9911796707
TMI Blog1990 (9) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... Gurdaspur, was owned by one Vinod 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 ₹ 100. In 1958 the lease in favour of Budha Singh was cancelled with information to him by the Rehabilitation Department 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. 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 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 ₹ 9,500 (Rupee nine thousand five hundred) which was accepted. The sale c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst 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 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 petition challenging that Order having been dismissed in limine by the High Court vide impugned Judgment dated 24.8.1988, he appeals. Rule 34C included i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing his second application for allotment was remanded by the Chief Settlement Commissioner 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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-- (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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, a displaced person, having bona fide purchased the land in public auction for ₹ 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 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 subtenant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 present 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 without waiting for the final outcome of the second respondent s revision application to the Chief Settlement Commissioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sophies 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 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 1 justice to which law in its making should 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 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 solution. Considering the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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