Case: LOK PRAHARI THROUGH ITS GENERAL SECRETARY Vs. THE STATE OF UTTAR PRADESH

and others 14 ; State of Punjab and another vs. Brijeshwar Singh Chahal and another 15 .33. Paragraph 23 and 35 of Kumari Shrilekha (supra) may be extracted with profit only to notice the absolute clarity in carrying forward the principle laid down by Hon. Bhagwati J., in Royappa (supra).?23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. …………35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the 13 (2002) 2 SCC 188 14 (1991) 1 SCC 212 15 (2016) 6 SCC 1 mind.?34. The?final?culmination is in Shayara Bano vs. Union of India and others 16 where two members of the Bench (Hon?ble R.F. Nariman and Uday Umesh Lalit, JJ.) wrote as follows:?101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.?35. The above view received support of a third member of the Constitution Bench (Hon?ble Kurian Joseph, J.) 16 (2017) 9 SCC 1 36. In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of India. The insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.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 actionThough evolved much earlier, a Solemn affirmation of the aforesaid principle is to be found in paragraph 48 of the report in Vineet Narain (supra) which would be eminently worthy of recapitulation and, therefore, is extracted below:In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.?9. Along with the aforesaid shift in the judicial thinking there has been an equally important shift from the classical test (classification test) for the purpose of enquiry with regard to infringement of the equality clause under Article 14 of the Constitution of India to, what may be termed, a more dynamic test of arbitrariness. The shift which depicts two different dimensions of a challenge on the anvil of Article 14 is best demonstrated by a comparative reading of the judgments of this Court in the case of Budhan Choudhry and others vs. State ofand E.P. Royappa vs. State of Tamil Nadu and another.In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of IndiaThe insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment 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.