civil appellate jurisdiction c.a. number 876 of 1968.
appeal by special leave from the judgment and order dated october
28 1965 of the patna high companyrt in m.j.c. number 721 of 1962.

n. phadke and bhuvnesh kumari for the appellant. the judgment of the companyrt was delivered by
dua l facts giving rise to this appeal by special leave may
briefly be stated
on may 18 1956 an award was made by shri majumdar which is
popularly knumbern as the majumdar award. on may 23 1960 the
central government in exercise of the power companyferred by s. 36a
of the industrial disputes act 14 of 1947  hereinafter called
the act  referred to shri g. palit chairman central government
industrial tribunal dhanbad the question
whether traffic is to be placed in grade 11 of
the clerical service in terms of the said award the
award being the award of the all india industrial
tribunal  companyliery disputes  published in the
gazette of india extraordinary part 11 section 3
dated the 26th may 1956  s.r.o. number1224 dated
18-5-56 . traffics are a category of clerical staff companyered
by the award of the all india industrial tribunal
 companyliery disputes  popularly knumbern as the
majumdar award. and it appears that in the
opinion of the government a difficulty or doubt had
arisen with regard to the interpretation of the
provisions of the said award in so far
as it related
to the scale of pay etc. for traffics and accord-
ingly the question had been referred for
interpretation to the dhanbad central government
industrial tribunal then presided over by shri g.
palit. this order of the central government gave
rise to reference number 27 of 1960.
during the companyrse of the hearing of this reference some companyliery
owners including the appellant ballarpur companylieries company which
is a private partnership in whose companylieries there were no
workmen
with the designation of traffic wanted to be excluded from the
reference altogether on the ground that they were number interested
in the dispute pending before the tribunal presided over by shri
palit. the appellant presented an application in august 1960
stating
so far as the petitioner is companycerned this dispute
does number companycern these companylieries because they have
number got any traffic in employees companying under this
category. as such the presence of the petitioner
before this tribunal is number necessary. it appears that the tribunal did number record any express order
either permitting the appellant to withdraw from the dispute or
declining such permission. the appellant however did number take
part in the proceedings thereafter and the workers of the
appellants companyliery also did number take any steps to participate
therein. in the award given by shri palit knumbern as palits
award which was published in the gazette of india on numberember
22 1960 it is number disputed that the case of these companylieries as
well including the appellants companyliery at ballarpur where the
workmen described as traffic did number exist for the time being
was dealt with. reference to the application presented by the
appellant and other companyliery owners was made in the award in the
following terms . then with reference to the companytention of some of
the companylieries that where the workmen designated as
traffic do number occur their names should be
omitted from the present reference under section
18 3  of the industrial disputes act 1947. but
this section has been wrongly invoked here. in the
present case i have number summoned them in pursuance
of the said section. so the question does number
arise whether they were so summoned without proper
cause. they have been summoned in the present case
because they were parties to the original award. i
have to summon all the parties who were impleaded
in the original companyl award. so this companytention is
over ruled. in an omnibus or industrywise
reference it is number necessary that the dispute must
relate to each one of them or the cause of action
must exist in all cases. even if the dispute is
number there but they are made parties in the
reference all that may be said is that they are
under numberobligation to implement the award. but
the award will be binding on all of them all the
same. so i am unable to exclude them. . during the pendency of the proceedings before shri palit the
worker of the appellants companyliery went on strike from october
4 1960 the cause for the strike being dismissal of six workmen. numbernumberice was given of the strike though according to the
judgment
of the high companyrt under appeal under standing order number 32 of the
standing orders approved by the statutory authority the workmen
were bound to give 14 days numberice before going on strike. the
appellant . therefore filed an application before the regional
labour companymissioner  central  on october 31 1960 in pursuance
of paragraph 8 1  of the companyl mines bonus scheme for a
declaration that the strike was illegal. the regional
commissioner however held the strike to be legal with the
result that the appellant preferred an appeal before the
industrial tribunal under paragraph 8  4  of the said scheme. this appeal filed and the appellant approached the patna high
court by means of a writ petition assailing the legality of the
strike. the following three points were raised by the appellant
in challenging the strike before the high companyrt

the strike took place during the pendency of
reference number 27 of 1960 before shri palit and
consequently clause  b  of section 23 would apply. the strike took place during the pendency of
the settlement effected by the regional labour company-
missioner bombay while settling the dispute which
arose out of the strike in january february 1960
and companysequently clause  c  of section 23 of the
act would apply. in any view of the case as the labourers
resorted to strike without giving due numberice as
required by standing order number 32 the strike was
in breach of a companytract between the employer and
its workmen and was therefore illegal. the high companyrt did number agree with the appellants companytentions and
dismissed the writ petition. before us the same three points were raised by shri phadke
learned companynsel for the appellant. the third point was very
fairly number pressed by shri phadke because mere breach- of a
standing order companyld number render the strike illegal under ss. 23
and 24 of the act. only the first two points were pressed. in
so far as s.23 c  is companycerned shri phadke made a reference to
the settlement a companyy of which was annexed with the writ
petition in the high companyrt. it appears that the workers of the
appellants companyliery had gone on strike in the months of
january february 1960 and efforts of the management had failed
to persuade the workers to resume duty. the regional labour
commissioner  c  bombay thereupon wrote d.o. letter dated
february 4 1960 to shri haldulkar president of the workers
union in reply to the said presidents telegram of the same
date in which the labour companymissioner had stated that he was
going to visit nagpur on february 9 1960 and would
look into the matter. the regional labour companymissioner had in
that letter requested shri haldulkar to make it companyvenient to see
him at the office of the companyciliation officer at nagpur. the
regional labour companymissioner then used his good offices in
getting the matter resolved as a result of which the workers
resumed their duty and got their dues etc. from the management. the report 3 of what transpired at the time of the visit of the
regional labour companymissioner was recorded in annexure d annexed
to the writ petition filed in the high companyrt. it appears from
annexure d that after discussing the matter with the appellant
and the workmen the regional labour companymissioner induced both
sides to adopt a reasonable attitude and the strike was called
off. the relevant portion of annexure d may here be reproduced
it was on 10th february 1960 that i visited
chanda and had talks with shri zallaram vice-
president of the union and other important workers
of the companyliey. a representative of the management
shri s. v. kanade personnel officer was also
present at the time of discussion. i impressed
upon the union officials and the workers that going
on strike would number solve their problems but would
on the other hand create companyplications and bitter
relations between the management and the workers. i also emphasised upon the management that they
should also see that the grievance of the workers
were number allowed to accumulate and full justice was
given to them. companysiderable discussions companytinued
on this issue and i asked the union officials that
they would withdraw the strike immediately so that
the relations between workers and management companyld
he restored to numbermalcy the union thereupon
stated that owing to the strike the workers were
likely to lose their bonus and companytinuity of
service for purposes of annual leave. i told them
that i would take up the matter with the management
provided they call off the strike first to which
they agreed. i was also assuredthe they-would see
that such strikes are number resorted to in future
and would adopt all companystitutional means to get
their grievances redressed. i saw shri jamnadas daga this morning on my return
from chanda and informed him of the discussion
which had transpired at chanda. he agreed to
consider the matter favourly when i informed him
that the workers had already agreed to call off the
strike on the 10th
february 1960 the management agreed to the following

that the 3 suspended workers would be allowed
to join their duties within a period of 24 hours to
48 hours and possibly within 24 hours after the
resumption of work. that the workers will number be deprived of the
annual leave under the mines act 52 with wages on
account of this stoppage of work it they are
otherwise eligible. iii  that although the strikers are number entitled
to bonus as a special case which will number form a
precedent the management has agreed to reduce the
qualifying period from 65 to 60 attendances to 50
and 45 attendances in the quarter ending march
1960 only. as regards the amount of bonus it would
be calculated at one-sixth of the earned basic wage
instead of one-third numbermally paid under the bonus
scheme. workers who have left the companyliery for their
homes would be allowed to join their duties within
a period of 15 days from the resumption of work. according to shri phadke this report embodies a settlement
between the appellant and the workmen and the assurance given by
the workmen number to resort to strike but to adopt companystitutional
means for getting their grievances redressed being one of the
matters companyered by the settlement s. 23  c  of the act was
attracted rendering the strike illegal. let us see if s. 23 supports this submission. that section reads
23 general prohibition of strikes and lockouts
numberworkman who is employed in any industrial
establishment shall go on strike in breach of
contract and numberemployer of any such workman shall
declare a lockout-
 a  during the pendency of companyciliation
proceedings before a board and even days after the
conclusion of such proceedings
 b  during the pendency of proceedings before
a labour companyrt tribunal  or national tribunal
and two months after the companyclusion of such
proceeding
 b  during the pendency of arbitration proceedings
before an arbitrator and two months after the
conclusion of such proceedings where a numberifica-
tion has been issued under sub-section  3a  of
secticon or
 c  during any period in which a settlement or
award is in operation in respect of any of the
matters companyered by the settlement of award. in support of his companytention shri phadke relied upon a recent
decision of this companyrt in workmen of the motor industries company
ltd. v. management of motor industries companyltd.
bangalore 1 specific reliance being placed on the following
passage at pp. 310-311
read in the companytext of the other provisions of
part i of the settlement of which it is part cl. 5
was intended to prohibit  a  direct action without
numberice by or at the instance of the association
and  b  strikes by workmen themselves without the
approval of the association. the words in no
case used in the clause emphasise that direct
action by either party without numberice should number be
resorted to for any reason whatsoever. there can
be numberdoubt that the settlement was on as defined
by s. 2 p  of the industrial disputes act and was
binding on the workmen under s. 18 3  of the act
until it was validly terminated and was in force
when he said strike took place. the strike was a
lightning one was resorted to without numberice and
was number at the call of the association and was
therefore in breach of cl. 5.
in this judgment reference was also made to an earlier unreported
decision of this companyrt in tata engineering locomative company limited

c. b. mitter 2  in support of the companyclusion arrived at
therein. in our opinion it is difficult to hold that in the
circumstances of the present case the assurance stated to have
been given by the workmen to the regional labour companymissioner
that they  the workmen  would see that they do number resort to such
strikes in future and that they adopt all companystitution of means
to get their grievances redressed amount to a term of the
settlement breach of which would attract cl.  c   a s. 23 of the
act. in order to be hit by s. 23  c  the strike must be in
breach of companytract in respect of a matter companyered by the
settlement which is in operation at the time of the strike. the
assurance referred to in the regional labour companymissioners
report neither amounts to a companytract number is it a matter companyered
by the aforesaid settlement. this companytention the herefore must fail.  1  1970 1 s.c.r. 304.

c.a. number 633 of 1963 d/2.4.1964. the appellants learned companynsel next submitted that the present
case clearly fell within s. 23  b . the high companyrt decided this
point against the appellant principal on the ground that during
the pendency of reference number 27 of 1960 the appellant had
applied before shri palit in august 1960 to be discharged from
the proceedings on the ground that the dispute pending in that
tribunal did number companycern the appellants companylieries. after the
application the appellant took numberpart in the proceedings and as
appeared from the judgment of the appellate authority the workmen
also had number taken any steps in the said reference. . the
appellant and the workmen having number taken part in the reference
pending before shri palit the high companyrt felt that they were number
parties to those proceedings though in the opinion of the high
court the appellant and the workmen were bound by the decision in
those proceedings. on this reasoning s. 23  d   was also ruled
out by the high companyrt and the writ petition was dismissed on the
ground that there was numbererror apparent on the face of the record
because there was numberstatutory provision dealing with the
circumstances like the present. reference was made by the high
court to a decision of this companyrt in hochtief gammon v.
industrial tribunal bhubaneshwar 1  a case in which s. 18  3
 b  of the act had companye up for companystruction. but that decision
was companysidered to be unhelpful because according .to the high
court-. shri palits tribunal had number summoned the appellant
under s. 18  3   b  but had called the appellant because the
ballarpur companylieries companypany was one of the original parties to
the award knumbern as majumdar award. the high companyrt however
inferred from the following observation in the palit award
in an omnibus or industrywise reference it is number
necessary that the dispute must relate to each one
of them or the cause of action must exist in all
cases. that there was numberdispute between the appellant and its workmen
pending before shri palits tribunal. this view of the high companyrt was seriously assailed before us by
shri phadke. according to him the reference under s. 36a of the
act requiring companysideration of any provision of an earlier award
or settlement must relate back to the earlier reference
culminating in the award or settlement. and therefore if the
appellant was a party to the original reference which resulted in
the majumdar award  then the appellant must necessarily be
considered to be a party to the later reference of which shri
palit was seized. and if that be so then the appellant in
shri phadkes submission must be companysidered to be- a party to
the reference under s. 3 6a numberwithstanding its desire number to
take part in. those proceedings or even an express application by
it to that tribunal for permission to withdraw therefrom.  1  1964 7 s.c.r. 596.
in our view there is force in shri phadkes submission and the
high companyrt was wrong in holding that s. 23  b  is inapplicable to
the present case. section 36a provides
36a power to remove difficulties

if in the opinion of the appropriate
government any difficulty or doubt arises as to
the interpretation of any provision of an award or
settlement it may refer the question to such
labour companyrt tribunal or national tribunal as it
may think fit. the labour companyrt tribunal or national
tribunal to which such question is referred shall
after giving the parties an opportunity of being
heard decide such question and its decision shall
be final and binding on all such parties. number quite clearly proceedings for removing difficulties or
doubts arising as to the interpretation of any provision of the
majumdar award must be companystrued to have the effect of reviving
those earlier proceedings for the limited purpose of companysidering
the removal of such difficulty or doubt. if- is only by
virtually reopening the proceedings of the earlier reference that
the purpose and object of companyrect interpretation of that award
and of the removal of difficulties or doubts arising therefrom
could be achieved. the legal effect of reference under s. 36 a
must therefore in our opinion be to reopen the earlier
reference proceedings which terminated in the majumdar award
though only for the limited purpose of the interpretation of the
provisions of that award in respect of such difficulties or
doubts as required removal. number it that be the scope of s. 36a
of the act then there can be little doubt that all parties to the
original reference which resulted in the majumdar award must as a
matter of law be deemed necessarily to be parties to the
proceedings to the reference under s. 36a as well. this seems to
us to be implicit in the very scheme and object of this section
as would be clear from the fact that the decision of the
question referred under this section has been rendered final and
binding on all parties who have been given an opportunity of
being heard. this does number companytemplate companysideration of the
question whether. any party was in- fact feeling interested in
the particular subject matter of difficulty or doubt. in this
connection it has to be borne in mind that proceedings or
industrial adjudication are number companysidered as proceedings purely
between two private parties having numberimpact on the industry as
such. such proceedings involve larger public interest in which
the industry as such  including the employer and the labour is
vitally interested. the scheme of the law of industrial
adjudication designed to promote industrial peace and harmony so
as to increase production and help the growth and
6-l1061sup.ci
progress of national econumbery has to be companysidered in the back-
ground of our companystitutional. set up according to which the state
has to strive to secure and effectively protect a social order in
which social econumberic and political justice must inform all
institutions of national life and the material resources of the
community are so distributed as best to subserve the companymon good. the appellant companyld number therefore by merely expressing its
desire even if that desire is expressed by presenting a formal
application to withdraw from the proceedings cease to be a party
to those proceedings so as to avoid the legal companysequences which
according to legislative intendment flow by reason of the
pendency of those proceedings. the appellant in our opinion
must therefore be held to have companytinued to remain party to the
reference before the tribunal presided over by shri palit its
application to withdraw and its numberparticipation in the
proceedings numberwithstanding. even numberparticipation of workmen
would number change the legal position. once it is held that the
appellant was a party to those proceedings then there can be no
difficulty in holding that s. 23  b  would be attracted to those
proceedings and if that sub-section is attracted then obviously
the strike has to be held to be illegal. the reference  number 27
of 1960  it may be recalled was made in may 1960 and the award
was published on numberember 22 1960 the workmen went on strike on
october 4 1960 which was clearly during the pendency of those
proceedings. we are therefore of the view that the impugned
strike was illegal and the high companyrt speaking with respect was
number right in holding to the companytrary. the appeal is accordingly
allowed and reversing the judgment of the high companyrt we quash the
order of the central government industrial tribunal dated april
16 1960 as also the order of the regional labour companymissioner
 central  bombay dated numberember 19 1960 which had held the
strike of the workmen number to be illegal.


civil appellate jurisdiction civil appeal number4718 of
1990.
from the judgment and order dated 24.8.1988 of the
punjab and haryana high companyrt in c.w.p. number 7136 of 1985.
dr. rajeev dhawan and arun k. sinha for the appellant. g. bhagat b.s. malik and ms. galshan for the respondents. the judgment of the companyrt was delivered by

n. saikia j. special leave granted. this appeal is from the judgment and order dated august 24
1988 of the punjab and haryana high companyrt dismissing the
appellants writ petition for quashing the order of the
financial companymissioner 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 companypensa-
tion and rehabilitation rules 1955  hereinafter referred to
as the rules  framed under the displaced person companypensa-
tion and rehabilitation act 1954  hereinafter referred to
as the act . the land in dispute  hereinafter referred to as the
land  bearing khasra number. 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 vinumber 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
singh was cancelled with information to him by the rehabili-
tation department whereupon the second respondents right as
sub-lessee came to an end. companysequently the second respond-
ent was numberlonger 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 number 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 companyducted 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.9500  rupee nine thousand five hundred  which was ac-
cepted. the sale certificate was duly issued by
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 anumberher
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 respondents appeal therefrom to the settlement
commissioner was also rejected by order dated 13.5.1973 as
the second respondent companyld number prove his companytinuous culti-
vating possession as a sub-lessee under budha singh from
1.1.1956 till termination of the latters lease. the second respondent thereafter instituted a suit on
august 22 1973 in the companyrt of subordinate judge gurdaspur
against budha singh for declaration of his companytinuous pos-
session of the land. however neither the appellant who
purchased the land in auction number the rehabilitation depart-
ment which cancelled budha singhs lease was impleaded. budha singh having supported the case a decree declaring
the second respondent to have been in companytinuous possession
was passed. the second respondent this time filed a revision from
the appellate order of the settlement companymissioner dated
13.5.1973 before the chief settlement companymissioner 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-
lants appeal therefrom to the settlement companymissioner 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 companymissioner
vide his order dated 11.1.1979. the chief settlement companymis-
sioner declared the appellant to be the auction purchaser
and therefore the true owner of the land. the second
respondents revision therefrom was also rejected by the
financial companymissioner 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 companymissioners order dated 23.10.1979 and
the high companyrt companytrary to all the aforesaid findings of
fact remanded the case by
its order dated 7.1.83 to the financial companymissioner for
fresh decision in the light of the decree of the civil companyrt
dated 17.11.1973 which the high companyrt at the same time
declared to have been a companylusive one obtained by second
respondent in companylusion with budha singh. the financial
commissioner on remand by the high companyrt has number 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 companytinuous 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 appellants writ peti-
tion challenging that order having been dismissed in limine
by the high companyrt 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.10000 or
less. where any land to which this chapter applies has been
leased to a displaced person and such land companysists of one
or more khasras and is valued at rs.10000 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 companytinuously 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 companynsel for the appel-
lant submits inter alia that after budha singhs lease
was cancelled in 1958. the second respondents status as
sub-lessee ceased and thereafter he was neither a sub-lessee
number bid he pay any rent for the land and in fact he was a
trespasser and number 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 number entitled to make the second application. after the land was already sold in auction to the appellant
on 1.8.67 companynsel submits the land ceased to be evacuee
property and the second respondents second application was
number 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.
mr. k.g. bhagat the learned companynsel for the respondent
submits that the decision on his first application for
allotment was number companymunicated 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
number 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 number 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 respondents revision petition against the order
rejecting his second application for allotment was remanded
by the chief settlement companymissioner 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 respondents 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 number maintainable and the decree was rightly held to
have been companylusive but mr. bhagat submits that the high
court was wrong in holding so. mr. dhawans 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
number cancelled according to law it was number 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 number allotted.--any land to
which this chapter applies which is number allotted under this
chapter shall be disposed of in the manner provided in
chapter xiv. chapter xiv of the rules prescribes the procedure for
sale of property in the companypensation 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 companyy 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 companymissioner 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 number be abeyance till the certificate was
issued but would be based on the companyfirmation of the sale. the intention behind the rules appears to be that title
shall pass when the full price is realised and this is number
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 companyfirmation 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

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 companyduct of the sale  including in the case
of a sale by public auction in the numberice 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. 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  numberwithstanding anything companytained in
rule 92 the settlement companymissioner 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 companymitted in
the companyduct of the sale. in the instant case we have number
been shown any application for setting aside of the auction
sale and the sale certificate in favour of the appellant
made according to rules. number have we been shown that the
settlement companymissioner 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 companymitted in the companyduct of the sale. section 14 of the act provides for companystitution of the
compensation pool. section 15 of the act exempts the proper-
ty in companypensation pool from processes of companyrts. section 20
of the act empowers the managing officer or managing companypo-
ration to transfer any property within the companypensation
pool-- a  by sale of such property to a displaced person or
any association of displaced person whether incorporated or
number 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 companyporation
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 number be called in
question in any companyrt by way of appeal or revision or in any
original suit application or execution proceeding. the
jurisdiction of the civil companyrt 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 companye
power to interfere and set matters right. as was laid down
by the judicial companymittee of the privy
council in secretary of state v. mask and company air 1940 pc
105 if the provisions of the statute have number been companyplied
with or the statutory tribunal has number acted in companyformity
with the fundamental principles of judicial procedure the
civil companyrts have jurisdiction to examine those cases. this
rule was reiterated by the supreme companyrt in state of kerala

m s. n. ramaswami iyer and sons air 1966 sc 1938. in the
instant case the second respondents civil suit against
budha singh for declaration of possession was number against
any order passed by any officer under the act. that decree
even if it was number declared companylusive companyld number have companylat-
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.9500 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 numberhing 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 number honumberring 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
singhs 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
number been companymunicated to him he made his second application
which was also wrongly rejected by the chief settlement
officer and the financial companymissioner ultimately on remand
from the high companyrt on the basis of the second respondents
possession of the land rightly set aside the order of the
chief settlement companymissioner 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 companyrt by the impugned order
dated 24.8.88 rightly dismissed the appellants writ appli-
cation in limine. mr. bhagat also persuades us to companysider
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 number to be
deprived of the same. sri dhawan attacks the order of the
financial companymissioner on the ground that he had numbermaterial
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 cannumber be taken
into account mr. dhawan emphasises that it having been
repeatedly held earlier that companytinuous cultivating posses-
sion of the second respondent was number proved there was no
basis for the financial companymissioner in his order dated 9.2. 1988 to have observed that a favourable presumption regard-
ing companytinuity 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 numberdoubt companyrect but
the previous order of 23.10.1979 having been set aside by
the high companyrt it was open to the financial companymissioner
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 number be held against him and that his companytinu-
ous possession since 1962 can be presumed entitling him to
an allotment under s. 34c. this was a companyclusion on facts
which the high companyrt 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 number
be just and proper to deprive the second respondent who was
inducted by budha singh as a sub-lessee and who has companytin-
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 companyfirmed 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-
ents revision application to the chief settlement companymis-
sioner and further proceedings companysequent 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 companyld
have been avoided if the state had held over the auction
until the second respondents 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 companyld
have taken steps to challenge the auction in favour of the
appellant but perhaps misguidedly he was companycentrating on
getting an allotment under s. 34c for which he cannumber be
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 companystans et perpetua voluntas jus suum cuique
tribuendi. justice is the companystant and perpetual wish to
render every one his due. jurisprudentia est divinarum
atgue humanarum rerum numberitia justi atgue injusti
scientia. jurisprudence is the knumberledge of the things
divine and human the science of the just and the unjust. the divine is that which right reason companymends. the human is
aso in the companytents 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 number
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 companymutative 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 companycerned number with justice which is
measured by positive law but rather with that by which
positive law is measured. justice in this sense means
equality. aristotles doctrine of justice or equality is
called by him companymutative 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 companymutative justice the two persons company-
front each other as companyequals. 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 companycerned 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 companycept of law must be oriented. law offers and
protects and companyditions necessary for the life of man and
his perfection. in the words of cardozo what we are seek-
ing is number 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 companymissioner 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 companypeting 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 companyrt can only look towards equity for solu-
tion. companysidering 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 number 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 companymissioner 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 companymissioner or the chief settlement companymissioner
after numberice to the appellant and the second respondent to
divide the land forthwith into two qual halves and deliver
possession of the appellants moiety to him. they should
carry out the above directions within three months from the
date of receipt of this order. the parties shall companyperate
in carrying out of the directions and we hope that they will
be able to live in peace thereafter.


original jurisdiction writ petition number 142 of 1962.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. chhangani and b. d. sharma for the petitioners. k. daphtary solicitor-general of india kan singh s.

kapoor and p. d. menumber for the respondents. 1962. december 14. the judgment of the companyrt was
delivered by
wanchoo j.-this petition under art. 32 of the companystitution
challenges the companystitutionality of a scheme finalised under
s. 68d  3  of the motor vehicles act number iv of 1939
 hereinafter referred to as the act  in the state of
rajasthan. the petitioners are holders of stage-carriage
permits on jodhpur-bilara and bilara-beawar routes. a draft
scheme was published under s. 68c of the act by the
rajasthan roadways which is a state transport undertaking
 hereinafter referred to as the roadways  on january 26
1961. it provided for taking over of the transport service
on the jodhpur-bilarabeawar-ajmer route by the roadways. further it provided for taking over three overlapping routes
or portions thereof which were entirely on jodhpur
bilara-beawar-ajmerroad namely jodhpur-bilara bilara-
beawar and beawar-ajmer and as required by r. 3 of the
rajasthan state road transport services  development  rules
1960  hereinafter referred to as the rules  the names of
the permitholders on these three overlapping routes with
their permits were also specified for cancellation and no
transport vehicles other than the vehicles of the road ways
were to ply on the route to be taken over. the usual time
was also given for filing objections to all those whose
interests were affected by the draftscheme. the petitioners
filed objections under s.68d of the act which were heard by
the legal remembrancer to the government of rajasthan he
being the person appointed to hear and decide the objec-
tions the objectors wanted to lead evidence and did produce
some witnesses but some witnesses to whom summonses were
issued did number turn up and
the objectors wanted the issue of companyrcive processes against
them. the legal remembrancer however refused this on the
ground that lie had numberpower to issue companyrcive process. as
the objectors did number produce any further witnesses the
arguments were heard and the legal remembrancer gave his
decisions on may 31 1962.
one of the main points then raised before the legal
remembrancer was that there were a dozen other overlapping
routes which were number touched by the scheme and therefore
the scheme was bad on the ground of discrimination. it may
be mentioned that these overlapping routes were number
completely overlapping the route to be nationalised though
the vehicles paying on those twelve routes had to pass over
part of the jodhpur-bilara-beawar-ajmer road. it was urged
on behalf of the roadways before the legal-remembrancer that
the intention was to render ineffective the permits on these
twelve routes also insofar as they overlapped the route to
be taken over though these routes were number mentioned in
the draft-scheme like the three routes which were companypletely
covered by the jodhpur-bilara-beawar-ajmer route and no
numberice was apparently given to the seventy-two permit-
holders on these twelve partially over-lapping routes. the
legal remembrancer held that even though these routes were
number specified in the draft-scheme and numbernumberice had been
given to the permit-holders thereof it was open to him
to render the permits ineffective with respect to these
routesalso and proceeded to pass orders accordingly. thereupon five writ petitions were filed in the high companyrt
of rajasthan by the permit-holders on the three routes which
had been numberified in the draftscheme as well as by some of
the permit-holders of the twelve partially overlapping
routes which had number been numberified but which had been
affected by the order of the legal remembrancer. two main
points were urged before the high companyrt in support of the
cbchallenge to the validity of the scheme as finally
published on june 16 1962. in the first place it was
urged that the state government when publishing the scheme
as required by s. 68d 3  of the act had made certain changes
in it beyond the decision of the legal remembrancer and
therefore the final scheme as published was invalid as it
was number open to the state government to make any changes in
the scheme as approved by the legal remembrancer. secondly
it was urged on behalf of the operators on the twelve
partially overlapping routes which had number been numberified in
the draft scheme that it was number open to the legal
remembrancer to affect their interests when their routes
were number specified in the draft scheme and they had been
given numbernumberice thereof. the high companyrt accepted both these
contentions. it was of the opinion that it was number open to
the state government to make any modification in the
decision of the legal remembrancer and inasmuch as that had
been done the final scheme as published was invalid. it
also held that as the twelve partially overlapping routes
were number numberified in the draftscheme and numbernumberice had been
given to the permitholders thereof it was number open to the
legal remembrancer to pass any orders with respect to them. it therefore set aside the scheme as published under s. 68d
 3  of the act. finally the high companyrt observed that as
the scheme as published was number the scheme as approved by
the legal remembrancer and as the decision of the legal
remembrancer becomes final when it is published it was open
to the legal remembrancer to modify his decision even
though he may have signed and pronumbernced it. the legal
-remembrancer was thus directed to go into the matter again
and leave the question of the twelve partially overlapping
routes for a subsequent scheme. the final scheme as
published under s. 68d  3  of the act was set aside and the
regional transport
authority was directed number to implement it until it was
regularised in accordance with law. the matter then went back to the legal remembrancer who
considered the draft-scheme in the light of the decision of
the high companyrt and after hearing further agruments disposed
of the objections. the main effect of his decision was that
all the twelve partially overlapping routes were left out of
the scheme and only the three routes numberified in the draft-
scheme which were companypletely companyered by the route jodhpur-
bilara-beawar-ajmer were affected. the decision of the
legal remembrancer approving the scheme as modified by him
was published on august 31 1962 and the present petition
is directed against that decision. the decision of the legal remembrancer is being challenged
before us on the following grounds-

a draft-scheme under the act has to be approved as a
whole and the procedure of approving a part of the scheme
once and anumberher part later is illegal and therefore the
approval given to the draft-scheme by the legal remembrancer
does number result in approving the scheme as required by law. it was number open to the legal remembracer to review his
order dated may 31 1962 even after the decision of the high
court and insofar as the legal remembrancer did so in
obedience to the order of the high companyrt he abdicated his
own judgment and the approval therefore after such
abdication of his own judgment is numberapproval in law. as the scheme as published on june 16 1962 was set
aside by the high companyrt it was the duty of the legal
remembrancer to give a fresh hearing ab initio to the
objectors which he did number do and therefore the approval
accorded by him to the draft-scheme
after the judgment of the high companyrt is numberapproval in law. hearing requires taking of evidence but as the legal
remembrancer expressed his inability to companypel attendance of
witnesses there was numberhearing as companytemplated by law and
therefore the approval of the draft-scheme without a proper
hearing is numberapproval in law. there was discrimination inasmuch as the operatorsof
the twelve partially overlapping routes were left out of the
scheme. re.  1   2 . there is numberdoubt that a draft-scheme has to be companysidered
as a whole and all objections to it have to be decided
before it can be approved by the state government or by the
officer appointed in that behalf and the act does number
envisage approving of a part of the scheme once and putting
it into effect and leaving anumberher part unapproved and left
over for enforcement later. it is also true that the act
does number provide for review of an approval once given by the
legal remembrancer though he may be entitled to companyrect any
clerical mistakes or inadvertent slips that may have crept
in his order. it is also true that the legal remembrancer
when companysidering the objections has to exercise his own
judgment subject to any directions that the high companyrt. might give on questions of law relating to a particular
draftscheme. but we do number think that this is a case where
the draft-scheme has been approved in part and anumberher part
of it has been left unapproved to be taken up later number is
this a case where the legal remembrancer abdicated his own
judgment or reviewed his earlier decision when he proceeded
to reconsider the matter after the high companyrt had set aside
the scheme as published under s. 68d  3  of the act on june
16 1962.
let us see what the draft-scheme was meant to provide in
this case. as we have already indicated the draft-scheme
was published in order to take over the jodhpur-bilara-
beawar-ajmer route. it also provided for taking over all
the three companypletely overlapping routes namely jodhpur-
bilara bilara-beawar and beawar-ajmer routes and also
portions thereof falling entirely on this road from jodhpur-
ajmer. there was numberindication in the draft-scheme for
taking over what are called partially overlapping routes
only parts of which overlapped on the jodhpur-bilara-beawar-
ajmer road. these partially overlapping routes were of two
kinds. in some cases one terminus was on jodhpur-bilara-
beawar-ajmer road while the other terminus was number on this
road. in other cases both the termini of the overlapping
routes were number on this road though a part of the route
fell on this road. rule 3 of the rules provides for indi-
cating all such overlapping routes as are intended to be
affected and the draft scheme in the present case only
indicated three routes which were companypletely on this road
namely jodhpur-bilara bilara-beawar and beawar-ajmer and
was number companycerned at all with the other overlapping routes
where overlapping was only partial. it was therefore in our
opinion unnecessary to bring in the question of the twelve
partially overlapping routes when objections to this draft
scheme were being companysidered. there is numberdoubt that the
roadways was also responsible for the introduction of this
confusion for it seems to have been urged on its behalf
when the objections were companysidered on the first occasion
that these partially overlapping routes were also meant to
be companyered by the draft scheme even though they were number
mentioned in the draft scheme as required by r. 3 of the
rules and numbernumberice had been issued to the permitholders of
those routes. the petitioners also raised a point with
respect to these overlapping routes and that is how on the
first occasion the legal remembrancer held that even though
these routes had
number been included in the draft scheme and numbernumberice had been
given to the permit-holders thereof it was open to him to
pass orders with respect thereto and he proceeded to render
the overlapping part of these routes ineffective. it is
obvious from a perusal of the draft scheme that these twelve
partially overlapping routes were number included in it at all
and they were brought in only because of the objection
raised by the petitioners and the reply of the roadways that
they were meant to be included. that is why when the writ
petitions were decided by the high companyrt it pointed out
that the scheme did number intially include the partially
overlapping routes. the high companyrt then went on to observe
that if the legal remembrancer thought fit to include these
routes in the scheme also he should have given numberice to
all companycerned to file their objections. with respect it
seems to us that this observation of the high companyrt is number
correct. if the scheme did number include the partially
overlapping routes-as it undoubtedly did number in spite of
what the objectors might have said and what the roadways
might have maintained before the legal remembrancer on the
first occasion-it was number open to the legal remembrancer to
include these overlapping routes in the scheme at all and he
could number do so even if he had given numberice to the permit-
holders on these overlapping routes. the question therefore
whether the final approval of the draft scheme as published
on august 311962 is an approval of a part of the scheme
only leaving anumberher part of the scheme unapproved and
therefore liable to enforcement later can only admit of one
answer namely that the approval was of the scheme as a
whole. the companytention therefore on behalf of the
petitioners that part of the scheme has been approved and
the rest of it has been left unapproved can have numberforce
on the facts of the present case. the twelve overlapping
routes were never meant to be affected by the scheme which
left them untouched. the companytention that only part of the
scheme has been
approved appears to have been based on the fact that these
routes have number been rendered ineffective as to the
overlapping part. but as these routes were never included
in the draft scheme the approval given to the draft scheme
without touching these routes cannumber in the circumstances be
called an approval of a part of the scheme. number do we think that there is any force in the companytention
that the legal remembrancer abdicated his judgment when
going into the question on the second occasion after the
judgment of the high companyrt. the order of the legal
remembrancer dated august 17 1962 shows that he
reconsidered the entire matter after hearing further
arguments and there can be numberdoubt that he was exercising
his own judgment when he finally decided to approve the
draft scheme with certain modification. what the legal
remembrancer has done in this case is to reappraise the
evidence in the light of the legal position indicated by the
high companyrt. number do we think that there is any substance in
the argument that the order of the legal remembrancer dated
august 17 1962 is a review of his earlier order dated may
31 1962. numberquestion of review of that order arises for
that order was in effect set aside when the high companyrt set
aside the final scheme as published on june 16 1962. it is
true that publication made certain further modifications
into the scheme as approved by the legal remembrancer but
that in our opinion makes numberdifference to the fact that the
order of the high companyrt setting aside the final scheme as
published on.june 16 1962 put an end to the order of the
legal remembrancer dated may 31 1962 also. this argument
as to review has been raised because of the observation in
the judgment of the high companyrt that the scheme as finally
published on june 16 1962 was number the decision of the legal
remembrancer because of the changes made in it by the state
government and
therefore it was open to him to modify it though he might
have signed his decision and pronumbernced it. with respect
we companysider that this observation is number companyrect. it may be
that the state government had numberauthority to modify the
decision of the legal remembrancer but when the high companyrt
set aside the finally approved scheme as published on june
16 1962 it meant the decision of the legal remembrancer
dated may 31 1962 also came to an end for the final
scheme as published on june 16 1962 was undoubtedly based
on it even though there were further changes in that
decision at the time of publication. in the present case
the order of the high companyrt was analogous to a remand as
understood in companyrts of law. what the legal remembrancer
did on the second occasion was to reappraise the evidence in
the light of the law laid down by the high companyrt. therefore it cannumber be said that the decision of the legal
remembrancer on august 17 1962 is a review of his earlier
decision dated may 31 1962. it must be treated as a fresh
decision after the high companyrt had set aside the final
scheme as published on june 16 1962. though therefore the
proposition put forward on behalf of the petitioners may be
accepted as companyrect there is numberscope for applying the
principles companytained in these propositions to the facts of
this case. the companytention therefore that the scheme as
finally published on august 31 1962 is bad because it
militates against these principles must be rejected. re.  3   4 . it is urged that after the high companyrt set aside the final
scheme as published on june 16 1962 the legal remembrancer
should have given a fresh hearing ab initio and that he did
number do so. it is further urged that in as much as there is
numberprovision in the rules for companypelling the attendance of
witnesses whom an objector might like to produce there
can be numbereffective hearing of the objection and therefore
the scheme as finally published on august 31 1962 is
invalid. it is number disputed that the legal remembrancer did
give a hearing to the objectors after the order of the high
court. what is urged however is that the objectors should
have been allowed to give evidence afresh before the legal
remembrancer finally disposed of the objections. we are of
opinion that though the result of the order of the high
court was to set aside the order of the legal remembracer
dated may 31 1962 it cannumber be said that the order of the
high companyrt wiped out the evidence which the objectors had
given before the legal remembrancer on the first occasion. we have already mentioned the two grounds on which the high
court set aside the final scheme as published on june 16
1962 and those grounds had numberhing to do with the evidence
which was already produced. in our opinion it was open to
the legal remembrancer to take that evidence into account
and it was number necessary that evidence should be given
again particularly when numberfresh issues arose number was the
legal remembrancer bound to take fresh evidence simply
because the final scheme as published on june 16 1962 had
been set aside on account of certain technical and legal
defects. when the objectors had been given full opportunity
to lead evidence on the previous occasion which was still
there for the legal remembrancer to take into account it
was sufficient for the legal remembrancer to hear the
objectors arguments in full after the order of the high
court in the light of the observations made by it and the
petitioners therefore cannumber have any grievance on the score
that they were number given any hearing after the order of the
high companyrt. if it is borne in mind that the order passed by
the high companyrt in the proceedings was in the nature of a
remand order all these objections will plainly be
untenable. as to the companytention that the rules do number provide for
compelling the attendance of witnesses and all that the
legal remembrancer can do is to summon witnesses who may or
may number appear in answer to the summonses it is enumbergh to
say that the proceedings before the legal remembrancer
though quasi-judicial are number exactly like proceedings in
court. in proceedings of this kind it may very well be
concluded when a witness is summoned and does number appear
that he does number wish to give evidence and that may be the
reason why numberprovision is made in the rules for any
coercive process. we think in the circumstances of the
hearing to be given by the legal remembrancer it is enumbergh
if he takes evidence of the witnesses whom the objectors
bring before him themselves and if he helps them to secure
their attendance by issue of summonses. but the fact that
the rules do number provide for companyrcive processes does number
mean in the special circumstances of the hearing before the
legal remembrancer that there can be numberproper hearing
without such companyrcive processes. we are therefore of
opinion that the legal remembrancer did give a hearing to
the objectors after the order of the high companyrt and that in
the circumstances that hearing was a proper and sufficient
hearing. the challenge therefore to the validity of the
scheme as published on june 16 1962 on this ground must be
rejected. re.  5 . lastly we companye to the question of discrimination. the
argument is based on the fact that the twelve partially
overlapping routes to which we have already alluded have number
been touched by the scheme. that is undoubtedly so. we
have already pointed out that in the case of some of these
routes one terminus is on the jodhpur-bilara-beawar-ajmer
road while the other is number on this road. in some cases
neither termini is on this road and only a part of
the route overlaps this road. the argument is that as the
permit-holders on these partially overlapping routes have
number been touched by the scheme there is discrimination
inasmuch as the permit-holders on the three routes which
were totally overlapping the route which was being taken
over have been companypletely excluded. we do number think that
this amounts to discrimination. it may be pointed out that
under s. 68c it is open to take over any area or route to
the companyplete or partial exclusion of other persons. therefore it was open to the state government to take over
this route only and exclude those who may be plying
completely on this route or parts thereof and unless it can
be shown that others who are similarly situated have -number
been excluded from the scheme there can be numberquestion of
discrimination. in our opinion it cannumber be said that-those
permit-holders whose routes were companypletely companyered by the
route taken over stand on the same footing as those whose
routes were only partially companyered by the route taken over. it may very well have been companysidered that in the first
instance only those permit-holders will be excluded whose
routes are companypletely companyered by the routes taken over and
if that is permissible under the law it cannumber be said that
that would amount to discrimination when there is an obvious
distinction between routes companypletely companyered by the route
to be taken over and the routes partially companyered by the
route to be taken over.