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

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 off Ministers Residence Allotment Rules, 1997?(hereinafter referred to aswere 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.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, 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 forMinisters 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 toWe may now turn to the issue whether the impugned 1997 Rules are ultra vires Article 14 of theConstitution 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 suchMinister who has given an application under these Rules. There will be no right for allotment of a house outside Lucknow under these* *6. Period for which allotment subsists.—The allotment of residence toMinisters shall be effective only during their lifetime. The allotment shall be deemed to be automatically cancelled upon the death ofMinister 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,* * * * *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 oneng their tenure. The respondents have contended that in a federallike 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.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.Section 4 of the 1981 Act was amended in the year2016. 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 beSection 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)Each Minister shall be entitled without payment of any rent to the use throughout the term of his office and for period of fifteen days thereafter, of a residence at Lucknow which shall be furnished and maintained at 4. For section 4 of the principal Act, the following sections shall be substituted, namely:4(1) The Chief Minister and each Minister shall be entitled, without payment of any rent to the use, throughout the term of his office and for a period of public expenses at the prescribed scale. (2) Where a Minister has not been provided with a residence in accordance with(1), or does not avail of the benefit of the said sub section, he shall be entitled to a compensatory allowance at the rate of(a) three hundred rupees per month in the case of Deputy Minister, and (b) five hundred rupees per month in any other case. fifteen days thereafter, of a residence at Lucknow which shall be furnished and maintained at public expense at the prescribed scale. (2) Where the Chief Minister or a Minister has not been provided with a residence in accordance withor does not avail of the benefit of the saidhe 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.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) by insertion of) to Section 4 which is in the followingEach Minister for whose use a residence at Lucknow has been provided under(1) shall immediately after the expiration of the period referred to in thatvacate 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‘Minister? includes a person who has ceased to be aand also includes a person who was given the status of a Minister.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 aswas inserted, which is to the followingSpecial 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(1) of Section 4, by a notified order, specify anyaccommodation 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.The State Government, or an officer authorized by it in this behalf may, if a person other than a Minister referred to in) of Section 4 is in occupation of an accommodation specified as Minister?s residence underIt will be worthwhile to note at this stage that while Sectionof the 1981 Act has been deleted by the 2016 Amendment Sectioncontinues to remain on the statute book.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(1) of Section(Type VI accommodation) the allotment order of such person shall be cancelled and the occupant would be required to vacate the said accommodation within fifteen days from the date of service of notice, failing 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.

Reasoning:
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.