Uttarakhand HC strikes down Act validating illegal occupation of State Bungalows by Ex-Chief Ministers for free over 19-year period

The Uttarakhand High Court on Tuesday struck down a law brought in by the State Government to validate the free occupation of State-provided bungalows by former Chief Ministers and the illegal expenditure incurred on that account over a 19-year period (Rural Litigation and Entitlement Kendra v. State of Uttarakhand and others). .The law under question, and which has now been struck down as void and unenforceable, is the Uttarakhand Former Chief Ministers Facility (Residential and other facilities) Act, 2019 (Act 5 of 2020, hereinafter referred to as 'the Act')..A writ petition had been filed challenging this law by the Rural Litigation Entitlement Kendra (RLEK). While allowing the same, the Court also made note to point out that, ."The State and/ or its agencies/ instrumentalities cannot extend largesse to any person at the sweet will and whim of political entities and/ 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."Uttarakhand High Court.The Bench of Chief Justice Ramesh Ranganathan and Justice Ramesh Chandra Khulbe added that after a Chief Minister demits office, he is on par with the common man. ."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 earlier is a matter of history, and cannot form the basis of a reasonable classification to categorise previous holders of public office as a special category of persons entitled to the benefit of special privileges", the Court said..Inter alia, the petitioner pointed out that the Act had been brought about to undo the effect of the May 2019 judgment passed by the High Court whereby the ex-Chief Ministers were asked to vacate bungalows that they continued to occupy free of cost despite their terms having come to an end. .At the time, the Court had also directed that the former Chief Ministers pay market rent for the term of their illegal occupation over a 19 year period. After a review plea challenging this ruling was dismissed, the State Government first brought in an ordinance and, thereafter, the Act. RLEK went on to challenge this Act as well. .On Tuesday, the High Court concurred with the petitioner's submissions that the Act had been passed to to negate the mandamus issued by the High Court in its May 2019 ruling.."The Legislature cannot set at naught judgments, which have been pronounced, by amending the law not for the purpose of making corrections or removing anomalies but to bring in new provisions which did not exist earlier, that too retrospectively. The Legislature is bound by the mandamus issued by the Court", the Court said. .In this backdrop, it went on to rule that the 2019 Act was manifestly arbitrary in itself.."... conferment of the benefits, of concessional accommodation, and various other facilities being provided free of cost, on the former Chief Ministers is without any adequate determining principle, excessive and grossly disproportionate, and must, therefore, be held to suffer from manifest arbitrariness and to fall foul of Article 14 of the Constitution."Uttarakhand High Court.The Court observed that, "As rightly contended by Dr.Kartikey Hari Gupta, learned counsel for the petitioner, it is a constitutional impossibility for the expenditure, illegally incurred over a period of nineteen years, to now be ratified by the State Legislature.".Inter alia, the Court noted that,Expenditure for providing various facilities to the former Chief Ministers could have been incurred only on appropriation by law from the Consolidated Fund of the State, and that too in the manner provided in the Constitution (under Article 266(3)). The Act in question falls afoul of this process, violating Articles 202 to 207 and Article 266(3) of the Constitution of India. Section 4(c) of Act 5 of 2020, (which extends to the former Chief Ministers the benefit of various facilities free of cost), is illegal and ultra vires, and is liable to be declared void and unenforceable on this score.While withdrawals from the Consolidated Fund of the State can only be made for a public purpose, no public purpose is served in providing these facilities to the former Chief Ministers post their demitting office. Even otherwise these constitutional provisions (i.e. Articles 202 to 207) disable the State legislature from ratifying the illegal expenditure incurred by the Executive earlier, that too over a period of 19 years,in providing various facilities to the former Chief Ministers.In the May 2019 ruling as well, the Court found that his process had not been followed before incurring expenditure towards provision of accommodation and various other facilities to the former Chief Ministers. This defect has not been removed even after the enactment of Act 5 of 2020. The Act in question seeks to negate the findings of the Division Bench and to overrule the May 2019 judgment, whereby the former Chief Ministers were directed to pay market rent for the bungalows provided for their occupation post their demitting office as Chief Ministers.Any attempt by the State Legislature to enact a law only to overrule a judicial decision violates the doctrine of separation of powers which is an entrenched principle in the Constitution of India..The Court proceeded to conclude that the provisions of the challenged Act were "ultra vires the powers of the State Legislature, the separation of powers doctrine, and that they violate Article 14 of the Constitution, as the judicial decision of a Court of competent jurisdiction is sought to be overruled thereby.".The judges added that in persons holding high offices should not take decisions to gain material benefits from themselves or their family and friends, remarking further that, ."Acts of constitutional functionaries, and persons holding high offices, which are tainted by nepotism, jobbery, or self- aggrandizement at the cost of the public exchequer, (when millions of Indian citizens hardly have adequate means of survival, and find it extremely difficult to eke out their livelihood each day), should not be disregarded. Legislative support, to such acts of theirs, violates the doctrine of equality laid down in Article 14 and must, unhesitatingly, be declared void and unenforceable.".In this backdrop, the Bench also emphasised that the Constitutional Courts should not hesitate in declaring an unconstitutional law void and unenforceable..Dr Kartikey Hari Gupta appeared for the petitioner (RLEK). Additional Advocate General MC Pande argued for the State Government. Senior Counsel Rakesh Thapliyal and Advocates Vikas Bahuguna and Mamta Bisht appeared for other respondents in the matter..Read the Judgment: