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.
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.
