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"The State cannot extend largesse to any person at the sweet will and whim of political entities and/or officers of the State", the Court observed while passing its judgment on Tuesday.
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 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.
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.
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,
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.