TaxTMI 
TaxTMI 
2018 (5) TMI 1825
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....sters (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 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 o....
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..... 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 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 Section 4 of the 1981 Act as originally enacted and as amended in the year 2016 by 2016 Amendment is in the following terms: Section 4 of the Act, as originally enacted Section 4 of the Act, as amended in the year 2016 by 2016 Amendment (U.P....
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.... 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 Sub-section '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'....
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....ion 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 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 forme....
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....ression, 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 twenty-sixth day of November, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS 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 t....
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.... 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 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 v. Union of India AIR 1993 SC 1267 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 ....
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....o be followed by the State. Clause (b) thereof provides that the 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: ....
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....nder: 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 2012 MANU/SC/0793/2012MANU/SC/0793/2012 : (2012) 10 SCC 1, 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. 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 i....
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....omparative reading of the judgments of this Court in the case of Budhan Choudhry and Ors. v. State of Bihar AIR 1955 SC 191, and E.P. Royappa v. State of Tamil Nadu and Anr. (1974) 4 SCC 3. 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 considerati....
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....agwati 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 mind. 34. The "final" culmination is in Shayara Bano v. Union of India and Ors. (2017) 9 SCC 1 where two members of the Bench (Hon'ble R.F. Nariman and Uday Umesh La....
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....idity of the 1997 Rules in the light of Article 14 of the Constitution of India. 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 princi....