of the 1997  Rules  in
view of the fact that the aforestated statements were made  by  the  learned
Additional Advocate General on behalf  of  Respondent  no.1-State.   It  was
also directed that the family members of the  former  Chief  Ministers,  who
were occupying such premises even  after  the  death  of  the  former  Chief
Minister will have to vacate the premises within a particular period.

8.    It further appears that in spite of the statement made by the  learned
Additional Advocate General, the government  did  not  do  the  needful  for
getting possession of the bungalows occupied by the family  members  of  the
deceased former Chief Ministers and in the  aforestated  circumstances,  the
present writ petition was filed with the following main prayer :
“(1)  declare  the  Ex-Chief  Ministers  Residences  Allotment  Rules,  1997
(Annexure P-4 to the WP) illegal being  malafides,  colourable  exercise  of
power and against the provisions of the Constitution.”

It has also been prayed that rent payable by the unauthorized  occupants  of
such bungalows be recovered and those who were occupying bungalows  allotted
to former Chief Ministers be evicted.

9.    It has also been prayed that certain private trusts  or  organizations
or societies, who are occupying government bungalows  be  also  directed  to
vacate the bungalows.

10.   It is pertinent to note that after disposal of Writ  Petition  No.1313
(M/S)  of  1996,  respondent  no.1-State  framed  rules   titled   as   “The
Distinguished Personality Trust Allotment of Houses  in  Lucknow  under  the
Control of State Estate Department Rules, 2003” (hereinafter referred to  as
‘the 2003 Rules’) under Office Memorandum  dated  31.12.2003  to  deal  with
lease of houses for the use of any social service trust set up in  the  name
of a distinguished person who is known as a National hero.  In  addition,  a
policy decision dated 4th  July,  2005  was  taken  regarding  allotment  of
premises at Lucknow, under the administrative  control  of  Respondent  No.2
department, to certain NGOs/Trusts, Non-Government  persons  and  employees’
Union, who were not included under the 2003 Rules.

11.   In pursuance of the aforestated 2003 Rules,  one  of  the  respondents
had been allotted a bungalow on lease for 30 years, which was renewable  for
a further period of 90 years at the yearly rent of rupee 1/-  by  virtue  of
Office Memo dated 22nd January, 2004.  Similarly,  several  other  bungalows
had also been allotted on lease  to  different  bodies,  by  and  large,  on
similar terms in pursuance of the aforestated 2003 Rules.

12.   The short submissions made by the petitioner were to the  effect  that
after demitting the office as a Chief Minister, a person  has  no  right  to
occupy any Government bungalow for his residence  and  yet  several  persons
named in the petition, who were  Chief  Ministers  of  the  State  of  Uttar
Pradesh had continued to occupy Government bungalows, which  are  maintained
by the Government by spending enormously huge amount every year. In  absence
of  any  statutory  provision,  according  to  the   petitioner,   continued
occupation or occupation of another house after demitting the  office  of  a
Chief Minister is illegal and therefore, they should be asked to vacate  the
bungalows occupied by them and should also be asked  to  pay  notional  rent
for the unauthorized occupation.  Another submission made by the  petitioner
was that  even  if  some  rules  and  regulations  are  made  for  allotting
residential bungalows to former Chief Ministers, it would be  discriminatory
and violative of the provisions of Article 14 of the Constitution  of  India
for the reason that other dignitaries like the Chief Justice  of  the  State
or Principal Chief Secretary or Speaker of the Assembly etc. are  not  given
such facilities.  Giving  residential  bungalows  to  some  of  the  persons
holding constitutional position in  the  State,  by  ignoring  other  almost
similarly situated persons would not be proper and  even  if  there  is  any
regulation empowering the  Government  to  allot  residential  bungalows  to
former Chief Ministers, the Rules or Regulations made to that effect  cannot
be said to be legal and Constitutional.

13.   Another submission made by the  petitioner  was  that  the  Government
authorities did not act as per the real spirit with which  judgment  in  the
case of Shiv Sagar Tiwari v. Union of India (1997) 1 SCC 444, was  delivered
by this Court.  As per observations made in para 72 of  the  said  judgment,
keeping in view the  very  high  constitutional  position  occupied  by  the
President, Vice-President and Prime Minister, they  should  be  accommodated
in government premises after they demit their office,  so  that  problem  of
suitable  residence  does  not  trouble  them  in  the  evening   of   life.
Observations in substance are to the  effect  that  except  the  aforestated
dignitaries, nobody else should be provided government  accommodation  after
he  or  she  demits  his/her  office.  By  not  following  the   aforestated
observations made by this Court in  the  matter  relating  to  allotment  of
accommodation to former Chief Ministers,  the  Government  authorities  have
shown a little respect to this Court and the law of the land.

14.    Another  submission  was  to  the  effect  that  several  trusts  and
organizations  had  been   allotted   government   bungalows   without   any
justifiable reason.  In the case of Shiv Sagar Tiwari  (supra),  this  Court
has observed that government bungalows should not  be  allotted  to  private
organizations.  Of course, the judgment delivered in the case of Shiv  Sagar
Tiwari (supra) deals with bungalows  situated  in  Delhi  but  situation  in
Lucknow  is  quite  similar  because  there  is  also  acute   shortage   of
residential  accommodation  for  government  employees  in  the  said  city.
According  to  the  petitioner,  government  employees/officers,   who   are
entitled to government accommodation by virtue of their  service  conditions
are  not  allotted  residential  quarters  due  to  shortage  of  government
premises and therefore, they are constrained  to  occupy  private  premises,
for which the government has to pay a sizeable amount by way of  house  rent
allowance to the concerned government employees/officers.  According to  the
petitioner, on one hand there is an acute shortage  of  government  premises
and the government employees are constrained to occupy private premises  for
which a hefty amount is paid by the government by way of allowances  and  on
the other hand the government bungalows  are  given  to  private  trusts  or
organizations without getting any rent or by getting nominal rent  of  rupee
1/- or so per month.  Thus, according  to  the  petitioner,  this  adversely
affects the State exchequer  and  therefore,  possession  of  all  bungalows
which have been  allotted  to  private  organizations  and  trusts  or  such
parties without charging adequate market rent must  be  taken  back  by  the
government in the interest of the public at large.

15.   So as not to lengthen this judgment,  we  are  not  referring  to  the
names  of  the  persons/former  Chief  Ministers  and  trusts  and   private
organizations to whom government bungalows have been given  without  getting
adequate market rent.

16.   The submission made by the petitioner was  also  to  the  effect  that
occupation of residential bungalows after expiry of the term  of  office  of
the Chief Ministers is in violation of the provisions of the  Uttar  Pradesh
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981,  (hereinafter
referred to as  ‘the  1981  Act’)  which  pertains  to  salaries  and  other
perquisites to be given to the Chief Ministers.

17.   The 1981 Act provides that the Ministers are to be provided  residence
without any payment of rent throughout the term of their office  and  for  a
further period of 15 days after they demit their office. Thus, there  is  no
provision with regard  to  permitting  any  Minister,  including  the  Chief
Minister, to retain the official premises or any  other  premises  in  their
capacity as a Minister or a Chief Minister, 15 days after completion of  his
term as a Minister or the Chief Minister.

18.   The petitioner also submitted that  the  1997  Rules  were  framed  in
exercise of executive power and they are in violation of the  provisions  of
Article 14 of the Constitution  of  India.   He  submitted  that  the  Chief
Ministers cannot be given different treatment in the matter of allotment  of
bungalows after they demit their  office.   If  other  Ministers  and  other
constitutional functionaries like Judges and the Chief Justice of  the  High
Court, Governor of  the  State,  Speaker  of  the  Assembly,  etc.  are  not
provided such accommodation after completion of their tenure,  there  is  no
justification for providing any government bungalow either  free  of  charge
or at a  nominal  rent  to  the  former  Chief  Ministers.   The  action  of
respondent no.1 in  framing  the  1997  Rules  is  thus  illegal  and  is  a
colourable exercise of power and is also violative  of  Article  14  of  the
Constitution of India as the  State  gives  preferential  treatment  to  the
former  Chief  Ministers,  which  is  not  given  to  other   constitutional
functionaries.

19.   The petitioner, therefore, prayed that the  petition  be  allowed  and
the 1997 Rules  be  quashed  and  set  aside  as  being  discriminatory  and
violative of the provisions of Article 14 of the Constitution of India.

20.   On the other hand, the learned counsel appearing for  respondent  no.1
State vehemently submitted that it is  for  respondent  no.1  government  to
exercise its executive power and allot bungalows to former  Chief  Ministers
even after they  demit  their  office.   According  to  him,  ‘former  Chief
Ministers’ is a class of persons and  therefore,  it  cannot  be  said  that
there is any preferential treatment given to  the  former  Chief  Ministers.
He further submitted that it is for the State  to  decide  whether  to  give
such accommodation to former Chief Ministers and  the  said  decision  being
executive decision in pursuance of a particular policy,  this  Court  should
not ordinarily interfere with the executive  decision  of  respondent  no.1-
Government.

21.   The learned counsel appearing for  the  State  tried  to  explain  the
circumstances in which the government bungalows had  been  provided  to  the
former Chief Ministers.  The learned counsel also questioned  the  right  of
the petitioner to challenge the validity of the 1997  Rules.   According  to
him, the petitioner has no locus standi to challenge  the  validity  of  the
said Rules by filing a petition under Article  32  of  the  Constitution  of
India before this Court.  He further submitted  that  the  validity  of  the
said Rules had been questioned in Writ Petition No.1313 (M/S)  of  1996  and
the said petition has already been disposed of, but the said Rules  had  not
been declared to be invalid  or  unconstitutional  by  the  High  Court  and
therefore, this petition challenging the validity of the 1997 Rules  is  not
maintainable.

22.   The Respondents, while justifying the 1997 Rules  took  a  stand  that
some of the respondents are given ‘Z’ plus Security by the  Union  of  India
and  it  is  necessary  to  provide  proper  accommodation  with   requisite
infrastructure in a secured locality.   For  providing  such  security,  the
State has to see that the accommodation of the concerned person is safe  and
therefore, it is necessary to provide a special  type  of  accommodation  to
such persons.

23.   The Union of India in its affidavit  dated  13th  December,  2006  has
contended that aspect of emoluments and pensions  of  former  President  and
Vice President of India is governed by “President’s Emoluments and  Pensions
Act, 1951” and “Vice President’s Pension Act, 1997” and rules framed  there-
under. The facilities provided to the Prime Minister are  also  governed  by
Office Memorandum dated 6.12.1991 issued by the Government of India  and  he
had not to say anything about the facilities  to  be  given  to  the  former
Chief Ministers.

24.   On the basis of the aforesaid contentions, the following issues  arise
for our consideration:

a)     Whether  the  writ  petition  filed  in  the   public   interest   is
maintainable and whether the writ Petitioner has locus standi  to  file  the
writ petition.

b)    Whether the Ex-Chief Ministers Residence  Allotment  Rules,  1997  are
legal and valid.

25.   So  far  as  the  first  issue  is  concerned,  in  our  opinion,  the
petitioner has locus  standi  to  file  the  writ  petition.   It  has  been
submitted in the petition that the petitioner society is formed  by  retired
civil servants, journalists and other  persons  who  are  residents  of  the
State of U.P. and have no  malafide  intention  behind  filing  the  present
petition and none of them  has  any  personal  grudge  against  any  of  the
occupants of the government premises or any of the former  Chief  Ministers.
In our opinion, when the petitioner society is challenging the  validity  of
the 1997 Rules, whereby government bungalows have been  allotted  to  former
Chief Ministers, especially when there is an acute  shortage  of  government
premises, in our opinion, it cannot be  said  that  the  petitioner  has  no
locus standi to file the present petition.

26.    In the case of “Fertilizer Corporation  Kamgar  Union  (Regd)  Sindri
and Ors. v. Union of India and Ors.  (1981)  1  SCC  568,  the  Constitution
Bench of this Court has held as under:

“29.  ………….Lastly, but most importantly, where does the  citizen  stand,  in
the context of the democracy of judicial remedies, absent an  ombudsman?  In
the face of (rare, yet real) misuse of administrative power  to  play  ducks
and  drakes  with  the  public  exchequer,  especially  where  developmental
expansion necessarily  involves  astronomical  expenditure  and  concomitant
corruption, do public bodies enjoy immunity from challenge save through  the
post-mortem of parliamentary organs.  What  is  the  role  of  the  judicial
process, read in the light of the dynamics of legal  control  and  corporate
autonomy?  This juristic field is virgin but is  also  heuristic  challenge,
so that law must meet life in  this  critical  yet  sensitive  issued.   The
active  coexistence  of  public  sector  autonomy,  so  vital  to  effective
business management, and judicial control of  public  power  tending  to  go
berserk, is one of the creative claims upon functional jurisprudence.



30-46.      xxx  xxx   xxx

47.   ………....Nevertheless,   the   broad   parameters   of    fairness    in
administration,  bona  fides  in  action,  and  the  fundamental  rules   of
reasonable  management  of  public  business,  if  breached,   will   become
justiciable.



48. If a citizen is no more than a wayfarer or officious intervener  without
any interest or concern beyond what belongs to any one of  the  660  million
people of this country, the door of the court will  not  be  ajar  for  him.
But, if he belongs to an organisation which  has  special  interest  in  the
subject-matter, if he has some concern deeper than that of  a  busybody,  he
cannot be told off at the gates, although whether the issue  raised  by  him
is justiciable may still remain to be considered.  I,  therefore,  take  the
view that the present petition would clearly  have  been  permissible  under
Article 226.”



Similar was the view taken in S.P. Gupta v. Union of India and  Anr.  (1981)
Supp SCC 87.

27.   Looking at the law laid down by this Court and in  view  of  the  fact
that the petitioner society or its members have not filed the petition  with
any oblique motive and as we also feel that cause  for  which  the  petition
has been filed is just and proper, in our opinion, the petitioner has  locus
to file this petition.

28.   Now, let  us  examine  the  validity  of  the  1997  Rules  framed  by
Respondent no.1-State.

Article 164 of the Constitution of India reads as under:-

      Article 164: Other provision as to Ministers:-

(1) The Chief Minister shall be appointed by  the  Governor  and  the  other
Ministers shall be appointed by the Governor on  the  advice  of  the  Chief
Minister, and the Ministers shall hold office during  the  pleasure  of  the
Governor.................

(5)  The  salaries  and  allowances  of  Ministers  shall  be  such  as  the
Legislature of the State may from time to time by law determine  and,  until
the Legislature of the State so determines, shall be  as  specified  in  the
Second Schedule.....”



29.   Therefore, in compliance with Article 164 read with Entry 40, List  II
of Seventh Schedule of the Constitution of India, Respondent No.1-State,  in
order to  determine  salaries  and  allowances  payable  to  the  Ministers,
enacted the 1981 Act.  In the said Act,  Section  2  (e)  defines  the  term
“Minister”.

Section 2 (e) is reproduced herein below:



"2(e) 'Minister'  means  a  member  of  the  Council  of  Ministers  of  the
Government of Uttar Pradesh and includes the Chief Minister, a  Minister  of
State and a Deputy Minister of that State."



In this regard, Section 4 of the 1981 Act may also be considered,  which  is
as under:

“4: Residence

(1) Each Minister shall be entitled without 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 the prescribed scale..”



Upon perusal of the above  provisions,  it  is  clear  that  the  terms  and
conditions of service and salaries and allowances payable to  the  Ministers
are governed by the 1981 Act,  which  currently  holds  the  field  in  this
regard.

30.   We may now turn to the issue  whether  the  impugned  1997  Rules  are
ultra vires of Article 14 of the Constitution of India  and  also  repugnant
to the provisions of the 1981 Act. The relevant extract of  the  1997  Rules
is as under:-

“Rule 4: Allotment of Residence

A residence on falling vacant will be allotted  by  the  Estate  Officer  to
such ex-chief minister who has  given  an  application  under  these  rules.
There will be no right for allotment of a house outside Lucknow under  these
rules.

Rule 6:- Period for which Allotment subsists

The allotment of residence to Ex-Chief ministers  shall  be  effective  only
during their life time. The allotment shall be deemed  to  be  automatically
cancelled upon the death of Ex-chief minister and  family  members  residing
therein will have to invariably hand over the possession  of  the  concerned
residence to the Estate Department within 3 months from the date  of  death.
If the family members residing  in  the  residence  do  not  hand  over  the
possession, recovery rent, damages etc. shall be taken under the  provisions
of UP Public Premises (Eviction of Unauthorized Occupants) Act, 1972.”



31.   Upon perusal of the above  provisions,  it  is  clear  that  the  term
“Minister” includes the Chief Minister and Section 4 (1)  (a)  of  the  1981
Act, permits a Minister to retain his residence for  15  days  after  he/she
demits his/her office.  In view of the above special  provisions  made,  the
Chief  Minister  is  not  entitled  to  privileges  and  protection  as  are
available to the President of India and the  Vice-President  of  India,  who
are entitled to an official residence for life.

32.   The Respondents while justifying the 1997 Rules,  took  a  stand  that
some of the respondents are being given ‘Z’  plus  Security  from  Union  of
India and it is necessary to provide  proper  accommodation  with  requisite
infrastructure  in  a  secured  locality.   The  afore-said  contention   of
Respondent no.1 lacks merit and deserves to be rejected for the reason  that
as the said security is to be provided by  the  Ministry  of  Home  Affairs,
Union of India and provisions are already  made  for  such  persons  as  per
Office Memorandum dated 17.11.1997 issued by the Government of India on  the
recommendations of the Ministry of Home affairs and it is the obligation  of
the Government  of  India  to  provide  accommodation  to  such  persons  in
accordance with its own guidelines and it is not  for  the  Respondent-State
to provide any accommodation and therefore, the  ground  put  forth  by  the
Respondents is untenable.  In fact, the impugned 1997  Rules  give  largesse
only to former Chief Ministers without any element of reasonableness.

33.   The facts on record  also  reflect  that  many  of  the  former  Chief
Ministers, who  are  in  occupation  of  Government  Bungalows,  are  either
serving as Members of  Parliament  or  Governors  or  Cabinet  Ministers  in
Central  Government  and   they   have   already   been   provided   another
accommodation.  It would, therefore, not be proper, in any  case,  to  allot
permanent residence at two places to one individual.

34.   If we look at the position of other constitutional post  holders  like
Governors, Chief Justices, Union Ministers, and Speaker etc,  all  of  these
persons  hold  only  one  “official  residence”  during  their  tenure.  The
Respondents have contended that in a federal set up,  like  the  Union,  the
State has also power to provide residential bungalow  to  the  former  Chief
Minister.  The above submission of the Respondent State cannot  be  accepted
for the reason that the 1981 Act does not make any such  provision  and  the
1997 Rules, which are only in  the  nature  of  executive  instructions  and
contrary to the provisions of the 1981 Act, cannot be acted upon.

35.    Moreover,  the  position  of  the  Chief  Minister  and  the  Cabinet
Ministers of the State cannot stand on a separate footing after  they  demit
their office.  Moreover, no other dignitary, holding constitutional post  is
given such a facility. For the afore-stated reasons, the 1997 Rules are  not
fair, and more so, when the  subject  of  “salary  and  allowances”  of  the
ministers, is governed by Section 4 (1) (a) of the 1981 Act.

36.   There is one more and most important reason for which the  1997  Rules
cannot be said to be legal.   The 1981  Act  deals  with  the  salaries  and
perquisites  to  be  given  to  all  the  Ministers,  including  the   Chief
Ministers.  The said provisions are statutory, but the 1997  Rules  are  not
statutory and they are only in the nature  of  executive  instructions.   If
there is any variance in statutory provision and executive instruction,  the
statutory provision  would  always  prevail.   This  is  a  very  well-known
principle and no further discussion is required on the  subject.   When  the
1981 Act enables the Chief Minister to have residential  accommodation  only
during his tenure and for 15 days after completion of his tenure,  the  1997
Rules providing for an accommodation for life to the Chief  Minister  cannot
be said to be legal and valid.  For this sole reason, validity of  the  1997
Rules cannot be upheld.

37.   As far as question of accommodation to the  President,  Vice-President
and Prime Minister is concerned, there is no challenge in the writ  petition
to the same and is limited to the  1997  Rules  framed  by  Respondent  No.1
State, therefore, it is in-appropriate to consider the issue dealt  with  by
this Court in “Shiv Sagar Tiwari v. Union of India” (1997) 1 SCC 444”.

38.   This Court, in the case of “SD Bandi v. Karnataka SRTC, (2013) 12  SCC
631, in relation to occupation of government bungalows,  beyond  the  period
for which the same were allotted, observed that “it is unfortunate that  the
employees, officers, representatives of people and  other  high  dignitaries
continue  to  stay  in  the  residential  accommodation  provided   by   the
Government  of  India  though  they  are  no   longer   entitled   to   such
accommodation.  Many  of  such  persons  continue  to   occupy   residential
accommodation commensurate with the  office(s)  held  by  them  earlier  and
which are beyond their present entitlement. The unauthorized occupants  must
recollect that rights and duties  are  correlative  as  the  rights  of  one
person entail the duties of another person similarly the duty of one  person
entails the rights of  another  person.  Observing  this,  the  unauthorized
occupants must appreciate that their  act  of  overstaying  in  the  premise
infringes the right of another. No law or directions  can  entirely  control
this  act  of  disobedience  but  for  the  self   realization   among   the
unauthorized occupants”.

39.   As stated hereinabove, there is a statutory  provision  which  relates
to salaries and perquisites to be given  to  the  ministers,  including  the
Chief Minister.  The 1981 Act is a statute enacted by Respondent  no.1-State
under its power under Article 164 read with Entry 40 of the List  II  (State
List) of the Seventh  Schedule  of  the  Constitution.   Thus,  there  is  a
statutory  provision  with  regard  to  perquisites  to  be  given  to   the
ministers, including the Chief Minister under Section 4  of  the  said  Act,
which has been reproduced hereinabove.  The said Act provides that  all  the
ministers are entitled to official residence without  payment  of  any  rent
and they are also entitled to occupy the  said  official  residence  for  15
days even after completion of their term.  Thus the statutory  provision  is
to the effect that the Chief Minister can continue to  occupy  the  official
accommodation for a further period of 15 days after  completion  of  his/her
term.

40.   The 1997 Rules are not statutory rules.  They are  in  the  nature  of
administrative or executive instructions.  They would not stand the test  of
legality if they are not in consonance with statutory provisions.  The  said
Rules are definitely  in  contravention  of  the  statutory  provisions  and
therefore, the said Rules can be said to be bad in law so far  as  they  are
in contravention of the statutory provisions.

41.   There cannot be any dispute that when the  rules  and  regulations  or
executive  institutions  are  contrary  to  any  statutory  provision,   the
statutory provision would prevail and the rules or  executive  institutions,
so far as they are contrary to the statutory provisions, would fail.

42.   In view of the aforestated clear  and  unambiguous  position,  in  our
opinion, the 1997 Rules, which permit the former Chief Ministers  to  occupy
government  bungalows  for  life  cannot  be  said  to  be  valid.   In  the
circumstances, respondent no.1 cannot permit any former  Chief  Minister  to
occupy any government bungalow or  any  government  accommodation  after  15
days from the date on which his term comes to an end.

43.   So far as allotment of bungalow to private  trusts  or  societies  are
concerned, it is not in dispute that all those bungalows  were  allotted  to
the societies/trusts/organizations at the time when there was  no  provision
with regard to allotment of government bungalows to them and  therefore,  in
our opinion, the said allotment cannot be held to be justified.  One  should
remember here that public property cannot be disposed of in  favour  of  any
one without adequate consideration.  Allotment  of  government  property  to
someone without adequate market rent, in absence of  any  special  statutory
provision, would also be bad in law  because  the  State  has  no  right  to
fritter away government property in favour  of  private  persons  or  bodies
without adequate consideration and therefore,  all  such  allotments,  which
have been made in absence of any statutory provision cannot be  upheld.   If
any allotment was not made in accordance with a statutory provision  at  the
relevant time, it must be discontinued and must be treated as cancelled  and
the State shall take possession of such premises as soon as possible and  at
the same time, the State should also recover appropriate rent in respect  of
such premises which had been allotted without any statutory provision.

44.    In  the  circumstances,  for  the  reasons  stated  hereinabove,  the
petition is allowed.  Rule is made absolute with no order as  to  costs  and
it is held that the 1997 Rules so far as they are  not  in  consonance  with
the provisions of the 1981 Act are bad in  law.   The  government  bungalows
allotted to the respondents is held to be  bad  in  law  and  the  concerned
respondents shall hand over possession of the  bungalows  occupied  by  them
within two months  from  today  and  the  respondent-Government  shall  also
recover appropriate rent from the occupants of the said  bungalows  for  the
period during which  they  were  in  unauthorized  occupation  of  the  said
bungalows.





                                                           ………………..……………….J.
                                     (ANIL R. DAVE)



                                                          …….…………..……………….J.
                                     (N.V. RAMANA)



                                                          …….…………..……………….J.
                                                 (R.              BANUMATHI)
NEW DELHI;
AUGUST 01, 2016.

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