ivil Appeal No4718 of 1990
From the Judgment and Order dated 2481988 of the Punjab and Haryana High Court in CWP No 7136 of 1985
Dr Rajeev Dhawan and Arun K Sinha for the Appellant
KG Bhagat BS Malik and Ms Galshan for the Respondents
The Judgment of the Court was delivered by KN 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 921988 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
1781 82 and 84 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 Rs100
In 1958 the lease in favour of Budha 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 25111962 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 1181967 and the appellant a retired army Subedar and also a displaced person from West Pakistan offered the highest bid of Rs9500 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 25111962 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 2231973
The second respondent s appeal therefrom to the Settlement Commissioner was also rejected by Order dated 1351973 as the second respondent could not prove his continuous culti vating possession as a sub lessee under Budha Singh from 111956 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 1351973 before the Chief Settlement Commissioner who by his Order dated 5111976 remanded the case to the Managing Officer for fresh decision
The Managing Officer vide his order dated 611978 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 661978 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 1111979
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 23101979
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 23101979 and the High Court contrary to all the aforesaid findings of fact remanded the case by 19 its order dated 7183 to the Financial Commissioner for fresh decision in the light of the decree of the civil court dated 17111973 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 921988 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 1181967 holding that being a sub lessee in continuous possession since 111956 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 2481988 he appeals
Rule 34C included in Chapter V of the rules provides Allotment of agricultural lands of the value of Rs10000 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 Rs10000 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 1867 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 1581969 and the sale certificate issued to him was with effect from 1591969
20 Mr KG 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 247
It appears that though the land was sold in auction to the appellant under Rule 34H on 1181967 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 2471969 the appellant was de clared purchaser on 1581969
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 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 1351973 the Certificate of sale was issued to the appellant on 2361973 with effect from 1591969
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 vs 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 2591969
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 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 
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 section 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 vs 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 vs Ms 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 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 Rs9500 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 1111979 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 24888 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 23101979 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 92
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 23101979 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 section 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 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 section 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 aso 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 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
SB Appeal allowed


Summary:
The appellant was manufacturing Hacksaw blades and Bandsaw falling under Tariff Item No 51 Aiv of the Cen tral Excise Tariff
On 2631985 they filed a classification list as per Rule 173 B of the Central Excise Rules 1944 in respect of their products furnishing the tariff rate of 15 Ad valorem by mistake instead of furnishing the effective rates of duty as per Notification No8585 CE dated 1731985
The Assistant Collector of Central Excise ap proved the classification list on 361985
On 31101985 the appellant filed a revised classification list with the effective rates of its products with retrospective effect from 2631985 which was also approved by the Assistant Collector of Central Excise
On 30101985 the appellant made an application under section 11B of the for refund of excise duty claiming that they had paid excess excise duty from 141985 to 3181985
By its order dated 13121985 the Assistant Collector of Central Excise allowed the claim only partly but rejected the claim for the period from 141985 to 2741985 on the ground that the claim was barred under section 11B of the Act because the relevant date  for preferring the claim for the appellant was the date of payment of duty and the duty had been paid by adjustment in the personal ledger account as and when goods were removed The order of the Assistant Collector was confirmed in the appeal by the Collector of Central Excise Appeals
Appellant s further appeal to the Customs Excise and Gold Control Appellate Tribunal was also unsuccessful
In appeal to this Court under section 35L of the it was contended on behalf of the appellant i that mere debiting in the personal ledger account should not be taken as the 2 starting point for limitation and the relevant date should be the date on which ART 12 Returns which were filed on a monthly basis were assessed and ii that clause e of Explanation to Section 11 B was applicable to the case
Allowing the appeal this Court HELD 1
The scheme for payment of duty of goods under which the appellant was clearing his goods is known as self removal  procedure
There will be no time bar for refund if the duty is paid under protest
The period of 6 months is prescribed in other cases
6H 7A 2
In the instant case the classification list filed by the appellant for the period 141985 to 2741985 was not approved till 3685
From provisions of Rules 173B 173C and 173CC of the Central Excise Rules 1944 it is clear that clearances can be made only after the approval of the list by the particular officer
However if there is likely to be delay in accordance with the approval the officer can allow the assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of goods
Between 1st April 1975 when the classification list was filed and 3rd June 1985 when the list was approved the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account
The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned
In these circumstances the clearance of goods made by the appellant between 1st April and 3rd of June 1985 were in accordance with the procedure for provisional assessment
In such a situation clause e of para B of the Explanation under section 11 B will be attracted
The RT 12 Return for the month of April 1985 was filed on 851985 and the same was assessed on 29101985
It is therefore only from the date of this assessment that time bar in section 11 B will operate
The refund application having been filed on 30th October 1985 cannot therefore said to be time barred
7B D E F