R.S.CHAUHAN, J. - (1.) THE petitioner has challenged the order 09.09.2005 passed by the Additional District Collector, Sawai Madhopur whereby a revision petition filed by the petitioner under Section 97 of the Rajasthan Gram Panchayat Act, 1994 has been dismissed. THE facts leading to this petition are as follows :- A piece of land, lying near the station gate, falling under the Gram Panchayat Chauth Ka Barwada, was allegedly under the possession of the petitioner from 1991 onwards. According to the petitioner, he had submitted an application for the allotment of the said land to the Gram Panchayat. However, the Gram Panchayat did not pay any heed to his application. Subsequently, on 24.02.2000, one Shri Shivji Ram filed an application for allotting the said land to him, the Gram Panchayat accepted the said application and allotted the land to Shri Shivji Ram on 16.05.2000. Since the land was not allotted to the petitioner, he filed an appeal challenging the said allotment before the Permanent Administration Committee, Panchayat Samiti, Sawai Madhopur. However, vide order dated 30.01.2002, the Panchayat Samiti dismissed the petitioner's appeal. Subsequently, the petitioner filed a revision before the Court of Additional District Collector, Sawai Madhopur ('the ADM', fort short), challenging the allotment letter dated 16.05.2000 as well as the decision of Administration Committee dated 30.01.2002.
(2.) THE ADM, vide order dated 26.11.2002, accepted the petitioner's revision and set aside the allotment letter dated 16.05.2000 and the decision of the Administration Committee. Meanwhile, respondent No.3, Trilok Chand moved an application before the Gram Panchayat and the Gram Panchayat in its meeting held on 20.11.2004 decided to allot the land to Trilok Chand. Vide letter dated 16.01.2005, the land was allotted to Trilok Chand. Since the land was allotted to Trilok Chand, the petitioner again filed a revision petition before the Court of ADM challenging the decision of the Gram Panchayat dated 20.11.2004 and the allotment letter dated 16.01.2005. However, vide judgment dated 09.09.2005, the petitioner's revision petition has been dismissed. Hence, this writ petition before this Court. Mr. Vijay Pathak, the learned counsel for the petitioner, has vehemently argued that the Rajasthan Gram Panchayat Rules, 1996 ('the Rules', for short) contain the procedure for sale of land by a Gram Panchayat. According to Rule 141 of the Rules, a land should be sold by Panchayat through auction unless there are "special reasons" for not doing so. However, in the present case, the land has not been sold through auction, but has been sold to an individual. In the decision taken on 20.11.2004, the Gram Panchayat has not spelt out any "special reasons" for not following the requirement of Rule 141 of the Rules. Therefore, the decision taken and the allotment of the land are contrary to Rule 141 of the Rules. Secondly, in its decision, the Gram Panchayat allotted the land to the respondent No.3 ostensibly under Section 158 i.e., allotment of land to weaker section of the society. However, there is no evidence to show that Trilok Chand belongs to "the weaker section of the society". In fact, Trilok Chand claims that the land was bought by him from Shivji Lal. According to the registry of the land, the land was bought by him for Rs.70,000/- . Since, Trilok Chand had paid a consideration of Rs.70,000/-, he cannot be held to "belong to the weaker section of the society". Therefore, the Gram Panchayat could not have allotted the land to him under Rule 158 of the Rules. Thirdly, even if the Gram Panchayat had decided to sell the land to a private individual, under Rule 148 of the Rules it was required to issue and publish notice to the public at large inviting objections from the public. However, in the present case, no such notice was issued to the public. Therefore, the requirement of Rule 148 of the Rules has been ignored. Fourthly, although the objections with regard to the violation of Rule 141 of the Rules was raised before the ADM, the leanred ADM has not expressed any opinion on the said point. Therefore, the imugned order suffers from the virus of non-application of mind. Moreover, it is a non-speaking order. Mr. Ankur Rastogi, the learned Additional Government Advocate, has contended that secondly, while Rule 141 of the Rules deals with the sale of land, Rule 158 of the Rules deals with the allotment of the land to the weaker section of the society. According to him, a distinction has to be made between "sale" and "allotment" considering the poverty and the social and economical weakness of Trilok Chand, the Gram Panchayat had rightly decided to allot the land to him. Thus, it had rightly exercised its power under Rule 158. Moreover, under Rule 141 of the Rules, the Gram Panchayat need not state "the special reasons for alloting the alnd to the respondent No.3. Further, before deciding to issue the allotment letter, it had issued and published notice inviting objections. However, despite the publication of the notice, the petitioner did not object. Hence, the Rules have been followed both in letter and spirit. Ms. Arti Sharma, the learned counsel for the respondent No.3, has also supported the impugned order. According to her, the power under Rule 158 was rightly exercised. Considering the fact that Trilok Chand belongs to a weaker section of the society, the requirement of Rule 141 of the Rules could be ignored by the Gram Panchayat. We have heard the learned counsel for the parties and have perused the impugned order. The power of the State, its instrumentality, or the power of the legal authority to dispense with public property has repeatedly drawn the attention of the Hon'ble Supreme Court. As far back as 1979 in the case of Ramana Dayaram Shetty V/s. International Airport Authority of India & Ors. (1979) 3 SCC 489, the Honb'le Supreme Court observed as under : "Today the Government in a welfare State is the regulator and dispenser of speical services and provider of a large number of benefits, inlcuding jobs, contracts, licences, quotas, mineral rights, etc. The Government pours forth wealth, money, benefits, services, contracts, quotas, and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of welath. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Licences are required before one can engage in many kinds of businesses or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largesse in the form of Government contracts. These contracts often resemble subsidies. There is growth in the Government largesse and more and more of our welath consists of these new forms. Some of these forms of wealth may be in nature of legal rights but the large majority of them are in the nature of privileges. (Para 11)The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largesse, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forgning procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largesse. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. It is insisted, "that Government action be based on standards that are not arbitrary or unauthorised." The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual. (Para 11) The State need not enter into any contract with anyone, but it it does so, it must do so fairly without discrimination and without unfair procedure. This proposition would hold good in all cases of dealing by the Government with the public, where the public, where the interest sought to be protected is a privilege. (Para 12) It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant, and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. (Para 21)This Rules also flows directly from the doctrine of equality emboided in Article 14. which strikes at arbitrariness in State action and ensures fairness and equality of treatment. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory" (Para 21) Similar views have been expressed in Nagar Nigam, Meerut V/s. Al Faheem Meat Exports (P) Ltd. & Ors. [(2006) 13 SCC 382] and in B.S.N. Joshi & Sons Ltd. V/s. Nair Coal Services Ltd. & Ors. [(2006) 11 SCC 548].
(3.) IT is equally a settled principle of law that in case a procedure has been prescribed by the law, the appropriate authority is legally bound to follow the procedure. In case, the authority were to deviate from the procedure, without any reasonable justification, its action would be arbitrary, unjust, unfair and unreasonable. Such action are bound to be struck down as violative of Article 14 of the Constitution of India. Chapter IX of the Rules deals with immovable properties. Rule 136 of the Rules clearly states that all common lands and public streets together with pavements, stones and other material thereof as well as all Government lands lying within the Abadi of the Panchayat Circle, shall vest in and belong to a Panchayat. Rule 136(3) of the Rules clearly states that all the properties mentioned in Sub-secs. (1) and (2) shall be under the direction, management and control of the Panchyat and shall be held by it as a trustee for the purposes of this Act. Thus, the Panchayat is supposed to act as a trustee i.e., to protect and to promote the interest of the people. According to Rule 140 the words "Abadi Land" means nazul and land lying within the inhabited areas of a Panchayat Circle which vests or has been vested in or has been placed at the disposal of a Panchyat by or under an order of the State Government. Rule 141 of the Rules are as under : "All sales of land by a Panchayat shall ordinarily be made through auction unless there are special reasons for not doing so. Panchayat may decide to sell such land through auction programme fixed in advance." Therefore, Rule 141 imposes a duty on the Panchayat to auction the land unless there is "special reasons" for not doing so. Thus, the Panchayat must endeavour to auction the land. It is permitted to deviate from the auction of the land only if "special reasons" exist for doing so. Hence, Rule 141, requires the panchayat to discuss and deliberate on the existence of special reasons. The decision of Gram Panchayat must cearly reveal the "special reasons" for deviating from the sale by auction. Rule 145 permits a person desirous of purchasing any Abadi Land to make an application to the Panchayat for the sale of Abadi land to him. Rule 148 imposes a duty on the Panchayat to issue a notice inviting objections to the proposed sale of a land to an individual. Rule 149 deals with disposal of objection after giving an opportunity of hearing to the objectors. Rule 158 permit the panchayat to allot the Abadi land upto 150 Sq. Yards at a concessional rates "to members of Schedules Castes, Scheduled Tribes and backward clases, scavengers, village artisans, landless persons dependent on wage labour, IRDP selected families, Handicapped, Nomatic Tribes, Gadia Lohar who do not own house sites/house and also to flood victims whose houses have been washed away or the house sites have been rendered unfit for future habitation due to flood victims." In case, persons belonging to this above-mentioned categories apply for the allotment of land, the land shall be sold to them at a concessional rate. A bare perusal of decision dated 20.11.2004 (Ann.1) clearly reveals that no "special reasons" have been stated for not auctioning the land. The decision merely notes that Trilok Chand works at a tea-stall and does not own a house in the village. It also notes that he had dug a pit in the plot in dispute and had started construction of a foundation. Just because a person is poor would not make it a "special reason". Poverty is writ large in our villages. Merely because the person has tresspassed a panchayat land would not entitle him to have the land sold or allotted to him. It such tresspass would entitle a person to the land, such decision of the panchayat would encourage the people to tresspass and to violate the law. As trustees of public property, the Panchayat cannot afford to encourage people to trespass on public land. Thus, the decision dated 20.11.2004 is not in consonance with Rule 141 of the Rules. Although it has been noted that notice under Section 148 was issued, but the State in its reply has not filed a copy of such public notice issued by the Panchayat. Thus, a vague statement has been made without any corroborative piece of evidence. Hence, the requirement of Rule 148 has not been fulfilled. ;