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2013 DIGILAW 1433 (PNJ)

Darshan Singh v. State of Haryana

2013-10-31

AJAY TEWARI

body2013
Judgment Ajay Tewari, J. C.M. No. 15411 of 2013 This application is allowed and the affidavit is taken on record. C.W.P. No. 2087 of 1993 On 30.07.2013, the following order was passed : “By this petition the petitioner has challenged the orders of the authorities cancelling the auction in his favour. The ground taken for cancellation is that the formalities mandated by Rule 5 of the Disposal of Evacuee Property Rules, 1963, have not been followed in so much as the auction notice was not published 15 days in advance and even the time and place was not signed by the Tehsildar Sales. In my opinion the last reason mentioned is neither here nor there. However, in respect to the other reasons mentioned therein, learned AAG prays for a short adjournment to place on record a copy of the proclamation notice which was issued and also file a supplementary affidavit as to whether, as mentioned in the petition, the proclamation was actually made on 21.12.1988 and not on 05.01.1989. Adjourned to 14.08.2013.” In terms of the above order, affidavit of Shri Ashwani Gambhir, Tehsildar (Sales), Panchkula has been filed. Counsel for the petitioner has argued that as per the said affidavit, it is clear that the auction notice was properly published on 21.12.1988 and, therefore, the ground that it was not published in time was not available Counsel for the respondents has argued that the auction was set aside not only because of delay in the proclamation but also because no place or time of the auction was mentioned in the said notice. Counsel for the petitioner has very fairly accepted that in the proclamation notice, no place or time where the auction was to be conducted was stipulated. He has further argued that as per rule 9 of the Disposal of Evacuee Property Rules, 1963, before a complaint could be even entertained it was incumbent upon the complainant to deposit the auction price plus 20% and in the present case admittedly no such deposit was made. Counsel for the respondent has argued that the plea of non-maintainability of the complaint on the ground of non deposit of auction price plus 20% was not taken by the petitioner before the Authorities below and consequently, he is now estopped from raising the same. I find that this is indeed so. Counsel for the respondent has argued that the plea of non-maintainability of the complaint on the ground of non deposit of auction price plus 20% was not taken by the petitioner before the Authorities below and consequently, he is now estopped from raising the same. I find that this is indeed so. In my opinion, an auction notice which does not mention the time or place of auction would vitiate the auction because unless the time and place is mentioned it would not be possible for the intending bidders to reach the place and such a term would not come within the ambit of term `open auction'. As regards the objection of counsel for the petitioner regarding non deposit of money, once the petitioner did not take this plea before either the Sales Officer or Settlement Commissioner he could not now be permitted to rake up the same. In the circumstances, keeping in view the fact that the auction was fundamentally flawed, no fault can be found with the impugned order. Consequently, this writ petition is dismissed with no order as to costs.