IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 16102 of 2008 Date of Decision: September 28, 2011 Jog Raj Singh …Petitioner Versus State of Punjab and others. …Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH Present: Mr. Narender Hooda, Advocate, for the petitioner. Mr. Raghbir Chaudhary, Sr. DAG, Punjab, for respondent Nos. 1 to 4. Mr. G.S. Nagra, Advocate, for respondent No.5. 1. Whether reporters of local news papers may be allowed to see judgment? Yes 2. To be referred to reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Alok Singh, J. Petitioner has invoked writ jurisdiction of this Court under Articles 226/227 of the Constitution of India, assailing orders dated 08.07.2008 (Annexure P-11) passed by Financial Commissioner, Revenue, Punjab (respondent No.1); dated 29.08.2006 (Annexure P-9) passed by Commissioner, CWP No.16102 of 2008 Jalandhar Division, Jalandhar (respondent No.2) and order dated 24.03.2005 (Annexure P-7) passed by Deputy Commissioner-cum-Chief Sales Commissioner, Nawanshahr (respondent No.3) whereby order dated 30.09.2003 passed by Sub Divisional Magistrate-cum-Sales Commissioner, Balachaur (respondent no.4) confirming the auction sale dated 28.12.1996 in favour of the petitioner was set aside. Succinctly, as per the case of the petitioner, evacuee land measuring 2 kanals 1 marla situated in Village Makkowal, Tehsil Balachaur, was auctioned by Tehsildar, Balachaur, on 28.12.1996 under Rule 6 of the Punjab Package Deal Properties (Disposal) Rules, 1976 (hereinafter referred to as the Rules, 1976), after adopting due process / procedure enumerated under the said Act and Rules. The petitioner made highest bid of Rs.40,200/-, which was accepted by the Tehsildar (sales) and the petitioner deposited Rs.10,000/- as earnest money on the spot and executed a Qabuliyatnama on 28.12.1996. Against the said auction, one Sumitra Devi filed objections on 20.08.1997 alleging that she is in actual possession and proper procedure has not been adopted as no proclamation was made in the village. The Sales Commissioner, Balachaur, vide order dated 28.01.1999 set aside the auction sale. The petitioner filed appeal before the Deputy Commissioner – cum – Chief Sales Commissioner, Nawanshahr, which was accepted vide order dated 10.06.1999 2 CWP No.16102 of 2008 and the matter was remanded back to the Sales Commissioner, Balachaur, for passing fresh order keeping in view the instructions of the State Government and the provisions of the Act. However, after remand, Sumitra Devi withdrew her objections before the Sub Divisional Magistrate- cum-Sales Commissioner, Balachaur, and on the basis of her statement, Sales Commissioner, confirmed the auction dated 28.12.1996 in favour of the petitioner – Jog Raj Singh vide order dated 30.09.2003. Although, Ravinder Singh (Respondent No.5 herein), who was neither bidder nor in possession, filed an appeal before the Chief Sales Commissioner, Nawanshahr, challenging the order of the Sales Commissioner on the ground that the land in dispute was meanwhile allotted to Chanan Singh (Respondent No.6) on 19.12.2001 and he is vendee from Chanan Singh vide sale deed dated 26/27.06.2002 and his name appears in the jamabandi. Believing these assertions, the Chief Sales Commissioner, Nawanshahr, vide order dated 24.03.2005 accepted the appeal of Ravinder Singh and set aside order dated 30.09.2003 of Sales Commissioner, Balachaur. The Chief Sales Commissioner, has observed that the land in dispute had been allotted to Chanan Singh who further sold the same to Ravinder Singh and mutation has been sanctioned in his favour. Aggrieved against the said order, petitioner filed revision before the Commissioner, Jalandhar 3 CWP No.16102 of 2008 Division, Jalandhar, which too was dismissed on 29.08.2006. Thereafter, the petitioner approached the Financial Commissioner, Revenue, Punjab, but his revision petition was also dismissed vide order dated 08.07.2008 and this has necessitated the filing of the present writ petition. I have heard learned counsel for the parties and perused the record. Undisputedly, property in question was put to auction under Rule 6 of the Rules 1976 on 28.12.1996; petitioner was highest bidder of Rs.40,200/-; petitioner deposited Rs.10,000/- as earnest money on the spot and has executed a Qabuliyatnama on 28.12.1996; initially Smt. Sumitra Devi wife of Tarsem Lal on 20.08.1997 challenged the auction sale by way of filing objections contending she was in possession and no intimation regarding the auction was ever given to her. Learned Sub Divisional Magistrate – cum – Sales Commissioner vide order dated 12.02.1999 pleased to reject the objections filed by Sumitra Devi on the ground that objections challenging the auction sale should have been filed within 10 days of the auction as per rule 6-B of the Rules, 1976, which in fact were filed after limitation; objections do not contain khasra number of the properties wherein Sumitra Devi claims her possession; however, the auction was not confirmed on the ground that no advertisement was made in the newspaper and proclamation was not proper. Feeling 4 CWP No.16102 of 2008 aggrieved, auction purchaser-petitioner herein preferred an appeal before the Deputy Commissioner – cum – Chief Sales Commissioner, Nawanshahr. Appeal filed by the auction purchaser – petitioner herein was allowed vide order dated 10.06.1999 and matter was remanded to the Sales Commissioner. After remand, property was allotted in favour of respondent No.6 on 19.12.2001. It is important to mention here that respondent No.6 neither have raised any objection against the auction sale dated 28.12.1996 nor ever claimed his possession over the property in dispute on the date of auction dated 28.12.1996, even then allotment was made in favour of respondent No.6 after the remand during the pendency of the proceedings regarding confirmation of the auction sale. In the facts and circumstances of the case, the sole question arises for consideration of this Court is - As to whether respondent Nos. 5 and 6 shall have any right pursuant to allotment dated 19.12.2001 in view of confirmation of the auction sale dated 28.12.1996 in favour of the petitioner vide order dated 30.09.2003? Section 65 of the Code of Civil Procedure reads as under:- “65. Purchaser’s title – Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the 5 CWP No.16102 of 2008 property is sold and not from the time when the sale becomes absolute.” From the perusal of Section 65 of the Code of Civil Procedure, I have no hesitation to hold that auction property shall be vested in favour of the auction purchaser from the date of its auction if auction sale is confirmed later on. Section 65 C.P.C. may not be applicable in strict sense in the proceedings under the Act, however, principles can be pressed in service to find out as to when property shall vest in the auction purchaser. In view of principle of Section 65 C.P.C. on the confirmation of auction sale dated 28.12.1996 vide order dated 30.09.2003, property auctioned stood vested in favour of the petitioner – auction purchaser w.e.f. 28.12.1996, therefore, any allotment or creation of third party interest during the intervening period shall cease to have any effect immediately on the confirmation of auction sale. In the opinion of this Court that every effort should be made by the authorities hearing the objections against the auction sale to decide the question of confirmation / cancellation of the auction sale at the earliest and meanwhile, property subject matter of the auction sale should not be allowed to exchange hands either by the parties before the authority hearing the question of confirmation of the sale or by the authority himself. In the present case, as mentioned 6 CWP No.16102 of 2008 herein above after the remand of the case by the appellate authority, Sales Commissioner has made allotment in favour of respondent No.6 on 19.12.2001 without recording any finding as to whether auction sale dated 28.12.1996 was liable to be cancelled / not approved. Action of the authority making allotment in favour of respondent No.6 on 19.12.2001 after remand without deciding the question of the validity of the auction sale can neither be justified nor be legal, therefore, on the confirmation of auction sale alleged third party interest, in the present case allotment in favour of respondent No.6 automatically stands cancelled. In the opinion of this Court, findings of authorities in the impugned orders cancelling the auction sale dated 28.12.1996 saying that before the confirmation of the sale on 30.09.2003 property was allotted in favour of respondent No.6 on 19.12.2001 is neither legal nor justified. Auction sale cannot be rejected merely because authority has meanwhile allotted the same property in favour of the third party without cancelling the auction sale. Therefore, impugned orders cannot be sustained in the eyes of law. Present petition is allowed with cost which is assessed as Rs.25,000/-. Impugned orders are set aside. Auction sale in favour of the auction purchaser – petitioner herein dated 28.12.1996 stands confirmed, order dated 30.09.2003 stands revived. 7 CWP No.16102 of 2008 September 28, 2011 ( Alok Singh ) vkd Judge 8