One Case, Ten Years, Ninety One Hearings and The Repayment

Rural Litigation and Entitlement Kendra 

vs 

State of Uttarakhand 

WPPIL no 90/2010

“This is Chinese to me”, was the first reaction of the court to this petition when in  year 2010 the case came up for admission hearing.  File was thrown away to the lower desk on day one by our late Chief Justice Barin Ghosh under a presumption that we may not have translated the annexures due to bulky paper book! Annexing translated copies of all the annexures in this case was no doubt a daunting task. But thanks to Pallavi and Shahdab and unrelenting labor of Mr. Awdhesh Kaushal, we had annexed every page required to be read, in English translation. Our revered Chief Justice reluctantly asked the file from bench secretary again when I insisted that translated copies are filed in the case.

Private respondents, who are ex- chief ministers of this state of Uttarakhand may have felt a bit unlucky when notices were issued to them in the petition which was first going to be dismissed for just want of translations.

Our allegations in the case were serious. Amount spent ran into crores of rupees out of public funds and clearly no accountability attached. All the orders of house allocations and maintenance were issued by ‘secrecy department’ of the state. It is really hilarious to see that such ‘secrecy departments’ exist in modern democracies. Official Secrets Act 1923 does not even define what a secret document is! So it’s really up to the government what documents they want to be made secret. I really wonder when we will challenge the virus of this colonial act most probably enacted to suppress the  then independence moment.

It reminds me of one of the trait of ‘power’ that it’s a shy creature. Power always guards its basis and doesn’t like its sources to be made public.

State of Uttarakhand and its executive are not known for standing up against the corruption. Court observed this too while commenting on one of the ex-chief minister in this case. It held:

“This act of the sixth respondent, in conferring a post retirement benefit on himself, when he held office of the Chief Minister, does show the State Executive in poor light. That such acts have been permitted to prevail, and have gone unchecked, is undoubtedly a matter of grave concern.”

Spending public money on houses and facilities without due authorization is corruption or not? Court has in the case of RLEK vs State of Uttarakhand and Others (PIL 90/2010) has replied in affirmative.  Practice of free houses and vehicles, electricity, water, security etc. may be indexed as a form of corruption. Like many other indexes corruption is also relative. In a poor state like Uttarakhand, which survives even for its budget on the grants and loans of the central government, free squandering of the public money can easily be categorized as a form of corruption. At one hearing of this case, the then Chief Justice K.M. Joseph told us that ‘unequal distribution of public resources , often based on illegality and connivance of the executive hand of the state, is new found form of corruption and must be checked’.    

It took us good ten years to reach to the logical end of this case. It was long but at no time boring. It traveled to the docket of almost every judge of this court in this long time. As behavioral jurisprudence would have it, every judge had his own viewpoint on this case, some were strict and some were not so strict on the public spending on ex chief ministers. However few hearings are worth mentioning. While year 2016 was coming to an end and Supreme Court of India already declared Uttar Pradesh Rules unconstitutional in Lok Prahri Case. Still our ex chief ministers showed no sign of vacating the bungalows. The then Chief Justice Joseph during one hearing  of the case made it clear that if till the end of winter vacations  (Jan-Feb 2017) respondents do not vacate the premises, the court ,may take recourse to forced eviction. Looking at the stern stance of the court, all respondents by the reopening of the court (February 2017) vacated the houses, which they in later hearings with entire futility tried to portray as a ‘voluntary’ act.

Soon after this chief Justice Joseph was elevated to Supreme Court and PIL board reached to the then Acting Chief Justice Rajeev Sharma. All the respondents, surprisingly state also, pleaded before the court that the houses have been vacated and petition should be dismissed as infructuous. However it was not so simple. Our prayers of rent and expenses remained unanswered. Taking full cognizance of our prayers, Justice Rajeev Sharma directed the state government to calculate the ‘market rent’ to be realized from the respondent ex- chief ministers,which state government didn't do till the time contempt proceedings were mooted against the state.

Here comes another year for closure, and now the docket was of yet another Chief Justice.  From the continuous non-compliance of rent determination order, it was by now clear that state government was not calculating the market rent against the ex-chief ministers, willing or unwillingly I don’t know. Doubt on the intentions of the state crept into my mind when I later realized that all the ex-chief ministers are now belonging to one political party and fortunately enough for them had the reigns of the state.   

New Chief Justice introduced a rule for the hearing of old matters first. So this petition, which was of year 2010 obviously got priority hearing. By the end of year 2018 we filed another tally of miscellaneous expenses done in favor of ex chief ministers from time to time. This was based on the records received from the state offices under right to information. Total amount exceeded more than thirteen crores of rupees. This was exclusive of the market rent. Chief Justice Ramesh Ranganathan, who is known for his strictness in the matters of public money, certainly did not take such whooping account lightly. The Court directed for the personal appearances of the state government officers if by the next date market rent is not determined and produced in court. It’s a matter of common guess that by the next date of hearing market rent against all the ex-chief minsters was determined and produced in the court which also ran into crores of rupees.

Matter came to the final hearings in February 2019 and by now perhaps the respondents including state, sensed the mood of the court and did one last miserable  attempt to justify their perpetual illegality in squandering the public money. During final hearing of the case Ld. Advocate General appeared for the state and handed over an affidavit and made submission that government of the state (for understandable reasons!) has passed a government order and decided to wave off all the rent from the private respondents. This affidavit came as a surprise to all of us who were relentlessly fighting this battle since last ten years. All our hopes dashed by one government order. Court also asked us to rethink as to whether we will amend our petition now, as this new government order which Advocate General is mentioning will take away the whole basis of our case. I had to ask for recess. Mood was somber and shoulders felt heavier. I took the affidavit immediately to my office and read carefully. After reading each and every word, I could not stop frowning against the false statement made to the court by the highest law officer of the state. I immediately translated the government order and next day produced in the court. I know Ld. Advocate General did not feel comfortable at all when I had to charge him for speaking lie in the court about waving the rent. Government Order did not at all waved any rent from anyone, it merely recited that a prayer be made to Hon’ble High Court to wave the rent and money in view of ‘priceless service’ done by the ex-chief minsters in the state. Even Chief Justice could not give the Ld. Advocate General any benefit of doubt because clearly he also remembered what statement was made before the court just yesterday. May be the first law officer, otherwise known for always speaking truthfully and being fair to court, was not briefed properly in this case and relied only on the briefing counsel. He never returned in this case after that day.

Matter was heard finally for days from both sides by the Bench of Chief Justice Ramesh Ranganathan and Justice Ramesh Chandra Khulbe and finally the judgment was reserved by the Hon’ble Court on 26 February 2019 and delivered on 3^rd May 2019 issuing directions to the ex-chief ministers to pay the market rent for occupation of government houses with in six months. State has also been directed to calculate the expenses incurred on various facilities within four months and recover the same in six months from ex-chief ministers of the state.

Following questions of law were answered by the Hon’ble Court.

1.     WHETHER PROVISION OF RENT-FREE ACCOMMODATION TO EX-CHIEF MINISTERS OF THE STATE IS IN ACCORD WITH THE LAW?

Ans. - NEGATIVE.

Allotment of bungalows to the Ex Chief Ministers is illegal, the unofficial respondents (all of whom are ex- Chief Ministers) have received a benefit which they were not legally entitled to, and the public exchequer has been needlessly burdened.

2.     WHETHER EXPENDITURE INCURRED BY THE STATE GOVERNMENT IN PROVIDING VARIOUS AMENITIES TO EX CHIEF MINISTERS OF STATE IS IN ACCORD WITH THE LAW?

Ans. - NEGATIVE.

It is only if an Appropriation Act had been passed, and such expenditure had been sanctioned by the State Legislature, could the executive have incurred the expenditure for providing various facilities to respondent nos.2 to 6 (the Ex-Chief Ministers).

3.     WHETHER EXPENDITURE INCURRED BY THE STATE GOVERNMENT, OTHER THAN THOSE CHARGED ON THE CONSOLIDATED FUND OF THE STATE, REQUIRES LEGISLATIVE SANCTION?

Ans. - AFFIRMATIVE.

In the absence of an Appropriation Act being passed by the State Legislature, sanctioning such expenditure, no expenditure, in connection with the provision of facilities like water, electricity, vehicles, petrol, diesel etc. to the Ex Chief Ministers could have been incurred by the State Government.

4.     COULD THE VARIOUS AMENITIES PROVIDED BY THE STATE GOVERNMENT, TO THE EX-CHIEF MINISTERS, BE MADE BY AN ORDER UNDER ARTICLE 162?

Ans. - AFFIRMATIVE.

If the State Legislature has the power to make laws under Entry 40 of List II of the Seventh Schedule, to provide facilities to Ex-Chief Ministers, then, in terms of Article 162 of the Constitution of India, the Executive would also have such a power to provide these facilities, subject, of course, to the provisions of the Constitution.

5.     ARE THE PROCEEDINGS, IMPUGNED IN THE WRIT PETITION, ORDERS MADE UNDER ARTICLE 162 READ WITH ARTICLE 166 OF THE CONSTITUTION?

Ans. - NEGATIVE.

Except for the proceedings dated 15.09.2008, whereby the limits, for the expenses of sweeper, security guard, gardener, telephone attendant etc, were enhanced from Rs. 5000/- per month to Rs. 10,000/- per month, vide proceedings dated 15.09.2008 (which specifically refers to the Governor having sanctioned the enhanced limit), none of the other proceedings appear to have been issued after obtaining the approval of the Governor. These letters cannot, therefore, be said to be orders passed under Article 162 of the Constitution of India.

6.     WOULD ESTOPPEL BAR RECOVERY OF THESE AMOUNTS FROM THE EX-CHIEF MINISTERS?

Ans. – NEGATIVE.

There can be no estoppel against the law or public policy. No estoppel can legitimate an action which is ultra vires, and no authority can be bound by an estoppel to do something beyond its powers. In the present case, allotment of residential accommodation to Ex Chief Ministers, and the various other facilities extended to them, was beyond the powers of the officers and, in as much as approval of the Governor was not obtained, such facilities could not have been extended to the Ex-Chief Ministers concerned. It is not open to the respondents, therefore, to contend that the State Government is barred from recovering the said amounts on ground of estoppel.

7.     IS THE ACTION OF THE STATE GOVERNMENT IN PROVIDING VARIOUS FACILITIES TO EX-CHIEF MINISTERS, RENDERED ILLEGAL ONLY FROM THE DATE OF THE JUDGMENT OF THE SUPREME COURT IN LOK PRAHARI?

Ans. – NEGATIVE.

The law declared by the Supreme Court is presumed to be the law at all times. The decision of a Court, enunciating a principle of law, is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Court is, in fact, the law from the inception. (M.A. Murthy v. State of Karnataka73). A judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a “new rule” but to maintain and expound the “old one”. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. (Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Limited74). The declaration of law by the Supreme Court in Lok Prahari1 , would operate from the date on which the 1997 Rules were issued i.e. 23.07.1997 and not from 01.08.2016 when the judgment was delivered.

8.     IS THE GOVERNEMT JUSTIFIED IN REQUESTING THAT THE ARREARS OF THE RENT AND OTHER AMOUNTS DUE FROM EX-CHIEF MINISTERS BE WAIVED?

Ans. – NEGATIVE.

Neither the resolution of the Council of Ministers, nor the counter-affidavit of the Additional Secretary disclose the nature of services (which is claimed to be priceless) rendered by respondents 2 to 6, post their demitting office of the Chief Minister. Those of respondent nos. 2 to 6, who held any other office post their demitting office of the Chief Minister, were provided the facilities to which they were entitled to with respect to the office which they held. That does not, however, mean that the State Government should fritter away precious public resources and needlessly burden, the already overburdened public exchequer, with this unauthorized expenditure on the specious plea that priceless services were rendered by respondent nos.2 to 6. Services rendered by respondent nos.2 to 6 during their tenure as Chief Ministers (even if taken to be priceless) does not justify conferring on them such largesse.

9.     IS THE ACTION OF THE STATE GOVERNMENT, IN PROVIDING THESE FACILITIES TO THE EX-CHIEF MINISTERS, VIOLATIVE OF PART-III OF THE CONSTITUTION?

Ans. - AFFIRMATIVE.

While the submission of Mr. Kartikey Hari Gupta, learned counsel for the petitioner, in this regard has considerable force, it is unnecessary for us to examine the validity of the action of the State Government on the touchstone of Part-III of the Constitution, as we have already held that the impugned proceedings, whereby these facilities were provided to Ex-Chief Ministers, neither has legislative sanction nor was it issued with the approval of the Governor, and is, therefore, ultra vires and illegal. Suffice it, therefore, to leave this question open for examination, if need be, later.

10.                         CONCLUSION

Payment of Rent and Expenses Ordered in time bound manner.

The Writ Petition is disposed of directing respondent nos.3 to 6 to pay the market rent as detailed in the affidavit of the Additional Secretary/Estates Officer dated 12.02.2019, for the buildings occupied by them as Ex-Chief Ministers, within six months from today, failing which the State Government shall, forthwith, initiate appropriate legal proceedings, including under the provisions of the Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 1972, for recovery of the said amounts from them. The amounts already paid by respondent nos.3, 5 and 6 towards rent, for occupation of these premises, shall be given credit to. The amount specified in the table referred to in the affidavit of the Additional Secretary/Estates Officer dated 12.02.2019, after deducting the amount paid by them as rent, shall be paid by the respondent nos.3 to 6 within the aforesaid period of six months. 118. The amount due and payable towards amenities such as electricity, water, petrol, oil and lubricants etc provided by the State Government, to respondent nos.3 to 6 as Ex-Chief Ministers, shall be computed by the first respondent within four months from the date of the receipt of a copy of this order. Within this period of four months, the first respondent shall intimate the amount, so determined by them, along with documentary evidence of such expenditure incurred by the State Government, to respondent nos.3 to 6 who shall, within six months from the date of such intimation, pay the said amounts to the State Government, 56 failing which these amounts shall also be recovered forthwith by the State Government in accordance with law, including under the provisions of the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972. No costs.