LOK PRAHARI THROUGH ITS GENERAL SECRETARYversusTHE STATE OF UTTAR PRADESH & ORS.

1076                      [2018]REPORTS
                SUPREME COURT   6 S.C.R. 1076                 [2018] 6 S.C.R.


 A         LOK PRAHARI THROUGH ITS GENERAL SECRETARY
                                         v.
                  THE STATE OF UTTAR PRADESH & ORS.
                        (Writ Petition (C) No. 864 of 2016)
 B                                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
 C
       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
 D     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
 E
       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
 F     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
 G
       struck down – 2016 Amendment (UP Act No. 22 of 2016) – U.P Ex-
       Chief 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
 H     (Amendment) Act, 1997 – s.4-A – Societies Registration Act, 1860 –
                                         1076
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1077
             STATE OF UTTAR PRADESH

Constitution of India – Arts.14, 32, 162 and 366A – Doctrine of             A
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            B
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   C
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
                                                                            D
       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,               E
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          F
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       G
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]
                                                                            H
1078            SUPREME COURT REPORTS                      [2018] 6 S.C.R.


 A           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
 B
       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
 C     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
 D
       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
 E     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][1097-
       B-G]
 F
             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.
 G     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.
 H     Section 4(3) of the 1981 Act would have the effect of creating a
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1079
             STATE OF UTTAR PRADESH

separate class of citizens for conferment of benefits by way of         A
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
                                                                        B
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        C
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          D
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             E
      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)           F
      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                  G
      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               H
1080     SUPREME COURT REPORTS                       [2018] 6 S.C.R.


 A     : [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)
 B     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
 C     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
 D
       [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
 E
       [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

 F     [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
 G     [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
 H     (2017) 9 SCC 1                  followed         Para 34
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1081
             STATE OF UTTAR PRADESH

      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.                   A
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.              B
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                C
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.
                                                                               D
      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         E
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          F
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
                                                                               G
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.                                 H
1082               SUPREME COURT REPORTS                          [2018] 6 S.C.R.


 A            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
 B
       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
 C     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
 D              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
 E              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
 F              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.”
                                   *       *        *
                                   *       *        *
 G
                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,
       1
           (2016) 8 SCC 389
 H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1083
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

      like the Union, the State has also power to provide residential                        A
      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.
                                                                                             B
      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                    C
      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                         D
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:                                E
     Section 4 of the Act, as originally            Section 4 of the Act, as amended
     enacted                                        in the year 2016 by 2016
                                                    Amendment (U.P Act No. 22 of
                                                    2016)

                                                                                             F
     4.Residence.-(1) Each Minister shall be        4. For section 4 of the principal Act,
     entitled wit hout payment of any rent to       the following sections shall be
     the use throughout the term of his office      subst ituted, namely:-
     and for peri od of fifteen days t hereafter,
     of a resi dence at Lucknow which shall be      4(1) The Chief Minister and each
                                                    Minister shall be entitled, wi thout
     furnished and maintained at public                                                      G
     expenses at the prescribed scale.              payment of any rent to t he 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
     (2) Where a Minister has not been
     provided with a residence in accordance        the prescribed scale.                    H
1084             SUPREME COURT REPORTS                                         [2018] 6 S.C.R.


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



                                                       (3) A government residence shall be
 D                                                     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.
 E
              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:
 F
             “(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
 G           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.”
 H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1085
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

       7. By another amendment to the 1981 Act by the Uttar Pradesh         A
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        B
      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               C
      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.                                     D
      (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       E
      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          F
      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.
                                                                            G
       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,       H
1086               SUPREME COURT REPORTS                          [2018] 6 S.C.R.


 A     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
 B     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.”
 C            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
 D     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
 E     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
 F     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
 G     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 others2 wherein this Court has approved the action taken in the
       2
           (1997) 1 SCC 444
 H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1087
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

matter of provision of official accommodation to the aforesaid dignitaries    A
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          B
      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       C
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.                                                        D

       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         E
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    F
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                          G
      SECULAR DEMOCRATIC REPUBLIC and to secure to
      all its citizens:
      JUSTICE, social, economic and political;

                                                                              H
1088               SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A              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
 B     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
 C     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,
 D     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
 E
       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
 F
       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
 G     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:

       3
           (1998) 1 SCC 226
 H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1089
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

      “These principles of public life are of general application in every     A
      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                                B

                                  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        C
      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.   D
                                  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.                                                        E

                                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.                                 F
                                   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.                                         G
                                    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.
                                                                               H
1090              SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A                                        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
 B     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
 C
       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
 D            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)
 E            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
 F            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
 G            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
       4
           AIR 1993 SC 1267
 H
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1091
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

Victorian Granites (P) Ltd. Vs. P. Rama Rao and others5. In the said             A
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
                                                                                 B
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:
                                                                                 C
         “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       D
         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         E
         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.         F
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:-                    G
         “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/
5
    (1996) 10 SCC 665
6
    (2011) 5 SCC 29                                                              H
1092               SUPREME COURT REPORTS                            [2018] 6 S.C.R.


 A              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 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
 B
                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
 C              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
 D     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: State-
                owned or public-owned property is not to be dealt with at the
 E              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
 F              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.”
 G                                                            (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:-
       7
           (1987) 2 SCC 295
       8
 H         (2012) 3 SCC 1
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1093
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

         “89. In conclusion, we hold that the State is the legal owner of       A
         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             B
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             C
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        D
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     E
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           F
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. Though
evolved much earlier, a Solemn affirmation of the aforesaid principle is        G
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:
9
    (2012) 10 SCC 1
                                                                                H
1094               SUPREME COURT REPORTS                            [2018] 6 S.C.R.


 A              “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
 B
                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.”
 C                                                           (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
 D     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 of Bihar10, and
       E.P. Royappa vs. State of Tamil Nadu and another.11
 E           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
 F              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
 G              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
       10
            AIR 1955 SC 191
 H     11
            (1974) 4 SCC 3
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1095
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

      Act under consideration. It is also well established by the decisions            A
      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 the following terms:                     B
      “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   C
      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           D
      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                  E
      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                    F
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
others12; Sharma Transport vs. Govt. of A.P. and others13; Kumari
Shrilekha Vidyarthi and others vs. State of U.P. and others14; State
of Punjab and another vs. Brijeshwar Singh Chahal and another15.                       G

12
   (1979) 3 SCC 489
13
   (2002) 2 SCC 188
14
   (1991) 1 SCC 212
15
   (2016) 6 SCC 1
                                                                                       H
1096               SUPREME COURT REPORTS                               [2018] 6 S.C.R.


 A            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
 B              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.
                …………
 C              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
 D              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 mind.”
             34. The “final” culmination is in Shayara Bano vs. Union of
 E     India and others16 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
 F              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
 G              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
       16
 H          (2017) 9 SCC 1
LOK PRAHARI THROUGH ITS GENERAL SECRETARY v. THE 1097
    STATE OF UTTAR PRADESH [RANJAN GOGOI, J.]

      arbitrariness in the sense of manifest arbitrariness as pointed out       A
      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.)
       36. In the light of the above views the allocation of government         B
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          C
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.                                        D

       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       E
the validity of the 1997 Rules in the light of Article 14 of the Constitution
of India. The insertion of Section 4(3) by the 2016 Amendment as a
substantive provision of the statute when the 1997 Rules to the same
effect were declared invalid by the Court would require the curing of
the invalidity found by this Court in the matter of allotment of government     F
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            G
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
                                                                                H
1098             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


 A     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 of benefits
 B     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
 C     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
 D     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
 E     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 equality clause under Article 14. The writ
       petition in question, therefore, is allowed.


 F     Divya Pandey                                              Writ Petition allowed.




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