NAOLEKAR, J. - (1.) THE matter of allotment of residential plots in Sector H of the East Pal Road Scheme Framed by the Urban Improvement Trust (U. I. T.), Jodhpur to 55 Judicial Officers was taken up in public interest litigation writ petition by Hon'ble Mr. Justice J. C. Verma on 12. 9. 96 by passing the following order- "attached are the news items in `indian Express' dated 2nd Sept. and in the Local Paper, high-lighting some alleged undue favour shown to 55 subordinate Judicial Officers and Superior Judicial Officers. THE News papers have also given the names of 55 Judicial Officers alongwith plot number allotted to them. It is said in the News items that the allotments have been made to Judicial Officers Including that of Sh. A. K. Mishra, now a Registrar of this Court; Sh. Ashok Kapoor, now a Vigilance Registrar of this Court; Sh. Mandal Prasad Bohra, P. P. S. to Hon'ble the Chief Justice; Sh. A. K. Chhaterjee, Dy. Registrar (Judl.) of this Court; Sh. Shanti Lal Chhajer, Addl. Registrar (Admn.) of this Court, Sh. D. N. Joshi, Distt. and Sessions Judge, Jodhpur and few other Judicial Officers (whose posting place be verified by the office) on some extraneous considerations and also without following any rules. THE allotments are said to have been made on concessional rates, in violation of Rajasthan Urban Improvement Trust Rules, 1975. Fair name of the judiciary is likely to be tarnished, if the matter is not taken up. I, therefore, treat these attached publications as writ petition with a direction that Urban Improvement Trust should place on record all the relevant papers i. e. rules any resolution, allotment letters and the application forms alongwith the declaration, if any and all other rele-vant record concerning the persons involved while making allotments, for the perusal of this Court. Notice is made returnable by 24th Sept. ,96. It will be very appropriate, if the Registry also informs Shri M. S. Singhvi and M. R. Singhvi Advocates to assist the Court on 24th Sept. , 1996. In the meantime, UIT Jodhpur is directed not to change any position as of today till further directions. THE case be put before appropriate Bench after issuance of notice. Sd/-
(2.) ON 24. 9. 96, the Court had directed the U. I. T. to file the Court the photo stat copies of the applications alongwith declarations filed by 55 Judicial Officers before the U. I. T. for allotment of plots and the resolution alongwith allotment orders made by the U. I. T. in favour of 55 Judicial Officers. The Registry was directed to keep the aforesaid record in a sealed cover. ON the same day, the Court had directed issuance of notice to the 55 Judicial Officers' who had been allotted residential plots. Rajasthan Judicial Service Officers' Association through its General Secretary was permitted to intervene in the matter. The Court had laid down and confined the scope and ambit of the petition to the allotment of plots made in favour of 55 Judicial Officers, by the U. I. T. Jodhpur and the consideration of the fact whether the allotments have been made in accordance with the provisions of the Rajasthan Urban Improvement Act, 1959 (for short `the Act' hereinafter) and the Rules and Regulations made thereunder. In pursuance of the notice issued, the U. I. T. , Jodhpur and the Rajasthan Judicial Service Officers' Association have submitted the returns alongwith the documents. It is revealed from the returns and the documents filed, that the district branch of the Rajasthan Judicial Service Officers' Association took initiative on the request of Judicial Officers for allotment of the plots. A request letter dated 12. 12. 95 was placed before the Chairman, U. I. T. , Jodhpur for allotment of the plots at reserve price to the Judicial Officers. On 3. 1. 96, the U. I. T. responded to the letter of the respondent Association and the list of the Judicial Officers who are interested in the allotment of residential plots at Jodhpur in the Scheme was sought for from the Association. The Association widely circulated this fact among the Judicial Officers posted in Rajasthan. The request made by the Association for allotment of residential plots to the Judicial Officers was taken up by the U. I. T. in its meeting held on 9. 1. 96 and by resolution No. 5, the Chairman of the U. I. T. , Jodhpur was authorised for allotment of the land to various institutions and also to the Judicial Officers. The resolution was conveyed to the Judicial Officers' Association. The district branch of the Association at its own level collected the application forms from various Judicial Officers and they were sent to the U. I. T. with letter dated 16. 3. 96. Initially the list of 24 Judicial Officers was sent alongwith the letter. Thereafter forms of 13 more Judicial Officers were sent to the U. I. T. on 30. 3. 96. On 29. 5. 96, 9 application forms were sent alongwith the letter dated 29. 5. 96. Some Judicial Officers directly sent the forms to the U. I. T. A composite list of 55 Judicial Officers, who had submitted their forms was placed before the U. I. T. by the Secretary of the Judicial Officers' Association by his letter dated 17. 6. 96. The matter was thereafter consid-ered by the U. I. T. , Jodhpur in its meeting dated 29. 6. 96 and by its resolution No. 11 (5) it was unanimously decided by the U. I. T. to allot the lands to the applicants 55 Judicial Officers by way of a lottery. The decision taken by the U. I. T. was conveyed to the Judicial Officers' Association and the date of the lottery was fixed on 9. 8. 96. While taking the decision, the U. I. T. has considered the availability of the lands and it was found that in Sector H of East Pal Road Scheme of the U. I. T. plots of 30'x60' size as well a 25x50 size are available. It was examined whether all the plots could be carved out leaving other requisite space for necessary amenities and the proposed plan was prepared by the Executive Engineer and the Deputy Town Planner of the U. I. T. After the preparation of the plan, a decision was taken for allot-ment of plots to Judicial Officers by lottery keeping the corner plots with the U. I. T. The lottery was held for allotment on 9. 8. 96 and thereafter the allotment letters were issued to respective 55 Judicial Officers. The U. I. T. has fixed the allotment rates 30% above the reserved price i. e. Rs. 204. 10 per sq. meter. The allottees were asked to deposit the amount for the plots at the rate of Rs. 204. 10 per sq. meter by the letters written to the respective allottees. Some of the allottees Judicial Officers have already deposited the amount and the licence was executed in their favour, that is how, the plots were allotted to 55 Judicial Officers. It is this allotment, which is questioned in the writ petition. Mr. M. R. Singhvi who was requested by the Court to appear as Amicus Cu-riae has submitted that the allotment of residential plots at the concessional rate to the Judicial Officers was made under rule 17 of the Rajasthan Urban Improvement Trust (Disposal of Urban Land) Rules, 1974 (for short the Rules of 1974 hereinafter) when they do not fall exclusively within the category of the persons to whom allotment could have been made under rule 17 of the Rules of 1974. The Judicial Officers have been treated as special class amongst Govt. Servants and thereby other Govt. servants were discriminated. On the other hand, it is submitted by the counsel for the U. I. T. ,jodhpur Mr. Dinesh Maheshwari and the Rajasthan Judicial Service Officers' Association Mr. K. N. Joshi that the allotment of the respective plots to the Judicial Officers were not made under rule 17 of the Rules of 1974. The Judicial Officers are the class separated from other Govt. servants and scheme or them does not contravene right guaranteed under Art. 14 of the Constitution of India. In order to appreciate the rival contentions, it would be necessary to refer to certain provisions of the Rules of 1974. Under rule 3 of the Rules of 1974 the outright sale of land in all towns having an Improvement Trust is prohibited. There shall only be sale of lease hold rights on payment of premium referred to in rule 6 or at concessional rate under the Rules. Thus, the lease hold rights can be given to persons in the residential plots either by payment of premium or at concessional rate. Premium is provided in rule 6, which shall ordinarily be determined by public auction. Amount of reserve or minimum premium shall be treated to be the reserve price, which shall be decided by the Committee constituted under rule 12. Rule 10 lays down that in the scheme prepared by the U. I. T. and technically approved by the Chief Town Planner, the U. I. T. may reserve with the prior approval of the State Govt. residential plot for allotment at concessional rates to the specified categories of persons referred to in rule 17 on the terms and conditions prescribed under the provisions of the Rules. The allotment at concessional rate is not permissible to a person (wife or husband) or any member of his family dependent upon him who has a residential house or a plot of land on free-hold or lease-hold basis in any town in Rajasthan having a population of more than 50,000. Rule 17 authorises allotment at concessional rates to the categories of persons mentioned in sub-rule (2) of rule 17, who are bonafide resident of Rajasthan and who do not have a plot of land or house in any town in Rajasthan having population of more than 50,000. The categories of persons to whom allotment could be made, are as under- (a) Low income group people. Whose income does not exceed Rs. 1500/-p. m. at the time of allotment. (b) Rajasthan State Govt. Servants including employees of local authorities and statutory bodies of the State. Whose income does not exceed Rs. 7500/-p. m. at the time of allotment. (bb) Widows of Government servants upto a period of 10 years after the death of the Government servant. Whose husband's income did not exceed Rs. 7500/-p. m. at the time of his death. (c) Central Govt. employees who applied for allotment of residential plots before 9. 05. 1963 Whose income does not exceed Rs. 7500/-p. m. at the time of allotment (d) Any personnel including ex-servicemen and their families Whose income does not exceed Rs. 7500 p. m. at the time of allotment. (e) Persons belonging to Scheduled Castes and Scheduled Tribes Whose income does not exceed Rs. 7500/-p. m. at the time of allotment (f) Accredited Journalists Whose income does not exceed Rs. 7500/-p. m. at the time of allotment. Rule 17 (4) is in regard to plot's size and price. It provides that the size of the plot and price to be charged from various categories of people entitled for allotment under these rules shall be in accordance with the Schedule attached to these rules. The Judicial Officers' case at best could fall in category (b ). The submission of the counsel Mr. Singhvi is that the scheme for allotment of residential plots to the Judicial Officers at concessional rate does not have the prior approval of the State Govt. and therefore, the scheme could not have been implemented under Rule 17. Admittedly, the allotted plots are not more than 200 sq. meters. The concessional price is fixed under Schedule Annex. C framed under sub-rule (4) of Rule 17. Under the Schedule, the concessional price for the plots having the area 200 sq. meter is the reserve price. Thus, the concessional price will be the reserve price. If the plots were allotted at the concessional price (which is reserve price), the allotment shall squarely fall within rules 10 and 17 of the Rules of 1974. The Judicial Officers have been allotted plots at the reserve price fixed under rule 12 plus 30% of the reserve price. Therefore, the plots allotted to the Judicial Officers could not be treated to be the allotment at concessional rate, to attract the provisions of rules 10 and 17, the allotment of residential plots should be at the con-cessional price. The Judicial Officers having not been allotted plots at concessional rate, the allotment to the Judicial Officers would not fall within the purview of rules 10 and 17. Rules 10 and 17 of the Rules of 1974 do not govern the allotment of plots to Judicial Officers. Consequently, it was not necessary to have to prior approved scheme of the State Govt. before allotment could have been made in favour of the Judicial Officers.
(3.) IT is then submitted that if the plots are not allotted under the concessional rates and rules 10 and 17 of the Rules of 1974 have no application, then the allotment should have been made under rule 12 wherein it has been provided that residential plots not reserved for allotment shall be disposed of through public auc-tion in the manner prescribed in Annex. A. The plots having not been allotted by auction, the allotment contravenes provisions of rule 14. IT is uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the things must be done in that way or not at all and relied upon decisions of State of Uttar Pradesh vs. Singhara Singh and Others (1), A. R. Antulay vs. Ramdas Sriniwas Nayak & Another (2), A. K. Roy & another vs. State of Punjab & others (3) and State of Mizoram vs. Biakchhawana There cannot be any doubt about the proposition of law but can it be said that the creation of lease hold right in the plots by auction, is the only method provided under the Rules of 1974. Rule 6 is in relation to determination of premium. The premium is ordinarily determined by public auction. Thus, it is not necessary that the premium is to be determined by only public auction. The amount of reserve price or the minimum premium may be decided by the Committee referred to in Rule 12. Rule 8 lays down that the Trust shall prepare a scheme for all land exceeding 1500 sq. yards in a area, by sub-division of land into plots of various sizes for residential purposes and shall indicate lands for parks and play-grounds, educational institutions, hospitals, dispensaries, cinemas, market and such other amenities and facilities as may be required. Sub-rule (2) of rule 8 provides that in the scheme, the plots for allotment and sale by auction shall be clearly indicated. 25% of the total saleable area of the residential plots shall be reserved for auction, and the area of such plots shall not be less than 270 sq. meters and not more than 400 sq. meters. Thus, the 25% of the total saleable area of the residential plots shall be given to the persons by adopting the method of auction and the area of such plots shall not be less than 270 sq. meters and not more than 400 sq. meters. The rest of the saleable area of the residential plots can be given by allotment by the U. I. T. Rule 14 provides that the residential plots not reserved for allotment shall be disposed of through public auction in the manner prescribed in Annexure-A. Rule 14 of the Rules of 1974 has to be read alongwith sub-rule (2) of rule 8 of the Rules of 1974. On conjoint reading of these provisions, it is clear that the plots which are not reserved for allotment i. e. the plots reserved for auction, shall be disposed of by public auction in the manner prescribed in Annexure-A. Sub-rule (2) requires 25% of the saleable area reserved to be given by auction and rest of the saleable residential plot area can be given by allotment. The area which can be given by auction under sub-rule (2) of rule 8 shall necessarily be put for auction in the manner provided in Annexure-A. The only restriction in rule 14 can be read, for giving a plot by auction, is in regard to the 25% of saleable residential plots area and that too the plots having the area not less than 270 sq. meters and not more than 400 sq. meters. Admittedly, various allotments of the plots to the Judicial Officers do not fall within this category and thus, it was not necessary for the U. I. T. to give those plots to the Judicial Officers by adopting the method of auction. The allotment of plots by preparing a scheme is the permissible method under the Rules. The U. I. T. has not committed any error when the plots were allotted to the Judicial Officers by drawing the lots at the price fixed by the Committee. Now the question is whether the Judicial Officers can be treated as a class separate and the scheme can be prepared for allotment of the plots to the Judicial Officers excluding other persons of other Govt. Servants. In All India Judges' Association and others vs. Union of India and others (5), the Apex Court while considering the objection to the enhancement of the superannuation age of the Judges on the ground that age of Judges fixed, in their States, was on a par with that fixed for the members of the other services, has said that the Judicial Officers are the class apart. There is a distinction between the Judicial Service and the other services. The Judicial Service is not service in the sense of `employment'. The Judges are not employees. As members of the Judiciary, they exercise the sovereign judicial powers of the State. They are holders of public offices in the same way as the Members of the council of Ministers and the Members of the Legislature. When it is said that in a democracy such as ours, the Executive, the Legislature and the Judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions, the council of minister or the political executive is different from the Secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the Judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive. ;