TMI Blog2018 (5) TMI 1825X X X X Extracts X X X X X X X X Extracts X X X X ..... ory 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 - 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 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 questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India) - - - Dated:- 7-5-2018 - Ranjan Gogoi and R. Banumathi, JJ. For Appearing Parties: Aman Lekhi, A. Mariaputham, Anil Grover, Ajay Kumar Mishra, Saurabh MishraGopal Subramanium, Gopal Sankaranarayanan, Pavan Bhushan, Shrutanjaya, Veera Mahuli, Ardhendumauli Kumar Prasad, Priyanka Das, Sanjai Kumar Pathak, Raj Bahadur, Aruna Mahur, Avneesh Arputham, Anuradha Arputham, Simran Jeet, Noopur Singhal, Sanjay K. Visen, Samir Ali Khan, Shuvodeep Roy, Sayooj Mohandas M., Arjun Garg, K. Enatoli Sema, V.N. Raghupathy, Bhupesh Narula, K.V. Jagdishvaran, G. Indira, V.G. Pragasam, S. Prabhu Ramasubramanian, S. Manuraj, G. Prakash, Jishnu M.L., Priyanka Prakash, Beena Prakash, Vijay Shankar V.L., Vijaya Mohan V., Advs. and Party-in-Person JUDGMENT Ranjan Gogoi, 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 Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, no other dignitary, holding constitutional post is given such a facility. For the aforestated reasons, the 1997 Rules are not fair, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent 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 Counsel and Shri Gopal Sankaranarayanan, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 981 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 twenty-sixth day of November, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 16. The preamble to the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. Objectivity 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that such a transfer was opposed to the common good and the constitutional objective of securing socio-economic 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 v. State of Madhya Pradesh and Ors. (2011) 5 SCC 29 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. 25. After Akhil Bhartiya (supra) and Sachidanand Pandey (supra), in Centre for Public Interest Litigation and Ors. v. Union of India and Ors. (2012) 3 SCC 1, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. International Airport Authority of India and Ors. (1979) 3 SCC 489; Sharma Transport v. Govt. of A.P. and Ors. (2002) 2 SCC 188; Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. (1991) 1 SCC 212; State of Punjab and Anr. v. Brijeshwar Singh Chahal and Anr. (2016) 6 SCC 1. 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. Natu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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