Patna High Court
Based On The Order Of Honble The Chief ... vs The State Of Bihar And Ors on 19 February, 2019
Author: Amreshwar Pratap Sahi
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.690 of 2019
======================================================
Based on the order of Hon'ble the Chief Justice Dated 07.01.2019
"In Re Life Time Allotment of Bungalows to Former Chief Ministers of the
State of Bihar with Unlimited Financial Maintenance Facilities."
... ... Petitioner/s
Versus
1. The Chief Secretary, Government of Bihar, Patna-800 001.
2. The Principal Secretary, Building Construction Department, Bihar, Patna.
3. The Estate Officer, Building Construction Department, Bihar, Patna.
4. The District Magistrate, District, Patna.
5. Shri Satish Prasad Singh, House No.33/A, Hardinge Road, Patna.
6. Dr. Jagannath Mishra, House No.41, Kranti Marg (Hardinge Road), Patna.
7. Shri Lalu Prasad, House No.10, Circular Road, Patna.
8. Smt. Rabri Devi, House No.10, Circular Road, Patna.
9. Shri Nitish Kumar, House No.07, Circular Road, Patna.
10. Shri Jitan Ram Manjhi, House No.12M, Strand Road, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s :
For the State : Mr. Lalit Kishore, Advocate General
For Shri Satish Prasad Singh : None
For Smt. Rabri Devi & : Mr. Abhinav Shrivastava, Advocate
Sri Lalu Prasad
For Shri Jitan Ram Manjhi : Mr. Dinu Kumar, Advocate
Mr. Arvind Kumar Sharma, Advocates
Ms. Sangita Kumari, Advocate
Mr. Vijay Kumar Vimal, Advocate
For Shri Jagannath Mishra : Mr. Nityanand Jha, Advocate
Mr. Rajani Kant Mishra, Advocate
Mr. Suresh Mishra, Advocate
For the Intervenor : Mr. Sunil Kumar Singh ( in person)
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL JUDGMENT
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(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 19-02-2019
The Preamble to the Constitution is a declaration by the
people of India that they have resolved to constitute India into a
Sovereign, Socialist, Secular, Democratic Republic. The equality
of status and opportunities is guaranteed and laws inconsistent
with and in derogation of the fundamental rights shall be to that
extent void. As to what form of Republic as envisaged in our
Constitution has been explained by a Division Bench of this Court
in the case of Janardan |Singh Vs. State of Bihar, 2011 (2) PLJR
28, where our Court has recognized the authority of "We the
People of India" in the following words in paragraph 13 of the
report:-
"13. The preamble of the Constitution of India
declares India a "Sovereign Socialist Secular Democratic
Republic, securing for its citizens justice-social, economic
and political; liberty-of thought, expression, belief; faith
and worship; equality-of status and of opportunity, besides
promoting among people of India fraternity assuring the
dignity of the individual and the unity and integrity of the
Nation". The words 'democratic republic' may sometimes
cause confusion as to what does it really mean because a
republic could never be said to be a democracy in the real
sense of the term. A republic is a system of Government
which has the participation of the citizens who could be
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governed in electing persons who have lastly to govern
them. Thus, it may appear a system of governance by
representatives of the citizens of the republic except a
monarch. But, it, ultimately, has a single head of State
who rules the governed. Directly or indirectly, the people's
participation in the republic system of Government is to
seek approval, consent or acclaim to proposed policies of
the person who was likely to govern the citizens, as we
find it in the United States of America. Democracy, in any
of its forms, could not be said to be akin to a republic.
Democracy which was ushered in by our Constitution, in
sum and substance, speaks of a system of Government,
which is wholly a representative democracy, where the
powers of the majority are exercised within the framework
of constitutional restraints designed to guarantee the
citizens in the enjoyment of certain individual or
collective rights. The individual or collective rights which
have been created or guaranteed by our Constitution to the
people of India are very much enlisted by the preamble
and that gets further adumbrated in Part-III. Those special
features distinguish our democratic republic from the other
republic. In fact, the republican feature of one person
ruling the people is reflected by our Constitution by
recognizing the 'People of India' as the supreme ruler. But
again it hardly requires to be pointed out that right or
liberties guaranteed by the Constitution are also not
immune, they may be abridged, suspended or even
snatched."
The element of arbitrariness in legislations repulsive to
norms under Part-III of the Constitution through any State action is
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open to challenge and as per the law declared by the Apex Court in
the case of Shayara Bano Vs. Union of India, reported in (2017)
9 SCC 1. This test can be applied to invalidate a legislation
through judicial review. Whether the issue raised in this Public
Interest Litigation conforms to the Socialist and Democratic norms
of this Republic or not has been taken up by us suo moto to be
answered for determining the rights and privileges conferred on
the Ex-Chief Ministers to retain an official Government
Bungalow/Premises allotted by the State Government for their life
free of all charges and with unbounded limits of maintenance
expenditure.
2. It is in this background that the provisions of the
Bihar Special Security Group Act, 2000 as amended by Bihar Act
No.10 of 2010 relating to a life time allotment of Government
premises for residential purposes to Ex-Chief Ministers, who have
already demitted office came to the notice of this Court as
manifested in the Cabinet Resolution dated 2nd of July, 2014, the
Resolution of the Building Construction Department, Government
of Bihar, dated 30.12.2014, the Office Memorandum of the
Building Construction Department, Government of Bihar dated
22nd March, 2016 followed by the Notification of the same
Department dated 25th May, 2018, the Office Memorandum dated
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7th January, 2019 and 22nd January, 2019, that have been brought
on record through the affidavit of the respondent-State of Bihar.
The allotments have been laid to scrutiny in this Public Interest
Litigation as being not in conformity with law and the
pronouncement of the Apex Court in the case of Lok Prahari
through General Secretary Vs. State of Uttar Pradesh and
others reported in (2018) 6 SCC 1.
3. A Division Bench presided over by us while hearing
Letters Patent Appeal No.1543 of 2018 (Tejashwi Prasad Yadav
Versus The State of Bihar & Ors. reported in 2019 (1) PLJR
622) relating to the claim of retention of an official Bungalow by
the leader of the opposition of the Bihar Legislative Assembly
noticed the Office Memorandum of the Building Construction
Department dated 22nd March, 2016 and called upon the office to
register a Public Interest Litigation under the note dated 7 th
January, 2019. Accordingly, this Public Interest Litigation was
taken up on 8th January, 2019 and a detailed order was passed by
us as to why suo motu proceedings deserve to be registered in
order to examine the validity of the State action relating to
allotment of Government Bungalows/Premises to Ex-Chief
Ministers in the State of Bihar at Government expense for their life
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time and with unlimited finances available for maintaining them.
The order passed on 8th January, 2019 is extracted hereinunder:-
"This Public Interest Litigation has been registered
in the light of the suo motu notice taken under the order
dated 7th January, 2019 passed on the administrative side,
which is extracted hereinunder:-
"A Division Bench presided over by me along
with Hon'ble Justice Smt. Anjana Mishra while hearing
L.P.A. No. 1543 of 2018 came across an office
memorandum dated 22nd March, 2016 of the Building
Construction Department, Government of Bihar in the
matter of a lifetime allotment of Bungalows to former
Chief Ministers of the State of Bihar. The said office
memorandum has been filed along with a counter
affidavit filed on behalf of the respondent-State in the
said Letters Patent Appeal. A photostat copy of the
same is enclosed herewith.
The said office memorandum spells out that
former Chief Ministers of Bihar would be entitled to
retain ear-marked Bungalows referred to therein fully
furnished for their lifetime and with all facilities
including maintenance that shall be looked after by the
State Government without any financial limits.
The office memorandum also recites that this
decision was being taken by the Government in special
circumstances keeping in view that security concerns
have to be reviewed when a Chief Minister demits
office and has also to be provided facilities.
The said office memorandum appears to be
prima facie against public policy and public interest as
it practically creates a lifetime occupancy to public
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property at the unlimited cost of public exchequer in the
name of security and other facilities that are available to
former Chief Ministers. Such facilities do not appear to
be Constitutionally permissible and the provisions of
the Bihar Special Security Force (Amendment) Act,
2010 do not in any way create any such obligation of
providing such facilities for lifetime and with no limit
on finances and expenses.
The said office memorandum is at best an
executive instruction and it appears to transgress the
limits of allotment as prescribed under Act No. 15 of the
Bihar Ministers' (Salary and Allowances), Act, 2006 and
Act No. 16 of the Bihar Legislative Assembly (Salary,
Allowances and Pension of Members) Act, 2006 as well
as the rules framed thereunder. The said Act and the rules
nowhere permit any such lifetime allotment of
Bungalows to former Chief Ministers and rather limit the
allotment only to the tenure during which a person is
either a Minister or a person entitled for allotment under
the time limit prescribed under the said Act and the
Rules. The time limit having been prescribed in the Act
and the Rules, the extension of allotment with lifetime
occupancy to former Chief Ministers, therefore, is ultra
vires the aforesaid provisions.
This, therefore, requires a scrutiny by way of a
judicial review in public interest as it directly involves
public exchequer and amounts to a permanent creation of
occupancy rights with unlimited maintenance expenditure
in favour of elected representatives who cease to hold
office on the expiry of their tenure or otherwise. The very
concept of retention of lifetime public premises has been
deprecated by the Apex Court in the case of Lok Prahari
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Through General Secretary Vs. The State of Uttar
Pradesh & Ors. Reported in 2018 (6) SCC 1 and such
provisions have been struck down as ultra vires by the
Apex Court.
The matter, therefore, deserves to be dealt with on
the judicial side as a Public Interest Litigation for which
notices will have to be issued to the Chief Secretary,
Government of Bihar, Patna, Principal Secretary,
Building Construction Department, Bihar, Patna, the
Estate Officer, Building Construction Department, Bihar,
Patna, the District Magistrate, Patna and to the allotees,
namely, Shri Satish Prasad Singh, allotted House No.
33/A, Hardinge Road, Dr. Jagannath Mishra, allotted
House No. 41, Kranti Marg (Hardinge Road, Patna), Shri
Lalu Prasad, allotted House No. 10 Circular Road, Smt.
Rabri Devi, allotted House No. 10, Circular Road, Shri
Nitish Kumar, allotted House No. 7, Circular Road and
Shri Jitan Ram Manjhi, allotted House No. 12M, Strand
Road.
Let this, therefore, be registered as a Public
Interest Litigation and be placed before the Public
Interest Litigation Bench for passing of appropriate
orders captioned as "In Re Life Time Allotment of
Bungalows to Former Chief Ministers of the State of
Bihar with Unlimited Financial Maintenance Facilities".
The papers be placed accordingly before the appropriate
Bench.
The learned Advocate General Shri Lalit Kishore has
put in appearance and has pointed out that in view of the
second proviso to Section 2 of the Bihar Special Security
Force (Amendment) Act, 2010 a former Chief Minister would
be eligible for the allotment of a house free of expenses in
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Patna Urban Area at a secured place and, therefore, so long as
the said provision exists it cannot be said that the executive
instruction issued on 22nd March, 2016 is invalid or ultra vires
either the provision of any Act or even violative of the
Constitutional provisions. He, therefore, submits that the issue
raised in the Public Interest Litigation has to be tested on the
anvil of the said provision to ascertain as to whether the
facility extended for lifetime occupation of a Bungalow with
no limit on the financial implications relating to the
maintenance of the Bungalow would be permissible or not?
In order to appreciate the aforesaid arguments
advanced, we may put on record that the learned Advocate
General is correct in his submission that the source of
authority for such allotment of Bungalow to former Chief
Ministers is available in terms of Section 2 of the 2010
Amendment Act and, therefore, it is the vires of the said
provision which will have to be tested in order to further
ascertain as to whether the notification dated 22nd March,
2016 would be legally and Constitutionally valid or not.
Prima facie, we find that the language of the second
proviso to Section 2 of the 2010 Amendment Act simply
recites that irrespective of the status of a person who has been
earlier a Chief Minister of the State, the said person would be
eligible for allotment of an official Bungalow free of
expenses. The said proviso does not indicate that it will be a
lifetime allotment and that there would be no financial limit in
relation to the maintenance facilities of the said Bungalow.
While examining the aforesaid provision, one has to
keep in mind that Act No. 15 and Act No. 16 of 2006 relating
to the Ministers and the Members of the Legislative Assembly
do not make any such prescription or carve out any such
exception in relation to former Chief Ministers and, therefore,
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the question of extending any such benefit to former Chief
Ministers under the aforesaid Acts does not arise.
It is, therefore, evident that the source of such
eligibility for allotment emanates from the provisions of
Section 2 of the 2010 Amendment Act.
The question, therefore, is as to whether the second
proviso to Section 2 (i) of the Amendment Act 2010 itself is
Constitutionally valid or otherwise violates Article 14 of the
Constitution of India. For this, a necessary reference,
therefore, has to be made to the pronouncement of the Apex
Court in the case of Lok Prahari through its General
Secretary Vs. State of Uttar Pradesh and others, reported
in (2018) 6 SCC 1.
A perusal of Paragraph 5 and Paragraph 10 of the said
judgment would indicate the issues that were raised in the
said judgment that are extracted hereinunder for ready
reference:-
"Section 4 of the 1981 Act, as originally enacted
and as amended in the year 2016 by the 2016
Amendment, is in the following terms:
Section 4 of the Act, Section 4 of the Act, as amended in the year
as originally enacted 2016 by 2016 Amendment (U.P. Act 22 of 2016)
"4. Residence.-(1) Each "4. Amendment of Section 4.- For Section 4 of the
Minister shall be entitled principal Act, the following sections shall be
without payment of any substituted, namely:
rent to the use throughout '4. (1) The Chief Minister and each Minister shall
the term of his office and be entitled, without payment of any rent to the use,
for a period of fifteen days throughout the term of his office and for a period of
thereafter, of a residence at fifteen days thereafter, of a residence at Lucknow
Lucknow which shall be which shall be furnished and maintained at public
furnished and maintained expense at the prescribed scale.
at public expenses at the (2) Where the Chief Minister or a Minister has not
prescribed scale. been provided with a residence in accordance with
(2) Where a Minister has sub-section (1) or does not avail of the benefit of the
not been provided with a said sub-section, he shall be entitled to a
residence in accordance compensatory allowance at the rate of-
with sub-section (1), or (a) ten thousand rupees per month in the case of the
does not avail of the Chief Minister, a Minister, a Minister of State
benefit of the said sub- (Independent Charge) and a Minister of State;
section, he shall be entitled (b) eight thousand rupees per month in the case of a
to a compensatory Deputy Ministers.
allowance at the rate of- (3) A government residence shall be allotted to a
(a) three hundred rupees former Chief Minister of Uttar Pradesh, at his/her
per month in the case of request, for his/her lifetime, on payment of such
Deputy Minister, and rent as may be determined from time to time by the
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(b) five hundred rupees Estate Department of the State Government."
per month in any other
case."
10. Having noted the salient features of the provisions of
the 1981 Act, the question that arises for determination in the
present proceedings may be summarised as follows:
"Whether retention of official accommodation by
the functionaries mentioned in Section 4(3) of the 1981 Act
after they had demitted office violates the equality clause
guaranteed by Article 14 of the Constitution of India."
The Supreme Court while proceeding to test the issues
also took notice of the fact that this issue needs to be addressed
by all States throughout the country and it did take notice that
the State of Bihar was duly represented before the Court in the
said case as indicated in Paragraph 12 of the said judgment
which is extracted hereinunder:-
"12. Though the issue in the present proceeding is
strictly confined to the provisions of the 1981 Act, having
regard to the fact that there may be similar/pari materia
provisions in force in different States/Union Territories and
also in the Union we had thought it proper to inform,
through the learned Amicus Curiae, the law officers of the
Union and all the States/Union Territories of the pendency
of the present writ petition and the issues arising therein.
Pursuant thereto, the responses of the Union and the States
of Assam, Bihar, Tamil Nadu and Odisha have been
received. Shri Aman Lekhi, learned ASG has submitted that
the government accommodation is provided to former
Presidents, Vice Presidents, Prime Ministers of the country.
The issue had come up for consideration in this Court in
Shiv Sagar Tiwari V. Union of India (1997) 1 SCC 444
wherein this Court has approved the action taken in the
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matter of provision of official accommodation to the
aforesaid dignitaries under the extant Rules in the following
manner: (SCC p. 468, para 72)
"72. Keeping in view the very high constitutional
position occupied by the President, Vice President and
Prime Minister, we feel no difficulty in stating that they
should be accommodated in government premises after
demitting of office by them, so that problem of suitable
residence does not trouble them in the evening of life. What
should be the terms of the same is a matter to be decided by
the Government."
The Supreme Court also took notice of the fact that such
a provision did exist under executive instructions in the State of
Bihar which is indicated in Paragraph 13, extracted
hereinunder:-
"13. Insofar as the States of Tamil Nadu and Odisha
are concerned, it is clear from the communications
received from the Advocates General of the said States
by the office of the learned Amicus Curiae Shri Gopal
Subramanium that no provision for official
accommodation to former Chief Ministers has been
made by the said two States whereas in the case of the
States of Bihar and Assam such provision has been
made by executive instructions issued by the State
under Article 162 of the Constitution of India."
It appears that the provisions of the Amendment Act,
2010 were either not brought to the notice of the Apex Court or
had escaped the notice for one reason or the other.
Nonetheless, taking note of the enactment that was under
challenge before the Apex Court relating to the State of Uttar
Pradesh, the Apex Court observed that it was the duty of the
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Court to take urgent action to prevent any such invalidity
perpetuating in future. In Paragraphs 28, 29 and 30 of the said
report in the case of Lok Prahari (supra) the Supreme Court
also reiterated the test which was to be considered in order to
uphold or otherwise the validity of any such State action on the
principles of manifest arbitrariness and while doing so, it
referred to the judgment of the Apex Court in the case of
Shayara Bano Vs. Union of India, reported in (2017) 9 SCC 1
and held that this test can be applied to invalidate legislation as
well which was subject to judicial review. Paragraph 36 of the
said report, therefore, categorically concludes that judicial
review was permissible and in the said decision the Apex Court
further held that the Legislative Act which was under challenge
before the Apex Court relating to the State of Uttar Pradesh that
was on similar lines as involved herein was a clear act of
legislative overreach in order to nullify the effect of the
earlier Supreme Court decision referred to therein.
The Apex Court thereafter enunciated the testing of the
relevant provisions on the anvil of Article 14 of the Constitution
of India and held that such allocation of Bungalows on a
lifetime basis would amount to create a separate class and
also observed that a former Chief Minister after demitting
office is also a common citizen. Paragraphs 38 and 39 of the
report are illustrative of the aforesaid ratio decidendi of the
Apex Court which is gainfully extracted hereinunder:-
"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 on a par
with the common citizen, though by virtue of the office
held, he/she may be entitled to security and other
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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 categorise
previous holders of public office as a special category of
person 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 recognising 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."
If the aforesaid tests laid down by the Apex Court are
taken into consideration then the second proviso to Section 2(i)
of the 2010 Amendment Act for allotting a Bungalow to a
former Chief Minister free of expenses may not stand the
scrutiny of the said law laid down by the Apex Court, more so,
the prescription being defined under the notification dated 22 nd
March, 2016 which provides for a lifetime allotment with
unlimited financial maintenance facilities is clearly in teeth of
the law propounded by the Apex Court nor are such provisions
decipherable or deducible under the proviso to Section 2(i) of
the 2010 Amendment Act. In our opinion, therefore, prima facie
the said proviso of the 2010 Amendment Act is clearly ultra
vires the provisions of Article 14 of the Constitution of India and
so is the notification dated 22nd March, 2010.
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We, therefore, request the learned Advocate General for
the State of Bihar to file an appropriate affidavit on behalf of the
State Government through the Chief Secretary calling upon him
to explain as to why the second proviso to Section 2(i) of the
2010 Amendment Act be not struck down as ultra vires to
Article 14 of the Constitution of India and as to why the
notification dated 22nd March, 2016 be also not declared as such
keeping in view the pronouncement of the Apex Court in the
case of Lok Prahari (supra).
We also issue notice to all the allottees under the
notification dated 22nd March, 2016 calling upon them to file a
response in the light of what has been stated above by the next
date fixed.
While filing the affidavits, the State of Bihar as well as
the noticees shall also explain that if the issue is of security
under the Bihar Special Security Force Act, as amended in 2010,
then why cannot such security be provided to such former Chief
Ministers who have their private residence within the city of
Patna itself and why should they be not debarred from any such
allotment in future.
As prayed by the learned Advocate General, let the matter
come up after four weeks on 11th of February, 2019."
4. Six Ex-Chief Ministers, including the present Chief
Minister (who has also served as a Chief Minister previously),
who were allotted the premises under the said category of Ex-
Chief Ministers, were served with notices, whereafter the matter
was taken up on 11th February, 2019 when we passed the following
order:-
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"Notices were issued on 8th January, 2019. In spite of
service of notice, no response has come forward on behalf of
Shri S. P. Singh. Notices have also been served on the other
respondents and they are represented by their respective counsel.
Shri Abhinav Shrivastava has filed his vakalatnama
on behalf of Smt. Rabri Devi and also submits that his
appearance may also be recorded in relation to Shri Lalu Prasad
as the same house number under allotment is the subject matter
of dispute, namely, House No.10 Circular Road, to both these
persons.
Shri Dinu Kumar and three other counsel have filed
their vakalatnama on behalf of Shri Jitan Ram Manjhi.
Shri Nityanand Jha, Shri Rajani Kant Mishra and
Shri Suresh Mishra have filed their response on behalf of Shri
Jagannath Mishra.
The learned Advocate General has filed his affidavit
on behalf of the State of Bihar and he points out that in view of
the memorandum dated 7th of January, 2019, it is not necessary
for the present Chief Minister Shri Nitish Kumar, who is also
one of the allottees, to now file a response as the said
memorandum clearly indicates the surrender of '07 Circular
Road' which has now been earmarked for being occupied by the
Chief Secretary of the State of Bihar.
We have perused the affidavit filed on behalf of the
State of Bihar and have also heard the learned counsel appearing
for the respective noticees aforesaid.
We have also heard Shri Sunil Kumar Singh, who has
filed an I.A. No. 01 of 2019.
Put up for delivery of judgment on 19th February,
2019."
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5. Sri Lalit Kishore, the learned Advocate General,
Bihar, with the aid of the counter affidavit on behalf of the Chief
Secretary, Government of Bihar, sworn by Sri Girish Mohan
Thakur, Under Secretary, Home Department (Police Branch)
advanced his submissions contending that the allotment of the
Premises No.7, Circular Road, in favour of the present Chief
Minister Shri Nitish Kumar on 25th May, 2018 in the category of
an Ex-Chief Minister has been modified vide an Office
Memorandum dated 7th January, 2019, whereby the allotment of
the said premises in favour of Shri Nitish Kumar has been
rescinded and has been modified by allotting the said premises as
the official residence of Chief Secretary of the Government of
Bihar. It was, however, clarified in the said Office Memorandum
that since the official residence of the Chief Minister, 1, Anne
Marg, was under repair and renovation, the premises of 7, Circular
Road would be vacated as soon as the said official residence is
available to the Chief Minister and simultaneously, the Chief
Secretary will, for the time being, run his Camp Office at No.2,
Circular Road. This was followed by another Office Memorandum
dated 22nd January, 2019 whereby it was notified that the Chief
Minister has now occupied his official residence of 1, Anne Marg
and therefore, henceforth, the premises of 7, Circular Road stands
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allotted to Shri Deepak Kumar, the Chief Secretary, Government
of Bihar.
6. In view of these developments, it is urged by the
learned Advocate General that the present Chief Minister is no
longer in the occupation of the Bungalow allotted to him as an Ex-
Chief Minister, namely, 7, Circular Road, which now stands
allotted to the Chief Secretary, Government of Bihar and hence
there is no occasion now for the present Chief Minister Shri Nitish
Kumar to further file any response in respect of the allotment of
the premises 7, Circular Road in the capacity of an Ex-Chief
Minister.
7. The learned Advocate General, however, while
advancing his submission contended that the power to make such
allotments in relation to Ex-Chief Ministers was an outcome of the
introduction of a statutory provision through the amendment in the
2000 Act that was published in the Gazette on 13 th April, 2010.
The said amendment in the year 2010 introduced the provision of
allotment of premises to an Ex-Chief Minister in the urban area of
Patna free of charges in terms of Section 4 of Act No.8 of 2000.
8. Section 4 as it stood when enacted before amendment
is extracted hereinunder:-
"4. Constitution of the Group.- (1) There shall
be an armed force of the State Called the Special Security
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Group for providing proximate security to persons
specified in sub-section (2) of this section.
(2) The Special Security Group shall provide
proximate security to:-
(a) The Chief Minister.
(b) Members of the immediate family of the
Chief Minister.
(c) Ex-Chief Ministers for a period of 5 years
after they have demitted Office, or such further period as
notified from time to time by State Government.
(3) Subject to the Provisions of this Act, the
Group shall be constituted in such manner as may be
prescribed and the terms and conditions of service of the
members of the Group shall be such as may be prescribed.
(4) Notwithstanding anything contained in this
section, any person or any member of the police force of
the State may be appointed to this group by the State
Government by a general specific order and for such
period as may be specified in such order and the person so
appointed shall during the period of his appointment be
deemed to be a member of the group, and the provisions
of this Act shall, so far as may be, apply to such person or
member."
9. The amendment which was brought about through the
Bihar Special Security Group Amendment Act, 2010 is extracted
hereinunder in its entirety:-
fcgkj fo"ks'k lqj{kk ny ¼la"kks/ku½ vf/kfu;e] 2010
¼fcgkj fo/kku eaMy }kjk ikfjr½
Patna High Court CWJC No.690 of 2019 dt.19-02-2019
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izLrkouk%& tcfd eq[; ea=h iwoZ eq[; eaf=;ksa ,oa muds vO;ofgr ikfjokfjd
lnL;ksa dks leqfpr lqj{kk iznku djus ds fopkj ls fcgkj fo"ks'k lqj{kk ny
vf/kfu;e] 2000 ds vUrxZr fo"ks'k lqj{kk ny eqgS;k djk;h tkrh gSA
tcfd mxzokfn;ksa ,oa vkradoknh laxBuksa ls vuqHkwr [krjksa dks
/;kuxr j[krs gq, ;g mfpr le>k x;k gS fd eq[; ea=h ,oa iwoZ eq[; eaf=;ksa dks
leqfpr lqj{kk iznku dh tk;A
vr,o fcgkj fo"ks'k lqj{kk ny vf/kfu;e 2000 ¼fcgkj vf/kfu;e 8]
2000½ esa la"kks/ku vko";d gks x;k gSA
Hkkjr x.kjkT; ds bdlBosa o'kZ esa fcgkj jkT; fo/kku eaMy }kjk
fuEufyf[kr :i esa ;g vf/kfu;fer gks%&
1- laf{kIr uke] foLrkj vkSj izkjaHkA & ¼1½ ;g vf/kfu;e] fcgkj fo"ks'k lqj{kk
ny ¼la"kks/ku½ vf/kfu;e] 2010 dgk tk ldsxkA
¼2½- bldk foLrkj lEiw.kZ fcgkj jkT; esa gksxkA
¼3½- ;g rqjr izo`Rr gksxkA
2- fcgkj vf/kfu;e 8] 2000 dh /kkjk&4 dk la"kks/kuA fcgkj fo"ks'k lqj{kk ny
vf/kfu;e 2000 dh /kkjk&4 esa
¼i½ mi/kkjk&¼2½ dks fuEufyf[kr :i esa izfrLFkkfir fd;k tk;sxk] ;Fkk&
^^¼2½ fo"ks'k lqj{kk ny vklUu lqj{kk iznku djsxk%&
¼d½ eq[; ea=hA
¼[k½ eq[; ea=h ds vO;ofgr ikfjokfjd lnL;ksaA
¼x½ iwoZ eq[; eaf=;ksa dks in R;kx dh frfFk ls ik¡p o'kksZ dh vof/k ds fy,A
ijarq iwoZ eq[; ea=h ik¡p o'kZ dh vof/k lekfIr ds i"pkr~ mfpr lqj{kk
gsrq Ik;kZIr lqj{kk dfeZ;ksa }kjk muds vkokl ,oa jkT; ds vUrxZr ;k=k Hkze.k ds nkSjku]
cqysVizqQ okgu bR;kfn ds ik= gksxs tSlk fd jkT; ljdkj }kjk fofgr fu;kessa ds vuqlkj
vFkok bl laca/k esa dksbZ vkns"k fuxZr fd;k tk;sxkA
ijarq ;g vkSj fd inkof/k dks /;ku esa j[ks fcuk iwoZ eq[;
ea=hx.k iVuk "kgjh {ks= ds vUrxZr lqjf{kr {ks= esa fu%"kqYd ljdkjh vkokl ds
ik= Hkh gksaxsA^^
¼ii½ ,d ubZ mi/kkjk&¼3½ dks fuEufyf[kr :i ls var%LFkkfir fd;k tk;sxk rFkk
fo|eku mi/kkjk ¼3½ ,oa ¼4½ mi/kkjk ¼5½ ds :i esa Øeafdr fd;k tk;sxk&
^^¼3½ ;fn dksbZ iwoZ eq[; ea=h ds varjax ikfjokfjd lnL; Hkh iwoZ eq[;
ea=h jgs gksa rksa mi/kkjk ¼2½ dh vkoklh; ,oa vkoklh; lqj{kk xkMZ
iznku dh tkus okyh lqfo/kkvksa dks nksgjk;k ugh tk ldsxkA^^
13 vizhy 2010
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l0 ,y0th0&1&11@2010@yst- 121& fcgkj fo/kku eaMy }kjk ;Fkkikfjr vkSj
jkT;iky }kjk fnukad 8 viSzy 2010 dks vuqer fcgkj fo"ks'k lqj{kk ny¼la"kks/ku½
vf/kfu;e] 2010 dk fuEufyf[kr vaxzsth vuqokn fcgkj&jkT;iky ds izkf/kdkj ls blds
}kjk izdkf"kr fd;k tkrk gS] ftls Hkkjrh; lafo/kku ds vuqPNsn &348 ds [kaM ¼3½ ds
v/khu mDr vf/kfu;e dk vaxszth Hkk'kk esa izkf/kd`r ikB le>kk tk;sxk%&
fcgkj&jkT;iky ds vkns"k ls]
jktsUnz dqekj feJ]
ljdkj ds lfpo]
10. The newly amended Section quoted above
introduced two provisos and a new sub-section (3). The two
provisos became part of Section 4(2) (i) and the new sub-section
was introduced as Section 4(2) (ii). Both these provisions have
been highlighted hereinabove.
11. The learned Advocate General contends that it is in
exercise of such powers under the 2010 Amendment Act that a
Resolution was passed by the Cabinet on 2nd July, 2014 extracted
hereinunder:
fcgkj ljdkj
ea=heMy lfpoky; foHkkx
%ladYi%
ladYi la0&3@lh0 ,l0@,e0 fofo/k&10@2014--@ iVuk&15] fnukad----------2014-
fo'k; %&ekuuh; iwoZ eq[; eaf=;ksa dks vfrfjDr lqfo/kk miyC/k djkus ds lEcU/k esaA
ekuuh; iwoZ eq[; eaf=;kas }kjk vius in /kkj.k ds nkSjku cgqr
lkjh laLFkkvksa@O;fDr;ksa ds lkFk lEidZ esa jguk iM+rk gS rFkk cgqr lkjs
lkoZtfud nkf;Roksa dks fuokZg djuk iM+rk gS tks muds in R;kx ds mijkar
lEkkIr ugha gks tkrs gSaA
02- vr% mDr nkf;Roksa ds lE;d fuoZgu dks n`f'ViFk esa j[krs gq, iwoZ eq[; eaf=;ksa
dks fuEukafadr :i ls futh deZpkfj;ksa rFkk vU; lqfo/kk miyC/k djkus dk fu.kZ; fy;k
x;k gS %&
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¼d½ vkIr lfpo ¼01½ ,d ¼ljdkjh vFkok futh½
¼[k½ futh lgk;d ¼01½ ,d ¼ljdkjh vFkok futh½
¼x½ fuEuoxhZ; fyfid ¼02½ nks ¼futh½
¼?k½ vkns"kiky ¼03½ rhu ¼futh½
¼M+½ pkyd ¼01½ ,d ¼futh½
03- ekuuh; iwoZ eq[; eaf=;ksa ds vko";d miLdjks lfgr lqlfTtr vkokl
ftlesa fu%"kqYd fctyh O;; Hkh "kkfey gS] miyC/k djkbZ tk;sxhA
mDr dfeZ;ksa rFkk fctyh ij gksus okys O;; dk ogu eq[; ea=h@ea=h ds
osrukfn en ds O;; "kh'kZ ls fd;k tk;sxkA ckg~; dfeZ;ksa ds osrukfn ds lEcU/k esa foÙk
foHkkx dk i=kad &7879 fnukad & 21-07-2010- izHkkoh gksxkA
vkokl ,oa vkoklh; dk;kZy; esa yxs miLdjksa ij gksus okys O;; dk
ogu Hkou fuekZ.k foHkkx }kjk fd;k tk;sxkA
04- ;g vkns"k rkRdkyhd izHkko ls ykxw le>kk tk;sxkA
05- ekuuh; iwoZ eq[; eaf=;ksa dks ;g lqfo/kk thou Ik;ZUr vuqekU;
gksxhA
06- mi;qZDr lqfo/kk ekuuh; iwoZ eq[; eaf=;ksa dks miYC/k djkbZ tk jgh
lqfo/kkvksa ds vfrfjDr gksxhA
07- ;fn dksbZ iwoZ eq[; ea=h ds vO;oâr ikfjokfjd lnL; Hkh iwoZ eq[;
ea=h jgsa gks rks mUgsa iznku dh tkus okyh vkoklh; lqfo/kkvksa dks nqgjk;k ugha
tk;XkkA
vkns"k %& vkns"k fn;k tkrk gS fd ladYi dks fcgkj xtV ds vlk/kkj.k vad esa
izdkf"kr fd;k tk;A lkFk gh ljdkj ds lHkh foHkkxksa dks bldh izfr miYkC?k djk;h
tk;A
g0@&
¼vt; dqekj f}osnh½
ljdkj ds fo"ks'k lfpo
Kkikad&3@lh0 ,l0@,e0 fofo/k&10@2014--------@iVuk&15] fnukad-------------2014-
izfrfyfi&egkys[kkdkj] fcgkj] iVuk dks lwpukFkZ ,oa vko";d dkjZokbZ gsrq iszf'krA
g0@&
¼vt; dqekj f}osnh½
ljdkj ds fo"ks'k lfpo
Kkikad&3@lh0 ,l0@,e0 fofo/k&10@2014---320@iVuk&15]fnukad- 02@07@2014-
izfrfyfi&eq[; lfpo] fcgkj@jkT;iky ds iz/kku lfpo@v/;{k] foÙk ¼yksd m|e C;qjks½
foHkkx foÙk vk;qDr] fcgkj] iVuk lHkh foHkkxh; iz/kku lfpo lfpo@ekuuh; eq[; ea=h
ds iz/kku lfpo@ekuuh; ea=x.k ds vkIr lfpo@lHkh foHkkxk/;{k@dks'kkxkj inkf/kdkjh]
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lfpoky; dks'kkxkj flapkbZ Hkou@fodkl Hkou@fo"os"ojS;k Hkou dks lwpukFk dkjZokbZ
gsrq izsf'krA
¼vt; dqekj f}osnh½
ljdkj ds fo"ks'k lfpo
12. That was followed by a Resolution of the Building
Construction Department, Government of Bihar and orders were
issued on 30.12.2014 in the name of His Excellency, the Governor
of Bihar, to that effect. The same is extracted hereinunder:-
fcgkj ljdkj
Hkou fuekZ.k foHkkx
ladYi
fo'k;%& fcgkj fo"ks'k lqj{kk ny (la"kks/ku) vf/fu;e] 2010 dh /kkjk&4
(x) ds ijUrqd ds rgr iwoZ eq[;eaf=;ksa dks iVuk "kgjh {ks= ds
varxZr lqjf{kr {ks= esa fu%"kqYd iw.kZr% lqlfTtr vkokl miyC/k
djkus ds laca/k esa A
fcgkj fo"ks'k lqj{kk ny ( la"kks/ku ) vf/fu;e]2010 ds rgr eku~uh;
eq[;ea=h ,oa eku~uh; iwoZ eq[;eaf=;ksa dks fo"ks'k lqj{kk iznku djus dk izko/kku gSA
2- mDr vf/kfu;e dh /kkjk&4 ( x ) ds ijUrqd ds rgr iwoZ eq[;eaf=;ksa dks
iVuk "kgjh {ks= ds varxZr lqjf{kr {ks= esa fu%"kqYd ljdkjh vkokl
fn, tkus ds izko/kku ds rgr fn, tkusokys vkokl dks iw.kZr%
lqlfTtr fd, tkus ds lkFk gh vko";d lkt&lTtk] mi'dj
bR;kfn fcuk foRrh; vf/klhek ds miyC/k djkus dk izLrko Hkou
fuekZ.k foHkkx ds ikl fopkjk/khu Fkk A
3- lE;d~ fopkjksijkar ljdkj }kjk fu.kZ; fy;k x;k gS fd iwoZ eq[;eaf+=;ksa dks
iVuk "kgjh {ks= esa fu%"kqYd ljdkjh vkokl miyC/k djkus ds lkFk gh
vkokl dks iw.kZ :is.k lqlfTtr djus rFkk bldk dejs dk fuekZ.k]
j[k&j[kko] vko';d lkt&lTtk lkexzh ,oa miLdj] m|kku dk j[k
j[kko cxSj foRrh; vf/klhek ds fuekZ.k Hkou fuekZ.k foHkkx }kjk
fd;k tk,xk A
4- mi;qZDr izLrko ij eku~uh; eq[;ea=h dk vuqeksnu izkIr gS A
vkns"k% vkns"k fn;k tkrk gS fd bl ldYi dks fcgkj jkti= ds vkxkeh
vklk/kj.k vad esa loZlk/kk.k dh tkudkjh gsrq izdkf"kr fd;k tk, rFkk
bldh izfr lHkh foHkkx@lHkh foHkkxk/;{kksa@egkys[kkdkj
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( ys0 ,oa g0 ) fcgkj lfgr vU; lHkh lacaf/krksa dks izsf'kr dh tk, A
g0@&papy dqekj
24&12
ljdkj ds lfpo
Kkikad &Hk0@eq0v0( i0 ) ;s0fofo/k&8&180@14 13247 y vuq- iVuk ]fnukad 30-12-14
izfrfyfi&v/kh{kd] jktdh; eqnz.kky;] xqytkjckx] iVuk dks ( nks gkMZ dkWih ,oa
lh0Mh0 ds lkFk ) fcgkj jkti= ds vkxkeh vlk/kkj.k vad esa izdk"kukFkZ izsf'kr A
vuqjks/k gS fd bl ladYi ( laYkxu ifjf"k'V lfgr ) dh ikWp lkS eqfnzr izfr;kW
foHkkx dks vfoyEc miyC/k djk;h tk, A
vuq0&;FkksDr
g0@&
papy dqekj
24&12
ljdkj ds lfpo
Kkikad &Hk0@eq0v0( i0 ) ;s0fofo/k&8&180@14 13247 y vuq- iVuk ]fnukad
30-12-14
izfrfyfi&egkys[kkdkj (ys[kk ,oa gdnkjh) fcgkj ohjpan iVsy iFk] iVuk dks (nks vfrfjDr izfr;ksa lfgr) lwpukFkZ ,oa vko";d dk;kZFkZ izsf'kr A g0@&papy dqekj 24&12 ljdkj ds lfpo Kkikad &Hk0@eq0v0( i0 ) ;s0fofo/k&8&180@14 13247 y vuq- iVuk ]fnukad 30-12-14 izfrfyfi&eq[; lfpo@jkT;iky ds iz/kku lfpo@eq[;ea=h ds iz/kku lfpo@lfpo] fcgkj fo/kku lHkk ,oa fcgkj fc/kku ifj'kn@fodkl vk;qDr] fcgkj@fcgkj ljdkj ds lHkh iz/kku lfpo ,oa lfpo@lHkh foHkkx@lHkh foHkkxk/;{k@lHkh izeaMyk;qDr@lHkh ftykf/kdkjh@oS;fDrd nkok fu/kkZj.k dks'kkax]foRr foHkkx]fcgkj ljdkj rFkk Hkou fuekZ.k foHkkx ds eq[;ky; Lrjh; lHkh jktif=r inkf/kdkfj;ksa ,oa iz"kk[kkvksa dks lwpukFkZ ,oa vko";d dk;kZFkZ izsf'kr A g0@&papy dqekj 24&12 ljdkj ds lfpo Kkikad &Hk0@eq0v0( i0 ) ;s0fofo/k&8&180@14 13247 y vuq- iVuk ]fnukad 30-12-14 izfrfyfi&lHkh ea=hx.k@lHkh jkT; ea=hx.k ds vkIr lfpoksa dks lwpukFkZ izsf'kr A Patna High Court CWJC No.690 of 2019 dt.19-02-2019 25/47
13. The aforesaid orders finally led to the allotment to the six Ex-Chief Ministers vide an Office Memorandum dated 22 nd of March, 2016 which is extracted hereinunder:-
fcgkj ljdkj Hkou fuekZ.k foHkkx dk0vk0la0&Hkou+/eq0v0 (n0) oh0fofo/k&8&180/143007(Hk)/iVuk] fnukad- 22-03-2016- dk;kZy; vkns"k fcgkj fo"ks'k lqj{kk ny la"kks/ku vf/kfu;e] 2010 ds rgr Hkou fuekZ.k foHkkx dk ladYi Kkikad 13247( Hk ) iVuk fnukad 30-12-2014 }kjk ljdkj ds Lrj ij fu.kZ; fy;k x;k fd lqj{kk ds n`f'Vdks.k ls iwoZ eq[; eaf=;ksa dks iVuk "kgjh {ks= esa fu%"kqYd ljdkjh vkokl miyC/k djkus ds lkFk gh vkokl dks iw.kZ:is.k lqlfTtr djus rFkk bldk dejs dk fuekZ.k] j[k j[kko] vko";d lkt&lTtk lkexzh ,ao miLdj] m|ku dk j[k j[kko cxSj foRrh; vf/klhek ds fuekZ.k Hkou fuekZ.k foHkkx }kjk fd;k tk;sxk A 2- fcgkj fo"ks'k lqj{kk ny la"kks/ku vf/kfu;e]2010 dh /kkjk&4 esa Li'V gS fd inkof/k dks /;ku esa j[ks fcuk iwoZ eku~uh; eq[;ea=hx.k iVuk "kgjh {ks= ds varxZr lqjf{kr {ks= esa fu%"kqYd vkokl ds ik= gksxsa A 3- eaf=eaMy lfpoky; foHkkx ds i=kad 320 fnukad 02-07-2014 ds ek/;e ls iwoZ eku~uh; eq[;ea=h dks vko";d miLdj lfgr lqlfTtr vkokl miyC/k djkus dk izko/kku gS lkFk gh bl ij gksus okys O;; dk ogu Hkou fuekZ.k foHkkx }kjk fd;k tkuk izko/kkfur gS A 4- ljdkj ds mi;qZDr fu.kZ; eku~uh; iwoZ eq[;eaf=;ksa dh lqj{kk ,oa muds nkf;Roksa ds lE;d fuoZgu ls lacaf/kr vko";drkvksa ds vkyksd esa fy, x;s gS A ftlds varxZr mUgsa vkIr lfpo] futh lgk;d vkfn dfeZ;ksa dh lsok Hkh miYc/k djk;h tkrh gS A 5- fofgr ifjfLFkfr esa ljdkj ds Lrj ls fu.kZ; fy;k x;k gS fd orZeku esa iwoZ eq[;eaf=;ksa }kjk /kkfjr vkoklksa dks muds thou i;Zure d.kkZfdr fd;k tk; rkfd ckj&ckj lqj{kk ds n`f'Vdks.k ,oa vU; ekud lqfo/kkvksa dks miyC/k djkus gsrq vfrfjDr ljdkjh jkf"k dk O;; ugha djuk iM+s A mDr ds vkyksd ess iwoZ eq[;eaf=;ksa }kjk /kkfjr vkoklksas dks muds thou i;Zur d.kkZfdr djrs gq;s fuEu :is.k vkoafVr fd;k tkrk gS%& dzekad Ekkuuh; eq[;e=h dk uke vkoafVr vkokl vfH;qfDr Patna High Court CWJC No.690 of 2019 dt.19-02-2019 26/47 1 2 3 4 1 Jh lrh"k izlkn flag 33@,] gkfMZx jksM 2 Mk0 txUukFk feJ 41]Økafr ekxZ (gkfMZx jksM] iVuk) 3 Jh ykyq izlkn 4 Jhefr jkcM+h nsoh 10] ldqZyj jksM 5 Jh uhrh"k dqekj 7] ldqZyj jksM 6 Jh thru jkr eka>h 12,e] LVªS.M jksM g0@& (mes"k dqekj) ljdkj ds la;qDr lfpo Kkikad-----------3007@vLi"V---------------------------------------------@iVuk]fnukad@22-03-2016 izfrfyfi&eku~uh; eq[;ea=h ds iz/kku lfpo] fcgkj]iVuk@eku~uh; ea=h ds vkIr lfpo Hkou fuekZ.k foHkkx]fcgkj] iVuk@eq[; lfpo ds iz/kku vkIr lfpo]fcgkj]iVuk@iz/kku lfpo ds iz/kku vkIr lfpo]Hkou fuekZ.k foHkkx]fcgkj]iVuk@eq[; vfHk;ark ( iVuk)@vf/k{k.k vfHk;ark]nf{k.k fcgkj vapy] iVuk@dk;Zikyd vfHk;ark]dsUnzh; Hkou izeaMy]iVuk@dk;Zikyd vfHk;ark]dj izeaMy]Hkou fuekZ.k foHkkx]iVuk@dk;Zikyd vfHk;ark]ubZ jkt/kkuh izeaMy] isalw]iVuk@dk;Zikyd vfHk;ark] fo|qr dk;Z izeaMy]iVuk ,oa lacaf/kr eku~uh; iwoZ eq[;ea=h] fcgkj] iVuk ds vkIr lfpo dks lwpukFkZ ,oa vko";d dkjZokbZ gsrq izsf'kr A g0@&mes"k dqekj 22-03-16 ljdkj ds la;qDr lfpo Hkonh; i`0&15@iq0 ij foHkkxh; ladYi dk voyksdu djuk pkgsxsa fcgkj fo"ks'k lqj{kk ny (la"kks/ku) vf/kfu;e 2010 dh Hkkx&4 (x) ds ijUrqd ds rgr iwoZ eq[;eaf=;ksa dks iVuk "kgjh {ks= essa iw.kZr% lqfTtr fu%"kqYd vkokl miyC/k djkus ds laca/k esa fuEu fu.kZ; ljdkj ds Lrj ij fy;s x;s gS%& ^^iwoZ eq[;eaf=;ksa dks iVuk "kgjh {ks= esa fu%"kqYd ljdkjh vkokl miyC/k djkus ds lkFk gh vkokl dks iw.kZ :is.k lqlfTtr djus rFkk bldk dejs dk fuekZ.k j[k&j[kko vko";d lkt&lTtk lkexzh ,oa miLdj] m|kkj dk j[k&j[kko cxSj foRrh; vf/klhek ds fuekZ.k Hkou fuekZ.k foHkkx }kjk fd;k tk;sxkA** Patna High Court CWJC No.690 of 2019 dt.19-02-2019 27/47 2- fofnr gks fd mi;qZDr fu.kZ; fof/k foHkkx dks vf/klwpuk la[;k&( la0 iVuk&261) fnukad 13-04-2010 }kjk fcgkj fo"ks'k lqj{kk ny (la"kks/ku) vf/fu;e] 2010 dh /kkjk&4 ,oa eaf=eaMy lfpoky; ds i=kad&320 fnukad 02-07-2014 ds vkykssd esa fy, x;s gS A 3- fcgkj fo"ks'k lqj{kk ny (la"kks/ku) vf/kfu;e 2010 dh ?kkjk&4 esa Li'V gS fd inkof/k dks /;ku esa j[ks fcuk iwoZ eku~uh; eq[;ea=hx.k iVuk "kgjh {ks= ds varxZr lqjf{kr {ks= esa fu%"kqYd vkokl ds ik= gksxsa (i`0&5@i0 d`i;k nz'VO;) A 4- eaf=eaMy lfpoky; foHkkx ds i=kad &320 fnukad 02-07-2014 ds ek/;e ls iwoZ eku~uh; eq[;ea=h dks vko";d miLdj lfgr lqlfTtr vkokl miyC/k djkus dk izko/kku gS lkFk gh bl ij gkus okys O;; dk ogu Hkou fuekZ.k foHkkx }kjk fd;k tkuk izko/kkfur gSA 5- ljdkj ds mi;qZDr fu.kZ; eku~uh; iwoZ eq[;eaf=;ksa dh lqj{kk ,oa muds nkf;Roksa ds lE;d fuoZgu ls lacaf/kr] vko";drkvksa ds vkyksx esa fy, x;s gS A ftlds varxZr vkIr lfpo] futh lgk;d vkfn dfeZ;ksa dh lsok Hkh miyC/k djk;h tkrh gS A 6- fofnr gks fd eku~uh; iwoZ eq[;eaf=;ksa dks lqj{kk ,oa muds nkf;Roksa dks n`f'ViFk esa j[krs gq, mudks vkoafVr vkoklksa esa ljdkj }kjk vuqekU; ekud lqfo/kk;as miyC/k djk;h tkrh gS A 7- fofgr ifjfLFkfr esa ;g lehphu izrhr gksrk gS fd orZeku esa eku~uh; iwoZ eq[;eaf=;ksa }kjk /kkfjr vkoklksa dks muds uke ls gh muds thou i;ZUr d.kkZfdr fd;k tk;] rkfd ckj&ckj lqj{kk ds n`f'Vdks.k ,oa vU; ekud lqfo/kkvksa dks miyC/k djkus gsrq vfrfjDr ljdkjh jkf"k dk O;; u djuk iM+sA bl izLrko ij Hkonh; eku~uh; mi eq[; Hkou fuekZ.k ea=h dk vuqeksnu izkIr djuk pkgsxsa A g0@&xaxk dqekj (xaxk dqekj) iz/kku lfpo g0@&vLi'V 17-03016 mi eq[; (Hkou fuekZ.k) ea=h g0@& rstLoh izlkn ;kno 18-03-2016 Patna High Court CWJC No.690 of 2019 dt.19-02-2019 28/47 ikj i`'B ij vkns"k ds vkyksd esa ,oa vkns"k ij izk:i vuqeksfnr fd;k tk ldrk gSA iz/kku lfpo i`'B 17@40 Øekad la0& 3007¼Hk½ fnukad 22@03@2016-
ekuuh; iwoZ eq[;ea=h dks vkoklh lqfo/kk ls lacaf/kr pkj jkT;ksa ;Fkk e/;izns"k mÙkjizns"k] jktLFkku ,oa d.kkZVd ds laca/k esa tkudkjh dh lwpuk /ot ^,^ nz'Vo; gSA d`i;k izk:i esa iz/kku lfpo egksn; dk vuqeksnu izkfFkZr gSA ¼"kkyhxzke izlkn½
14. It appears from the extract of the file notings that the said Office Memorandum was issued after the approval of the then Deputy Chief Minister who also held the Cabinet post of Minister of Public Works Division which also notices the provisions of allotment of premises to Ex-Chief Ministers in the State of Madhya Pradesh, Uttar Pradesh, Rajasthan and Karnataka.
15. The allotment of premises No.7, Circular Road to the present Chief Minister was made for his life time in the capacity of an ex-Chief Minister as well, which is evident from the Notification dated 25th May, 2018, which is extracted hereinunder:-
fcgkj ljdkj Hkou fuekZ.k foHkkx vf/klwpuk vf/klwpuk la th0ch0Mh0&1&20 11@16 4994 ¼Hk½ iVuk fd nukad 25-05-2018 1] v.ks ekxZ] iVuk] ekuuh; eq[;ea=h ds vkokl ds :i esa d.kkZfdr gS] esa orZeku esa foHkkx ds }kjk vko";drkuqlkj Retrofitting ,oa ejEefr dk dk;Z Patna High Court CWJC No.690 of 2019 dt.19-02-2019 29/47 djk;s tkus ds dkj.k fnukad 15-04-2018 ls eku~uh; eq[;ea=h 7] ldqZyj jksM esa vkokflr gks x;s gS A ;g vkokl mUgsa HkwriwoZ eq[;ea=h ds :i esa vkthou d.kkZfdr fd;k x;k gS A vr% mDr ds vkyksd esa l{ke izkf/kdkj ds vkns"k ls fnukad 15-04-2018 ls 7] ldqZyj jksM] iVuk dks 1 v.ks ekxZ esa Retrofitting ,oa ejEefr dk;Z iw.kZ djk;s tkus rd eq[;ea=h ds vkokl ds :i esa fpfUgr djrs gq, vf/klwfpr fd;k tkrk gS A fcgkj jkT;iky ds vkns"k ls] g0@& fou; dqekj (fou; dqekj) Hkw&lEink inkf/kdkjh A la th0ch0Mh0&1&20 11@16 4994 ¼Hk½ iVuk fd nukad 25-05-2018 izfrfyfi%&foRr foHkkx]bZ0&xtV "kk[kk dks jktdh; xtV esa izkdk"kukFkZ izsf'kr A g0@&vLi'V ljdkj ds mi lfpo&lg& Hkw&lEink inkf/kdkjh A la th0ch0Mh0&1&20 11@16 4994 ¼Hk½ iVuk fd nukad 25-05-2018 izfrfyfi&lHkh iz/kku lfpo@lHkh lfpo@lHkh foHkkxk/;{k@iqfyl egkfu"kd@lfpo]fcgkj fo/kku lHkk@ifj'kn~@mi lfpo]eq[;ea=h lfpoky;]fcgkj]iVuk@foHkkxh; ea=h ds vkIr lfpo@iz/kku lfpo ds iz/kku vkIr lfpo] Hkou fuekZ.k foHkkx@lHkh eq[; vfHk;ark]Hkou fuekZ.k foHkkx@dk;Zikyd vfHk;ark]dsUnzh; Hkou izeaMy]iVuk@dk;Zikyd vfHk;ark]dj izeaMy@dk;Zikyd vfHk;ark]yksd LokLF; vfHk;a=.k@dk;Zikyd vfHk;ark]fo|qr@vkbZ0Vh0 eSaustj]Hkou fuekZ.k foHkkx] iVuk dks lwpukFkZ ,oa vko";d dkjZokbZ gsrq izsf'kr A g0@&vLi'V ljdkj ds mi lfpo&lg&Hkw&lEink inkf/kdkjh
16. The said Notification was modified on 7th of January, 2019, i.e., on the date when a direction was issued by this Court to register the present Public Interest Litigation. The same is extracted hereinunder:-
fcgkj ljdkj Hkou fuekZ.k foHkkx Patna High Court CWJC No.690 of 2019 dt.19-02-2019 30/47 dk;kZy; vkns"k la0&th0ch0Mh0&1&20&17@2014-02--¼Hk0½ iVuk] fnukad 07@01@2019 dk;kZy; vkns"k ekuuh; eq[;ea=h ds vLFkk;h vkoklu gsrq foHkkxh; vf/klwpuk la0&4994¼Hk½ fnukad& 25-05-2018 }kjk vkoafVr 7] ldZqyj jksM dks la"kksf/kr djrs gq, eq[; lfpo] fcgkj ds vkokl ds :i esa d.kkZfdr fd;k tkrk gSA ;g d.kkZdu ekuuh; eq[;ea=h }kjk 7] ldqZyj jksM dks [kkyh djus ds frfFk ls izHkkoh gksxkA bl laca/k esa vU; vkns"k bl gn rd la"kksf/kr le>s tk,axsA 2- pwafd 1] v.ks ekxZ ds jsVªksfQfVax ,oa ejEefr dk;Z lekfIr ds i"pkr~ gh 7] ldqZyj jksM vkokl [kyh gks ldsxk] vr% iwokZns"k dks fo[kafMr djrs gq, 2] ldZqyj jksM dks eq[; lfpo] fcgkj ds dSEi dk;kZy; ds :i esa vxys vkns"k rd ds fy, vkoafVr fd;k tkrk gSA 3- mDr vkns"kksa esa l{ke izkf/kdkj dk vuqeksnu izkIr gSA g0@& ¼fou; dqekj½ mi lfpo&lg&Hkw&lEink inkf/kdkjh Kkikad %& th0ch0Mh0&01&20&17@2014@195 ¼Hk0½]iVuk] fnukad 07@01@2019- izfrfyfi%& ekuuh; eq[;ea=h] fcgkj ds iz/kku lfpo@ ekuuh; ea=h ds vkIr lfpo@ eq[; lfpo] fcgkj ds iz/kku vkIr lfpo@ iz/kku lfpo] Hkou fuekZ.k foHkkkx ds iz/kku vkIr lfpo@ eq[; vfHk;ark ¼iVuk½@ v/kh{k.k vfHk;ark] nf{k.k fcgkj vapy] iVuk@ dk;Zikyd vfHk;ark] dsanzh; Hkou izeaMy@ ikVfyiq= Hkou izeaMy@ dj izeaMy@ dk;Zikyd vfHk;ark] fo|qr] Hkou fuekZ.k foHkkx@ vkbZ0Vh0 eSustj] Hkou fuekZ.k foHkkx dks lwpukFkZ ,oa vko";d dk;kZFkZ izsf'krA mi lfpo&lg&Hkw&lEink inkf/kdkjh
17. A fall out of the State action further manifested itself in the issuance of Office Memorandum of the Building Construction Department on 22nd January, 2019 which is extracted hereinunder:-
Patna High Court CWJC No.690 of 2019 dt.19-02-2019 31/47 fcgkj ljdkj Hkou fuekZ.k foHkkx dk;kZy; vkns"k la[;k&th-@ch-Mh &01@20¼eq0l0½&06@2018 05@iVuk] fnukad&22@01@2019- dk;kZy; vkns"k foHkkxh; dk;kZy; vkns"k la0@02¼Hk0½] fnukad 07-01-2019&lg&ifBr Kkkikad 195 ¼Hk½ iVuk] fnukad 07-01-2019 ds Øe esa jsVªksfQfVax dk;Z lekfIr ds i"pkr ekuuh; eq[;ea=h] Jh uhrh"k dqekj ds iqu% 1] v.ks ekXkZ vkokl esa fnukad 20-01-2019 dks vkokflr gksus ds i"pkr] jktif=r vkokl la0&7] ldZqyj jksM] iVuk] tks eq[; lfpo dks d.kkZfdr gS] dks fnukad 20-01-2019 ds izHkko ls Jh nhid dqekj] eq[; lfpo] fcgkj dks vkoafVr ekuk tkrk gSA 2- izLrko esa l{ke izkf/kdkj dk vuqeksnu izkIr gSA g0@& ¼fou; dqekj½ 22-01-2019 mi lfpo&lg&Hkw&lEink inkf/kdkjh Kkikad &th-@ch-Mh &01@20¼eq0l0½&06@2018 738¼Hk½@iVuk] fnukad&22@01@2019- izfrfyfi%& ekuuh; eq[;ea=h] fcgkj ds iz/kku lfpo@ekuuh; ea=h ds vkIr lfpo@eq[; lfpo] fcgkj ds iz/kku vkIr lfpo@iz/kku lfpo] Hkkou fuekZ.k foHkkx ds iz/kku vkIr lfpo@vfHka;rk izeq[k&lg&vij vk;qDr&lg&fo"ks'k lfpo] Hkkou fuekZ.k foHkkx@eq[; vfHk;ark¼iVuk½@v/kh{k.k vfHk;ark] nf{k.k fcgkj vapy] iVuk@dk;Zikyd vfHk;ark] dsUnz; Hkou izeaMy@ikVfyiq= Hkou izaeMy@dj izeaMy@dk;kZikyd vfHka;kr] fo|qr] Hkou fuekZ.k foHkkx@funs"kd] ,u0vkbZ0lh0] iVuk@iz"kk[kk inkf/kdkjh] Hkw&lEink iz"kk[kk] Hkou fuekZ.k foHkkx@vkbZ0Vh0 eSustj] Hkkou fuekZ.k foHkkx dks lwpukZFk ,oa vko";d dk;kZFkZ izsf'krA g0@& 22-01--2019 mi lfpo&lg&Hkw&lEink inkf/kdkjh
18. All the aforesaid facts are now on record as is evident from the counter affidavit filed on behalf of the State of Bihar.
19. The learned Advocate General, therefore, contends that the validity of the provisions, the notice whereof has been taken by this Court, now deserves to be tested as to whether such an act is beyond the constitutional powers conferred on the State Legislature or whether it is only the exercise of such powers which Patna High Court CWJC No.690 of 2019 dt.19-02-2019 32/47 is sought to be questioned through this Public Interest Litigation. For this, the learned Advocate General has advanced his submissions and the Court has noticed the provisions of sub-article (5) of Article 164 of the Constitution of India which is extracted hereinunder:-
"(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."
20. The provision in the Second Schedule contained in Part B thereof was omitted by Constitution (Seventh Amendment) Act, 1956. It is to be noticed that the same is pari materia to the provisions of Article 75 (6) in relation to the Union Parliament.
21. This may be read with Entry 40 of List-II- State List in the 7th Schedule of the Constitution of India extracted hereinunder:-
"40. Salaries and allowances of Ministers for the State"
22. For the Union Ministers, the Entry is Entry 75 of List-I (Union List).
23. The question, therefore, is as to whether it was within the competence of the Legislature to have enacted any such law followed by the executive instructions as extracted Patna High Court CWJC No.690 of 2019 dt.19-02-2019 33/47 hereinabove and if so, whether the same do not suffer from the vice of arbitrariness.
24. We have narrated and extracted the step-wise decisions taken by the State Government and what we find is that the original provision made in the Amending Act of 2010 was essentially for providing a Government premises to Ex-Chief Ministers within the urban area of Patna free of charges bereft of their tenure as Chief Minister. The only rider placed in sub-section
(ii) was that if the immediate relation of any Ex-Chief Minister has also served as an Ex-Chief Minister, then there would be only one set of benefit available. The foundation of such a provision has not been clarified in any of the Notifications, but the Court could gather from the submissions advanced that this may have been done as one of the former Chief Minister's wife also became a Chief Minister later on and, therefore, as indicated in the Office Memorandum dated 22nd March, 2016, there is only one allotment of 10, Circular Road to Shri Lalu Prasad and Smt. Rabri Devi, whose names appear at Serial Nos.3 and 4 of the said Office Memorandum.
25. The matter took a turn when the Cabinet passed a Resolution on 2nd July, 2014, extracted hereinabove. By this Resolution, it appears that a decision was taken to confer a large Patna High Court CWJC No.690 of 2019 dt.19-02-2019 34/47 number of other benefits apart from the allotment of a bungalow/premises free of charges as envisaged under the 2010 Amendment Act. This Cabinet Resolution provides for staff eight in number as per clause 2 of the Resolution dated 2nd July, 2014. In Clause 3, the allotment of a premises free of electricity charges and with all furnishings was re-asserted. It was further provided that the said expenditure shall be incurred under the head of the Chief Minister/Minister expenditure relating to their salaries and allowances. The staff which was to be provided as per Clause 2, their expenditure was to be met as per the Circular of the Finance Department dated 21st July, 2010. The furnishings and premises were to be maintained by the Building Construction Department. Clause 5 reiterates that this facility shall be available to the Ex- Chief Ministers throughout their life. Clause 6 further indicates that the said facilities shall be in relation to the facilities already provided for. The rider of not repeating the facilities to any member of the family of the Ex-Chief Minister, who had occupied the same office is also recited.
26. The Building Construction Department in its turn resolved to add a further clause in its Resolution dated 30.12.2014 that whatever furnishings and maintenance work have to be undertaken for providing a premises to an Ex-Chief Minister Patna High Court CWJC No.690 of 2019 dt.19-02-2019 35/47 within the urban area in Patna shall be without any financial limits (cxSj fofÙk; vf/klhek). The said Resolution was issued under the authority of His Excellency, the Governor of Bihar, after the approval of the then Chief Minister as is evident from the recital contained therein.
27. This led to the allotment on 22nd March, 2016 by the Building Construction Department ear-marking five premises for life time to six former Chief Ministers in the manner aforesaid.
28. This was followed by the allotment in favour of the present Chief Minister under the Notification dated 25 th May, 2018 where it was recited that 7, Circular Road is being allotted to the Chief Minister for his life time in the capacity of his being an Ex- Chief Minister. However, the reason given was that since the official residence of the Chief Minister, 1, Anne Marg, was undergoing retrofication and repairs, therefore, it had become necessary to issue the order, extracted hereinabove. This was followed by the Office Memorandum dated 7 th January, 2019 whereby the Office Memorandum dated 25th May, 2018 was modified reciting that the premises of 7, Circular Road stands allotted to the Chief Secretary, Government of Bihar, but the ear- marking would become effective from the date the Chief Minister vacates the said premises which is being occupied by him till the Patna High Court CWJC No.690 of 2019 dt.19-02-2019 36/47 repair and maintenance of 1, Anne Marg is completed. For the time being, the Chief Secretary, Government of Bihar, was allotted to utilize No.2, Circular Road as his Camp Office.
29. On 22nd January, 2019, the Office Memorandum was issued notifying that the Chief Minister has now finally shifted to 1, Anne Marg and therefore, the premises allotted earlier to him as an Ex-Chief Minister, namely, 7, Circular Road stands allotted to Sri Deepak Kumar, the Chief Secretary, Government of Bihar.
30. The learned Advocate General has, therefore, urged that the notice issued by this Court to the present Chief Minister Shri Nitish Kumar does not need any response in this regard in view of the aforesaid developments.
31. As already noted by us in order dated 11th of January, 2019, no one has put an appearance on behalf of Shri Satish Prasad Singh in spite of service of notice on him. It has been informed at the Bar that Sri Satish Prasad Singh remained as Chief Minister in all probability long back for only a couple of days. It is quite possible that in spite of having received notices, he may not have decided to respond to this Public Interest Litigation.
32. Shri Abhinav Shrivastava, who has appeared for Smt. Rabri Devi and Shri Lalu Prasad, has urged that the allotments are in accordance with law and that they do not suffer Patna High Court CWJC No.690 of 2019 dt.19-02-2019 37/47 from any infirmity. The present Government has also not cancelled the said allotment or withdrawn the same, therefore, this Court may take into consideration all relevant facts as the State Legislature has brought about an enactment which cannot be said to be not in conformity with law. He, however, submits that the judgement in the case of Lok Prahari (supra) was with regard to the allotments in the State of Uttar Pradesh that may have been grounded on a different set of facts.
33. Similar arguments have been adopted by Shri Dinu Kumar and other counsel appearing on behalf of another Chief Minister Sri Jitan Ram Manjhi. Sri Nityanand Jha and two others, who have appeared on behalf of Sri Jagannath Mishra, have urged that facts of allotments not being disputed, the issue is only legal and, therefore, they have also urged that the State Government has not chosen to rescind or cancel their allotments, hence they would also abide by the law declared by the Courts. Thus, the affidavit filed on behalf of the State of Bihar bringing on records the facts relating to the allotment have nowhere been disputed by the learned counsel appearing for the Ex-Chief Ministers referred to above who are beneficiaries of the allotments under the Office Memorandum dated 22nd March, 2016.
Patna High Court CWJC No.690 of 2019 dt.19-02-2019 38/47
34. 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 2 nd July, 2014 that since Ex-Chief Ministers during their tenure in office have to Patna High Court CWJC No.690 of 2019 dt.19-02-2019 39/47 remain in contact and continue to perform their social obligations, therefore, such facilities should be made available. 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.
35. The State of Uttar Pradesh brought about a legislation in order to overcome the said decision by an Patna High Court CWJC No.690 of 2019 dt.19-02-2019 40/47 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 8 th of January, 2019.
36. 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 Patna High Court CWJC No.690 of 2019 dt.19-02-2019 41/47 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.
37. We are unable to trace any authority available for making such provisions that too 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 noticed 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 Patna High Court CWJC No.690 of 2019 dt.19-02-2019 42/47 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 7 th 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.
38. 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 Patna High Court CWJC No.690 of 2019 dt.19-02-2019 43/47 budgetary expenditures. In a democracy which is founded on principles of socialism, it is difficult to comprehend unlimited expenditures 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 witnessed by the executive instructions which are examples of bureaucratic skills that eludes all ingenunities. 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 Patna High Court CWJC No.690 of 2019 dt.19-02-2019 44/47 acquiring public property perpetually in the name of public service. The attitude therefore is divorced from morality and withers the faith of the public. 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.
39. It has rightly been observed by James Hacker, a former Prominent Member of Parliament of House of Commons in Patna High Court CWJC No.690 of 2019 dt.19-02-2019 45/47 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. 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 Shashtri 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. Patna High Court CWJC No.690 of 2019 dt.19-02-2019 46/47
40. 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.
41. Apart from this, the Cabinet Resolution dated 2 nd 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.
Patna High Court CWJC No.690 of 2019 dt.19-02-2019 47/47
42. This Public Interest Litigation stands disposed of with the aforesaid directions.
(Amreshwar Pratap Sahi, CJ) (Anjana Mishra, J) Sunil/-
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