01 August 2016
Supreme Court
Download

LOK PRAHARI Vs STATE OF U.P. .

Bench: ANIL R. DAVE,N.V. RAMANA,R. BANUMATHI
Case number: W.P.(C) No.-000657-000657 / 2004
Diary number: 20068 / 2004
Advocates: PETITIONER-IN-PERSON Vs SHAIL KUMAR DWIVEDI


1

Page 1

1 CORRECTED

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,

2

Page 2

2 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

3

Page 3

3 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

4

Page 4

4 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

5

Page 5

5 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

6

Page 6

6 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.  

7

Page 7

7 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.

8

Page 8

8 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

9

Page 9

9 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

10

Page 10

10 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

11

Page 11

11 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

12

Page 12

12 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

13

Page 13

13 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

14

Page 14

14 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.  

15

Page 15

15 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

16

Page 16

16 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.

17

Page 17

17 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:

18

Page 18

18 “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,

19

Page 19

19 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

20

Page 20

20 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..”

21

Page 21

21 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.”

22

Page 22

22 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

23

Page 23

23 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

24

Page 24

24 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

25

Page 25

25 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

26

Page 26

26 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

27

Page 27

27 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.

28

Page 28

28 41. There cannot  be any dispute that  when the rules and

regulations  or  executive  instructions  are  contrary  to  any

statutory provision, the statutory provision would prevail and

the rules or executive instructions, 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.

29

Page 29

29 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

30

Page 30

30 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.

31

Page 31

31 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,

32

Page 32

32 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

33

Page 33

33 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

34

Page 34

34 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

35

Page 35

35 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

36

Page 36

36 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.  

37

Page 37

37 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.

38

Page 38

38 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

39

Page 39

39 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

40

Page 40

40 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

41

Page 41

41 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

42

Page 42

42 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

43

Page 43

43 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

44

Page 44

44 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.  

45

Page 45

45 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

46

Page 46

46 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.

47

Page 47

47 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:

48

Page 48

48 “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,

49

Page 49

49 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

50

Page 50

50 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..”

51

Page 51

51 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.”

52

Page 52

52 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

53

Page 53

53 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

54

Page 54

54 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

55

Page 55

55 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

56

Page 56

56 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

57

Page 57

57 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.

58

Page 58

58 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.

59

Page 59

59 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

60

Page 60

60 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.