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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.864 OF 2016

LOK PRAHARI THROUGH ITS GENERAL SECRETARY       ...PETITIONER

     VERSUS

THE STATE OF UTTAR PRADESH & ORS.          …RESPONDENTS

J U D G M E N T

RANJAN GOGOI, J.

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  Uttar  Pradesh  continued  to  occupy  their  official

accommodation even after demitting office, in clear breach of

Section 4 of the 1981 Act as it had then existed, a writ petition

was filed  before  the High Court  of  Allahabad by the present

petitioner. During the pendency of the said writ petition, a set of

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Rules  namely  “U.P.  Ex-Chief  Ministers  Residence  Allotment

Rules, 1997” (hereinafter referred to as “the 1997 Rules”) were

framed to provide for allotment of government accommodation

to  former  Chief  Ministers.  The  writ  petition  was  accordingly

amended to challenge the validity of the provisions of the 1997

Rules. However, the same was closed by the High Court on a

statement made on behalf  of  the State of Uttar Pradesh that

former Chief Ministers would be henceforth allotted only Type V

bungalows and that too on payment of rent etc.

3. In the aforesaid situation, the present petitioner had

filed Writ Petition (C) No.657 of 2004 (Lok Prahari vs. State of

Uttar Pradesh and others)  before this Court challenging the

validity  of  the  aforesaid  1997 Rules.  By  judgment  and  order

dated 1st August 20161, the aforesaid writ petition was answered

by this Court by striking down the 1997 Rules, inter alia, on the

ground  that  the  provision  for  accommodation  for  ex-Chief

Ministers as made under the aforesaid 1997 Rules was in direct

conflict  with  the  provisions  of  Section  4  of  the  1981  Act.

Paragraphs 33, 37 and 38 of  the said report  in  Lok Prahari

(supra) would be relevant to notice:

“33. We  may  now  turn  to  the  issue  whether  the impugned 1997 Rules are ultra vires Article 14 of the

1 (2016) 8 SCC 389

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Constitution  of  India  and  also  repugnant  to  the provisions of the 1981 Act. The relevant extract of the 1997 Rules is as under:

“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.

* * * 6.  Period  for  which  allotment  subsists.—The

allotment of  residence to ex-Chief  Ministers shall  be effective only during their lifetime. 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 residence concerned 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  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,

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no other dignitary, holding constitutional post is given such a facility. For the aforestated reasons, the 1997 Rules are not fair, and more so, when the subject of “salary and allowances” of the Ministers, is governed by Section 4(2)(a) of the 1981 Act.”

4. Section 4 of the 1981 Act was amended in the year

2016. Under Section 4(3) brought in by the 2016 Amendment

(U.P. Act  No.22 of  2016),  former Chief  Ministers of  the State

became entitled to allotment of government accommodation for

their  life  time.  The  validity  of  the  aforesaid  Section  4(3),  as

amended,  has  been  questioned  by  the  writ  petitioner,  a

registered body, which claims to be “committed to upholding of

the Constitution and enforcement of the Rule of law”.  

5. Section 4 of the 1981 Act as originally enacted and as

amended  in  the  year  2016  by  2016  Amendment  is  in  the

following terms:

Section  4  of  the  Act,  as originally enacted  

Section  4  of  the  Act,  as amended  in  the  year  2016 by  2016  Amendment  (U.P Act No. 22 of 2016)

4.Residence.-(1)  Each Minister  shall  be  entitled without payment of any rent to  the  use  throughout  the term  of  his  office  and  for period  of  fifteen  days thereafter,  of  a residence at Lucknow  which  shall  be furnished and maintained at

4. For  section  4  of  the principal  Act,  the  following sections shall  be substituted, namely:- 4(1)  The  Chief  Minister  and each Minister shall be entitled, without payment of any rent to the use,  throughout  the term of his office and for a period of

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public  expenses  at  the prescribed scale.

(2) Where a Minister has not been  provided  with  a residence in accordance with sub-Section (1), or does not avail  of  the  benefit  of  the said sub section, he shall be entitled  to  a  compensatory allowance at the rate of- (a) three hundred rupees per month in the case of Deputy Minister, and (b)  five  hundred rupees per month in any other case.

fifteen  days  thereafter,  of  a residence  at  Lucknow  which shall  be  furnished  and maintained at public expense at the prescribed scale.

(2)  Where  the  Chief  Minister or  a  Minister  has  not  been provided  with  a  residence  in accordance  with  sub- section(1) or does not avail of the  benefit  of  the  said  sub- section, he shall be entitled to a compensatory allowance at the rate of – (a)  ten  thousand  rupees  per month in the case of the Chief Minister, a Minister, a Minister of  State  (Independent Charge)  and  a  Minister  of State; (b) eight 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

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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 Minister.”

7. By another amendment to the 1981 Act by the Uttar

Pradesh Ministers and State Legislature, Officers and Members

Amenities Laws (Amendment) Act, 1997 (U.P. Act No.8 of 1997)

(hereinafter referred to as “1997 Amendment”) Section 4-A was

inserted, which is to the following effect:

“4-A.  Special  provisions regarding  certain accommodations.-  (1)  On  and  from  the commencement of the Uttar Pradesh Ministers and State  Legislature  Officers  and  Members Amenities Laws (Amendment)  Act,  1997,  the State  Government  may,  with  a  view  to ensuring  timely  availability  of  residence  to  a Minister under sub-section (1) of Section 4, by a  notified  order,  specify  any  type-VI accommodation  or  an  accommodation  in which  a  Minister  was  in  occupation  at  any time,  under  the  control  and  Management  of the  Estate  Department  of  the  State Government,  as Minister’s  residence and  an accommodation so specified shall  be allotted to a Minister only and not to any other person.

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(2)   The  State  Government,  or  an  officer authorized by it in this behalf may, if a person other than a Minister referred to in sub-section (1-A)  of  Section  4  is  in  occupation  of  an accommodation  specified  as  Minister’s residence under sub-section (1) on the basis of any allotment order or otherwise, cancel the allotment order of such person, if any, and by notice in writing require such person to vacate the  said  accommodation  within  fifteen  days from  the  date  of  service  upon  him  of  such notice, and if such person fails to vacate the said accommodation within the said period, 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”.

8. It  will  be worthwhile to note at this stage that while

Section 4(1-A) of the 1981 Act has been deleted by the 2016

Amendment  Section  4-A continues  to  remain  on  the  statute

book.   

9. Section  4-A(2)  of  the  1981  Act,  extracted  above,

visualize  that  if  any  person  other  than  the  Minister  is  in

occupation of accommodation specified as Minister’s residence

under sub-section (1) of Section 4-A (Type VI accommodation)

the allotment order of such person shall be cancelled and the

occupant would be required to vacate the said accommodation

within  fifteen  days  from the  date  of  service  of  notice,  failing

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which, the Authorized Officer would be competent 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

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Counsel  and  Shri  Gopal  Sankaranarayanan,  learned counsel

have  rendered  their  valuable  assistance  to  this  Court  which

assistance  is  being  acknowledged  by  the  Court  at  the  very

outset of the present order.

12. Though the issue in the present proceeding is strictly

confined to the provisions of the 1981 Act, having regard to the

fact that there may be similar/pari materia provisions in force in

different States/Union Territories and also in the Union we had

thought it proper to inform, through the learned Amicus Curiae,

the law officers of the Union  and all the States/Union Territories

of  the  pendency  of  the  present  writ  petition  and  the  issues

arising therein.   Pursuant thereto, the responses of the Union

and the States of Assam, Bihar, Tamil Nadu and Odisha have

been received.  Shri Aman Lekhi, learned ASG has submitted

that  the  Government  Accommodation  is  provided  to  former

Presidents, Vice-Presidents, Prime Ministers of the country. The

issue had come up for consideration in this Court in Shiv Sagar

Tiwari vs. Union of India and others  2  wherein this Court has

approved the action taken in the matter of provision of official

accommodation  to  the  aforesaid  dignitaries  under  the  extant

Rules in the following manner:

2  (1997) 1 SCC 444

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“72. Keeping  in  view  the  very  high constitutional  position  occupied  by  the President, Vice-President and Prime Minister, we feel no difficulty in stating that they should be  accommodated  in  government  premises after  demitting  of  office  by  them,  so  that problem of suitable residence does not trouble them in the evening of life. What should be the terms of the same is a matter to be decided by the Government.”

13. Insofar as the States of Tamil Nadu and Odisha are

concerned, it  is clear from the communications received from

the Advocate Generals of the said States by the office of the

learned  Amicus  Curiae  Shri  Gopal  Subramanium  that  no

provision for  official  accommodation to former Chief  Ministers

has been made by the said two states whereas in the case of

States of Bihar and Assam such provision has been made by

executive instructions issued by the State under Article  162 of

the Constitution of India.   

14.  We  had  thought  it  proper  to  request  the  learned

Amicus Curiae to sound the Advocate Generals of the States on

the pendency of this writ petition to enable the States  to render

assistance  to the  Court  in  the  matter  of  adjudication  of

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the validity of Section 4(3) of the 1981 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

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CONSTITUTION.

16.    The preamble to the Constitution of India embodies,

inter alia, the principles of equality and fraternity and it is on the

basis  of  these  principles  of  equality  and  fraternity  that  the

Constitution recognizes only one single class of  citizens with

one singular voice (vote) in the democratic process subject to

provisions made for backward classes, women, children, SC/ST,

minorities,  etc.    A special  class  of  citizens,  subject  to  the

exception noted above, is abhorrent to the constitutional ethos.

17. The  resolve  of  ‘the  People  of  India’  to  have  a

republican  form  of  Government  is  a  manifestation  of  the

constitutional philosophy that does not recognize any arbitrary

sovereign power and domination of citizens by the State.  The

republican  liberty  and  the  doctrine  of  equality  is  the  central

feature of the Indian democracy.  

18. It  is,  therefore,  axiomatic  that  in  a  democratic

republican government public servants entrusted with duties of

public nature must act in a manner that  reflects that ultimate

authority is vested in the citizens and it is to the citizens that

holders of all public offices are eventually accountable.  Such a

situation would only be possible within a framework of equality

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and when all privileges, rights and benefits conferred on holders

of public office are reasonable, rational and proportionate.   

19. It may be necessary herein to recapitulate the Seven

Principles  of  Public  Life  Report  by  Lord  Nolan  which  find

mention in  the judgment  of  this  Court  in  Vineet  Narain  and

others vs. Union of India and another  3 (paragraph 54).  This

Court in paragraph 55 of the report in  Vineet Narain (supra)

had observed:

“These principles of public life are of general application  in  every  democracy  and  one  is expected  to  bear  them  in  mind  while scrutinizing the conduct  of  every holder  of  a public office.”   

The seven principles of public life stated in the Report by

Lord Nolan are as follows:

“THE SEVEN PRINCIPLES OF PUBLIC LIFE

Selflessness Holders  of  public  office  should  take

decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

Integrity Holders  of  public  office  should  not  place

themselves  under  any  financial  or  other obligation  to  outside  individuals  or organisations that might influence them in the performance of their official duties.

Objectivity

3  (1998) 1 SCC 226

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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  India  by  which

Articles 291 and 362 were repealed and a new Article 366A

was  incorporated,  resulting  in  depriving  the  Rulers  of

Princely  States  the  recognition  accorded  to  them  and

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declaring the abolition of the privy purse.  In the resultant

challenge by a co-Ruler  of  an erstwhile  sovereign Indian

State of Kurundwad Jr.  this Court in  Shri Raghunathrao

Ganpatrao  vs.  Union  of  India  4 while  dealing  with  the

challenge, inter alia, spoke as follows:

“96. Permanent  retention  of  the  privy  purse and  the  privileges  of  rights  would  be incompatible with the sovereign and republican form of Government. Such a retention will also be incompatible with the egalitarian form of our Constitution.  That  is  the  opinion  of  the Parliament which acted to repeal the aforesaid provisions in exercise of its constituent power. The  repudiation  of  the  right  to  privy  purse privileges,  dignities  etc.  by  the  deletion  of Articles 291 and 362, insertion of Article 363-A and amendment of clause (22) of Article 366 by  which  the  recognition  of  the  Rulers  and payment of privy purse are withdrawn cannot be said to have offended Article 14 or 19(g) [sic 19(1)(f)]  and we do not find any logic in such  a  submission.  No  principle  of  justice, either economic, political or social is violated by  the  Twenty-sixth  Amendment.  Political justice relates to the principle of rights of the people, i.e. right to universal suffrage, right to democratic  form of  Government  and  right  to participation  in  political  affairs.  Economic justice  is  enshrined  in  Article  39  of  the Constitution.  Social  justice  is  enshrined  in Article 38. Both are in the directive principles of  the Constitution.  None of  these rights are abridged or modified by this Amendment. We feel that this contention need not detain us any more and, therefore, we shall pass on to the next point in debate.”

4 AIR 1993 SC 1267

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21. An  instance  of  State  action  inconsistent  with  the

constitutional goal to secure socio-economic justice was dealt

with by this Court in  Victorian Granites (P) Ltd.  Vs.  P. Rama

Rao and others  5.  In the said case, the state action approving

the assignment of  a lease granted to an individual  on expiry

thereof in favour of a private Company, at the request of the

outgoing  lessee,  without  any  publicity  and  without  inviting

objections from others was explicitly disapproved by this Court

by holding 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 vs.

State of Madhya Pradesh and others  6 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

5 (1996) 10 SCC 665 6 (2011) 5 SCC 29

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State  shall,  in  particular,  direct  its  policy towards  securing  that  the  ownership  and control  of  the  material  resources  of  the community  are  so  distributed  as  best  to subserve the common good.  Parliament  and legislatures of the States have enacted several laws and the Governments have, from time to time,  framed  policies  so  that  the  national wealth  and  natural  resources  are  equitably distributed  among  all  sections  of  people  so that  have-nots  of  the  society  can  aspire  to compete with haves.”

23. In  Akhil Bhartiya  (supra),  this Court examined the

legality  of  the action of  the Madhya Pradesh Government  to

allot  twenty  acres  of  land  to  an  Institution  on  the  basis  of

application  made  by  the  Trust.   This  Court  held  that  the

distribution of State largesse allocation of land, grant of permit,

licence etc. should always be in a fair and equitable manner.  It

was held that the elements of favouritism or nepotism shall not

influence  the  exercise  of  discretion  by  the  decision  maker.

Observing that  every action of  the public authority should be

guided by public interest, free from arbitrariness, in para (65), it

was held as under:-

“65. What needs to be emphasised is that the State  and/or  its  agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or  officers  of  the  State.  Every action/decision  of  the  State  and/or  its agencies/instrumentalities  to  give  largesse  or confer  benefit  must  be  founded  on  a  sound,

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transparent, discernible and well-defined policy, which  shall  be  made  known to  the  public  by publication  in  the  Official  Gazette  and  other recognised modes of publicity and such policy must  be implemented/executed by adopting a non-discriminatory  and  non-arbitrary  method irrespective of the class or category of persons proposed  to  be  benefited  by  the  policy.  The distribution  of  largesse  like  allotment  of  land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element  of  favouritism  or  nepotism  shall  not influence  the  exercise  of  discretion,  if  any, conferred  upon  the  particular  functionary  or officer of the State.

(Underlining is ours)

24. In  Sachidanand Pandey and another vs. State of

West Bengal and others  7, this Court after referring to some of

the available precedents, laid the following principles:-

“40. On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established:  State-owned or public-owned property is not to be dealt with at the  absolute  discretion  of  the  executive. Certain  precepts  and  principles  have  to  be observed.  Public  interest  is  the  paramount consideration. One of the methods of securing the  public  interest,  when  it  is  considered necessary to dispose of 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

7 (1987) 2 SCC 295

19

as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.”

(Underlining is ours)

25. After  Akhil  Bhartiya (supra)  and  Sachidanand

Pandey (supra), in  Centre for Public Interest Litigation and

others v. Union of India and others  8, 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  9, while considering the allocation of

2G Spectrum, this Court observed that as natural resources are

public goods, the ‘Doctrine of Equality’ which emerges from the

concepts  of  justice  and  fairness  must  guide  the  State  in

determining  the  actual  mechanism  for  distribution  of  natural

resources.  Any  further  detailed  reference  to  the  opinion

rendered  is  being  avoided  as  the  principles  evolved  are  in

furtherance of what has been had been laid down earlier,  as

noticed above.   

8 (2012) 3 SCC 1 9 (2012) 10 SCC 1

20

27. Coming back to the issue in hand a brief look at the

contentions advanced may be appropriate at this stage.  The

State of Uttar Pradesh has sought to defeat the writ petition by

contending  that  the  same  being  under  Article  32  of  the

Constitution of  India a direct  infringement  of  the fundamental

rights of the petitioner must be established which is nowhere

apparent even on a close scrutiny.  The writ petition, therefore,

is  not  maintainable.   Alternatively,  it  has  been  argued  that

infringement  of  the  equality  clause  under  Article  14  of  the

Constitution  of  India  is  a  far  cry  as  there  is  an  intelligible

differentia to justify a separate and exclusive treatment to former

Chief Ministers who form a class of their own.   

28. While it is true that Article 32 of the Constitution is to

be  invoked  for  enforcement  of  the  fundamental  rights  of  a

citizen  or  a  non  citizen,  as  may  be,  and  there  must  be  a

violation or infringement thereof we have moved away from the

theory 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.

21

Though  evolved  much  earlier,  a  Solemn  affirmation  of  the

aforesaid principle is to be found in paragraph 48 of the report in

Vineet  Narain  (supra)  which  would  be  eminently  worthy  of

recapitulation and, therefore, is extracted below:

“48. In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the  need  for  insulation  of  the  CBI  from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance  of  this  situation  with  a  view  to ensure proper implementation of the rule of law. This is  the need of  equality  guaranteed in  the Constitution.  The right to equality in a situation like this is that of 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.”

(Underlining is ours)

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 others vs.  State

22

of Bihar  10,  and  E.P. Royappa  vs.  State of Tamil  Nadu and

another.  11

30. In  Budhan  Choudhry (supra),  the  classical  test

based on a reasonable classification to give legitimacy to an act

of differential treatment was expounded in the following terms:

“……It  is  now  well  established  that  while Article 14 forbids class legislation, it does not forbid  reasonable  classification  for  the purposes of  legislation.  In order,  however,  to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification  must  be  founded  on  an intelligible  differentia  which  distinguishes persons  or  things  that  are  grouped  together from others left out of the group and, (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.  The  classification  may  be  founded on  different  bases;  namely,  geographical,  or according to objects or occupations or the like. What  is  necessary  is  that  there  must  be  a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.”  

31. The more dynamic version came two decades later in

the  case  of  E.P.  Royappa  (supra)  wherein  Bhagwati,  J.

expanded the scope of Article 14 of the Constitution of India in

10 AIR 1955 SC 191 11 (1974) 4 SCC 3

23

the following terms:

“85…….From  a  positivistic  point  of  view, equality  is  antithetic  to  arbitrariness.  In  fact equality and arbitrariness are sworn enemies; one belongs to  the rule  of  law in  a  republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike  at  arbitrariness  in  State  action  and ensure  fairness  and  equality  of  treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because  that  would  be  denial  of  equality. Where the operative reason for  State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant  but  is  extraneous  and  outside  the area  of  permissible  considerations,  it  would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice:  in fact  the latter  comprehends the former.  Both are inhibited by Articles 14 and 16.”

32. The evolution of the dynamic facet of 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  vs.

International  Airport  Authority  of  India  and  others  12;

12 (1979) 3 SCC 489

24

Sharma Transport  vs.  Govt.  of  A.P.  and others  13;  Kumari

Shrilekha Vidyarthi and others vs. State of U.P. and others  14;

State of Punjab and another  vs.  Brijeshwar Singh Chahal

and another  15.   

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 Article 14 of the Constitution and basic  to  the  rule  of  law,  the  system  which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in  every  State  action  is  sine  qua  non  to  its validity  and in  this  respect,  the State cannot claim  comparison  with  a  private  individual even in  the field  of  contract.  This  distinction between the State and a private individual in the  field  of  contract  has  to  be  borne  in  the

13 (2002) 2 SCC 188 14 (1991) 1 SCC 212 15 (2016) 6 SCC 1

25

mind.”

34. The “final” culmination is in Shayara Bano vs. Union

of  India  and  others  16 where  two  members  of  the  Bench

(Hon’ble  R.F.  Nariman and  Uday  Umesh  Lalit,  JJ.)  wrote  as

follows:

“101. It  will  be  noticed  that  a  Constitution Bench  of  this  Court  in  Indian  Express Newspapers  (Bombay)  (P)  Ltd. v.  Union  of India stated  that  it  was  settled  law  that subordinate legislation can be challenged on any  of  the  grounds  available  for  challenge against  plenary  legislation.  This  being  the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation  under  Article  14.  Manifest arbitrariness,  therefore,  must  be  something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also,  when  something  is  done  which  is excessive  and  disproportionate,  such legislation  would  be  manifestly  arbitrary.  We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out  by  us  above  would  apply  to  negate legislation as well under Article 14.”

35. The above view received support of a third member of

the Constitution Bench (Hon’ble Kurian Joseph, J.)

16 (2017) 9 SCC 1

26

36. In  the  light  of  the  above  views  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 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.

27

The  insertion  of  Section  4(3)  by  the  2016  Amendment as  a

substantive provision of the statute when the 1997 Rules to the

same effect were declared invalid by the Court would require

the curing of the invalidity found by this Court in the matter of

allotment  of  government  accommodation  to  former  Chief

Ministers.   The defect  found earlier  persists.   The  impugned

legislation,  therefore,  can  very  well  be  construed  to  be  an

attempt to overreach the judgment of this Court in Lok Prahari

(supra).   

38. Natural resources, public lands and the public goods

like government bungalows/official residence are public property

that  belongs  to  the  people  of  the  country.   The  ‘Doctrine  of

Equality’ which emerges from the concepts of justice, fairness

must guide the State in the distribution/allocation of the same.

The Chief Minister, once he/she demits the office, is at par with

the common citizen, though by virtue of the office held, he/she

may be entitled to security and other protocols.  But allotment of

government  bungalow,  to  be occupied during his/her  lifetime,

would not be guided by the constitutional principle of equality.

39. Undoubtedly, Section 4(3) of the 1981 Act would have

the effect of creating a separate class of citizens for conferment

28

of benefits by way of distribution of public property on the basis

of the previous public office held by them.   Once such persons

demit the public office earlier held by them there is nothing to

distinguish them from the common man.  The public office held

by  them becomes a  matter  of  history  and,  therefore,  cannot

form  the  basis  of  a  reasonable  classification  to  categorize

previous  holders  of  public  office  as  a  special  category  of

persons entitled to the benefit of special privileges.  The test of

reasonable classification, therefore, has to fail.  Not only that the

legislation i.e. Section 4(3) of the 1981 Act recognizing former

holders of public office as a special class of citizens, viewed in

the  aforesaid  context,  would  appear  to  be  arbitrary  and

discriminatory  thereby  violating  the  equality  clause.   It  is  a

legislative  exercise  based  on  irrelevant  and  legally

unacceptable considerations, unsupported by any constitutional

sanctity.   

40. Consequently, we hold that Section 4(3) of the 1981

Act cannot pass the test of Article 14 of the Constitution of India

and is, therefore, liable to be struck down.  We, therefore, hold

that the aforesaid Section 4(3) of the Uttar Pradesh Ministers

(Salaries, Allowances and Miscellaneous Provisions) Act, 1981

is  ultra  vires  the  Constitution  of  India  as  it  transgresses  the

29

equality clause under Article 14.  The writ petition in question,

therefore, is allowed.  

……….................J.            (RANJAN GOGOI)

……….................J. (R. BANUMATHI)

NEW DELHI MAY  07,  2018.