LPA No.1169 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1169 of 2010 (O & M) Date of Decision: March 01, 2011 Mangat Rai and others ...APPELLANTS Versus State of Punjab and others ...RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE M. JEYAPAUL .. Present: Mr. Madan Lal Saini, Advocate, for the appellants. Mr. H.S. Brar, Addl.A.G., Punjab, for respondents No.1 and 2. Mr. V.G. Dogra, Advocate, for respondent No.4. ... SATISH KUMAR MITTAL, J. This Letters Patent Appeal has been filed by the appellants against the order dated 19.5.2010 passed by the learned Single Judge whereby the writ petition filed by the appellants for setting aside the order dated 23.9.1988 passed by the Financial Commissioner (exercising the powers of Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as `the Act'), has been dismissed. In this case, the property in question was sold in a public auction on 19.1.1983 in favour of the private respondents. After LPA No.1169 of 2010 (O & M) -2- confirmation of the sale and the prescribed time, the appellants filed a petition before the Chief Settlement Commissioner, Jalandhar for setting aside the auction in favour of the private respondents on the ground that they were in possession of the property in question before the auction, therefore, the same should not have been auctioned. The Chief Settlement Commissioner vide order dated 24.4.1986 set aside the said auction. Against the said order, the private respondents filed a petition before the Financial Commissioner, Revenue and Secretary to Government, Punjab under Section 33 of the Act. Vide its order dated 23.9.1988, the Financial Commissioner set aside the order of the Chief Settlement Commissioner while coming to the conclusion that the Chief Settlement Commissioner should not have set aside the auction when the application for setting aside the auction sale was filed much after the expiry of limitation of seven days from the date of the acceptance of the bid, as provided in Rule 92 of the the Displaced Persons (Compensation & Rehabilitation) Rules, 1955. Against the said order, the appellants filed the writ petition (CWP No.1296 of 1989) which has been dismissed by the learned Single Judge, while observing as under:- “... The whole case has been rested on the power of the Chief Settlement Commissioner to set aside an auction sale on a ground which was not available for the petitioners. No doubt, the plenary powers of the Commissioner in finding that the cancellation of allotment made to certain persons was wrong, could result in all subsequent transactions to be invalid. In this case, the petitioners had no favourable orders of allotment in their favour. On the other hand, they were staking a claim to the LPA No.1169 of 2010 (O & M) -3- property for the first time as possession already held by them. It is not possible for this Court to appreciate the issue of possession which is essentially a question of fact and only the guidance that this Court can have is what is secured through documents before the Court. If there are two views possible on a given set of facts, the view that has been taken through an order which is impeached will have to be preferred. I am now considering the validity of the order passed by the Financial Commissioner and if he had obtained two reports both of which were inconsistent with each other, I have no reason to prefer the one against the other. The whole case is, therefore, to rest only on the legal reasoning which he has adopted. It has been held by him that the auction sale held could not be set aside otherwise through the application within 7 days under Rule 92 and there is a Division Bench ruling that supports the same view. I am afraid I cannot now consider that the petitioners would have a rightful claim in the property by the alleged possession which is still a matter of dispute and in respect of which, there is no definite material for this Court to affirm.” After hearing the learned counsel for the parties and going through the record of the case, we do not find any illegality in the order dated 23.9.1988 passed by the Financial Commissioner as well as the order dated 19.5.2010 passed by the learned Single Judge. Merely because the appellants alleged to have been in possession of the property in question, which even has not been established, the confirmed auction sale could not have been set aside by the Chief Settlement Commissioner, particularly LPA No.1169 of 2010 (O & M) -4- when the application for setting aside such auction was not filed within the prescribed period of limitation and when there was no illegality or fraud played by the private respondents. In our opinion, when the property in question was put to auction after wide publication, the appellants could have filed the application before the appropriate authority for staying the auction or could have also participated in the auction, but nothing was done and at the belated stage, the application filed by the appellants for setting aside the auction sale could not have been entertained by the Chief Settlement Commissioner. In view of the aforesaid, we do not find any merit in the appeal and the same is hereby dismissed. ( SATISH KUMAR MITTAL ) JUDGE March 01, 2011 ( M. JEYAPAUL ) vkg JUDGE