# LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE STATE OF UTTAR PRADESH & ORS

- **Citation:** [2018] 6 S.C.R. 1076
- **Court:** Supreme Court of India
- **Decided:** 2018-05-07
- **Bench:** Ranjan Gogoi, R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lok-prahari-through-its-general-secretary-v-the-state-of-uttar-pradesh-ors-33227
- **Pages:** 23

## Headnote

Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 - s.4(3) (as inserted by the
2016 Amendment) - Under the provision, former Chief Ministers
of the State were entitled to allotment of government accommodation
for their life time - Challenge to the validity of - Held: Present
petitioner had earlier approached Supreme Court u/Art.32 in Lok
Prahari vs. State of UP and Ors., challenging the validity of the
1997 Rules providing for allotment of govt. accommodation to
former Chief Ministers - Not only the said writ petition was
entertained but, the 1997 Rules were struck down -Insertion of
s.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 Supreme Court would require the curing of the invalidity found
by Supreme Court in the matter of allotment of government
accommodation to former Chief Ministers - The defect found earlier
persists - Impugned legislation, therefore, is an attempt to overreach
the judgment of Supreme Court in Lok Prahari - Natural resources,
public lands and the public goods like government bungalows/
official residence are public property that belongs to the people of
the country - 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 - s.4(3) is
ultra vires the Constitution of India and is, therefore, liable to be
struck down - 2016 Amendment (UP Act No. 22 of 2016) - U.P ExChief Ministers Residence Allotment Rules, 1997 - Uttar Pradesh
Ministers and State Legislature, Officers and Members Amenities
Laws (Amendment) Act, 1990 - s.(1-A) - Uttar Pradesh Ministers
and State Legislature, Officers and Members Amenities Laws
(Amendment) Act, 1997 - s.4-A - Societies Registration Act, 1860 -
[2018] 6 S.C.R. 1076
1076
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Constitution of India - Arts.14, 32, 162 and 366A - Doctrine of
Equality.
Constitution of India - Art.14 - Test of reasonable
classification - s.4(3) of the 1981 Act allowing retention of official
accommodation by former Chief Ministers of the State after they
had demitted office, if violates Art.14 - Held: s.4(3) creates a
separate class of citizens for conferment 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 - Test of reasonable classification, therefore, has to
fail - s.4(3) of the 1981 Act is ultra vires the Constitution of India as
it transgresses the equality clause u/Art.14 - Uttar Pradesh Ministers
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981 -
s.4(3).
Allowing the Writ petition, the Court
HELD: 1.1 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. 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. 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 t

## Text

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SUPREME COURT REPORTS
[2018] 6 S.C.R.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY
v.
THE STATE OF UTTAR PRADESH & ORS.
(Writ Petition (C) No. 864 of 2016)
MAY 07, 2018
[RANJAN GOGOI AND R. BANUMATHI, JJ.]
Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 - s.4(3) (as inserted by the
2016 Amendment) - Under the provision, former Chief Ministers
of the State were entitled to allotment of government accommodation
for their life time - Challenge to the validity of - Held: Present
petitioner had earlier approached Supreme Court u/Art.32 in Lok
Prahari vs. State of UP and Ors., challenging the validity of the
1997 Rules providing for allotment of govt. accommodation to
former Chief Ministers - Not only the said writ petition was
entertained but, the 1997 Rules were struck down -Insertion of
s.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 Supreme Court would require the curing of the invalidity found
by Supreme Court in the matter of allotment of government
accommodation to former Chief Ministers - The defect found earlier
persists - Impugned legislation, therefore, is an attempt to overreach
the judgment of Supreme Court in Lok Prahari - Natural resources,
public lands and the public goods like government bungalows/
official residence are public property that belongs to the people of
the country - 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 - s.4(3) is
ultra vires the Constitution of India and is, therefore, liable to be
struck down - 2016 Amendment (UP Act No. 22 of 2016) - U.P ExChief Ministers Residence Allotment Rules, 1997 - Uttar Pradesh
Ministers and State Legislature, Officers and Members Amenities
Laws (Amendment) Act, 1990 - s.(1-A) - Uttar Pradesh Ministers
and State Legislature, Officers and Members Amenities Laws
(Amendment) Act, 1997 - s.4-A - Societies Registration Act, 1860 -
[2018] 6 S.C.R. 1076
1076
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Constitution of India - Arts.14, 32, 162 and 366A - Doctrine of
Equality.
Constitution of India - Art.14 - Test of reasonable
classification - s.4(3) of the 1981 Act allowing retention of official
accommodation by former Chief Ministers of the State after they
had demitted office, if violates Art.14 - Held: s.4(3) creates a
separate class of citizens for conferment 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 - Test of reasonable classification, therefore, has to
fail - s.4(3) of the 1981 Act is ultra vires the Constitution of India as
it transgresses the equality clause u/Art.14 - Uttar Pradesh Ministers
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981 -
s.4(3).
Allowing the Writ petition, the Court
HELD: 1.1 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. 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. 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 and when all privileges, rights and
benefits conferred on holders of public office are reasonable,
rational and proportionate. [Paras 16-18][1088-C-F]
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE
STATE OF UTTAR PRADESH
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SUPREME COURT REPORTS
[2018] 6 S.C.R.
1.2 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. The present petitioner had earlier approached
Supreme Court under Article 32 of the Constitution challenging
the validity of the U.P Ex-Chief Ministers Residence Allotment
Rules, 1997. Not only the said writ petition was entertained but
the 1997 Rules were, in fact, struck down. In doing so, this Court
had, inter alia, considered the validity of the 1997 Rules in the
light of Article 14 of the Constitution of India. The insertion of
Section 4(3) by the 2016 Amendment as a substantive provision
of the statute when the 1997 Rules to the same effect were
declared invalid by the Court would require the curing of the
invalidity found by Supreme 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 Supreme Court. [Paras 36, 37][1097B-G]
1.3 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.
Section 4(3) of the 1981 Act would have the effect of creating a
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separate class of citizens for conferment 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. [Paras 38, 39][1097-G-H; 1098-A-D]
1.4 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. Section 4(3) of the 1981 Act is ultra vires the
Constitution of India as it transgresses the equality clause under
Article 14. [Para 40][1098-E]
Budhan Choudhry and others v. State of Bihar AIR 1955
SC 191 : [1955] SCR 1045; E.P. Royappa v. State of
Tamil Nadu and another (1974) 4 SCC 3 : [1974] 2
 SCR 348; Shayara Bano v. Union of India and others
(2017) 9 SCC 1 - followed.
Lok Prahari v. State of Uttar Pradesh and others (2016)
8 SCC 389 : [2016] 4 SCR 1026; Vineet Narain and
others vs. Union of India and another (1998) 1 SCC
226: [1997] 6 Suppl. SCR 595; Akhil Bhartiya
Upbhokta Congress vs. State of Madhya Pradesh and
others (2011) 5 SCC 29 : [2011] 5 SCR 77;
Sachidanand Pandey and another vs. State of West
Bengal and others (1987) 2 SCC 295 : [1987]
2 SCR 223; Centre for Public Interest Litigation and
others v. Union of India and others (2012) 3 SCC 1 :
[2012] 3 SCR 147; Natural Resources Allocation, in
Re, Special Reference No. 1 of 2012 (2012) 10 SCC 1
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE
STATE OF UTTAR PRADESH
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SUPREME COURT REPORTS
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: [2012] 9 SCR 311 - relied on.
Shiv Sagar Tiwari v. Union of India and others (1997)
1 SCC 444 : [1996] 10 Suppl. SCR 925; Shri
Raghunathrao Ganpatrao v. Union of India AIR 1993
SC 1267: [1993] 1 SCR 480; Victorian Granites (P)
Ltd. v. P. Rama Rao and others (1996) 10 SCC 665:
[1996] 5 Suppl. SCR 692; Ramana Dayaram Shetty v.
International Airport Authority of India and others
(1979) 3 SCC 489 : [1979] 3 SCR 1014; Sharma
Transport v. Govt. of A.P. and others (2002) 2 SCC
188 : [2001] 5 Suppl. SCR 390; Kumari Shrilekha
Vidyarthi and others v. State of U.P. and others (1991)
1 SCC 212 : [1990] 1 Suppl. SCR 625; State of Punjab
and another v. Brijeshwar Singh Chahal and another
(2016) 6 SCC 1 : [2016] 4 SCR 685 - referred to.
Case Law Reference
[2016] 4 SCR 1026
relied on
Para 3
[1996] 10 Suppl. SCR 925
referred to
Para 12
[1997] 6 Suppl. SCR 595
relied on
Para 19
[1993] 1 SCR 480
referred to
Para 20
[1996] 5 Suppl. SCR 692
referred to
Para 21
[2011] 5 SCR 77
relied on
Para 22
[1987] 2 SCR 223
relied on
Para 24
[2012] 3 SCR 147
relied on
Para 25
[2012] 9 SCR 311
relied on
Para 26
[1955] SCR 1045
followed
Para 29
[1974] 2 SCR 348
followed
Para 29
[1979] 3 SCR 1014
referred to
Para 32
[2001] 5 Suppl. SCR 390
referred to
Para 32
[1990] 1 Suppl. SCR 625
referred to
Para 32
[2016] 4 SCR 685
referred to
Para 32
(2017) 9 SCC 1
followed Para 34
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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
864 of 2016.
Under Article 32 of the Constitution of India.
Aman Lekhi, ASG, A. Mariarputham, Adv. Genl. Sikkim, Anil
Grover, Adv. Genl., Haryana, Ajay Kumar Mishra, AAG, U.P., Anil
Grover, AAG, Haryana, Saurabh Mishra, AAG, Gopal Subramanium, Sr.
Adv., Gopal Sankaranarayanan, Pavan Bhushan, Shrutanjaya, Ms. Veera
Mahuli, Ardhendumauli Kumar Prasad, Ms. Priyanka Das, Sanjai Kumar
Pathak, Raj Bahadur, Ms. Aruna Mahur, Avneesh Arputham, Ms.
Anuradha Arputham, Ms. Simran Jeet, Ms. Noopur Singhal, Sanjay Kr.
Visen, Samir Ali Khan, Shuvodeep Roy, Sayooj Mohandas M., Arjun
Garg, Ms. K. Enatoli Sema, V. N. Raghupathy, Bhupesh Narula, K. V.
Jagdishvaran, MS. G. Indira, V. G. Pragasam, S. Prabu Ramasubramanian,
S. Manuraj, G. Prakash, Jishmu M. L., Ms. Priyanka Prakash, Ms. Beena
Prakash, Vijay Shankar V. L., Vijaya Mohan V., Advs. for the appearing
parties.
S. N. Shukla (In-person).
The Judgment of the Court was delivered by
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 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.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE
STATE OF UTTAR PRADESH
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[2018] 6 S.C.R.
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 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."
*
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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,
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like the Union, the State has also power to provide residential
bungalow to the former Chief Minister. The above submission of
the respondent State cannot be accepted for the reason that the
1981 Act does not make any such provision and the 1997 Rules,
which are only in the nature of executive instructions and contrary
to the provisions of the 1981 Act, cannot be acted upon.
38. Moreover, the position of the Chief Minister and the Cabinet
Ministers of the State cannot stand on a separate footing after
they demit their office. Moreover, no other dignitary, holding
constitutional post is given such a facility. For the aforestated
reasons, the 1997 Rules are not fair, 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 public
expenses at the prescribed scale.
(2) Where a Minister has not been
provided with a residence in accordance
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 fifteen days
thereafter,
of
a
residence
at
Lucknow which shall be furnished
and maintained at public expense at
the prescribed scale.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE
STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]
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6. The 1981 Act was amended by the Uttar Pradesh Ministers
and State Legislature, Officers and Members Amenities Laws
(Amendment) Act, 1990 (U.P. Act No.5 of 1990) (hereinafter referred
to as "1990 Amendment") by insertion of sub-section (1-A) to Section 4
which is in the following terms:
"(1-A) Each Minister for whose use a residence at Lucknow has
been provided under sub-section (1) shall immediately after the
expiration of the period referred to in that sub-section, vacate
such accommodation and an officer authorized by the State
Government in this behalf may take possession of the
accommodation and may for the purpose use such force as may
be necessary in the circumstances.
Explanation - For the purposes of this sub-section 'Minister'
includes a person who has ceased to be a Minister", and also
includes a person who was given the status of a Minister."
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.
(2) Where the Chief Minister or a
Minister has not been provided with a
residence in accordance
with
subsection(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.
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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.
(2) The State Government, or an officer authorized by it in this
behalf may, if a person other than a Minister referred to in subsection (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,
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE
STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]
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failing 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 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, VicePresidents, Prime Ministers of the country. The issue had come up for
consideration in this Court in Shiv Sagar Tiwari vs. Union of India
and others2 wherein this Court has approved the action taken in the
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matter of provision of official accommodation to the aforesaid dignitaries
under the extant Rules in the following manner:
"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 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;
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE
STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]
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LIBERTY, of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the
unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth
day of November, 1949, DO HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.
16. The preamble to the 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 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
another3 (paragraph 54). This Court in paragraph 55 of the report in
Vineet Narain (supra) had observed:
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 "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
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.
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE
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Leadership
Holders of public office should promote and support these
principles by leadership and example."
20. It would be significant to note that the legislative anxiety to
bring in a classless society, a constitutional vision, inter alia, found
manifestation in the Twenty-sixth (26th) Amendment to the Constitution
of India by which Articles 291 and 362 were repealed and a new Article
366A was incorporated, resulting in depriving the Rulers of Princely
States the recognition accorded to them and declaring the abolition of
the privy purse. In the resultant challenge by a co-Ruler of an erstwhile
sovereign Indian State of Kurundwad Jr. this Court in Shri
Raghunathrao Ganpatrao vs. Union of India4 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."
21. An instance of State action inconsistent with the constitutional
goal to secure socio-economic justice was dealt with by this Court in
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Victorian Granites (P) Ltd. Vs. P. Rama Rao and others5. 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 others6 this Court held that:
"48. Part IV contains "directive principles of State policy" which
are fundamental in the governance of the country and it is the
duty of the State to apply these principles in making laws. Article
39 specifies certain principles of policy which are required to be
followed by the State. Clause (b) thereof provides that the State
shall, in particular, direct its policy towards securing that the
ownership and control of the material resources of the community
are so distributed as best to subserve the common good. Parliament
and legislatures of the States have enacted several laws and the
Governments have, from time to time, framed policies so that the
national wealth and natural resources are equitably distributed
among all sections of people so that have-nots of the society 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/
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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, transparent, discernible and welldefined 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 others7, 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: Stateowned 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 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 others8, it was held as under:-
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"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 20129, while considering the allocation of 2G Spectrum, this
Court observed that as natural resources are public goods, the 'Doctrine
of Equality' which emerges from the concepts of justice and fairness
must guide the State in determining the actual mechanism for distribution
of natural resources. Any further detailed reference to the opinion
rendered is being avoided as the principles evolved are in furtherance of
what has been had been laid down earlier, as noticed above.
27. Coming back to the issue in hand a brief look at the contentions
advanced may be appropriate at this stage. The State of Uttar Pradesh
has sought to defeat the writ petition by contending that the same being
under Article 32 of the Constitution of India a direct 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.