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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 15 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 18 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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19 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. 27