Ex-CMs Not Entitled To Lifetime Allotment Of Govt Bungalows: Patna HC

To begin with, in a latest, landmark and laudable judgment which has sent shivers down the spine of many former Chief Ministers of Bihar, the Patna High Court on February 19, 2019 has clearly and categorically struck down an amendment brought to Bihar Special Security Group Act, 2000 pertaining to the life time allotment of Government premises for residential purposes to Ex-Chief Ministers, who have already demitted office. The two Judge Bench of Patna High Court comprising of Chief Justice Amreshwar Pratap Sahi and Justice Anjana Mishra have convincingly observed that, “There is no provision in the Constitution that such an elected representative can claim or ask for a price after he demits office. A claim of this nature reflects as if it is something parasitical.” Very rightly said!

To put things in perspective, the Bench said eloquently and elegantly in para 34 that, “Having heard learned counsel for the parties, the competence of the Legislature to enact a law within the constitutional limits on the issue relating to the salaries and allowances of Ministers is saved under Article 164 (5) of the Constitution of India as noted above. This does not, however, extend any such privileges to Ex-Chief Ministers and, therefore, the validity of the Amending Act of 2010 (Bihar Act No. 10 of 2010) has to be tested on this anvil. We do not find any constitutional provision enabling the State Legislature to enact any law with regard to Ex-Chief Ministers. The entries in the Seventh Schedule, particularly Entry 40 of List II as contained in the Seventh Schedule of the Constitution does not empower the State Legislature to make any law for Ex-Chief Ministers. It is for this reason that the State under the garb of its legislative authority took resort to an amendment in the Bihar Special Security Group Act, 2000 in the name of security of an Ex-Chief Minister. The object and reason of the 2010 Amendment Act recites that in order to provide ample security to Ex-Chief Ministers was considered appropriate keeping in view the threat perception of extremists and terrorists organization. In order to further fortify this, another reason was added in the Cabinet Resolution dated 2nd July, 2014 that since Ex-Chief Ministers during their tenure in office have to remain in contact and continue to perform their social obligations, therefore, such facilities should be made available.”

Continuing in the same vein, it is then held in this same para 34 that, “This in our opinion has no nexus with security. It is more for maintaining a lost status. What is more interesting in the reasons disclosed is that by allotting and by ear-marking a particular premises, repeated expenses can be avoided. This addition is in Clause 5 of the Office Memorandum dated 22nd March, 2016. This is also evident from the file noting No. (7) extracted hereinabove. What is also noticeable is that the file noting also refers to the availability of such facilities in four other States throughout the country, namely, Madhya Pradesh, Uttar Pradesh, Rajasthan and Karnataka. Needless to mention that the date on which the aforesaid Memorandum was issued, the earlier round of litigation in the case of Lok Prahari Versus State of Uttar Pradesh and others was pending which came to be decided on 1st of August, 2016, reported in (2016) 8 SCC 389. The first judgement in the case of Lok Prahari (supra) held that such a largess given to former Chief Ministers is without any element of reasonableness. The Rules which had been framed by the State of Uttar Pradesh were struck down.”  

Going ahead, it is then further elaborated in para 35 that, “The State of Uttar Pradesh brought about a legislation in order to overcome the said decision by an amendment in the year 2016 similar to that which is involved herein being U.P. Act No. 22 of 2016. The same was struck down after discussing all the constitutional provisions holding that such Bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. It was held that questions relating to allotment of such properties are, therefore, questions of public character and hence amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness. The Court then went on to hold in paragraphs 38 and 39 that such a legislative exercise is based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity. The said paragraphs have already been extracted hereinabove and quoted in our earlier order dated 8th of January, 2019.”

Not stopping here, it is then observed in para 36 that, “We may further analyze that the cover of security which is sought to be given for allotment of such official premises for a life time is nowhere borne out from any material in the counter affidavit filed on behalf of the State. There is nothing to indicate as to how would the security be jeopardized of any Ex-Chief Minister unless he is allotted a Government Premises free of all charges for his life time with unlimited financial maintenance facilities. The same cannot be traced to any constitutional provision or any statutory provision, apart from the offending part of the Amendment Act of 2010 presently in question. It is further to be noted that the Amending Act of 2010 only makes a provision for allotment of a premises for the life time of an Ex-Chief Minister. All further benefits have been added by way of executive decisions either through the Resolution of the Cabinet or the issuance of a Government Order or an Office Memorandum as noted hereinabove.”

While pooh-poohing the tall claims made in favour of allotment of bungalows to Ex-Chief Ministers, the Bench then further holds in para 37 that, “We are unable to trace any authority available for making such provisions that even in the teeth of the pronouncement of the Apex Court in the case of Lok Prahari through its General Secretary Versus State of Uttar Pradesh and others, reported in (2018) 6 SCC 1. We had also noticed in our order dated 8th January, 2019 that in paragraph 12 of the said report, the Apex Court had through the Amicus Curiae informed the law officers of the Union and all the States/Union Territories throughout the country and pursuant thereto, the State of Bihar had responded in the said proceedings. In paragraph 13 it had been categorically noted that in the case of State of Bihar, such a provision has been made by executive instructions under Article 162 of the Constitution of India. It is true that executive instructions had been issued as noted hereinabove, but that had been with the aid of a statutory provision in the Bihar Special Security Group Amendment Act (Bihar Act No. 10 of 2010) that was similar to the amendment in the U.P. Act of 2016 that was struck down. The State of Bihar, therefore, appears to have not responded correctly to the Supreme Court by bringing to its notice the Amendment Act, 2010 (Bihar Act No. 10 of 2010) which has been made the basis for the issuance of the executive instructions and is being considered by us in the present proceedings. The State of Bihar also does not appear to have taken any steps for amending or rescinding any such offending provision in spite of the pronouncement of the Apex Court judgment on 7th May, 2018. The only re-deeming feature that the learned Advocate General was able to point out was that the present Chief Minister has given up the allotment of the Bungalow made to him as an Ex-Chief Minister and has confined himself to the Bungalow allotted to him as the Chief Minister of the State. The other allottees have not put in any substantial resistance on being confronted with the aforesaid legal position.” 

To be sure, the Bench said there is no such concept of a life time privilege available for elected representatives after demitting office merely because they are in politic. It observed clearly and convincingly in para 38 that, “A perusal of the entire facts as discussed above would indicate that the salaries, allowances and other benefits as envisaged under Article 164(5) of the Constitution of India are all intended to be co-terminus with office and are limited by budgetary expenditures. In a democracy which is founded on principles of socialism, it is difficult to comprehend unlimited expenditure being made available, that too even through executive instructions without any corresponding provision in any statutory law. This is clearly arbitrary being unguided and unbridled. This sort of a benefit being introduced has absolutely no rational nexus with the object of security under the garb of which such facilities are sought to be conferred by elected public representatives on themselves fully knowing that there is no such concept of a life time privilege available after demitting office merely because they are in politics. This is a blatant example of over spending from the public exchequer and drawing from the well of finances that are already deficit. It is high time that the boundaries of such expenditure are re-drawn and funneling of State finances is checked. Not only has the Legislature exceeded in its authority against public interest, but the executive fiat of the State has also travelled beyond its legal and ethical limits, that is witnesses by the executive instructions which are examples of bureaucratic skills that eludes all ingenuities. The authority to confer such benefits on themselves in an unmeasured fashion is clearly unconstitutional and tends to reflect predatory instincts for usurping public exchequer. It is a collective expression of acquiring public property perpetually in the name of public service. The attitude therefore is divorced from morality and withers the faith of the public.” There can be no denying it!

Furthermore, it is then observed in this same para 38 that, “Any law or executive instructions in excess of powers, as involved in the present case, is, therefore, ultra vires showing complete disregard to the Constitution and being repugnant to the Constitutional philosophy of democratic socialism. The action clearly infringes the fundamental rights guaranteed under the Constitution and militates against the ideas of justice. The executive instructions not only suffer from infirmities like procedural irregularity and illegality, but are also irrational as per the test laid down by Lord Diplock in CCSU Vs. Minister for Civil Service, 1983 (1) AC 768. The entire action reflects as to how innocence of public faith has been bartered in conferring privileges on themselves long after the Constitution itself has denounced recognition of titles and conferment of privileges during the British regime. It is strange that the privy purses were withdrawn on the philosophy of socialism in a modern democracy, but in practice such actions in the name of democracy are now being conferred unilaterally by the holders of public office in the manner aforesaid.”    

As it turned out, the Patna High Court further observed in para 39 that, “It has rightly been observed by James Hacker, a former Prominent Member of Parliament of House of Commons in his famous critique “Yes Minister,” “The Public do not know anything about wasting public money. We are the experts”. The law makers of the country have a patriotic duty to take right decisions and not claim compensations as presently involved under the garb of security. To create a sanctuary for oneself that involves heavy finances and public resources, has to be viewed strictly under the parameters of the Constitution, that too even for a person who demits a public office which he has occupied for a fixed tenure on being elected by people.”

Apart from what has been mentioned above, it was also pointed out in this same para 39 that, “There is no provision in the Constitution that such an elected representative can claim or ask for a price after he demits office. A claim of this nature reflects as if it is something parasitical. It is a legacy of a continued red carpet treatment riding rough shod over the law. The legislation and the executive instructions are not based on reason so as to be called rational. They are not even moderate and therefore, there is no rationale behind the action under scrutiny. The apostle of modern India-Mahatma Gandhi and one of his disciples Shri Lal Bahadur Shastri are examples who believed that democracy meant a Government of the People, by the People and for the People. In the present case, the extension of benefits after demitting office reflects a Government by the Law Makers unto themselves.”

To put it succinctly, it is then observed in para 40 that, “We, therefore, find that the provision made under the Amending Act, namely Bihar Act No. 10 of 2010, for allotting a premises to an Ex-Chief Minister throughout his life is contrary to the law laid down by the Hon’ble Apex Court in the case of Lok Prahari (supra) and is otherwise constitutionally unwarranted. The same is hereby struck down.”

Finally and perhaps most importantly, it is then held in para 41 that, “Apart from this, the Cabinet Resolution dated 2nd July, 2014 that took the shape of a Resolution of the Building Construction Department, Government of Bihar, dated 30.12.2014 also suffers from the vice of an excessive extension of benefits beyond the constitutional limits to an Ex-Chief Minister by providing a Bungalow free of charges after demitting office throughout his or her life and with unlimited financial maintenance facilities. The same to that extent is also struck down. As a consequence thereof, the allotments made under the Office Memorandum dated 22nd March, 2016 and 25th May, 2018 are also quashed to the extent indicated above. All the said allottees therefore, are called upon to vacate the premises allotted to them unless they are otherwise entitled to retain the same under any other law of allotment for the time being in force in the State of Bihar. The Chief Secretary, Government of Bihar, is therefore, directed to issue an appropriate order in the light of above.” The last para 42 then states that, “This Public Interest Litigation stands disposed of with the aforesaid directions.”

No doubt, many former Chief Ministers stand affected adversely by this landmark, latest and laudable ruling. Those affected include among others Satish Prasad Singh, Dr Jagannath Mishra, Lalu Prasad, Smt Rabri Devi and Jitin Ram Manjhi! They have the option to appeal to Apex Court but they have no strong ground to sustain their tall claims and are therefore likely to lose their also! So they have no option left before them but to evict. No doubt, very rightly so!