JUDGMENT Vivek Singh Thakur, J —Instant petition has been filed for setting aside impugned order passed by the Divisional Commissioner dated 26.2.2010, (Annexure P-5) , dismissing the application preferred by the petitioner under Secton 96 of the H.P. Land Revenue Act for setting aside the auction sale conducted by the Collector/Deputy Registrar, Cooperative Societies, Central Division, Mand (H.P.) for recovery of loan amount as arrears of land revenue and order dated 11.10.2010 (Annexure P-7) passed by Divisional Commissioner confirming the said auction sale under Section 97 of the H.P. Land Revenue Act in favour of highest bidder respondent No. 3. 2. Facts emerging from the record are that petitioner had raised a house loan of Rs. 4 lacs on 29.3.2000 from respondent No. 2 H.P. State Cooperative Bank (in short "Bank") . On default of making the repayment of loan, on 18.3.2003 matter was referred to Arbitrator under Section 73 of the H.P. Cooperative Societies Act 1968 for arbitration. The Arbitrator passed order dated 11.5.2004 directing petitioner to pay overdue amount of Rs.4, 97, 346/- on or before 31.5.2005 in 12 monthly equal installments of Rs.41, 320/- and in default therein, the bank was held to be entitled to realize the amount due as arrears of land revenue as per Section 87 of H.P. State Cooperative Societies Act from movable and immovable properties of the petitioner and the guarantor. There was default in compliance of order passed by the Arbitrator. 3. On 11.10.2004 Additional Registrar (Monitoring) exercising the power of Registrar, H.P. Cooperative Societies Act, forwarded the case to Deputy Registrar, Cooperative Societies Central Division Mandi designated as Collector, District Mandi for execution of order passed by the Arbitrator for recovery of amount due as arrears of land revenue. Whereupon, Collector issued proclaimation of sale, Annexure P-3, under Section 85 of the H.P. Land Revenue Act for sale of estate of the petitioner. In pursuance to proclaimation of sale, property of the petitioner was auctioned on 22.5.2009 and sold to respondent No. 3 for an amount of Rs.12.50 lacs who deposited auction sale consideration Rs.12.50 lacs with the concerned authority. 4. In pursuance to proclaimation of sale, property of the petitioner was auctioned on 22.5.2009 and sold to respondent No. 3 for an amount of Rs.12.50 lacs who deposited auction sale consideration Rs.12.50 lacs with the concerned authority. 4. On 20.6.2009 the petitioner made an application under Section 96 of the H.P. Land Revenue Act to set aside the auction sale on the ground that material irregularity was committed in conducting the auction sale, causing substantial injury to her by undermining the value of her property as neither notice was circulated in general public nor affixed on the notice board of Tehsil and Collector and sale was conducted before expiry of thirty days from notice. 5. The said application was dismissed in default on 26.2.2010. It transpires from the record that during intervening period, petitioner had preferred an application dated 24.9.2009 for one time settlement of outstanding loan. However, on 26.3.2010, an application for restoration of application under Section 96 of H.P. Land Revenue Act was also posted to Divisional Commissioner which was received in Commissioner''s office on 27.3.2010 and was listed along with record on 29.3.2010. Though her presence before Divisional Commissioner is denied by the petitioner, however after marking her presence on that day, this application was dismissed for want of sufficient cause for non-appearance of petitioner on 26.2.2010 when main application was dismissed in default. Petitioner has denied knowledge of this order passed in her application. There is nothing on record to establish that petitioner had ever inquired about fate of her application for restoration. 6. In pursuance to application dated 24.9.2009 filed by the petitioner for one time settlement, respondent No.2/bank had settled the outstanding amount payable by the petitioner as Rs.6, 38, 880/- after waiving Rs.1, 40, 402/- and sanction of this one time settlement of loan was conveyed to the petitioner vide communication No. SNR/OTS/1780/10 dated 13.7.2010. Thereafter, an amount of Rs.5, 33, 470/- was refunded by the District Revenue Officer (Recovery) , H.P. State Cooperative Bank to the petitioner vide cheque dated 11.8.2010. Thereafter, an amount of Rs.5, 33, 470/- was refunded by the District Revenue Officer (Recovery) , H.P. State Cooperative Bank to the petitioner vide cheque dated 11.8.2010. Whereafter the petitioner had filed an application before the Divisional Commissioner, Mandi on 19.8.2010, duly signed by her and her counsel Shri C.S.Sain, Advocate which was received in Commissioner''s office on 20.8.2010, stating therein that she had negotiated with respondent Bank and in compromise the amount of Rs.6, 38, 880/- was to be paid by her, entitling her refund of Rs.6, 12, 220/- out of auction sale consideration Rs.12, 50, 000/-. In this application, she further stated that respondent had returned Rs.5, 33, 473/- by way of cheque and Rs.77650/- was still to be paid by the respondent Bank to her and lastly it was conveyed that she wanted to withdraw the appeal as matter had been settled and she only prayed for direction to respondent Bank for payment of Rs.77650/- along with interest. Whereafter, on 11.10.2010 Divisional Commissioner confirmed the auction sale in favour of highest bidder respondent No.3. Thereafter, on 10.12.2010, present petition has been preferred. Learned counsel for the petitioner contends that there are material irregularities which warrant setting aside of impugned auction sale as notice of proclaimation of sale is undated, bears prescription of property only as land without referring house constructed thereon and having no details of authorisation of the Divisional Commissioner to the sale of impugned property rendering proclaimation of sale and auction, illegal in view of provisions of Section 81 of the H.P. Land Revenue Act. 7. Further that procedure provided under Section 75 of H.P. Land Revenue Act has also not followed as no writ of demand was ever issued by the Collector and objections raised by petitioner have not been considered by the Divisional Commissioner on merits and application under Section 96 of H.P.Land Revenue Act has wrongly been dismissed in default and and dismissal of application for its restoration was not passed in presence of the petitioner but has been shown to be passed in her presence and this order was never communicated to the petitioner and petitioner was not having knowledge of dismissal thereof prior to the receiving copy of the said order with reply of respondents in present petition. 8. 8. It is also argued that in proclaimation of sale Annexure P-3 reference of estate only has been given and as per Section 4 (5) of H.P. Land Revenue Act, estate does not include building thereon as in it the estate has been defined as an area and therefore, auction is of the land and not of the building standing thereon and attachment of estate or holding under Section 78 of H.P. Land Revenue Act cannot encompass the building standing upon the estate or holding and proclaimation of sale Annexure P3 does not contain the mandatory details as required under Section 85 of H.P. land Revenue Act and para 34 of Annexure VIII of Record Manual and also the auction was conducted prior to expiry of 30 days from the date of proclaimation violating the provisions of Section 88 of the H.P. Land Revenue Act as notice of proclaimation of sale was received by petitioner on 14.5.2009 and sale was conducted within 8 days i.e. 22.5.2009. Lastly it is contended that petitioner is ready to pay the entire amount to respondent No.3 auction purchaser along with reasonable interest say at the rate of 5%. 9. Relying upon judgment passed by the Punjab and Haryana High Court in case Bachan Singh and others vs. Excise and Taxation Officer, Kapurthala , (1974) PunLJ 63, it is contended that for violation of statutory provisions of H.P. Land Revenue Act and material irregularities committed by the Collector, causing substantial injury to the petitioner, impugned auction sale deserves to be set aside. Petitioner has also relied upon directions for sale of the properties issued in judgment passed by the Apex Court in case Kerala Financial Corporation vs. Vincent Paul and another , (2011) 4 SCC 171 , and argued that for want of adherence to these directions, impugned auction sale is liable to be set aside. Another judgment of the Apex Court in Nirmal Singh (dead) through LRs vs. Bhatia Safe Works and another , (2016) 6 SCC 397 has been relied to substantiate the offer of petitioner to pay the amount to the petitioner along with 5% interest per annum to indemnify respondent No. 3 for depositing amount in pursuance to the impugned auction sale. 10. 10. On contrary, it is contended on behalf of the respondents that proclaimation of sale was served upon petitioner in compliance of Section 87 of H.P. Land Revenue Act and it was duly published in the manner as prescribed in H.P. Land Revenue Act and sale is to be conducted after expiry of 30 days from the date on which copy of proclaimation was pasted in the office of Collector and therefore, date of receipt of proclaimation of sale by the petitioner is not relevant on this issue. Further it is also contended that petitioner herself has settled the matter with the bank and has received the substantial amount lying balance with the bank out of the amount deposited by respondent No. 3 in pursuance to auction sale and respondent No. 3 despite having deposited entire amount in the year 2009, has been deprived of from enjoyment of the property for which he has paid and is legally entitled and on the contrary petitioner is enjoying the possession as well as gains from the property in question and has rented out 22 rooms of building in question and as evident from the copy of rent agreement lying in record of the Divisional Commissioner, petitioner had been receiving monthly rent @ Rs.10, 000/- in February, 2009 and now by passage of time, the rate of rent must have been increased and therefore, it is emphasized that besides dismissal of main petition, direction to the petitioner to pay mesne profit to respondent No. 3, in lieu of enjoyment and gain from the property in question since May 2009, is also required to be passed. It is further pointed out that during pendency of present writ petition, respondent had filed an application for mesne profit and the said application was disposed of vide order dated 4.12.2015 with observation that question of mesne profit would also be considered at the time of final hearing. 11. On behalf of the respondent bank, it is contended that procedural irrgularities do not affect the merit of the case and particularly subsequent settlement, agreed and acted upon by petitioner in pursuance to compromise/one time settlement, disentitles the petitioner from filing present petition. 11. On behalf of the respondent bank, it is contended that procedural irrgularities do not affect the merit of the case and particularly subsequent settlement, agreed and acted upon by petitioner in pursuance to compromise/one time settlement, disentitles the petitioner from filing present petition. Referring the record of Divisional Commissioner, it is contended that after filing an application to withdraw the appeal and receiving the amount, the petition deserves to be dismissed with heavy costs as the petitioner, at one hand, has received not only Rs.5, 33, 470/- but also remaining Rs.77, 650/- and on the other hand, has preferred present petition not only to linger on but also to avoid delivery of possession to respondent No. 3 auction purchaser. 12. After giving thoughtful consideration to the facts and circumstances of the case and submissions of respective counsel, I find no merit in this petition for the reasons stated hereinafter. 13. There is no dispute with ratio of law laid down in Bachan Singh''s case by the Punjab and Haryana High Court. But in peculiar facts and circumstances of the present case, this judgment has no relevancy to decide the present case for the reason that after filing of application under Section 96 of H.P. Land Revenue Act, for setting aside the auction sale, by raising objection pointing out irregularities in procedure adopted by Collector alleging cause of substantial injury to petitioner, she herself settled the matter with bank and received the amount in pursuance thereto. Application under Section 96 was filed on 20.6.2009, thereafter petitioner filed an application for one time settlement on 24.9.2009 and application under Section 96 was dismissed in default on 26.2.2010 and thereafter application posted on 26.3.2010 for restoration of said application was also dismissed on 29.3.2010. Application under Section 96 was filed on 20.6.2009, thereafter petitioner filed an application for one time settlement on 24.9.2009 and application under Section 96 was dismissed in default on 26.2.2010 and thereafter application posted on 26.3.2010 for restoration of said application was also dismissed on 29.3.2010. Plea of petitioner that at the time of passing of order on 29.3.2010, she was not present and thus she was not aware about dismissal of her application for restoration, is of no help to the petitioner as after filing/posting this application, it was duty of the petitioner to inquire about fate of the said application, but petitioner not only remained silent but subsequent thereto received a cheque dated 11.8.2010 worth Rs.5, 33, 470/- issued on behalf of the bank by District Revenue Officer (Revenue) and encashed the same and thereafter, filed an application dated 19.8.2010 before Divisional Commissioner endorsing the one time settlement and desiring withdrawl of the appeal under Section 96 of the H. P. Land Revenue Act on account of settlement in the matter, which was communicated to the petitioner on 13.7.2010 and after receiving the said communication, petitioner acted thereupon. Therefore, filing of present writ petition is a sheer abuse to the process of law probably to continue the possession of building even after receiving the amount of sale consideration lying balance with the bank after settlement of loan account. Therefore, objections with regard to procedural irregularities have already been waived off by petitioner and thus the petition deserves to be dismissed for acquiescence and waiver. 14. Directions issued by the Apex Court in Kerala Financial Corporation''s case were specifically with regard to properties owned by Kerala Financial Corporation and those directions were never directed to supersede or to replace the procedure prescribed under statute i.e. H.P. Land Revenue Act. Moreover, as discussed hereinabove, for acquiescence and waiver on the part of the petitioner, non-adherence of any procedural formality or deviation from the prescribed procedure stand condoned by act and conduct of the petitioner, who has received the fruits of auction sale and also enjoying the property and gains therefrom. Moreover, as discussed hereinabove, for acquiescence and waiver on the part of the petitioner, non-adherence of any procedural formality or deviation from the prescribed procedure stand condoned by act and conduct of the petitioner, who has received the fruits of auction sale and also enjoying the property and gains therefrom. For the aforesaid reasons, I do not consider it a fit case where petitioner can be directed to refund the amount to auction purchaser, as in present case, contrary to the facts of Nirmal Singh''s case, petitioner has swallowed the balance auction sale amount and not only continuing the possession of the property but also enjoying the fruits thereof by renting out the said property for a handsome rent. Therefore, present case cannot be equated with Nirmal Singh''s case supra. 15. At the time of filing the writ, petitioner had already received the amount in terms of settlement arrived at with the bank. But petitioner opted to remain silent about the same and challenged the sale confirmation order dated 11.10.2010 which was passed only after paying the balance auction sale amount to the petitioner, which was accepted by the petitioner without any protest or objection but belance payment of Rs.77650/- was also asked for. Therefore, petitioner has not come with clean hands to Court. 16. As evident from the record of the Divisional Commissioner, petitioner has settled the issue with bank and now therefore, petitioner cannot blow hot and cold to suit her own will. Conduct of the petitioner is very relevant in this case which cannot be ignored. In petition also, she has not pleaded any mistake, if any, committed by her by filing an application desiring withdrawl of the appeal and seeking direction to respondent bank to pay remaining Rs. 77650/- after receiving 5, 33, 470/- by her. 17. Contention of the petitioner that in proclaimation of sale, only land has been mentioned and there is no reference of building standing thereupon lost its force when she herself settled the issue with bank by offering one time settlement which was duly sanctioned by the bank and petitioner, in pursuance thereto, also received the consideration. Other objections with respect to sale are also liable to be rejected on this ground. 18. Other objections with respect to sale are also liable to be rejected on this ground. 18. On inviting attention of learned counsel for the petitioner to documents related to submissions of one time settlement of the petitioner to the bank and in pursuance thereto, application filed by the petitioner before Divisional Commissioner, he fairly submits that facts cannot be improved at this stage. According to her wisdom, petitioner had already settled the issue with bank. Now, petitioner cannot be permitted to aprobate and reprobate to wriggle out her own admissions and deeds. 19. Therefor, petitioner is not entitled for equitable relief by invoking discretionary power of judicial review under Article 226 of the Constitution of India. 20. Another issue involved in this case is the unjust enrichment of the petitioner at the costs of investment by respondent No. 3. Respondent No. 3 has paid entire sale consideration in May 2009 but property is still enjoyed by the petitioner. As is evident from record in the year 2009, petitioner had been receiving Rs.10, 000/- per month. Now we are in 2018. During nine years, there must have been enormous increase in the rate of rent. Such enhancement can be calculated enhancing the rent on the basis of increase as provided in H.P. Rent Control Act and receipt of petitioner during years subsequent to 2009 can be ascertained without any problem. Petitioner, at least, is liable to indemnify respondent No. 3 for such amount for property occupied by him for which she has also received the consideration amount and has been able to make the repayment of loan and to keep handsome amount in her pocket. 21. In given facts and circumstances, in my opinion, it is a fit case where the petitioner, besides dismissal of petition, is also liable to pay not only costs but also mesne profit to respondent No. 3. In view of above discussion, petition is dismissed with costs of Rs.10, 000/- with further direction to petitioner to pay mesne profit to respondent No. 3 at the rate as discussed supra, payable on monthly basis along with 5% interest from the date of accrual of said amount i.e. 1st of each succeeding month till the date of handing over the possession of building in question to respondent No. 3. Pending miscellaneous application, if any, disposed of in above terms.