Full Judgment Text
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PETITIONER:
GURBAX SINGH S/O CHANDA SINGH
Vs.
RESPONDENT:
FINANCIAL COMMISSIONER AND ANR.
DATE OF JUDGMENT21/09/1990
BENCH:
SAIKIA, K.N. (J)
BENCH:
SAIKIA, K.N. (J)
RANGNATHAN, S.
CITATION:
1991 AIR 435 1990 SCR Supl. (2) 14
1991 SCC Supl. (1) 167 JT 1990 (4) 114
1990 SCALE (2)671
ACT:
Displaced persons Compensation & Rehabilitation Act
1954/Displaced persons Compensation and Rehabilitation Rules
1955--Sections 14, 34C/Rules 34C, 34H and 92--Allotment of
agricultural land--Bona fide purchaser of land at public
auction--Right of.
HEADNOTE:
The appellant, a retired army subedar and also a dis-
placed person from west Pakistan purchased the Land in
public auction conducted by The Rehabilitation Department,
by offering the highest bid of Rs.9,500. The laud in dispute
measured 7 Kanals & 4 Marlas and was owned by one Vinod
Kumar. Having paid the purchase money with the sincere hope
of his rehabilitation, he had to be in protracted litigation
for 22 years during which he earned nothing out of the land
because the State did not honour its final commitment made
in the sale certificate in favour of the appellant. The
State confirmed the sale in favour of the appellant in 1969
but issued sale certificate on 23 June, 1973 being effective
from September 15, 1969 without waiting for the final out
come of the second respondent’s revision application to the
Chief Settlement Commissioner, and further consequent pro-
ceedings thereon.
It was submitted by the second respondent that the said
land was in his cultivatory possession since 1956 and as per
public records he was sub-lessee under Budha Singh Lessee,
and the Lease in favour of Budha Singh was cancelled in 1958
by the Rehabilitation Department and thereafter he became a
sub-tenant holding over on the date he applied for allotment
in 1961, under Rule 34C of the Rules. The decision rejecting
his first application was not communicated to him. So he
made his second application which was rejected by The Chief
Settlement Officer vide his order dated July 24th, 1969.
Then he moved a revision application before the Chief Set-
tlement Commissioner who remanded the case to the Managing
Officer for fresh decision by his order dated July 29, 1970.
The second respondent’s second application was rejected on
March 22, 1973. The second appeal to the Settlement Commis-
sioner was also rejected on May 13, 1973 as he could not
prove his continuous cultivator) possession as a sub-lessee
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under Budha Singh from January 1956 till the termination of
the latter’s lease. Thereafter second
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respondent instituted a suit against Budha Singh for decla-
ration of his continuous possession of the land and got a
decree in his favour as being in continuous possession of
the land.
The second respondent again filed a revision against the
appellate order of the Settlement Commissioner, which was
remanded to the Managing officer and he got land allotted
under Rule 34C of the Rules vide order dated January 6th,
1978. The appellant’s appeal therefrom was dismissed by the
Settlement Commissioner, but in his revision application
therefrom, the allotment order in favour of the second
respondent was quashed by the Chief Settlement Commissioner
vide his order dated January 1, 1979 declaring the appellant
to be the auction purchaser and therefore the true owner of
the Land. The second respondent’s revision was rejected by
the Financial Commissioner on Oct. 23, 1979. Thus all au-
thorities in the successive rounds found the facts against
the second respondent.
Therefore, the second respondent filed a writ petition
challenging the Financial Commissioner’s order in the High
Court. High Court remanded the case to the Financial Commis-
sioner for fresh decision on January 7, 1983. The Financial
Commissioner vide his order February 2, 1988 held that the
second respondent was eligible for allotment of land under
rule 34C of the rules, holding that being a sub-lessee in
continuous possession since January 1, 1956, and thereafter
he had a superior claim to the allotment of the land and
quashed the auction sale made in favour of the appellant on
August 11, 1967.
The Financial Commissioner found that since 1953 to 1961
the second respondent was in possession of the land and
again in 1964-65, 65-66 the records also bore out this fact.
The absence of records for 1961-62, 62-63 due to their
illegibility due to mutilation should not be held against
him and his continuous possession since 1962 can be presumed
entitling him to an allotment under Rule 34 C of the Rules.
This was a conclusion on facts which the High Court declined
to interfere with and dismissed the appellant’s writ peti-
tion in limine on August 24, 1988.
Allowing the Appeal, the Court,
HELD: In the instant case, the appellant as a bone fide
purchaser of the disputed land for value at public auction
under Rule 34H of the rules on August 11, 1967 should have
been put in the same position which he would have been, had
his auction purchase as evidenced by the
16
Sale Certificate been effective from the date of purchase.
Rule 90 of the Rules prescribes the procedure for sale of
property by public auction. Sub-rule 15 of Rule 90 provides
for issue of sale certificate and Rule 92 prescribes the
procedure for setting aside the sale. but once the sale
certificate was issued in favour of the appellant, he became
the true owner and it had the effect of taking away the land
from pool of evacuee properties and thereafter so long that
was not cancelled according to law, it was not open to the
Rehabilitation Department to deal with the sale. The diffi-
culty in the present case has arisen because the State
confirmed the sale in favour of the appellant in 1969,
whereas it issued sale certificate to him on June 23,1973
with effect from September 15, 1969 without waiting for the
final outcome of the second respondent’s revision applica-
tion to the Chief Settlement Commissioner & further proceed-
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ings thereafter. Thus the odd situation resulted in creating
equities favour of both the parties with no fault of the
appellant or the second respondent. If the State had held
over the auction until the second respondent’s application
had been finally disposed of or had held the auction subject
to the result of the application, the second respondent
could have challenged the auction in favour of the appellant
but perhaps misguidedly he was concentrating on getting an
allotment under section 34C. So both the parties had to
suffer and indulge in lengthy protracted litigation for 22
years. Had the Rehabilitation authorities acting under the
Act and the Rules decided the competing claims of the appel-
lant as well as the second respondent as to the disputed
land and provided an equal extent of land with equal bene-
fits to both the parties justice may appear to be done but
that being uncertain the availability of land being limited.
the court can only look towards equity for solution. The
dilemma that equity is to be better than justice and yet not
quite opposed to justice but rather a kind of justice and
the distinction between commutative justice and distributive
justice discussed. [24E; F-I-I; 23G-H; 26B; 25C]
Passages from justinian, gustav Radbrach, Aristotle and
Cardozo referred to.
Considering the facts, the extent of land and the pur-
poses of the Act and the Rules and the reality that land
must have become scarce and much more expensive than in 1967
to meet the ends of justice on the basis of facts, the Court
directed that the disputed land be divided by the Financial
Commissioner into two equal halves and one half and one half
be given possession of to the appellant by dint of his being
auction purchaser and the other half be allotted and given
possession of to the second respondent under Rule 34C of the
Rules. This order be carried out accordingly within three
months. [26C-D]
17
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.4718 of
1990.
From the Judgment and Order dated 24.8.1988 of the
Punjab and Haryana High Court in C.W.P. No. 7136 of 1985.
Dr. Rajeev Dhawan and Arun K. Sinha for the Appellant.
K.G. Bhagat, B.S. Malik and Ms. Galshan for the Respondents.
The Judgment of the Court was delivered by
K.N. SAIKIA, J. Special leave granted.
This appeal is from the Judgment and Order dated August 24,
1988 of the Punjab and Haryana High Court dismissing the
appellant’s writ petition for quashing the order of the
Financial Commissioner Punjab dated 9.2.1988 declaring the
second respondent to be eligible for allotment of the lands
in dispute under Rule 34C of the Displaced Persons Compensa-
tion and Rehabilitation Rules 1955 (hereinafter referred to
as the rules’) framed under the Displaced Person Compensa-
tion and Rehabilitation Act, 1954 (hereinafter referred to
as ’the Act’).
The land in dispute (hereinafter referred to as the
land’) bearing Khasra Nos. 17/8/1, 8/2, and 8/4 admeasuring
7 Kanals 4 Marlas in the Revenue Estate of Shanzada Nangal,
Gurdaspur, was owned by one Vinod Kumar. The second respond-
ent claimed to have been in its cultivating possession in
the years 1953-54, 1956-57. In 1957-58 and 1958-59 he was
recorded as a sub-lessee under one Budha Singh lessee on
annual rent of Rs.100. In 1958 the lease in favour of Budha
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Singh was cancelled with information to him by the Rehabili-
tation Department whereupon the second respondent’s right as
sub-lessee came to an end. Consequently the second respond-
ent was no longer recorded as lessee or sub-lessee after
1958-59.
In 1961 the second respondent applied to the Settlement
Authority for allotment of the land under Rule 34C of the
rules claiming as a sublessee. His application was rejected
by the Managing Officer vide his Order dated 25.11.1962 and
the second respondent having not filed any appeal or revi-
sion therefrom the order became final and binding on him.
The Rehabilitation Authorities having decided to dispose
of the land an open auction was conducted on 11.8.1967 and
the appellant, a retired army Subedar and also a displaced
person from West Pakistan offered the highest bid of
Rs.9,500 (Rupee nine thousand five hundred) which was ac-
cepted. The sale certificate was duly issued by
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the Rehabilitation Department ’to the appellant with effect
from September 15, 1969. Without resorting to any-appeal
against the aforesaid Order dated 25.11.1962 refusing allot-
ment of the land, the respondent made a second attempt for
allotment under Rule 34C of the rules by making another
application which too was rejected by the Settlement Officer
by order dated July 24, 1969 wherefrom the second respondent
moved a revision application before the Chief Settlement
Commissioner who remanded the case by Order dated July 29,
1970 to the Managing Officer for fresh decision but the
latter rejected that application also on 22.3.1973. The
second respondent’s appeal therefrom to the Settlement
Commissioner was also rejected by Order dated 13.5.1973 as
the second respondent could not prove his continuous culti-
vating possession as a sub-lessee under Budha Singh, from
1.1.1956 till termination of the latter’s lease.
The second respondent thereafter instituted a suit on
August 22, 1973 in the Court of Subordinate Judge, Gurdaspur
against Budha Singh for declaration of his continuous pos-
session of the land. However, neither the appellant who
purchased the land in auction nor the Rehabilitation Depart-
ment which cancelled Budha Singh’s lease was impleaded.
Budha Singh having supported the case, a decree declaring
the second respondent to have been in continuous possession
was passed.
The second respondent this time filed a revision from
the appellate order of the Settlement Commissioner dated
13.5.1973 before the Chief Settlement Commissioner who by
his Order dated 5.11.1976 remanded the case to the Managing
Officer for fresh decision. The Managing Officer vide his
order dated 6.1.1978 this time allotted the land to the
second respondent under Rule 34C of the rules. The appel-
lant’s appeal therefrom to the Settlement Commissioner was
dismissed vide order dated 6.6.1978 but his revision there-
from was allowed and the allotment order in favour of second
respondent was quashed by the Chief Settlement Commissioner
vide his Order dated 11.1.1979. The Chief Settlement Commis-
sioner declared the appellant to be the auction purchaser
and therefore the true owner of the land. The second ,
respondent’s revision therefrom was also rejected by the
Financial Commissioner on 23.10.1979. Thus all the authori-
ties in the successive rounds found the facts against the
second respondent.
The second respondent then filed a writ petition challeng-
ing the Financial Commissioner’s order dated 23.10.1979 and
the High Court, contrary to all the aforesaid findings of
fact, remanded the case, by
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its order dated 7.1.83 to the Financial Commissioner for
fresh decision in the light of the decree of the civil court
dated 17.11.1973, which the High Court at the same time
declared to have been a collusive one, obtained by second
respondent in collusion with Budha Singh. The Financial
Commissioner on remand by the High Court has now held vide
Order dated 9.2.1988 that the second respondent is eligible
for allotment of the land under Rule 34C of the rules and
accordingly allotted the land in his favour quashing the
auction sale made in favour of the appellant on 11.8.1967
holding that being a sub-lessee in continuous possession
since 1.1.1956, the second respondent had a superior claim
to allotment of the land and, therefore, the auction sale to
the appellant was null and void. The appellant’s writ peti-
tion challenging that Order having been dismissed in limine
by the High Court vide impugned Judgment dated 24.8.1988, he
appeals.
Rule 34C included in Chapter V of the rules provides:
Allotment of agricultural lands of the value of Rs.10,000 or
less. Where any land to which this Chapter applies has been
leased to a displaced person and such land consists of one
or more khasras and is valued at Rs.10,000 or less, the land
shall be allotted to the lessee:
Provided that where any such land or any part
thereof has been sub-leased to a displaced person and the
sublessee has been in occupation of such land or part there-
of continuously from the first January 1956 such land or
part thereof as the case may be, shall be allotted to such
sublessee."
Mr. Rajeev Dhawan, the learned counsel for the appel-
lant, submits, inter alia, that after Budha Singh’s lease
was cancelled in 1958. the second respondent’s status as
sub-lessee ceased and thereafter he was neither a sub-lessee
nor bid he pay any rent for the land and, in fact, he was a
trespasser and not entitled to allotment under Rule 34C of
the rules; that his first application was rightly rejected
and he having never preferred any appeal or revision there-
from, the order became final and binding on him, and he was,
therefore, not entitled to make the second application.
After the land was already sold in auction to the appellant
on 1.8.67, counsel submits, the land ceased to be evacuee
property and the second respondent’s second application was
not maintainable, and the appellant was declared as auction
purchaser on 15.8.1969 and the sale certificate issued to
him was with effect from 15.9.1969.
20
Mr. K.G. Bhagat, the learned counsel for the respondent,
submits that the decision on his first application for
allotment was not communicated to him till he made his
second application for allotment and that as a sub-lessee he
had the right to apply for allotment and that his right has
now been rightly recognised and the land allotted to him
though his second application was also rejected on 24.7.
1969.
It appears that though the land was sold in auction to
the appellant under Rule 34H on 11.8.1967, perhaps because
of the pendency of the second application of the second
respondent, the appellant was not declared as auction pur-
chaser during the pendency of that application and only
after it was rejected on 24.7.1969, the appellant was de-
clared purchaser on 15.8.1969. It also appears that after
the second respondent’s revision petition against the order
rejecting his second application for allotment was remanded
by the Chief Settlement Commissioner to the Managing Officer
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for fresh decision and the latter rejected that application
also holding that the second respondent failed to prove his
continuous possession of the disputed land as sublessee as
required under Rule 34C; and the appeal therefrom was also
rejected on 13.5.1973, the Certificate of sale was issued to
the appellant on 23.6.1973 with effect from 15.9.1969. Thus,
the matter should have finally ended at that stage.
The second respondent’s suit against Budha Singh leading
to the decree declaring that the second respondent was in
continuous possession of the disputed land was, argues Mr.
Dhawan, not maintainable and the decree was rightly held to
have been collusive, but Mr. Bhagat submits that the High
Court was wrong in holding so.
Mr. Dhawan’s submission that the sale in favour of the
appellant culminating in issue of the sale certificate in
his favour had the effect of taking away the land from the
pool of evacuee properties and thereafter so long that was
not cancelled according to law, it was not open for the
Rehabilitation authorities to deal with the same appears to
be sound.
Rule 34H of the rules reads:
"34H. Manner of disposal of land not allotted.--Any land to
which this Chapter applies which is not allotted under this
Chapter, shall be disposed of in the manner provided in
Chapter XIV."
21
Chapter XIV of the rules prescribes the procedure for
sale of property in the compensation pool. Rule 90 pre-
scribes the procedure for sale of property by public auc-
tion. Sub-rule 15 of Rule 90 provides for issue of sale
certificate and for sending a certified copy of the sale
certificate by the Managing Officer to the Registering
Officer within the local limits of whose jurisdiction the
whole or any part of the property to which the certificate
relates is situated. Rule 92 prescribes the procedure for
setting aside the sale.
In Bishan Paul v. Mothu Ram, reported in AIR 1965 SC-
1994, it has been held that Rules 90 and 92 show that there
are distinct stages in the auction sale of property in the
compensation pool, namely, (1) the fail of the hammer and
the declaration of the highest bid, (2) the approval of the
highest bid by the Settlement Commissioner or Officer ap-
pointed by him, (3) payment of the full price after this
approval, (4) grant of certificate, and (5) Registration of
the certificate. That is the intention behind the rules. The
new form of the sale certificate requires a mention that the
purchaser had been declared the purchaser of the said
property with effect from the certificate date. The title,
however, would not be abeyance till the certificate was
issued but would be based on the confirmation of the sale.
The intention behind the rules appears to be that title
shall pass when the full price is realised and this is now
clear from the new form of the certificate, and title must
be deemed to have passed and the certificate must relate
back to the date when the sale became absolute. The appel-
lant, therefore, must be held to have obtained title to the
land on the date of confirmation of the sale. That is why
the Sale Certificate in the instant case was expressly
stated to be with effect from 25.9.1969.
Rule 92 provides:
"92. Procedure for setting aside a sale.--(1) Where a person
desires that the sale of any property made under rule 90 or
91 should be set aside because of any alleged irregularity
or fraud in the conduct of the sale (including in the case
of a sale by public auction in the notice of the sale) he
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may make an application to that effect to the Settlement
Commissioner or any officer, authorised by him in this
behalf to approve the acceptance of the bid or tender, as
the case may be.
(2) Every application for setting aside a sale
under this rule shall be made--
22
(a) where the sale is made by public auction within seven
days from the date of the acceptance of the bid;
(b) where the sale is made by inviting tenders, within seven
days from the date when the tenders were opened.
XX XX XX XX
XX
XX XX XX XX
XX
Under Sub-rule (4), notwithstanding anything contained in
Rule 92, the Settlement Commissioner may, of his own motion,
set aside any sale under this Chapter if he is satisfied
that any material irregularity or fraud which was resulted
in a substantial injury to any person has been committed in
the conduct of the sale. In the instant case we have not
been shown any application for setting aside of the auction
sale and the sale certificate in favour of the appellant
made according to rules. Nor have we been shown that the
Settlement Commissioner of his own motion had set aside the
sale being satisfied that any material irregularity or fraud
which had resulted in a substantial injury to any person had
been committed in the conduct of the sale.
Section 14 of the Act provides for constitution of the
compensation pool. Section 15 of the Act exempts the proper-
ty in compensation pool from processes of courts. Section 20
of the Act empowers the Managing Officer or managing corpo-
ration to transfer any property within the compensation
pool--(a) by sale of such property to a displaced person or
any association of displaced person whether incorporated or
not, or to any other person, whether the property sold by
public auction or otherwise. Under sub-section (2) of that
section every Managing Officer or managing corporation
selling any immovable property by public auction under sub-
section (1) shall be deemed to be a Revenue Officer within
the meaning of sub-section (4) of section 89 of the Indian
Registration Act, 1908. Under section 27 of the Act save as
otherwise expressly provided in the Act every order made by
any officer or authority under the Act, including a managing
corporation, shall be final and shall not be called in
question in any court by way of appeal or revision or in any
original suit, application or execution proceeding. The
jurisdiction of the Civil Court was therefore barred in the
matter of the sale. It is true that where the special tribu-
nal or authority acts ultra vires or illegally, the Civil
Court has by virtue of s. 9 of the Civil Procedure Code
power to interfere and set matters right. As was laid down
by the Judicial Committee of the Privy
23
Council in Secretary of State v. Mask and Co., AIR 1940 PC
105, if the provisions of the Statute have not been complied
with or the Statutory Tribunal has not acted in conformity
with the fundamental principles of judicial procedure, the
Civil Courts have jurisdiction to examine those cases. This
rule was reiterated by the Supreme Court in State of Kerala
v. M/s. N. Ramaswami Iyer and Sons, AIR 1966 SC 1938. In the
instant case the second respondent’s civil suit against
Budha Singh for declaration of possession was not against
any order passed by any officer under the Act. That decree,
even if it was not declared collusive could not have collat-
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erally affected the auction sale order.
Mr. Dhawan is, therefore, right in his submission that
the appellant, a displaced person, having bona fide pur-
chased the land in public auction for Rs.9,500 and having
paid that amount with the sincere hope of his rehabilita-
tion, has been subjected to expensive protracted litigation
for the last 22 years during which he has earned nothing out
of the land while the second respondent had until the im-
pugned orders, been enjoying the usufruct of the land and
this is because of the State not honouring its own final
commitment made in the sale certificate in favour of the
appellant.
Mr. Bhagat answers that the second respondent was in
possession, in 1956, and till the cancellation of Budha
Singh’s lease in 1958, and thereafter. He was admittedly a
sub-lessee of Budha Singh till 1958 and then was a sub-
tenant holding over on the date he applied for allotment in
196 1. The decision rejecting his first application having
not been communicated to him he made his second application
which was also wrongly rejected by the Chief Settlement
Officer; and the Financial Commissioner ultimately on remand
from the High Court, on the basis of the second respondent’s
possession of the land, rightly set aside the order of the
Chief Settlement Commissioner dated 11.1.1979 and allotted
the land to the second respondent declaring him to be sub-
lessee for the period after 1958 setting aside the sale made
by the Rehabilitation Department made in favour of the
appellant and that the High Court by the impugned Order
dated 24.8.88 rightly dismissed the appellant’s writ appli-
cation in limine. Mr. Bhagat also persuades us to consider
that the second respondent, also a displaced person, had
been demanding justice for the last 22 years and has finally
succeeded in obtaining the allotment and he ought not to be
deprived of the same. Sri Dhawan attacks the order of the
Financial Commissioner on the ground that he had no material
before him other than what was there before his predecessor
on 23.10.1979, except the judgment in the civil suit, which
for obvious reasons, cannot be taken
24
into account Mr. Dhawan emphasises that, it having been
repeatedly held earlier that continuous cultivating posses-
sion of the second respondent was not proved, there was no
basis for the Financial Commissioner in his order dated 9.2.
1988 to have observed that "a favourable presumption regard-
ing continuity of his possession during the intervening
period that is from kharif 1961 to rabi 1964 ought to have
been drawn and benefit of doubt given" to the second re-
spondent, in spite of the absence of Girdawari for the year
1961-62 and 1962-63 and mutilations in the entries of Girda-
wari for 1963-64. In a sense., he is no doubt correct but
the previous order of 23.10.1979 having been set aside by
the High Court, it was open to the Financial Commissioner
consider the matter afresh. Doing so, he has found that
since the possession of the second respondent from 1953 to
1961 and again in 1964-65 and 1965-66 was borne out from the
records, the absence of the records for 1961-62 ad 1962-63
and their illegibility due to mutilation for 1963-64 and
1964-65 should not be held against him and that his continu-
ous possession since 1962 can be presumed entitling him to
an allotment under S. 34C. This was a conclusion on facts,
which the High Court has declined to interfere with.
Thus, we have a peculiar position in this case. While
Mr. Dhawan is right in saying that the appellant, as a bona
fide purchaser of the land for value at public auction,
should be put in the same position in which he would have
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been had his auction purchase as evidenced by the Sale
Certificate been effective from the date of purchase, Mr.
Bhagat appears to be justified in saying that it would not
be just and proper to deprive the second respondent who was
inducted by Budha Singh as a sub-lessee and who has contin-
ued in possession of the land till date, of the fruits of
his protracted litigation culminating in allotment of the
land to him. The difficulty in the present case has arisen
because the State confirmed the sale in favour of the appel-
lant in 1969 and issued a sale certificate to him in 1973
without waiting for the final outcome of the second respond-
ent’s revision application to the Chief Settlement Commis-
sioner and further proceedings consequent thereon. The odd
situation, creating equities in favour of both the parties,
that has thus resulted in the present case is due to the
fault of the appellant or the second respondent. It could
have been avoided if the State had held over the auction
until the second respondent’s application had been finally
disposed of or had held the auction subject to the result of
the application. It is true that the second respondent could
have taken steps to challenge the auction in favour of the
appellant but, perhaps misguidedly, he was concentrating on
getting an allotment under S. 34C for which he cannot be
25
wholly blamed. Whatever that may be, the final position is
that both parties have had to suffer and indulge in lengthy
litigation ....
Under the above circumstances we feel that while this
Court is to administer justice according to law there may be
scope for doing justice and equity between the parties. In
such a situation we remember what the Institute of Justin-
ian, De Justitia Et Jure, in ’Liber Primus’ Tit. I said:
"Justice est constans et perpetua voluntas jus suum cuique
tribuendi." Justice is the constant and perpetual wish to
render every one his due. "Jurisprudentia est divinarum
atgue humanarum rerum notitia, justi atgue injusti
scientia." Jurisprudence is the knowledge of the things
divine and human; the science of the just and the unjust.
The divine is that which right reason commends. The human is
a|so in the contents of the law. As Max Rumelin said, in the
Struggle to govern Law, "Justice is rivaled by equity." The
dilemma that equity is to be better than justice and yet not
quite opposed to justice, but rather a kind of justice has
troubled us. Gustav Radbruch clarifies the mutual relation
between two kinds of justice, namely, commutative and dis-
tributive. We may call "just" either the application or
observance of law, or that law itself. "The former kind of
justice, especially the justice of the Judge true to the
law," according to him, "might better be called righteous-
ness." Here "we are concerned not with justice which is
measured by positive law, but rather with that by which
positive law is measured." Justice in this sense means
equality. Aristotle’s doctrine of justice or equality is
called by him commutative justice which requires at least
two persons while distribute justice requires at least
three. Relative equality in treating different persons while
granting relief according to need, or reward and punishment
according to merit and guilt is the essence of distributive
justice. While in commutative justice the two persons con-
front each other as co-equals. three or more persons are
necessary in distributive justice in which one, who imposes
burdens upon or grants advantages to the others, is superior
to them. "Therefore, it presupposes an act of distributive
justice which has granted to those concerned, equality of
rights, equal capacity to act, equal status." (The Legal
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Philosophies of Lask, Radbruch and Dabin--P. 74) According
to Radbruch, "distributive justice is the prototype of
justice. In it we have found the idea of justice, toward
which the concept of law must be oriented." Law offers and
protects and conditions necessary for the life of man and
his perfection. In the words of Cardozo, "What we are seek-
ing is not merely the justice that one receives when his
rights and status are determined by the law as it is, what
we are seeking is 1 justice to which law in its making
should
26
conform." The sense of justice will be stable when it is
firmly guided by the ’pragma’ of objective and subjective
interests.
In the instant case the Financial Commissioner is a
party. What we find in the instant case is that the Rehabil-
itation authorities acting under the Act and the Rules
decided the competing claims of the appellant as well as the
second respondent as to the land. If the Rehabilitation
authorities can provide an equal extent of land with equal
benefits to both the parties justice, may appear to be done
but that being uncertain, the availability of land being
limited, this Court can only look towards equity for solu-
tion.
Considering the facts of the instant case including the
extent of the land and the purposes of the Act and the
Rules, and the reality that the land must have become scarce
and much more valuable now than in 1967, we feel that the
ends of justice on the facts of the present case require
that the impugned Orders be set aside and the land be caused
to be divided by the Financial Commissioner into two equal
halves and one half be given possession of to the appellant
by dint of his auction purchase and the other half be allot-
ted and given possession of to the second respondent under
Rule 34C of the rules. We order accordingly. We direct the
Financial Commissioner or the Chief Settlement Commissioner,
after notice to the appellant and the second respondent, to
divide the land forthwith into two qual halves and deliver
possession of the appellant’s moiety to him. They should
carry out the above directions within three months from the
date of receipt of this order. The parties shall cooperate
in carrying out of the directions and we hope that they will
be able to live in peace thereafter. The appeal is disposed
of accordingly. Under the facts and the circumstances of the
case, we make no order as to costs. A copy of the Judgment
may be forwarded forthwith to the Financial Commissioner.
S.B. Appeal allowed.
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