1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.864 OF 2016
LOK PRAHARI THROUGH ITS GENERAL SECRETARY ...PETITIONER
VERSUS
THE STATE OF UTTAR PRADESH & ORS. …RESPONDENTS
J U D G M E N T
RANJAN GOGOI, J.
1. This writ petition under Article 32 of the Constitution of
India raises a challenge to the validity of Section 4(3) of the
Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 (hereinafter referred to as
“the 1981 Act”), as amended in 2016.
2. The case has a somewhat chequered history. Suffice
it will be to recapitulate that as former Chief Ministers of the
State of Uttar Pradesh continued to occupy their official
accommodation even after demitting office, 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 present
petitioner. During the pendency of the said writ petition, a set of
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Rules namely “U.P. Ex-Chief Ministers Residence Allotment
Rules, 1997” (hereinafter referred to as “the 1997 Rules”) were
framed to provide for allotment of government accommodation
to former Chief Ministers. The writ petition was accordingly
amended to challenge the validity of the provisions of the 1997
Rules. However, the same was closed by the High Court on a
statement made on behalf of the State of Uttar Pradesh that
former Chief Ministers would be henceforth allotted only Type V
bungalows and that too on payment of rent etc.
3. In the aforesaid situation, the present petitioner had
filed Writ Petition (C) No.657 of 2004 (Lok Prahari vs. State of
Uttar Pradesh and others) before this Court challenging the
validity of the aforesaid 1997 Rules. By judgment and order
dated 1st August 20161
, the aforesaid writ petition was answered
by this Court by striking down the 1997 Rules, inter alia, on the
ground that the provision for accommodation for ex-Chief
Ministers as made under the aforesaid 1997 Rules was in direct
conflict with the provisions of Section 4 of the 1981 Act.
Paragraphs 33, 37 and 38 of the said report in Lok Prahari
(supra) would be relevant to notice:
“33. We may now turn to the issue whether the
impugned 1997 Rules are ultra vires Article 14 of the
1
(2016) 8 SCC 389
3
Constitution of India and also repugnant to the
provisions of the 1981 Act. The relevant extract of the
1997 Rules is as under:
“4. Allotment of residence.—A residence on falling
vacant will be allotted by the Estate Officer to such exChief
Minister who has given an application under
these Rules. There will be no right for allotment of a
house outside Lucknow under these Rules.
* * *
6. Period for which allotment subsists.—The
allotment of residence to ex-Chief Ministers shall be
effective only during their lifetime. 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 residence concerned 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 the U.P.
Public Premises (Eviction of Unauthorised Occupants)
Act, 1972.”
* * *
* * *
37. 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.
38. 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,
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no other dignitary, holding constitutional post is given
such a facility. For the aforestated 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(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.22 of 2016), former Chief Ministers of the State
became entitled to allotment of government accommodation for
their life time. The validity of the aforesaid Section 4(3), as
amended, has been questioned by the writ petitioner, a
registered body, which claims to be “committed to upholding of
the Constitution and enforcement of the Rule of law”.
5. Section 4 of the 1981 Act as originally enacted and as
amended in the year 2016 by 2016 Amendment is in the
following terms:
Section 4 of the Act, as
originally enacted
Section 4 of the Act, as
amended in the year 2016
by 2016 Amendment (U.P
Act No. 22 of 2016)
4.Residence.-(1) Each
Minister shall be entitled
without payment of any rent
to the use throughout the
term of his office and for
period of fifteen days
thereafter, of a residence at
Lucknow which shall be
furnished and maintained at
4. For section 4 of the
principal Act, the following
sections shall be substituted,
namely:-
4(1) The Chief Minister and
each Minister shall be entitled,
without payment of any rent to
the use, throughout the term
of his office and for a period of
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public expenses at the
prescribed scale.
(2) Where a Minister has not
been provided with a
residence in accordance with
sub-Section (1), or does not
avail of the benefit of the
said sub section, he shall be
entitled to a compensatory
allowance at the rate of-
(a) three hundred rupees per
month in the case of Deputy
Minister, and
(b) five hundred rupees per
month in any other case.
fifteen days thereafter, of a
residence at Lucknow which
shall be furnished and
maintained at public expense
at the prescribed scale.
(2) Where the Chief Minister
or a Minister has not been
provided with a residence in
accordance with subsection(1)
or does not avail of
the benefit of the said subsection,
he shall be entitled to
a compensatory allowance at
the rate of –
(a) ten thousand rupees per
month in the case of the Chief
Minister, a Minister, a Minister
of State (Independent
Charge) and a Minister of
State;
(b) eight thousand rupees per
month in the case of a Deputy
Minister.
(3) A government residence
shall be allotted 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.
6. The 1981 Act was amended by the Uttar Pradesh
Ministers and State Legislature, Officers and Members
Amenities Laws (Amendment) Act, 1990 (U.P. Act No.5 of 1990)
(hereinafter referred to as “1990 Amendment”) by insertion of
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sub-section (1-A) to Section 4 which is in the following terms:
“(1-A) Each Minister for whose use a
residence at Lucknow has been provided
under sub-section (1) shall immediately after
the expiration of the period referred to in that
sub-section, vacate such accommodation and
an officer authorized by the State Government
in this behalf may take possession of the
accommodation and may for the purpose use
such force as may be necessary in the
circumstances.
Explanation – For the purposes of this subsection
‘Minister’ includes a person who has
ceased to be a Minister”, and also includes a
person who was given the status of a Minister.”
7. By another amendment to the 1981 Act by the Uttar
Pradesh Ministers and State Legislature, Officers and Members
Amenities Laws (Amendment) Act, 1997 (U.P. Act No.8 of 1997)
(hereinafter referred to as “1997 Amendment”) Section 4-A was
inserted, which is to the following effect:
“4-A. Special provisions regarding certain
accommodations.- (1) On and from the
commencement of the Uttar Pradesh Ministers
and State Legislature Officers and Members
Amenities Laws (Amendment) Act, 1997, the
State Government may, with a view to
ensuring timely availability of residence to a
Minister under sub-section (1) of Section 4, by
a notified order, specify any type-VI
accommodation or an accommodation in
which a Minister was in occupation at any
time, under the control and Management of
the Estate Department of the State
Government, as Minister’s residence and an
accommodation so specified shall be allotted
to a Minister only and not to any other person.
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(2) The State Government, or an officer
authorized by it in this behalf may, if a person
other than a Minister referred to in sub-section
(1-A) of Section 4 is in occupation of an
accommodation specified as Minister’s
residence under sub-section (1) on the basis
of any allotment order or otherwise, cancel the
allotment order of such person, if any, and by
notice in writing require such person to vacate
the said accommodation within fifteen days
from the date of service upon him of such
notice, and if such person fails to vacate the
said accommodation within the said period, an
officer authorized by the State Government in
this behalf may take possession of the
accommodation and may for the purpose use
such force as may be necessary in the
circumstances”.
8. It will be worthwhile to note at this stage that while
Section 4(1-A) of the 1981 Act has been deleted by the 2016
Amendment Section 4-A continues to remain on the statute
book.
9. Section 4-A(2) of the 1981 Act, extracted above,
visualize that if any person other than the Minister is in
occupation of accommodation specified as Minister’s residence
under sub-section (1) of Section 4-A (Type VI accommodation)
the allotment order of such person shall be cancelled and the
occupant would be required to vacate the said accommodation
within fifteen days from the date of service of notice, failing
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which, the Authorized Officer would be competent in law to take
possession of the accommodation, if necessary, by use of such
force, as may be required.
10. Having noted the salient features of the provisions of
the 1981 Act the question that arises for determination in the
present proceedings may be summarized as follows:
“Whether retention of official accommodation by the
functionaries mentioned in Section 4(3) of the 1981 Act after
they had demitted office violate the equality clause guaranteed
by Article 14 of the Constitution of India.”
11. The petitioner - body which is a registered society
under the Societies Registration Act, 1860 is represented in
these proceedings by its Secretary Shri S.N. Shukla, who is a
retired I.A.S. Officer. Though Shri Shukla had advanced his
arguments and contentions with great clarity, yet, having regard
to the importance of the question raised we had thought it
proper to take the assistance of Shri Gopal Subramanium,
learned Senior Counsel of this Court and to assist him we had
thought it proper to request Shri Gopal Sankaranarayanan,
learned counsel, a member of the Supreme Court Bar
Association. Both Shri Gopal Subramanium, learned Senior
9
Counsel and Shri Gopal Sankaranarayanan, learned counsel
have rendered their valuable assistance to this Court which
assistance is being acknowledged by the Court at the very
outset of the present order.
12. Though the issue in the present proceeding is strictly
confined to the provisions of the 1981 Act, having regard to the
fact that there may be similar/pari materia provisions in force in
different States/Union Territories and also in the Union we had
thought it proper to inform, through the learned Amicus Curiae,
the law officers of the Union and all the States/Union Territories
of the pendency of the present writ petition and the issues
arising therein. Pursuant thereto, the responses of the Union
and the States of Assam, Bihar, Tamil Nadu and Odisha have
been received. Shri Aman Lekhi, learned ASG has submitted
that the Government Accommodation is provided to former
Presidents, Vice-Presidents, Prime Ministers of the country. The
issue had come up for consideration in this Court in Shiv Sagar
Tiwari vs. Union of India and others2
wherein this Court has
approved the action taken in the matter of provision of official
accommodation to the aforesaid dignitaries under the extant
Rules in the following manner:
2
(1997) 1 SCC 444
10
“72. Keeping in view the very high
constitutional position occupied by the
President, Vice-President and Prime Minister,
we feel no difficulty in stating that they should
be accommodated in government premises
after demitting of office by them, so that
problem of suitable residence does not trouble
them in the evening of life. What should be the
terms of the same is a matter to be decided 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 Generals of the said States by the office of the
learned Amicus Curiae Shri Gopal Subramanium that no
provision for official accommodation to former Chief Ministers
has been made by the said two states whereas in the case of
States of Bihar and Assam such provision has been made by
executive instructions issued by the State under Article 162 of
the Constitution of India.
14. We had thought it proper to request the learned
Amicus Curiae to sound the Advocate Generals of the States on
the pendency of this writ petition to enable the States to render
assistance to the Court in the matter of adjudication of
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the validity of Section 4(3) of the 1981 Act in view of the fact that
some of the States may have pari materia provisions in force.
No such contest by the States with regard to the validity of the
Section 4(3) of the 1981 Act had been forthcoming except to the
extent mentioned hereinabove on behalf of the Union of India.
We, therefore, proceed to undertake the present exercise which,
we make it clear, is confined to the issue of validity of Section
4(3) of the 1981 Act.
15. It would be appropriate to initiate the discourse by
remembering the preamble to the Constitution of India which is
in the following terms.
WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC
and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, 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 the unity and integrity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY this twentysixth
day of November, 1949, DO HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS
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CONSTITUTION.
16. The preamble to the Constitution of India embodies,
inter alia, the principles of equality and fraternity and it is on the
basis of these principles of equality and fraternity that the
Constitution recognizes only one single class of citizens with
one singular voice (vote) in the democratic process subject to
provisions made for backward classes, women, children, SC/ST,
minorities, etc. A special class of citizens, subject to the
exception noted above, is abhorrent to the constitutional ethos.
17. The resolve of ‘the People of India’ to have a
republican form of Government is a manifestation of the
constitutional philosophy that does not recognize any arbitrary
sovereign power and domination of citizens by the State. The
republican liberty and the doctrine of equality is the central
feature of the Indian democracy.
18. It is, therefore, axiomatic that in a democratic
republican government public servants entrusted with duties of
public nature must act in a manner that reflects that ultimate
authority is vested in the citizens and it is to the citizens that
holders of all public offices are eventually accountable. Such a
situation would only be possible within a framework of equality
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and when all privileges, rights and benefits conferred on holders
of public office are reasonable, rational and proportionate.
19. It may be necessary herein to recapitulate the Seven
Principles of Public Life Report by Lord Nolan which find
mention in the judgment of this Court in Vineet Narain and
others vs. Union of India and another3
(paragraph 54). This
Court in paragraph 55 of the report in Vineet Narain (supra)
had observed:
“These principles of public life are of general
application in every democracy and one is
expected to bear them in mind while
scrutinizing the conduct of every holder of a
public office.”
The seven principles of public life stated in the Report by
Lord Nolan are as follows:
“THE SEVEN PRINCIPLES OF PUBLIC LIFE
Selflessness
Holders of public office should take
decisions solely in terms of the public interest.
They should not do so in order to gain financial
or other material benefits for themselves, their
family, or their friends.
Integrity
Holders of public office should not place
themselves under any financial or other
obligation to outside individuals or
organisations that might influence them in the
performance of their official duties.
Objectivity
3
(1998) 1 SCC 226
14
In carrying out public business, including
making public appointments, awarding
contracts, or recommending individuals for
rewards and benefits, holders of public office
should make choices on merit.
Accountability
Holders of public office are accountable for
their decisions and actions to the public and
must submit themselves to whatever scrutiny
is appropriate to their office.
Openness
Holders of public office should be as open
as possible about all the decisions and actions
that they take. They should give reasons for
their decisions and restrict information only
when the wider public interest clearly
demands.
Honesty
Holders of public office have a duty to
declare any private interests relating to their
public duties and to take steps to resolve any
conflicts arising in a way that protects the
public interest.
Leadership
Holders of public office should promote and
support these principles by leadership and
example.”
20. It would be significant to note that the legislative
anxiety to bring in a classless society, a constitutional
vision, inter alia, found manifestation in the Twenty-sixth
(26th) Amendment to the Constitution of India by which
Articles 291 and 362 were repealed and a new Article 366A
was incorporated, resulting in depriving the Rulers of
Princely States the recognition accorded to them and
15
declaring the abolition of the privy purse. In the resultant
challenge by a co-Ruler of an erstwhile sovereign Indian
State of Kurundwad Jr. this Court in Shri Raghunathrao
Ganpatrao vs. Union of India4 while dealing with the
challenge, inter alia, spoke as follows:
“96. Permanent retention of the privy purse
and the privileges of rights would be
incompatible with the sovereign and republican
form of Government. Such a retention will also
be incompatible with the egalitarian form of our
Constitution. That is the opinion of the
Parliament which acted to repeal the aforesaid
provisions in exercise of its constituent power.
The repudiation of the right to privy purse
privileges, dignities etc. by the deletion of
Articles 291 and 362, insertion of Article 363-A
and amendment of clause (22) of Article 366
by which the recognition of the Rulers and
payment of privy purse are withdrawn cannot
be said to have offended Article 14 or 19(g)
[sic 19(1)(f)] and we do not find any logic in
such a submission. No principle of justice,
either economic, political or social is violated
by the Twenty-sixth Amendment. Political
justice relates to the principle of rights of the
people, i.e. right to universal suffrage, right to
democratic form of Government and right to
participation in political affairs. Economic
justice is enshrined in Article 39 of the
Constitution. Social justice is enshrined in
Article 38. Both are in the directive principles
of the Constitution. None of these rights are
abridged or modified by this Amendment. We
feel that this contention need not detain us any
more and, therefore, we shall pass on to the
next point in debate.”
4 AIR 1993 SC 1267
16
21. An instance of State action inconsistent with the
constitutional goal to secure socio-economic justice was dealt
with by this Court in Victorian Granites (P) Ltd. Vs. P. Rama
Rao and others5
. In the said case, the state action approving
the assignment of a lease granted to an individual on expiry
thereof in favour of a private Company, at the request of the
outgoing lessee, without any publicity and without inviting
objections from others was explicitly disapproved by this Court
by holding that such a transfer was opposed to the common
good and the constitutional objective of securing socioeconomic
justice which was described as the arch of the
Constitution. Material resources of the community must be
distributed to sub-serve the common good, this Court had
opined.
22. Similarly, in Akhil Bhartiya Upbhokta Congress vs.
State of Madhya Pradesh and others6
this Court held that:
“48. Part IV contains “directive principles of
State policy” which are fundamental in the
governance of the country and it is the duty of
the State to apply these principles in making
laws. Article 39 specifies certain principles of
policy which are required to be followed by the
State. Clause (b) thereof provides that the
5
(1996) 10 SCC 665
6
(2011) 5 SCC 29
17
State shall, in particular, direct its policy
towards securing that the ownership and
control of the material resources of the
community are so distributed as best to
subserve the common good. Parliament and
legislatures of the States have enacted several
laws and the Governments have, from time to
time, framed policies so that the national
wealth and natural resources are equitably
distributed among all sections of people so
that have-nots of the society can aspire to
compete with haves.”
23. In Akhil Bhartiya (supra), this Court examined the
legality of the action of the Madhya Pradesh Government to
allot twenty acres of 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 equitable manner. It
was held that the elements of favouritism or nepotism shall not
influence the exercise of discretion by the decision maker.
Observing that 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 its agencies/instrumentalities
cannot give largesse to any person according to
the sweet will and whims of the political entities
and/or officers of the State. Every
action/decision of the State and/or its
agencies/instrumentalities to give largesse or
confer benefit must be founded on a sound,
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transparent, discernible and well-defined policy,
which shall be made known to the public by
publication in the Official Gazette and other
recognised modes of publicity and such policy
must be implemented/executed by adopting a
non-discriminatory and non-arbitrary method
irrespective of the class or category of persons
proposed to be benefited by the policy. The
distribution of largesse like allotment of land,
grant of quota, permit licence, etc. by the State
and its agencies/instrumentalities should always
be done in a fair and equitable manner and the
element of favouritism or nepotism shall not
influence the exercise of discretion, if any,
conferred upon the particular functionary or
officer of the State.
(Underlining is ours)
24. In Sachidanand Pandey and another vs. State of
West Bengal and others7
, this Court after referring to some of
the available precedents, laid the following principles:-
“40. On a consideration of the relevant cases
cited at the Bar the following propositions may
be taken as well established: State-owned or
public-owned property is not to be dealt with at
the absolute discretion of the executive.
Certain precepts and principles have to be
observed. Public interest is the paramount
consideration. One of the methods of securing
the public interest, when it is considered
necessary to dispose of a property, is to sell
the property by public auction or by inviting
tenders. Though that is the ordinary rule, it is
not an invariable rule. There may be situations
where there are compelling reasons
necessitating departure from the rule but then
the reasons for the departure must be rational
and should not be suggestive of
discrimination. Appearance of public justice is
7
(1987) 2 SCC 295
19
as important as doing justice. Nothing should
be done which gives an appearance of bias,
jobbery or nepotism.”
(Underlining is ours)
25. After Akhil Bhartiya (supra) and Sachidanand
Pandey (supra), in Centre for Public Interest Litigation and
others v. Union of India and others8
, it was held as under:-
“89. In conclusion, we hold that the State is
the legal owner of the natural resources as a
trustee of the people and although it is
empowered to distribute the same, the process
of distribution must be guided by the
constitutional principles including the doctrine
of equality and larger public good.”
26. In Natural Resources Allocation, in Re, Special
Reference No. 1 of 20129
, while considering the allocation of
2G Spectrum, this Court observed that as natural resources are
public goods, the ‘Doctrine of Equality’ which emerges from the
concepts of justice and fairness must guide the State in
determining the actual mechanism for distribution of natural
resources. Any further detailed reference to the opinion
rendered is being avoided as the principles evolved are in
furtherance of what has been had been laid down earlier, as
noticed above.
8
(2012) 3 SCC 1
9
(2012) 10 SCC 1
20
27. Coming back to the issue in hand a brief look at the
contentions advanced may be appropriate at this stage. The
State of Uttar Pradesh has sought to defeat the writ petition by
contending that the same being under Article 32 of the
Constitution of India a direct infringement of the fundamental
rights of the petitioner must be established which is nowhere
apparent even on a close scrutiny. The writ petition, therefore,
is not maintainable. Alternatively, it has been argued that
infringement of the equality clause under Article 14 of the
Constitution of India is a far cry as there is an intelligible
differentia to justify a separate and exclusive treatment to former
Chief Ministers who form a class of their own.
28. While it is true that Article 32 of the Constitution is to
be invoked for enforcement of the fundamental rights of a
citizen or a non citizen, as may be, and there must be a
violation or infringement thereof we have moved away from the
theory of infringement of the fundamental rights of an individual
citizen or non citizen to one of infringement of rights of a class.
In fact, the above transformation is the foundation of what had
developed as an independent and innovative stream of
jurisprudence called “Public Interest Litigation” or class action.
21
Though evolved much earlier, a Solemn affirmation of the
aforesaid principle is to be found in paragraph 48 of the report in
Vineet Narain (supra) which would be eminently worthy of
recapitulation and, therefore, is extracted below:
“48. In view of the common perception shared
by everyone including the Government of India
and the Independent Review Committee (IRC) of
the need for insulation of the CBI from
extraneous influence of any kind, it is imperative
that some action is urgently taken to prevent the
continuance of this situation with a view to
ensure proper implementation of the rule of law.
This is the need of equality guaranteed in the
Constitution. The right to equality in a situation
like this is that of the Indian polity and not merely
of a few individuals. The powers conferred on
this Court by the Constitution are ample to
remedy this defect and to ensure enforcement of
the concept of equality.”
(Underlining is ours)
29. Along with the aforesaid shift in the judicial thinking
there has been an equally important shift from the classical test
(classification test) for the purpose of enquiry with regard to
infringement of the equality clause under Article 14 of the
Constitution of India to, what may be termed, a more dynamic
test of arbitrariness. The shift which depicts two different
dimensions of a challenge on the anvil of Article 14 is best
demonstrated by a comparative reading of the judgments of this
Court in the case of Budhan Choudhry and others vs. State
22
of Bihar10, and E.P. Royappa vs. State of Tamil Nadu and
another.11
30. In Budhan Choudhry (supra), the classical test
based on a reasonable classification to give legitimacy to an act
of differential treatment was expounded in the following terms:
“……It is now well established that while
Article 14 forbids class legislation, it does not
forbid reasonable classification for the
purposes of legislation. In order, however, to
pass the test of permissible classification two
conditions must be fulfilled, namely, (i) that the
classification must be founded on an
intelligible differentia which distinguishes
persons or things that are grouped together
from others left out of the group and, (ii) that
differentia must have a rational relation to the
object sought to be achieved by the statute in
question. The classification may be founded
on different bases; namely, geographical, or
according to objects or occupations or the like.
What is necessary is that there must be a
nexus between the basis of classification and
the object of the Act under consideration. It is
also well established by the decisions of this
Court that Article 14 condemns discrimination
not only by a substantive law but also by a law
of procedure.”
31. The more dynamic version came two decades later in
the case of E.P. Royappa (supra) wherein Bhagwati, J.
expanded the scope of Article 14 of the Constitution of India in
10 AIR 1955 SC 191
11 (1974) 4 SCC 3
23
the following terms:
“85…….From a positivistic point of view,
equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic
while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both according
to political logic and constitutional law and is
therefore violative of Article 14, and if it effects
any matter relating to public employment, it is
also violative of Article 16. Articles 14 and 16
strike at arbitrariness in State action and
ensure fairness and equality of treatment.
They require that State action must be based
on valid relevant principles applicable alike to
all similarly situate and it must not be guided
by any extraneous or irrelevant considerations
because that would be denial of equality.
Where the operative reason for State action,
as distinguished from motive inducing from the
antechamber of the mind, is not legitimate and
relevant but is extraneous and outside the
area of permissible considerations, it would
amount to mala fide exercise of power and that
is hit by Articles 14 and 16. Mala fide exercise
of power and arbitrariness are different lethal
radiations emanating from the same vice: in
fact the latter comprehends the former. Both
are inhibited by Articles 14 and 16.”
32. The evolution of the dynamic facet of Article 14 of the
Constitution of India was carried forward in numerous
pronouncements of this Court of which reference must be
made, illustratively, to Ramana Dayaram Shetty vs.
International Airport Authority of India and others12;
12 (1979) 3 SCC 489
24
Sharma Transport vs. Govt. of A.P. and others13; Kumari
Shrilekha Vidyarthi and others vs. State of U.P. and others14;
State of Punjab and another vs. Brijeshwar Singh Chahal
and another15
.
33. Paragraph 23 and 35 of Kumari Shrilekha (supra)
may be extracted with profit only to notice the absolute clarity in
carrying forward the principle laid down by Hon. Bhagwati J., in
Royappa (supra).
“23. Thus, in a case like the present, if it is
shown that the impugned State action is
arbitrary and, therefore, violative of Article 14
of the Constitution, there can be no
impediment in striking down the impugned act
irrespective of the question whether an
additional right, contractual or statutory, if any,
is also available to the aggrieved persons.
…………
35. It is now too well settled that every State
action, in order to survive, must not be
susceptible to the vice of arbitrariness which is
the crux of Article 14 of the Constitution and
basic to the rule of law, the system which
governs us. Arbitrariness is the very negation
of the rule of law. Satisfaction of this basic test
in every State action is sine qua non to its
validity and in this respect, the State cannot
claim comparison with a private individual
even in the field of contract. This distinction
between the State and a private individual in
the field of contract has to be borne in the
13 (2002) 2 SCC 188
14 (1991) 1 SCC 212
15 (2016) 6 SCC 1
25
mind.”
34. The “final” culmination is in Shayara Bano vs. Union
of India and others16 where 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 in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of
India stated that it was settled law that
subordinate legislation can be challenged on
any of the grounds available for challenge
against plenary legislation. This being the
case, there is no rational distinction between
the two types of legislation when it comes to
this ground of challenge under Article 14. The
test of manifest arbitrariness, therefore, as laid
down in the aforesaid judgments would apply
to invalidate legislation as well as subordinate
legislation under Article 14. Manifest
arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally
and/or without adequate determining principle.
Also, when something is done which is
excessive and disproportionate, such
legislation would be manifestly arbitrary. We
are, therefore, of the view that arbitrariness in
the sense of manifest arbitrariness as pointed
out by us above would apply to negate
legislation as well under Article 14.”
35. The above view received support of a third member of
the Constitution Bench (Hon’ble Kurian Joseph, J.)
16 (2017) 9 SCC 1
26
36. In the light of the above views the allocation of
government bungalows to constitutional functionaries
enumerated in Section 4(3) of the 1981 Act after such
functionaries demit public office(s) would be clearly subject to
judicial review on the touchstone of Article 14 of the Constitution
of India. This is particularly so as such bungalows constitute
public property which by itself is scarce and meant for use of
current holders of public offices. The above is manifested by
the institution of Section 4-A in the 1981 Act by the Amendment
Act of 1997 (Act 8 of 1997). The questions relating to allocation
of such property, therefore, undoubtedly, are questions of public
character and, therefore, the same would be amenable for
being adjudicated on the touchstone of reasonable classification
as well as arbitrariness.
37. The present petitioner, as already noticed in the
opening paragraphs of this judgment, had earlier approached
this Court under Article 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, considered the validity of the
1997 Rules in the light of Article 14 of the Constitution of India.
27
The insertion of Section 4(3) by the 2016 Amendment as a
substantive provision of the statute when the 1997 Rules to the
same effect were declared invalid by the Court would require
the curing of the invalidity found by this Court in the matter of
allotment of government accommodation to former Chief
Ministers. The defect found earlier persists. The impugned
legislation, therefore, can very well be construed to be an
attempt to overreach the judgment of this Court in Lok Prahari
(supra).
38. Natural resources, public lands and the public goods
like government bungalows/official residence are public property
that belongs to the people of the country. The ‘Doctrine of
Equality’ which emerges from the concepts of justice, fairness
must guide the State in the distribution/allocation of the same.
The Chief Minister, once he/she demits the office, is at par with
the common citizen, though by virtue of the office held, he/she
may be entitled to security and other protocols. But allotment of
government bungalow, to be occupied during his/her lifetime,
would not be guided by the constitutional principle of equality.
39. Undoubtedly, Section 4(3) of the 1981 Act would have
the effect of creating a separate class of citizens for conferment
28
of benefits by way of distribution of public property on the basis
of the previous public office held by them. Once such persons
demit the public office earlier held by them there is nothing to
distinguish them from the common man. The public office held
by them becomes a matter of history and, therefore, cannot
form the basis of a reasonable classification to categorize
previous holders of public office as a special category of
persons entitled to the benefit of special privileges. The test of
reasonable classification, therefore, has to fail. Not only that the
legislation i.e. Section 4(3) of the 1981 Act recognizing former
holders of public office as a special class of citizens, viewed in
the aforesaid context, would appear to be arbitrary and
discriminatory thereby violating the equality clause. It is a
legislative exercise based on irrelevant and legally
unacceptable considerations, unsupported by any constitutional
sanctity.
40. Consequently, we hold that Section 4(3) of the 1981
Act cannot pass the test of Article 14 of the Constitution of India
and is, therefore, liable to be struck down. We, therefore, hold
that the aforesaid Section 4(3) of the Uttar Pradesh Ministers
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981
is ultra vires the Constitution of India as it transgresses the
29
equality clause under Article 14. The writ petition in question,
therefore, is allowed.
……….................J.
(RANJAN GOGOI)
……….................J.
(R. BANUMATHI)
NEW DELHI
MAY 07, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.864 OF 2016
LOK PRAHARI THROUGH ITS GENERAL SECRETARY ...PETITIONER
VERSUS
THE STATE OF UTTAR PRADESH & ORS. …RESPONDENTS
J U D G M E N T
RANJAN GOGOI, J.
1. This writ petition under Article 32 of the Constitution of
India raises a challenge to the validity of Section 4(3) of the
Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 (hereinafter referred to as
“the 1981 Act”), as amended in 2016.
2. The case has a somewhat chequered history. Suffice
it will be to recapitulate that as former Chief Ministers of the
State of Uttar Pradesh continued to occupy their official
accommodation even after demitting office, 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 present
petitioner. During the pendency of the said writ petition, a set of
2
Rules namely “U.P. Ex-Chief Ministers Residence Allotment
Rules, 1997” (hereinafter referred to as “the 1997 Rules”) were
framed to provide for allotment of government accommodation
to former Chief Ministers. The writ petition was accordingly
amended to challenge the validity of the provisions of the 1997
Rules. However, the same was closed by the High Court on a
statement made on behalf of the State of Uttar Pradesh that
former Chief Ministers would be henceforth allotted only Type V
bungalows and that too on payment of rent etc.
3. In the aforesaid situation, the present petitioner had
filed Writ Petition (C) No.657 of 2004 (Lok Prahari vs. State of
Uttar Pradesh and others) before this Court challenging the
validity of the aforesaid 1997 Rules. By judgment and order
dated 1st August 20161
, the aforesaid writ petition was answered
by this Court by striking down the 1997 Rules, inter alia, on the
ground that the provision for accommodation for ex-Chief
Ministers as made under the aforesaid 1997 Rules was in direct
conflict with the provisions of Section 4 of the 1981 Act.
Paragraphs 33, 37 and 38 of the said report in Lok Prahari
(supra) would be relevant to notice:
“33. We may now turn to the issue whether the
impugned 1997 Rules are ultra vires Article 14 of the
1
(2016) 8 SCC 389
3
Constitution of India and also repugnant to the
provisions of the 1981 Act. The relevant extract of the
1997 Rules is as under:
“4. Allotment of residence.—A residence on falling
vacant will be allotted by the Estate Officer to such exChief
Minister who has given an application under
these Rules. There will be no right for allotment of a
house outside Lucknow under these Rules.
* * *
6. Period for which allotment subsists.—The
allotment of residence to ex-Chief Ministers shall be
effective only during their lifetime. 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 residence concerned 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 the U.P.
Public Premises (Eviction of Unauthorised Occupants)
Act, 1972.”
* * *
* * *
37. 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.
38. 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,
4
no other dignitary, holding constitutional post is given
such a facility. For the aforestated 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(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.22 of 2016), former Chief Ministers of the State
became entitled to allotment of government accommodation for
their life time. The validity of the aforesaid Section 4(3), as
amended, has been questioned by the writ petitioner, a
registered body, which claims to be “committed to upholding of
the Constitution and enforcement of the Rule of law”.
5. Section 4 of the 1981 Act as originally enacted and as
amended in the year 2016 by 2016 Amendment is in the
following terms:
Section 4 of the Act, as
originally enacted
Section 4 of the Act, as
amended in the year 2016
by 2016 Amendment (U.P
Act No. 22 of 2016)
4.Residence.-(1) Each
Minister shall be entitled
without payment of any rent
to the use throughout the
term of his office and for
period of fifteen days
thereafter, of a residence at
Lucknow which shall be
furnished and maintained at
4. For section 4 of the
principal Act, the following
sections shall be substituted,
namely:-
4(1) The Chief Minister and
each Minister shall be entitled,
without payment of any rent to
the use, throughout the term
of his office and for a period of
5
public expenses at the
prescribed scale.
(2) Where a Minister has not
been provided with a
residence in accordance with
sub-Section (1), or does not
avail of the benefit of the
said sub section, he shall be
entitled to a compensatory
allowance at the rate of-
(a) three hundred rupees per
month in the case of Deputy
Minister, and
(b) five hundred rupees per
month in any other case.
fifteen days thereafter, of a
residence at Lucknow which
shall be furnished and
maintained at public expense
at the prescribed scale.
(2) Where the Chief Minister
or a Minister has not been
provided with a residence in
accordance with subsection(1)
or does not avail of
the benefit of the said subsection,
he shall be entitled to
a compensatory allowance at
the rate of –
(a) ten thousand rupees per
month in the case of the Chief
Minister, a Minister, a Minister
of State (Independent
Charge) and a Minister of
State;
(b) eight thousand rupees per
month in the case of a Deputy
Minister.
(3) A government residence
shall be allotted 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.
6. The 1981 Act was amended by the Uttar Pradesh
Ministers and State Legislature, Officers and Members
Amenities Laws (Amendment) Act, 1990 (U.P. Act No.5 of 1990)
(hereinafter referred to as “1990 Amendment”) by insertion of
6
sub-section (1-A) to Section 4 which is in the following terms:
“(1-A) Each Minister for whose use a
residence at Lucknow has been provided
under sub-section (1) shall immediately after
the expiration of the period referred to in that
sub-section, vacate such accommodation and
an officer authorized by the State Government
in this behalf may take possession of the
accommodation and may for the purpose use
such force as may be necessary in the
circumstances.
Explanation – For the purposes of this subsection
‘Minister’ includes a person who has
ceased to be a Minister”, and also includes a
person who was given the status of a Minister.”
7. By another amendment to the 1981 Act by the Uttar
Pradesh Ministers and State Legislature, Officers and Members
Amenities Laws (Amendment) Act, 1997 (U.P. Act No.8 of 1997)
(hereinafter referred to as “1997 Amendment”) Section 4-A was
inserted, which is to the following effect:
“4-A. Special provisions regarding certain
accommodations.- (1) On and from the
commencement of the Uttar Pradesh Ministers
and State Legislature Officers and Members
Amenities Laws (Amendment) Act, 1997, the
State Government may, with a view to
ensuring timely availability of residence to a
Minister under sub-section (1) of Section 4, by
a notified order, specify any type-VI
accommodation or an accommodation in
which a Minister was in occupation at any
time, under the control and Management of
the Estate Department of the State
Government, as Minister’s residence and an
accommodation so specified shall be allotted
to a Minister only and not to any other person.
7
(2) The State Government, or an officer
authorized by it in this behalf may, if a person
other than a Minister referred to in sub-section
(1-A) of Section 4 is in occupation of an
accommodation specified as Minister’s
residence under sub-section (1) on the basis
of any allotment order or otherwise, cancel the
allotment order of such person, if any, and by
notice in writing require such person to vacate
the said accommodation within fifteen days
from the date of service upon him of such
notice, and if such person fails to vacate the
said accommodation within the said period, an
officer authorized by the State Government in
this behalf may take possession of the
accommodation and may for the purpose use
such force as may be necessary in the
circumstances”.
8. It will be worthwhile to note at this stage that while
Section 4(1-A) of the 1981 Act has been deleted by the 2016
Amendment Section 4-A continues to remain on the statute
book.
9. Section 4-A(2) of the 1981 Act, extracted above,
visualize that if any person other than the Minister is in
occupation of accommodation specified as Minister’s residence
under sub-section (1) of Section 4-A (Type VI accommodation)
the allotment order of such person shall be cancelled and the
occupant would be required to vacate the said accommodation
within fifteen days from the date of service of notice, failing
8
which, the Authorized Officer would be competent in law to take
possession of the accommodation, if necessary, by use of such
force, as may be required.
10. Having noted the salient features of the provisions of
the 1981 Act the question that arises for determination in the
present proceedings may be summarized as follows:
“Whether retention of official accommodation by the
functionaries mentioned in Section 4(3) of the 1981 Act after
they had demitted office violate the equality clause guaranteed
by Article 14 of the Constitution of India.”
11. The petitioner - body which is a registered society
under the Societies Registration Act, 1860 is represented in
these proceedings by its Secretary Shri S.N. Shukla, who is a
retired I.A.S. Officer. Though Shri Shukla had advanced his
arguments and contentions with great clarity, yet, having regard
to the importance of the question raised we had thought it
proper to take the assistance of Shri Gopal Subramanium,
learned Senior Counsel of this Court and to assist him we had
thought it proper to request Shri Gopal Sankaranarayanan,
learned counsel, a member of the Supreme Court Bar
Association. Both Shri Gopal Subramanium, learned Senior
9
Counsel and Shri Gopal Sankaranarayanan, learned counsel
have rendered their valuable assistance to this Court which
assistance is being acknowledged by the Court at the very
outset of the present order.
12. Though the issue in the present proceeding is strictly
confined to the provisions of the 1981 Act, having regard to the
fact that there may be similar/pari materia provisions in force in
different States/Union Territories and also in the Union we had
thought it proper to inform, through the learned Amicus Curiae,
the law officers of the Union and all the States/Union Territories
of the pendency of the present writ petition and the issues
arising therein. Pursuant thereto, the responses of the Union
and the States of Assam, Bihar, Tamil Nadu and Odisha have
been received. Shri Aman Lekhi, learned ASG has submitted
that the Government Accommodation is provided to former
Presidents, Vice-Presidents, Prime Ministers of the country. The
issue had come up for consideration in this Court in Shiv Sagar
Tiwari vs. Union of India and others2
wherein this Court has
approved the action taken in the matter of provision of official
accommodation to the aforesaid dignitaries under the extant
Rules in the following manner:
2
(1997) 1 SCC 444
10
“72. Keeping in view the very high
constitutional position occupied by the
President, Vice-President and Prime Minister,
we feel no difficulty in stating that they should
be accommodated in government premises
after demitting of office by them, so that
problem of suitable residence does not trouble
them in the evening of life. What should be the
terms of the same is a matter to be decided 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 Generals of the said States by the office of the
learned Amicus Curiae Shri Gopal Subramanium that no
provision for official accommodation to former Chief Ministers
has been made by the said two states whereas in the case of
States of Bihar and Assam such provision has been made by
executive instructions issued by the State under Article 162 of
the Constitution of India.
14. We had thought it proper to request the learned
Amicus Curiae to sound the Advocate Generals of the States on
the pendency of this writ petition to enable the States to render
assistance to the Court in the matter of adjudication of
11
the validity of Section 4(3) of the 1981 Act in view of the fact that
some of the States may have pari materia provisions in force.
No such contest by the States with regard to the validity of the
Section 4(3) of the 1981 Act had been forthcoming except to the
extent mentioned hereinabove on behalf of the Union of India.
We, therefore, proceed to undertake the present exercise which,
we make it clear, is confined to the issue of validity of Section
4(3) of the 1981 Act.
15. It would be appropriate to initiate the discourse by
remembering the preamble to the Constitution of India which is
in the following terms.
WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC
and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, 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 the unity and integrity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY this twentysixth
day of November, 1949, DO HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS
12
CONSTITUTION.
16. The preamble to the Constitution of India embodies,
inter alia, the principles of equality and fraternity and it is on the
basis of these principles of equality and fraternity that the
Constitution recognizes only one single class of citizens with
one singular voice (vote) in the democratic process subject to
provisions made for backward classes, women, children, SC/ST,
minorities, etc. A special class of citizens, subject to the
exception noted above, is abhorrent to the constitutional ethos.
17. The resolve of ‘the People of India’ to have a
republican form of Government is a manifestation of the
constitutional philosophy that does not recognize any arbitrary
sovereign power and domination of citizens by the State. The
republican liberty and the doctrine of equality is the central
feature of the Indian democracy.
18. It is, therefore, axiomatic that in a democratic
republican government public servants entrusted with duties of
public nature must act in a manner that reflects that ultimate
authority is vested in the citizens and it is to the citizens that
holders of all public offices are eventually accountable. Such a
situation would only be possible within a framework of equality
13
and when all privileges, rights and benefits conferred on holders
of public office are reasonable, rational and proportionate.
19. It may be necessary herein to recapitulate the Seven
Principles of Public Life Report by Lord Nolan which find
mention in the judgment of this Court in Vineet Narain and
others vs. Union of India and another3
(paragraph 54). This
Court in paragraph 55 of the report in Vineet Narain (supra)
had observed:
“These principles of public life are of general
application in every democracy and one is
expected to bear them in mind while
scrutinizing the conduct of every holder of a
public office.”
The seven principles of public life stated in the Report by
Lord Nolan are as follows:
“THE SEVEN PRINCIPLES OF PUBLIC LIFE
Selflessness
Holders of public office should take
decisions solely in terms of the public interest.
They should not do so in order to gain financial
or other material benefits for themselves, their
family, or their friends.
Integrity
Holders of public office should not place
themselves under any financial or other
obligation to outside individuals or
organisations that might influence them in the
performance of their official duties.
Objectivity
3
(1998) 1 SCC 226
14
In carrying out public business, including
making public appointments, awarding
contracts, or recommending individuals for
rewards and benefits, holders of public office
should make choices on merit.
Accountability
Holders of public office are accountable for
their decisions and actions to the public and
must submit themselves to whatever scrutiny
is appropriate to their office.
Openness
Holders of public office should be as open
as possible about all the decisions and actions
that they take. They should give reasons for
their decisions and restrict information only
when the wider public interest clearly
demands.
Honesty
Holders of public office have a duty to
declare any private interests relating to their
public duties and to take steps to resolve any
conflicts arising in a way that protects the
public interest.
Leadership
Holders of public office should promote and
support these principles by leadership and
example.”
20. It would be significant to note that the legislative
anxiety to bring in a classless society, a constitutional
vision, inter alia, found manifestation in the Twenty-sixth
(26th) Amendment to the Constitution of India by which
Articles 291 and 362 were repealed and a new Article 366A
was incorporated, resulting in depriving the Rulers of
Princely States the recognition accorded to them and
15
declaring the abolition of the privy purse. In the resultant
challenge by a co-Ruler of an erstwhile sovereign Indian
State of Kurundwad Jr. this Court in Shri Raghunathrao
Ganpatrao vs. Union of India4 while dealing with the
challenge, inter alia, spoke as follows:
“96. Permanent retention of the privy purse
and the privileges of rights would be
incompatible with the sovereign and republican
form of Government. Such a retention will also
be incompatible with the egalitarian form of our
Constitution. That is the opinion of the
Parliament which acted to repeal the aforesaid
provisions in exercise of its constituent power.
The repudiation of the right to privy purse
privileges, dignities etc. by the deletion of
Articles 291 and 362, insertion of Article 363-A
and amendment of clause (22) of Article 366
by which the recognition of the Rulers and
payment of privy purse are withdrawn cannot
be said to have offended Article 14 or 19(g)
[sic 19(1)(f)] and we do not find any logic in
such a submission. No principle of justice,
either economic, political or social is violated
by the Twenty-sixth Amendment. Political
justice relates to the principle of rights of the
people, i.e. right to universal suffrage, right to
democratic form of Government and right to
participation in political affairs. Economic
justice is enshrined in Article 39 of the
Constitution. Social justice is enshrined in
Article 38. Both are in the directive principles
of the Constitution. None of these rights are
abridged or modified by this Amendment. We
feel that this contention need not detain us any
more and, therefore, we shall pass on to the
next point in debate.”
4 AIR 1993 SC 1267
16
21. An instance of State action inconsistent with the
constitutional goal to secure socio-economic justice was dealt
with by this Court in Victorian Granites (P) Ltd. Vs. P. Rama
Rao and others5
. In the said case, the state action approving
the assignment of a lease granted to an individual on expiry
thereof in favour of a private Company, at the request of the
outgoing lessee, without any publicity and without inviting
objections from others was explicitly disapproved by this Court
by holding that such a transfer was opposed to the common
good and the constitutional objective of securing socioeconomic
justice which was described as the arch of the
Constitution. Material resources of the community must be
distributed to sub-serve the common good, this Court had
opined.
22. Similarly, in Akhil Bhartiya Upbhokta Congress vs.
State of Madhya Pradesh and others6
this Court held that:
“48. Part IV contains “directive principles of
State policy” which are fundamental in the
governance of the country and it is the duty of
the State to apply these principles in making
laws. Article 39 specifies certain principles of
policy which are required to be followed by the
State. Clause (b) thereof provides that the
5
(1996) 10 SCC 665
6
(2011) 5 SCC 29
17
State shall, in particular, direct its policy
towards securing that the ownership and
control of the material resources of the
community are so distributed as best to
subserve the common good. Parliament and
legislatures of the States have enacted several
laws and the Governments have, from time to
time, framed policies so that the national
wealth and natural resources are equitably
distributed among all sections of people so
that have-nots of the society can aspire to
compete with haves.”
23. In Akhil Bhartiya (supra), this Court examined the
legality of the action of the Madhya Pradesh Government to
allot twenty acres of 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 equitable manner. It
was held that the elements of favouritism or nepotism shall not
influence the exercise of discretion by the decision maker.
Observing that 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 its agencies/instrumentalities
cannot give largesse to any person according to
the sweet will and whims of the political entities
and/or officers of the State. Every
action/decision of the State and/or its
agencies/instrumentalities to give largesse or
confer benefit must be founded on a sound,
18
transparent, discernible and well-defined policy,
which shall be made known to the public by
publication in the Official Gazette and other
recognised modes of publicity and such policy
must be implemented/executed by adopting a
non-discriminatory and non-arbitrary method
irrespective of the class or category of persons
proposed to be benefited by the policy. The
distribution of largesse like allotment of land,
grant of quota, permit licence, etc. by the State
and its agencies/instrumentalities should always
be done in a fair and equitable manner and the
element of favouritism or nepotism shall not
influence the exercise of discretion, if any,
conferred upon the particular functionary or
officer of the State.
(Underlining is ours)
24. In Sachidanand Pandey and another vs. State of
West Bengal and others7
, this Court after referring to some of
the available precedents, laid the following principles:-
“40. On a consideration of the relevant cases
cited at the Bar the following propositions may
be taken as well established: State-owned or
public-owned property is not to be dealt with at
the absolute discretion of the executive.
Certain precepts and principles have to be
observed. Public interest is the paramount
consideration. One of the methods of securing
the public interest, when it is considered
necessary to dispose of a property, is to sell
the property by public auction or by inviting
tenders. Though that is the ordinary rule, it is
not an invariable rule. There may be situations
where there are compelling reasons
necessitating departure from the rule but then
the reasons for the departure must be rational
and should not be suggestive of
discrimination. Appearance of public justice is
7
(1987) 2 SCC 295
19
as important as doing justice. Nothing should
be done which gives an appearance of bias,
jobbery or nepotism.”
(Underlining is ours)
25. After Akhil Bhartiya (supra) and Sachidanand
Pandey (supra), in Centre for Public Interest Litigation and
others v. Union of India and others8
, it was held as under:-
“89. In conclusion, we hold that the State is
the legal owner of the natural resources as a
trustee of the people and although it is
empowered to distribute the same, the process
of distribution must be guided by the
constitutional principles including the doctrine
of equality and larger public good.”
26. In Natural Resources Allocation, in Re, Special
Reference No. 1 of 20129
, while considering the allocation of
2G Spectrum, this Court observed that as natural resources are
public goods, the ‘Doctrine of Equality’ which emerges from the
concepts of justice and fairness must guide the State in
determining the actual mechanism for distribution of natural
resources. Any further detailed reference to the opinion
rendered is being avoided as the principles evolved are in
furtherance of what has been had been laid down earlier, as
noticed above.
8
(2012) 3 SCC 1
9
(2012) 10 SCC 1
20
27. Coming back to the issue in hand a brief look at the
contentions advanced may be appropriate at this stage. The
State of Uttar Pradesh has sought to defeat the writ petition by
contending that the same being under Article 32 of the
Constitution of India a direct infringement of the fundamental
rights of the petitioner must be established which is nowhere
apparent even on a close scrutiny. The writ petition, therefore,
is not maintainable. Alternatively, it has been argued that
infringement of the equality clause under Article 14 of the
Constitution of India is a far cry as there is an intelligible
differentia to justify a separate and exclusive treatment to former
Chief Ministers who form a class of their own.
28. While it is true that Article 32 of the Constitution is to
be invoked for enforcement of the fundamental rights of a
citizen or a non citizen, as may be, and there must be a
violation or infringement thereof we have moved away from the
theory of infringement of the fundamental rights of an individual
citizen or non citizen to one of infringement of rights of a class.
In fact, the above transformation is the foundation of what had
developed as an independent and innovative stream of
jurisprudence called “Public Interest Litigation” or class action.
21
Though evolved much earlier, a Solemn affirmation of the
aforesaid principle is to be found in paragraph 48 of the report in
Vineet Narain (supra) which would be eminently worthy of
recapitulation and, therefore, is extracted below:
“48. In view of the common perception shared
by everyone including the Government of India
and the Independent Review Committee (IRC) of
the need for insulation of the CBI from
extraneous influence of any kind, it is imperative
that some action is urgently taken to prevent the
continuance of this situation with a view to
ensure proper implementation of the rule of law.
This is the need of equality guaranteed in the
Constitution. The right to equality in a situation
like this is that of the Indian polity and not merely
of a few individuals. The powers conferred on
this Court by the Constitution are ample to
remedy this defect and to ensure enforcement of
the concept of equality.”
(Underlining is ours)
29. Along with the aforesaid shift in the judicial thinking
there has been an equally important shift from the classical test
(classification test) for the purpose of enquiry with regard to
infringement of the equality clause under Article 14 of the
Constitution of India to, what may be termed, a more dynamic
test of arbitrariness. The shift which depicts two different
dimensions of a challenge on the anvil of Article 14 is best
demonstrated by a comparative reading of the judgments of this
Court in the case of Budhan Choudhry and others vs. State
22
of Bihar10, and E.P. Royappa vs. State of Tamil Nadu and
another.11
30. In Budhan Choudhry (supra), the classical test
based on a reasonable classification to give legitimacy to an act
of differential treatment was expounded in the following terms:
“……It is now well established that while
Article 14 forbids class legislation, it does not
forbid reasonable classification for the
purposes of legislation. In order, however, to
pass the test of permissible classification two
conditions must be fulfilled, namely, (i) that the
classification must be founded on an
intelligible differentia which distinguishes
persons or things that are grouped together
from others left out of the group and, (ii) that
differentia must have a rational relation to the
object sought to be achieved by the statute in
question. The classification may be founded
on different bases; namely, geographical, or
according to objects or occupations or the like.
What is necessary is that there must be a
nexus between the basis of classification and
the object of the Act under consideration. It is
also well established by the decisions of this
Court that Article 14 condemns discrimination
not only by a substantive law but also by a law
of procedure.”
31. The more dynamic version came two decades later in
the case of E.P. Royappa (supra) wherein Bhagwati, J.
expanded the scope of Article 14 of the Constitution of India in
10 AIR 1955 SC 191
11 (1974) 4 SCC 3
23
the following terms:
“85…….From a positivistic point of view,
equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic
while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both according
to political logic and constitutional law and is
therefore violative of Article 14, and if it effects
any matter relating to public employment, it is
also violative of Article 16. Articles 14 and 16
strike at arbitrariness in State action and
ensure fairness and equality of treatment.
They require that State action must be based
on valid relevant principles applicable alike to
all similarly situate and it must not be guided
by any extraneous or irrelevant considerations
because that would be denial of equality.
Where the operative reason for State action,
as distinguished from motive inducing from the
antechamber of the mind, is not legitimate and
relevant but is extraneous and outside the
area of permissible considerations, it would
amount to mala fide exercise of power and that
is hit by Articles 14 and 16. Mala fide exercise
of power and arbitrariness are different lethal
radiations emanating from the same vice: in
fact the latter comprehends the former. Both
are inhibited by Articles 14 and 16.”
32. The evolution of the dynamic facet of Article 14 of the
Constitution of India was carried forward in numerous
pronouncements of this Court of which reference must be
made, illustratively, to Ramana Dayaram Shetty vs.
International Airport Authority of India and others12;
12 (1979) 3 SCC 489
24
Sharma Transport vs. Govt. of A.P. and others13; Kumari
Shrilekha Vidyarthi and others vs. State of U.P. and others14;
State of Punjab and another vs. Brijeshwar Singh Chahal
and another15
.
33. Paragraph 23 and 35 of Kumari Shrilekha (supra)
may be extracted with profit only to notice the absolute clarity in
carrying forward the principle laid down by Hon. Bhagwati J., in
Royappa (supra).
“23. Thus, in a case like the present, if it is
shown that the impugned State action is
arbitrary and, therefore, violative of Article 14
of the Constitution, there can be no
impediment in striking down the impugned act
irrespective of the question whether an
additional right, contractual or statutory, if any,
is also available to the aggrieved persons.
…………
35. It is now too well settled that every State
action, in order to survive, must not be
susceptible to the vice of arbitrariness which is
the crux of Article 14 of the Constitution and
basic to the rule of law, the system which
governs us. Arbitrariness is the very negation
of the rule of law. Satisfaction of this basic test
in every State action is sine qua non to its
validity and in this respect, the State cannot
claim comparison with a private individual
even in the field of contract. This distinction
between the State and a private individual in
the field of contract has to be borne in the
13 (2002) 2 SCC 188
14 (1991) 1 SCC 212
15 (2016) 6 SCC 1
25
mind.”
34. The “final” culmination is in Shayara Bano vs. Union
of India and others16 where 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 in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of
India stated that it was settled law that
subordinate legislation can be challenged on
any of the grounds available for challenge
against plenary legislation. This being the
case, there is no rational distinction between
the two types of legislation when it comes to
this ground of challenge under Article 14. The
test of manifest arbitrariness, therefore, as laid
down in the aforesaid judgments would apply
to invalidate legislation as well as subordinate
legislation under Article 14. Manifest
arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally
and/or without adequate determining principle.
Also, when something is done which is
excessive and disproportionate, such
legislation would be manifestly arbitrary. We
are, therefore, of the view that arbitrariness in
the sense of manifest arbitrariness as pointed
out by us above would apply to negate
legislation as well under Article 14.”
35. The above view received support of a third member of
the Constitution Bench (Hon’ble Kurian Joseph, J.)
16 (2017) 9 SCC 1
26
36. In the light of the above views the allocation of
government bungalows to constitutional functionaries
enumerated in Section 4(3) of the 1981 Act after such
functionaries demit public office(s) would be clearly subject to
judicial review on the touchstone of Article 14 of the Constitution
of India. This is particularly so as such bungalows constitute
public property which by itself is scarce and meant for use of
current holders of public offices. The above is manifested by
the institution of Section 4-A in the 1981 Act by the Amendment
Act of 1997 (Act 8 of 1997). The questions relating to allocation
of such property, therefore, undoubtedly, are questions of public
character and, therefore, the same would be amenable for
being adjudicated on the touchstone of reasonable classification
as well as arbitrariness.
37. The present petitioner, as already noticed in the
opening paragraphs of this judgment, had earlier approached
this Court under Article 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, considered the validity of the
1997 Rules in the light of Article 14 of the Constitution of India.
27
The insertion of Section 4(3) by the 2016 Amendment as a
substantive provision of the statute when the 1997 Rules to the
same effect were declared invalid by the Court would require
the curing of the invalidity found by this Court in the matter of
allotment of government accommodation to former Chief
Ministers. The defect found earlier persists. The impugned
legislation, therefore, can very well be construed to be an
attempt to overreach the judgment of this Court in Lok Prahari
(supra).
38. Natural resources, public lands and the public goods
like government bungalows/official residence are public property
that belongs to the people of the country. The ‘Doctrine of
Equality’ which emerges from the concepts of justice, fairness
must guide the State in the distribution/allocation of the same.
The Chief Minister, once he/she demits the office, is at par with
the common citizen, though by virtue of the office held, he/she
may be entitled to security and other protocols. But allotment of
government bungalow, to be occupied during his/her lifetime,
would not be guided by the constitutional principle of equality.
39. Undoubtedly, Section 4(3) of the 1981 Act would have
the effect of creating a separate class of citizens for conferment
28
of benefits by way of distribution of public property on the basis
of the previous public office held by them. Once such persons
demit the public office earlier held by them there is nothing to
distinguish them from the common man. The public office held
by them becomes a matter of history and, therefore, cannot
form the basis of a reasonable classification to categorize
previous holders of public office as a special category of
persons entitled to the benefit of special privileges. The test of
reasonable classification, therefore, has to fail. Not only that the
legislation i.e. Section 4(3) of the 1981 Act recognizing former
holders of public office as a special class of citizens, viewed in
the aforesaid context, would appear to be arbitrary and
discriminatory thereby violating the equality clause. It is a
legislative exercise based on irrelevant and legally
unacceptable considerations, unsupported by any constitutional
sanctity.
40. Consequently, we hold that Section 4(3) of the 1981
Act cannot pass the test of Article 14 of the Constitution of India
and is, therefore, liable to be struck down. We, therefore, hold
that the aforesaid Section 4(3) of the Uttar Pradesh Ministers
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981
is ultra vires the Constitution of India as it transgresses the
29
equality clause under Article 14. The writ petition in question,
therefore, is allowed.
……….................J.
(RANJAN GOGOI)
……….................J.
(R. BANUMATHI)
NEW DELHI
MAY 07, 2018.
