LOK PRAHARIversusSTATE OF U.P. & ORS.

                            (2016] 4 S.C.R. I 026



A                             LOK PRAHARI
                                      v.
                          STATE OF U.P. & ORS.
                    (Writ Petition (Civil) No. 657 of2004)
8                            AUGUSTOl,2016
     [ANIL R. DAVE, N.V. RAMANA AND R. BANUMATHI, JJ.]
          Government bungalows - Overstay by former CMs of
    Respondent-State in the allotted govt. bungalows after demitting
    the office, in absence of any special statutory provision -
c   Respondent-State in terms of the 1997 Rules allotted govt. bungalows
    to former CMs for residence for life - Petitioner challenged the
    1997 Rules on the ground that it was in contravention of provisions
    of the 1981 Act which permitted Ministers (including the CM) to
    retain official premises only for 15 days after demitting the office -
D   Held: The 1981 Act was enacted by Respondent-State in exercise of
    its power u/Art.164 rlw Entry 40, List II of Vllth Schedule of the
    Constitution - The Act deals with salaries and perquisites to be
    given to the Ministers and hence the said provisions are statutory -
    The 1997 Rules are not statutory rules and are only in the nature of
    executive instructions - The Act provides that all the ministers are
E
    entitled to official residence without payment of any rent and can
    occupy the said residence for 15 days after completion of tenure
    while the 1997 Rules permit the former Chief Ministers to occupy
    government bungalows for life - Hence, the 1997 Rules so far not
    in consonance with provisions of the 1981 Act are bad in law - The
F   1997 Rules are also violative of Art. 14 more. so when no other
    dignitary holding constitutional post is given such a facility -
    Concerned respondents shall hand over the possession of the
    bungalows occupied by them within tn:o months - Ex-Chief Ministers
    Residence Allotment Rules, 1997 - Uttar Pradesh Ministers
     (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 -
G
    Constitution of India - Art.164.
         Public property - Duty of State - Allotment of government
    bungalows to private trusts/societies without adequate
    consideration, in absence of any special statutory provision - Held:
    State has no right to fritter away government property in favour of
H
                                     1026
           LOK PRAHARI v. STATE OF U.P. & ORS.                        1027



private persons/bodies without any adequate consideration -            A
Allotments made in absence of any statutory provision to be treated
as cancelled - State shall take possession of such premises as soon
as possible and recover appropriate rent.
     Administrative law: Variance in statutory provisions vis-a-vis
executive instructions - Held: When the rules/regulations/executive    B
instructions are contrary to any statutory provision, the statutory
provision would prevail and the rules or executive instructions, so
far as contfary to the statutory provisions, would fail.
    Allowing the petition, the Court
     HELD: 1. The petitioner has locus standi to file the writ         c
petition. The petitioner society have no malajide intention behind
filing the present petition and none of them has any personal
grudge against any of the occupants of government premises or
any of the former Chief Ministers. Petitioner society is
challenging the validity of 1997 Rules, whereby government             D
bungalows have been allotted to former Chief Ministers,
especially when there is an acute shortage of government
premises, hence, it cannot be said that petitioner has no locus
standi to file the present petition. [Para 25) (1036-C-EJ
      Fertilizer Corporation Kamgar Union (Regd) Sindri and            E
      Ors. v. Union of India and Ors. (1981) 1 SCC 568 :
      1981 (2) SCR 52; S.P. Gupta v. Union of India and
      Am: (1981) Supp SCC 87 : 1982 SCR 365 - followed.
     2.1. Upon perusal of Section 2 (e) of the 1981 Act, it is clear
that the term "minister" includes the Chief Minister and Section F
4 (1) (a) of the Act permits a Minister to retain his residence for
15 days after he/she demits his/her office. In view of such special
provisions made, the Chief Minister is not entitled to privileges
and protection as are available to the President and Vice-President
oflndia, who are entitled to an official residence for Iife.[Para 31)
[1039-C]                                                              G
     2.2. 1981 Act deals with salaries and perquisites to be given
to all the Ministers, including· the Chief Ministers. The said
provisions are statutory, but 1997 Rules are not statutory and
they are only in the nature of executive instructions. If there is
any variance in statutory provision and executive instruction, ·H
1028           SUPREME COURT REPORTS                        [2016] 4 S.C.R.



A    statutory provision would always prevail. When 1981 Act enables
   · the Chief Minister to have residential accommodation only during
     his tenure and for 15 days 11fter completion of his tenure, 1997
     Rules providing for an accommodation for life to the Chief
     Minister cannot be said to be legal and valid. For this sole reason,
     validity of 1997 Rules cannot be upheld. Moreover, no other
 B
     dignitary holding constitutional post is given such a facility. For
     afore-stated reasons, 1997 Rules are not fair, and more so, when
     the subject of "salary and allowances" of the ministers, is
     governed by Section 4 (1) (a) of 1981 Act. [Paras 34 to 36) [1040-
     C-F]
 c         Shiv Sagar Tiwari v. Union of India (1997) 1 SCC 444
           : 1996 (10) Suppl. SCR 925 - held inapplicable.
             SD Bandi v. Karnataka SRTC (2013) 12 SCC 631 :
             2013 (17) SCR 1 - relied on.
            2.3. 1981 Act is a statute enacted by Respondent-State under
D      its power under Article 164 read with Entry 40 of List II of Seventh
       Schedule of the Constitution. Thus, there is a statutory provision
       with regard to perquisites to be given to the ministers, including
       the Chief Minister under Section 4 of the said Act. 1997 Rules
       are not statutory rules but in nature of administrative or executive
 E     instructions. The Rules are definitely in contravention of statutory
       provisions and thus bad in law so far as in contravention of
       statutory provisions. [Paras 39 and 40] (1041-D, F-G]
                             Case Law Reference
          1981(2) SCR 52                followed              Para26
 F        1982 SCR 365                  followed              Para 26
          1996 (10) Suppl. SCR 925      held inapplicable     Para37
          2013 (17) SCR 1               relied on             Para 38
           CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 657
 G     of2004.
          [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]
            Satya Narain Shukla, General Secretary, Lok Prahari, Petitioner-
       in-person.
 H          P. N. Misra, K. Radhakrishnan, Sr. Advs., Irshad Ahmad, AAG,
             LOK PRAHARI v. STATE OF U.P. & ORS.                                  1029



Abhisth Kumar, Somraj Choudhary, Ms. Sunit~ Sharma, Shail Kumar                    A
Dwivedi, Siddharth Krishna Dwivedi, Manish Kumar, Chandan Kumar,
(For Gopal Singh), Ms. Vanshaja Shukla, Mishra Saurabh, C. D. Singh,
Anshuman Shrivastava, Ms. Sandhya Goswami, Anil Nag,, B . S. Banthia,
Ejaz Maqbool, Jatinder Kumar Bhatia, Kishan Datta, M. C. Dhingra,
Praveen Swamp, Raj Singh Rana, Shiva Pujan Singh, V. K. Verma, Ms.
                                                                                   B
Mridula Ray Bharadwaj, Ms. Niranjana Singh, Advs. for the
Respondents.
     The Judgment of the Court was delivered by
     ANIL R. DAVE, J. I. A short but serious and significant issue has
been raised in this public interest litigation, which pertains to government       c
bungalows occupied by former Chief Ministers of the State of Uttar
Pradesh.
      2. The Petitioner is a Society registered under the Societies
Registration Act with objects pertaining to public welfare, etc. and the
petition has been filed through its General Secretary, who appeared in             D
person. He is a former officer of All India Services and has ventilated
grievances which are definitely serious one, touching the State exchequer
and conduct of the persons who were Chief Ministers of the State of
Uttar Pradesh. The main submission made in the petition is that several
former Chief Ministers had occupied Government bungalows of Type
VI even after demitting office of the Chief Minister for several years             E
without any right to retain the same, which is not only immoral and illegal,
but it also does not befit persons who were Chief Ministers of the State.
    3. At the time when the petition was admitted on JJ•h January,
2006, this Court had passed the following Order:
                                                                                   F
       "The challenge in this petition is to the validity of Ex-Chief
       Ministers Residence Allotment Rules, 1997. The petitioner claims
       it to be illegal, malafides and colourable exercise of power. It is
       also claimed that the Rules, which are non-statutory, could not
       have been framed in the light of the 'provisions of the Uttar Pradesh
       Ministers (Salaries, Allowances and Miscellaneous Provisions)               G
       Act, 1981.
       On the other hand, it has been, inter alia, contended on behalf of
       the State that in the federal structure, tbere is no bar if provision is
       made for allotment of residential accommodation to ex-Chief
       Ministers of the State. It is also contended that the matter deserves       H
1030            SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A            to be examined further in the light of the provisions of the
             President's (Emoluments and Pension) Act, 1951. The further
             contention is that the former Presidents and the Prime Ministers
             are also allotted residential accommodation after they cease to
             hold those positions.
 B           In our view, the writ petition raises important questions, which
             require deeper consideration. Accordingly, while issuing Rule,
             we direct that notice be issued to the Union of India and other
             State Governments/Union Territories."
            Thus, we have to examine whether the provisions of Ex-Chief
 c     Ministers Residence Allotment Rules, 1997 (hereinafter referred to as
       'the 1997 Rules') are valid or contrary to the provisions of the Uttar
       Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions)
       Act, 1981 (hereinafter referred to as the 'the 1981 Act').
             4. As several former Chief Ministers had occupied government
 D     bungalows, a petition, in the nature of a Public Interest Litigation, being
       Writ Petition No.1313 (M/S) of 1996 was filed before the High Court of
       Judicature at Allahabad by Janhit Sangathan, a registered Society of
       retired senior Civil Servants. At the time when the said petition was
       filed, there were no Rules or Regulations permitting former Chief
       Ministers to occupy government bungalows.
 E
             5. In the aforestated circumstances, the State ofU.P. i.e. respondent
       no, r framed the 1997 Rules during the pendency of the said petition.
       The' 1997 Rules are not statutory Rules and they are in the nature of
       executive instructions. The 1997 Rules provide that former Chief
       Ministers should be provided government bungalows for their residence
 F     for the life and upon their death, the family members occupying the
       bungalow should hand over ".acant possession of the bungalow within 3
       months from the date of the death of the former Chief Minister and
       failing which they would be liable to pay penal rent. The 1997 Rules do
       not.provide for allotment of bungalows either to the family members of
 G     the former Chief Ministers or to any Trust or Society concerned with
       any former Chief Minister.
             6. As the 1997 Rules were framed during the pendency of Writ
       Petition No.1313 (M/S) of 1996, the aforestated Writ Petition was
       amended so as to challenge the validity of the 1997 Rules on the ground
       that the 1997 Rules were not only unconstitutional and illegal. but were
 H
             LOK PRAHARI v. STATE OF U.P. & ORS.                               1031
                     [AN1L R. DAVE, J.]

also violative of the provisions of Article 14 of the Constitution oflndia.     A
      7. At the time of hearing of the said petition, a statement was
made by the learned Additional Advocate General appearing for
respondent no. I that only Type V bungalows would be allotted to the
former Chief Ministers and the former ChiefMinisters will have to make
some payment of rent for occupying such bungalows. Some other                   B
provisions with regard to expenditure to be incurred for maintenance of
the bungalows were also referred to by him. The learned Additional
Advocate General had further submitted that possession of bungalows
allotted to private trusts or organizations would be taken back by the
government as there was no provision with regard to making allotment
of government bungalows to such trusts/societies/organizations etc.             c
Ultimately, the petition was disposed of on 20 1h August, 200 I without
deciding the validity of the 1997 Rules in view of the fact that the
aforestated statements were made by the learned Additional Advocate
General on behalf of Respondent no. I-State. It was also directed that
the family members of the former Chief Ministers, who were occupying            D
such premises even after the death of the former Chief Minister will
have to vacate the premises within a particular period.
     8. It further appears that in spite of the statement made by the
learned Additional Advocate General, the government did not do the
needful for getting possession of the bungalows occupied by the family          E
members of the deceased former Chief Ministers and in the aforestated
circumstances, the present writ petition was filed with the following main
prayer:
       "(l) declare the Ex-Chief Ministers Residences Allotment Rules,
       1997 (Annexure P-4 to the WP) illegal being malafides, colourable        F
       exercise of power and against the provisions of the Constitution."
    It has also been prayed that rent payable by the unauthorized
occupants of such bungalows be recovered and those who were
occupying bungalows allotted to' fo~mer Chief Ministers be evicted.
     9. It has also been prayed that certain private trusts or organizations    G
or societies, who are occupying government bungalows be also directed
to vacate the bungalows.
    10. It is pertinent to note that after disposal ofWdt Petition No.1313
(MIS) of 1996, respondent no. I-State framed rules titled as "The
                                                                                H
1032            SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A      Distinguished Personality Trust Allotment of Houses in Lucknow under
       the Control of State Estate Department Rules, 2003" (hereinafter referred
       to as 'the 2003 Rules') under Office Memorandum dated 31.12.2003 to
       deal with lease of houses for the use of any social service trust set up in
       the name of a distinguished person who is known as a National hero. In
       addition, a policy decision dated 4th July, 2005 was taken regarding
 B
       allotment of premises at Lucknow, under the administrative control of
       Respondent No.2 department, to certain NGOs/Trusts, Non-Government
       persons and employees' Union, who were not included under the 2003
       Rules.
            11. In pursuance of the aforestated 2003 Rules, one of the
 c     respondents had been allotted a bungalow on lease for 30 years, which
       was renewable for a further period of 90 years at the yearly rent of
       rupee I/- by virtue of Office Memo dated 22"d January, 2004. Similarly,
       several other bungalows had also been allotted on lease to different
       bodies, by and large, on similar terms in pursuance of the aforestated
 D     2003 Rules.
             12. The short submissions made by the petitioner were to the effect
       that after demitting the office as a Chief Minister, a person has no right
       to occupy any Government bungalow for his residence and yet several
       persons named in the petition, who were Chief Ministers of the State of
 E     Uttar Pradesh had continued to occupy Government bungalows, which
       are maintained by the Government by spending enormously huge amount
       every year. In absence of any statutory provision, according to the
       petitioner, continued occupation or occupation of another house after
       demitting the office of a Chief Minister is illegal and therefore, they
       should be asked to vacate the bungalows occupied by them and should
 F     also be asked to pay notional rent for the unauthoriz~d occupation.
       Another submission made by the petitioner was that even if some rules
       and regulations are made for allotting residential bungalows to former
       ChiefMinisters, it would be discriminatory and violative of the provisions
       of Article 14 of the Constitution of India for the reason that other
 G     dignitaries like the Chief Justice of the State or Principal Chief Secretary
       or Speaker of the Assembly etc. are not given such facilities. Giving
       residential bungalows to some of the persons holding constitutional
       position in the State, by ignoring other almost similarly situated persons
       would not be proper and even ifthere is any regulation empowering the
       Government to allot residential bungalows to former Chief Ministers,
 H
             LOK PRAHARI v. STATE OF U.P. & ORS.                             1033
                     [ANIL R. DAVE, J.]

the Rules or Regulations made to that effect cannot be said to be legal       A
and Constitutional.
      13. Another submission made by the petitioner was that the
Government authorities did not act as per the real spirit with which
judgment in the case of Shiv SagarTiwari v. Union of India (1997) 1
SCC 444, was delivered by this Court. As per observations made in             B
para 72 of the said judgment, keeping in view the very high constitutional
position occupied by the President, Vice-President and Prime Minister,
they should be accommodated in government premises after they demit
their office, so that problem of suitable residence does not trouble them
in the evening of life. Observations in substance are to the effect that
except the aforestated dignitaries, nobody else should be provided
                                                                              c
government accommodation after he or she demits his/her office. By
not following the aforestated observations made by this Court in the
matter relating to allotment of accommodation to formerChiefMinisters,
the Government authorities have shown a little respect to this Court and
the law of the land.                                                          D
      14. Another submission was to the effect that several trusts and
organizations had been allotted government bungalows without any
justifiable reason. In the case of Shiv Sagar Tiwari (supra), this Court
has observed that government bungalows should not be allotted to private
organizations. Of course, the judgment delivered in the case of Shiv          E
SagarTiwari (supra) deals with bungalows situated in Delhi but situation
in Lucknow is quite similar because there is also acute shortage of
residential accommodation for government employees in the said city.
According to the petitioner, government employees/officers, who are
entitled to government accommodation by virtue of their service conditions
are not allotted residential quarters due to shortage of government           F
premises and therefore, they are constrained to occupy private premises,
for which the government has to pay a sizeable amount by way of house
rent allowance to the concerned government employees/officers.
According to the petitioner, on one hand there is an acute shortage of
government premises and the government employees are constrained to           G
occupy private premises for which a hefty amount is paid by the
government by way of allowances and on the other hand the government
bungalows are given to private trusts or organizations without getting
 any rent or by getting nominal rent of rupee 1/-or so per month. Thus,
 according to the petitioner, this adversely affects the State exchequer
                                                                              H
1034             SUPREME COURT REPORTS                            [2016] 4 S.C.R.



A      and therefore, possession of all bungalows which have been allotted to
       private organizations and trusts or such parties without charging adequate
       market rent must be taken back by the government in the interest of the
       public at large.
             15. So as not to lengthen this judgment, we are not referring to the
 B     names of the persons/former Chief Ministers and trusts and private
       organizations to whom government bungalows have been given without
       getting adequate market rent.
             16. The submission made by the petitioner was also to the effect
       that occupation ofresidential bungalows after expiry of the term of office
 c     of the Chief Ministers is in violation of the provisions of the Uttar Pradesh
       (Salaries, Allowances and Miscellaneous Provisions) Act, 1981,
       (hereinafter referred to as 'the 1981 Act') which pertains to salaries
       and other perquisites to be given to the Chief Ministers.
             17. The 1981 Act provides that the Ministers are to be provided
 D     residence without any payment ofrent throughout the term of their office
       and for a further period of 15 days after they demit their office. Thus,
       there is no provision with regard to permitting any Minister, including the
       Chief Minister, to retain the official premises or any other premises in
       their capacity as a Minister or a Chief Minister, 15 days after completion
       ofhis term as a Minister or the Chief Minister.
 E
             18. The petitioner also submitted that the 1997 Rules were framed
       in exercise of executive power and they are in violation of the provisions
       of Article 14 of the Constitution oflndia. He submitted that the Chief
       Ministers cannot be given different treatment in the matter of allotment
       of bungalows after they demit their office. If other Ministers and other
 F     constitutional functionaries like Judges and the Chief Justice of the High
       Court, Governor of the State, Speaker of the Assembly, etc. are not
       provided such accommodation after completion of their tenure, there is
       no justification for providing any government bungalow either free of
       charge or at a nominal rent to the former Chief Ministers. The action of
 G     respondent no. l in framing the 1997 Rules is thus illegal and is a colourable
       exercise of power and is also violative of Article 14 of the Constitution
       of India as the State gives preferential treatment to the former Chief
       Ministers, which is not given to other constitutional functionaries.
            19. The petitioner, therefore, prayed that the petition be allowed
       and the 1997 Rules be quashed and set aside as being discriminatory
 H
             LOK PRAHARI v. STATE OF U.P. & ORS.                                1035
                     [ANIL R. DAVE, J.]

and violative of the provisions of Article 14 of the Constitution oflndia.       A
      20. On the other hand, the learned counsel appearing for respondent
no. I State vehemently submitted that it is for respondent no. I government
to exercise its executive power and allot bungalows to former Chief
Ministers even after they demit their office. According to him, 'former
Chief Ministers' is a class of persons and therefore, it cannot be said          B
that there is any preferential treatment given to the former Chief Ministers.
He further submitted that it is for the State to decide whether to give
such accommodation to former Chief Ministers and the said decision
being executive decision in pursuance of a particular policy, this Court
should not ordinarily interfere with the executive decision of respondent
no. I-Government.                                                                c
      21. The learned counsel appearing for the State tried to explain the
circumstances in which the government bungalows had been provided
to the former Chief Ministers. The learned counsel also questioned the
right of the petitioner to challenge the validity of the 1997 Rules.
According to him, the petitioner has no locus standi to challenge the            D
validity of the said Rules by filing a petition under Article 32 of the
Constitution of India before this Court. He further submitted that the
validity of the said Rules had been questioned in Writ Petition No.1313
(MIS) of 1996 and the said petition has already been disposed of, but the
said Rules had not been declared to be invalid or unconstitutional by the        E
High Court and therefore, this petition challenging the validity of the
1997 Rules is not maintainable.
      22. The Respondents, while justifying the 1997 Rules took a stand
that some of the respondents are given 'Z' plus Security by the Union of
India and it is necessary to provide proper accommodation with requisite         F
infrastructure in a secured locality. For providing such security, the State
has to see that the accommodation of the concerned person is safe and
therefore, it is necessary to provide a special type of accommodation to
such persons.
     23. The Union of India in its affidavit dated 13th December, 2006           G
has contended that aspect of emoluments and pensions of former
President and Vice President of India is governed by "President's
Emoluments and Pensions Act, 1951" and "Vice President's Pension
Act, 1997" and rules framed there-under. The facilities provided to the
Prime Minister are also governed by Office Memorandum dated
                                                                                 H
1036             SUPREME COURT REPORTS                             [2016] 4 S.C.R.



A      6.12.1991 issued by the Government of India and he had not to say
       anything about the facilities to be given to the former Chief Ministers.
             24. On the basis of the aforesaid contentions, the following issues
       arise for our consideration:
         a)        Whether the writ petition filed in the public interest is
B                  maintainable and whether the writ Petitioner has locus standi
                   to file the writ petition.
         b)        Whether the Ex-ChiefMinisters ResidenceAllotment Rules,
                   1997 are legal and valid.
 c     25.      So far as the first issue is concerned, in our opinion, the petitioner
       has locus standi to file the writ petition. It has been submitted in the
       petition that the petitioner society is formed by retired civil servants,
       journalists and other persons who are residents of the State of U.P. and
       have no malafide intention behind filing the present petition and none of
       them has any personal grudge against any of the occupants of the
 D     government premises or any of the former ChiefMinisters. In our opinion,
       when the petitioner society is challenging the validity of the 1997 Rules,
       whereby government bungalows have been allotted to former Chief
       Ministers, especially when there is an acute shortage of government
       premises, in our opinion, it cannot be said that the petitioner has no locus
 E     standi to file the present petition.
            26.   In the case of "Fertilizer Corporation Kamgar Union
       (Regd) Sindri and Ors. v. Union of India and Ors. (I 981) I SCC
       568, the Constitution Bench of this Court has held as under:
              "29 ..............Lastly, but most importantly, where does the citizen
 F            stand, in the context of the democracy ofjudicial remedies, absent
              an ombudsman? In the face of (rare, yet real) misuse of
              administrative power to play ducks and drakes with the public
              exchequer, especially where developmental expansion necessarily
              involves astronomical expenditure and concomitant corruption, do
              public bodies enjoy immunity from challenge save through the
 G
              post-mortem of parliamentary organs. What is the role of the judicial
              process, read in the light of the dynamics of legal control and
              corporate autonomy? This juristic field is virgin but is also heuristic
              challenge, so that law must meet life in this critical yet sensitive
              issued. The active coexistence of public sector autonomy, so
 H            vital to effective business management, and judicial control of
             LOK PRAHARI v. STATE OF U.P. & ORS.                                 1037
                     [ANIL R. DAVE, J.]

      public power tending to go berserk, is one of the creative claims           A
      upon functional jurisprudence.
      30-46.     xxx      xxx      xxx
      47..............Nevertheless, the broad parameters of fairness in
      administration, bona tides in action, and the fundamental rules of
      reasonable management of public business, if breached, will                 B
      become justiciable.
      48. If a citizen is no more than a wayfarer or officious intervener
      without any interest or concern beyond what belongs to any one
      of the 660 million people of this country, the door of the court will
      not be ajar for him. But, ifhe belongs to an organisation which             c
      has special interest in the subject-matter, ifhe has some concern
      deeper than that of a busybody, he cannot be told off at the gates,
      although whether the issue raised by him is justiciable may still
      remain to be considered. I, therefore, take the view that the present
      petition would clearly have been permissible under Article 226."            D
     Similar was the view taken in S.P. Gupta v. Union of India and
Anr. (1981) Supp SCC 87.
      27. Looking at the law laid down by this Court and in view of the
fact that the petitioner society or its members have not filed the petition
with any oblique motive and as we also feel that cause for which the              E
petition has been filed is just and proper, in our opinion, the petitioner has
locus to file this petition.
    28. Now, let us examine the validity of the 1997 Rules framed by
Respondent no. I-State.
                                                                                  F
     Article 164 of the Constitution oflndia reads as under:-
       Article 164: Other provision as to Ministers:-
       (1) The Chief Minister shall be appointed by the Governor and
       the other Ministers shall be appointed by the Governor on the
       advice of the Chief Minister, and the Ministers shall hold office          G
       during the pleasure of the Governor................ .
       (5) The salaries and allowances of Ministers shall be such as the
       Legislature of the State may from time to time by law determine
       and, until the Legislature of the State so determines, .shall be as
       specified in the Second Schedule ..... "                                   H
1038            SUPREME COURT REPORTS                           (2016] 4 S.C.R.



A            29. Therefore, in compliance with Article 164 read with Entry 40,
       List II of Seventh Schedule of the Constitution of India, Respondent
       No. I-State, in order to determine salaries and allowances payable to the
       Ministers, enacted the 1981 Act. In the said Act, Section 2 (e) defines
       the term "Minister".
 B          Section 2 (e) is reproduced herein below:
             "2(e) 'Minister' means a member of the Council of Ministers of
             the Government ofUttar Pradesh and includes the Chief Minister,
             a Minister of State and a Deputy Minister of that State."
           In this regard, Section 4 of the 1981 Act may also be considered,
 c     which is as under:
             "4: Residence
             (1) Each Minister shall be entitled without payment of any rent to
             the use throughout the tenn of his office and for a period of fifteen
             days thereafter, of a residence at Lucknow which shall be
 D
             furnished and maintained at public expense at the prescribed
             scale .. "
            Upon perusal of the above provisions, it is clear that the terms and
       conditions of service and salaries and allowances payable to the Ministers
       are governed by the 1981 Act, which currently holds the field in this
 E
       regard.
           30. We may now turn to the issue whether the impugned 1997
       Rules are ultra vires of 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:-
 F
             "Rule 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
 G           Lucknow under these rules.
             Rule 6:- Period for which Allotment subsists
             The allotment ofresidence to Ex-Chief ministers shall be effective
             only during their life time. The allotment shall be deemed to be
             automatically cancelled upon the death of Ex-chief minister and
 H
             LOK PRAHARI v. STATE OF U.P. & ORS.                               1039
                     [ANIL R. DAVE, J.]

      family members residing therein will have to invariably hand over         A
      the possession of the concerned residence 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 UP Public Premises (Eviction of Unauthorized Occupants)Act,
                                                                                B
      1972."
      31. Upon perusal of the above provisions, it is clear that the term
"Minister" includes the Chief Minister and Section 4 ( 1) (a) of the 1981
Act, permits a Minister to retain his residence for 15 days after he/she
demits his/her office. In view of the above special provisions made, the
Chief Minister is not entitled to privileges and protection as are available    c
to the President oflndia and the Vice-President of India, who are entitled
to an official residence for life.
       32. The Respondents while justifying the 1997 Rules, took a stand
that some of the respondents are being given 'Z' plus Security from
Union of India and it is necessary to provide proper accommodation              D
with requisite infrastructure in a secured locality. The afore-said
contention of Respondent no. I lacks merit and deserves to be rejected
for the reason that as the said security is to be provided by the Ministry
of Home Affairs, Union of India and provisions are already made for
such persons as per Office Memorandum dated 17 .11.1997 issued by               E
the Government of India on the recommendations of the Ministry of
Home affairs and it is the obligation of the Government ciflndia to provide
accommodation to such persons in accordance with its own guidelines
and it is not for the Respondent-State to provide any accommodation
and therefore, the ground put forth by the Respondents is untenable. In
fact, the impugned 1997 Rules give largesse only to former ChiefMinisters       F
without any element of reasonableness.
     33. The facts on record also reflect that many of the former Chief
Ministers, who are in occupation of Government Bungalows, are either
serving as Members of Parliament or Governors or Cabinet Ministers in
Central Government and they have already been provided another · G
accommodation. It would, therefore, not be proper, in any case, to allot
permanent residence at two places to one individual.
     34. If we look at the position of other constitutional post holders
like Governors, Chief Justices, Union Ministers, and Speaker etc, all of
                                                                                H
1040            SUPREME COURT REPORTS                            [2016) 4 S.C.R.



A      these persons hold only one "official residence" during their tenure. The
       Respondents have contended that in a federal set up, Iike the Un ion, 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
 B
       instructions and contrary to the provisions of the 1981 Act, cannot be
       acted upon.
            35. 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
 c     post is given such a facility. For the afore-stated 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 (I) (a) of the 1981 Act.
             36. There is one more and most important reason for which the
       1997 Rules cannot be said to be legal. The 1981 Act deals with the
 D     salaries and perquisites to be given to all the Ministers, including the
       Chief Ministers. The said provisions are statutory, but the 1997 Rules
       are not statutory and they are only in the nature of executive instructions.
       If there is any variance in statutory provision and executive instruction,
       the statutory provision would always prevail. This is a very well-known
 E     principle and no further discussion is required on the subject. When the
       1981 Act enables the ChiefM inister to have residential accommodation
       only during his tenure and for 15 days after completion of his tenure, the
       1997 Rules providing for an accommodation for life to the Chief Minister
       cannot be said to be legal and valid. For this sole reason, validity of the
       1997 Rules cannot be upheld.
 F
            37. As far as question of accommodation to the President, Vice-
       President and Prime Minister is concerned, there is no challenge in the
       writ petition to the same and is limited to the 1997 Rules framed by
       Respondent No. l State, therefore, it is in-appropriate to consider the
       issue dealt with by this Court in "Shiv SagarTiwari v. Union oflndia"
 G     (1997) 1  sec  444 ".
            38. This Court, in the case of"SD Bandi v. Karnataka SRTC,
       (2013) 12  sec 631, in relation to occupation of government bungalows,
       beyond the period for which the same were allotted, observed that "it is
       unfortunate that the employees, officers, representatives of people and
 H
             LOK PRAHARI v. STATE OF U.P. & ORS.                                 1041
                     [ANIL R. DAVE, J.]

other high dignitaries continue to stay in the residential accommodation          A
provided by the Government oflndia though they are no longer entitled
to such accommodation. Many of such persons continue to occupy
residential accommodation commensurate with the office(s) held by them
earlier and which are beyond their present entitlement. The unauthorized
occupants must recollect that rights and duties are correlative as the
                                                                                  B
rights of one person entail the duties of another person similarly the duty
of one person entails the rights of another person. Observing this, the
unauthorized occupants must appreciate that their act of overstaying in
the premise infringes the right of another. No law or directions can entirely
control this act of disobedience but for the self realization among the
unauthorized occupants".                                                          c
      39. As stated hereinabove, there is a statutory provision which relates
to salaries and perquisites to be given to the ministers, including the
Chief Minister. The 1981 Act is a statute enacted by Respondent no.1-
State under its power under A11icle 164 read with Entry 40 of the List II
(State List) of the Seventh Schedule of the Constitution. Thus, there is          D
a statutory provision with regard to perquisites to be given to the ministers,
including the Chief Minister under Section 4 of the said Act, which has
been reproduced hereinabove. The said Act provides that all the ministers
are entitled to official residence without payment of any rent and they
are also entitled to occupy the said official residence for 15 days even
after completion of their term. Thus the statutory provision is to the            E
effect that the Chief Minister can continue to occupy the official
accommodation for a further period of 15 days after completion of his/
her term.
      40. The 1997 Rules are not statutory rules. They are in the nature
of administrative or executive instructions. They would not stand the              F
test of legality if they are not in consonance with statutory provisions.
The said Rules are definitely in contravention of the statutory provisions
and therefore, the said Rules can be said to be bad in law so far as they
are in contravention of the statutory provisions.
     41. There cannot be any dispute that when the rules and regulations          G
or executive instructions are contrary to any statutory provision, the
statutory provision would prevail and the rules or executive instructions,
so far as they are contrary to the statutory provisions, would fail.
      42. In view of the aforestated clear and unambiguous position, in
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1042            SUPREME COURT REPORTS                          [2016] 4 S.C.R.



A      our opinion, the 1997 Rules, which permit the former Chief Ministers to
       occupy government bungalows for life cannot be said to be valid. In the
       circumstances, respondent no. I cannot permit any former Chief Minister
       to occupy any government bungalow or any government accommodation
       after 15 days from the date on which his term comes to an end.
 B           43. So far as allotment of bungalow to private trusts or societies
       are concerned, it is not in dispute that all those bungalows were allotted
       to the societies/trusts/organizations at the time when there was no
       provision with regard to allotment of government bungalows to them
       and therefore, in our opinion, the said allotment cannot be held to be
       justified. One should remember here that public property cannot be
 c     disposed of in favour of any one without adequate consideration.
       Allotment of government property to someone without adequate market
       rent, in absence of any special statutory provision, would also be bad in
       law because the State has no right to fritter away government property
       in favour of private persons or bodies without adequate consideration
 D     and therefore, all such allotments, which have been made in absence of
       any statutory provision cannot be upheld. If any allotment was not made
       in accordance with a statutory provision at the relevant time, it must be
       discontinued and must be treated as cancelled and the State shall take
       possession of such premises as soon as possible and at the same time,
       the State should also recover appropriate rent in respect of such premises
 E     which had been allotted without any statutory provision.
              44. In the circumstances, for the reasons stated hereinabove, the
       petition is allowed. Rule is made absolute with no order as to costs and
       it is held that the 1997 Rules so far as they are not in consonance with
       the provisions of the 1981 Act are bad in law. The government bungalows
 F     allotted to the respondents is held to be bad in law and the concerned
       respondents shall hand over possession of the bungalows occupied by
       them within two months from today and the respondent-Government
       shall also recover appropriate rent from the occupants of the said
       bungalows for the period during which they were in unauthorized
 G     occupation of the said bungalows.
       Divya Pandey                                              Petition allowed.