c GURBAX SINGH S10 CHANDA SINGH v. FINANCIAL COMMISSIONER AND ANR. SEPTEMBER 21. 1990 [S. RANGANATHAN AND K.N. SAIKIA JJ.] Displaced persons Compensation & Rehabilitation Act 19541Dis- placed persons Compensation and Rehabilitation Rules 1955-Sections 14, 34C/Rules 34C, 34H and 92-Allotment of agricultural land-Bona fide purchaser of la.nd at public auction-Right of
The appellant, a retired army subedar and also a displaced 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 land 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 fmal 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 Sep.tember 15, 1969 without waiting for the fmal out come of the second respondent's revision application to the Chief Settle- ment Commissioner, and further consequent proceedings 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 reject- ing his first application was not commnnicated 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 applica- lion before the Chief Settlement 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 Commissioner was also rejected on May 13, 1973 as he could not prove his continuous cultivatory possession as a sub-lessee under Budha Singh from January 1, 1956 till the termination of the latter's lease. Thereafter second respondent institnted a suit against Budha Singh for declaration of his continuous possession of the land and got a decree in his favour as heji\g 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 alloted 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 iri favonr of the .second respondent was quashed by the Chief Settlement Commisioner vide his order dated January 1, 1979 declaring the appellant to be the ?Uction purchaser and therefore the true owner of the Land. The second respon- dent's revision was rejected by the Financial Commissioner on Oct. 23, 1979. Thus all authorities in th~ successive rounds found the facts against the second respondent.
· Therefore, the second resondent filed a writ petition challenging c the Financial Commissioner's order in the High Court. High Court remanded the case to the Financial Commissioner 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 contilmous possession since January 1, 1956, and thereafter he had a superior claim to the allotment of the land and qnashed 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 he held against him and his continuous possession since 1962 can be pre- sumed entitling him to an allotment under Rule 34 C of the Rules. This was a conclusion on facts which the High Court declined to interefere with and dismissed the appellant's writ petition in limine on August 24. 1988.
Allowing the Appeal, the Court, HELD: In the insta.nt 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 in which he would have heen, had_ his auction purchase as e\·idenced by the c
[1990) Supp. 2 S.C.R. 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 proc1~dure 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 'ale. The difficulty in the present case has arisen because the State confirmed the sale in favour of the appellant in 1969, whereas it is.sued sale rertificate to him on June 23, 1973 with effect from September 15. 1969 without waiting for the final outcome of the second respondent's revi- sion application to the Chief Settlement Commissioner & further pro- ceedings thereafter.
Thus, the odd situation resulted in creating equities in 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 competin& claims of the appellant as well as the second respondent as to the dis- puted land and provided an equal extent of land with equal benefits to hoth the parties justice may appear to be done but that being uncertain, the availibility of land being limited .. the court can only look towards equity for solution. The delimma 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 dis- cussed. [24E; F-H; 23G-H; 26B; 25C]
Passages from justinian, gustav Radbrach, Aristotle and Cardozo referred to. Considering the facts, the extent of land and the purposes 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]
• I GURBAX SINGH '· FINANCIAL COMMR. ISAIK!A, J.] 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 Compensation and Rehabilitation Rules 1955 {hereinafter referred to as 'the rules') framed under the Displaced Person Compen- sation and Rehabilitation Act, 1954 (hereinafter referred to as ·the Act').
c 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 Yinod Kumar. The second respondent 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 Singh was cancelled with information to him by the Rehabilitation Depart· ment whereupon the second respondent's right as sub-lessee came to an end. Consequently the second respondent was no longer recorded as lessee or sub-lessee after 1958-59.
f In 1961 the second respondent applied to the Settlement Authority tor allotment of the land under Rule 34C of the rules claiming as a >uh- lessee. 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 revision 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 hundered) which was accepted. The sale certificate was dulv issued by [ 1990] Supp. 2 S.C.R.
A 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 allotment 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 there- from to the Settlement. Commissioner was also rejected by Order dated' 13.5.1973 as the second respondent could not prove his conti- nlious cultivating possession as .a sub-lessee under Budha SinP,h 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 possession of the land. How- . D ever, neither the appellant Who purchased the land in auction nor the Rehabilitation Department 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 revisionfrom the appel- late 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- !ant's appeal therefrom to the Settlement Commissioner was dismissed vide order dated 6.6. 1978 but his revision therefrom 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 Commissioner declared the appellant to be the auc- tion purchaser and therefore the true owner of the land. The second G . respondent's revision therefrom was also rejected by the Financial Commissioner on 23.10.1979. Thus all the authoritid in the successive rounds found the facts against the second respondent.
The second respondent then filed a writ petition challenging 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 I SAIK IA, J.]
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 auctioin sale made in favour of the appellant on 11.8.1967 holding that being a sub-lessee in continuous possession since I. I. 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 petition challenging that Order having been dismissed in limine by the High Court vide impugried 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 c 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 sub- Mr. submits, lessee has been in occupation of such land or part thereof continuously from the first January 1956 such land or part. thereof as the case·may be, shall be allotted to such sub- lessce."
Rajeev Dhawan, the learned counsel for the appellant, inter alia, that after Budha Singh's lease was cancelled in· 1958, the second respondent's status as sub-lessee ceased and there- after 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 unae;' Rule 34C of the rules; that his first application was rightly rejected and he having never preferred any appeal or revision therefrom, 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.
c [1990) Supp. 2 S.C.R. Mr. K.G. Bhagat, the learned counsel for the respondent, sub- mits 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 appel- lant 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 purchaser during the pendency of that application and only after it was rejected on 24.7. 1969, the appellant was declared purchaser on 15.8.1969. It also appears that after the second respon- dent's revision petition against the order rejecting his second applica- tion for allotment was remanded by the Chief Settlement Commis- sioner to the Managing Officer 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 sub- lessee as required under Rule 34C; and the appei!l therefrom was also rejected on 13.5.1973, the Certificate of sale was issued to the appel- lant 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 posses- sion 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 there- after 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." 1 •• [SAIKIA, J.l Chapter XIV of the rules prescribes the procedure for sale of property in the compensation pool. Rule 90 prescribes the procedure for sale of property by public auction. Sub-rule 15 of Rule 90 provides for issue of sale certificate and for sending a certified copy of the sale certificate by the Managin~ 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 fall of the hammer and the declaration of the highest bid, (2) the approval of the highest bid by the Settlement Commissioner or Officer appointed 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 c
of the said property with effect from the certificate date. The title, however, w.ould not be abeyance till the certificate was issued but would be based on the confirmation of the sale. The intention behind ·j
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 appellant, there- fore, 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 15.9.1969. Rule 92 provides:
"92. Procedure for setting aside a sale.-(!) 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 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- c [ 1990) Supp. 2 S.C.R. (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 committecl 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 th~ 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 pe~son had been committed in the conduct of the sale.
Section 14 of the Act provides for constitution of the compensa- tion pool. Section 15 of the Act exempts the property in compensation pool from processes of courts. Section 20 of the Act empowers the Managing Officer or managing corporation to transfer any property within the compensation pool-( a) by sale of such property to a dis- placed person or any association of displaced person whether incor- porated 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 immov- able 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 eny 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 there- fore barred in the matter of the sale. It is true that where the special tribunal 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 ,,… 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 Kera/av. 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 · 9fficer under the Act.
That decree, even if it was not declared collusive '"''' could not have collaterally affected the auction sale order. Mr. Dhawan is, therefore, right in his submission that the appel- lant, a displaced person, having bona fide purchased the land in public auction for Rs.9,500 and having paid that amount with the sincere hope of his rehabilitation, 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 impugned or- ders, been enjoying the usufruct of the land and this is because of the State not honouring its own final commitment made in the sale certifi- cate in favour of the appellant.
.,. · :· ~ Mr. Bhagat answers that the second respondent was in posses- sion, 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 c
and then was a sub-tenant holding over on the date he applied for allotment in 1961. 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 <:F
11.1.1979 and allotted the land to the second respondent declaring him lo 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 application 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 A . into account. Mr. Dhawan emphasises that, it having been repeatedly held earlier that continuous cultivating possession of the second respondent was not proved, there was no basis for the Financial Com- missioner in his order dated 9.2. 1988 to have observed that "a favour- able presumption regarding continuity of his possession during the c
intervening period that is from kharif 1961 to rabi 1964 ought to have been drawn and benefit of doubt given" to the second respondent, in spite of the absence of Girdawari for the year 1961-62 and 1962-63 and mutilations in the entries of Girdawari 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 to consider the matter afresh. Doing so, he has found that since the pQSSession 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 mutila- . tion for 1963-64 ano 1964-65 should not be held against him and that his continuous possession since 1962 can be presumed entitling him to an allotment under S. 34C. This was a conclusion on facts, which the D 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 been had his auction purchase as E 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 continued 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 pre- F sent case has arisen because the State confirmed the sale in favour of the appellant in 1969 and issued a sale certificate to him in 1973 with- out waiting for the final outcome of the second respondent's revision application to the Chief Settlement Commissioner and further pro- ceedings consequent thereon. The odd situation, creating equities in favour of both the parties, that has thus resulted in the present case is G 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 con- H centrating on getting an allotment under S. 34C for which he cannot be [SAIKIA, J.l
2$ · 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 remem- ber what the Institute of Justinian, De Justitia Et Jure, in 'Liber · · B 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 also in the contents of the law. As Max Rumelin said, in the Struggie to govern Law, "Justice is rivaled by equity." The dilemma that equity is to be b_etter 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 distributive. We may call "just" either the applica~ tion 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 righteousness." Here "we are ~on cemed 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 eqality is called by him commutative justice ~hich 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 distribu- tive justice. While i11 commutative justice the two persons confront each other as co-equals, three or more persons are necessary in dis- tributive justice in which one, who imposes burdens upon or grants advantages to the others, is superior to them.
"Therefore, it pre- supposes an act of distributive justice which has granted to those concerned, equality of rights, equal capacity to act, equal status."· (The Legal 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 condi- tions necessary for the life of man and his perfection. In the words of Cardozo, "What we are seeking 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 .t justice to which law in its making should c
[ 1990] Supp. 2 S.C.R. A 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 Rehabilitation 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 p;uties justice, may appear to be done but that being uncertain, the availability of land being limited, this Court can only look towards equity for solution.
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 D 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 allotted 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 Com- missioner, after notice to the appellant and the second respondent, to divide the land forthwith into two qua! 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 <>f 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.