TaxTMI 
TaxTMI 
2016 (8) TMI 1503
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....e 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 frame....
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.... 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/orga....
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....arly 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 violativ....
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...., 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 t....
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....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 validi....
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....d 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 beco....
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.... 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 allotm....
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....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 perquisi....
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....acted 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....