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Judgment
Tuli, J.—The Petitioners are the husband and children of Smt. Vidya Wanti who entered into an agreement with Mohan Lal, Respondent 5, for purchasing his house, on March 3, 1966 Mohan Lal had purchased the plot under the house from one Harjit Singh which purchase had been approved by the Estate Officer. In fact the transfer in favour of Mohan Lal was by an order dated January 2, 1961, of the Estate Officer. Respondent 5 obtained a loan of Rs. 13,000/-from the Punjab Government through the Estate Officer Capital Project, Chandigarh, under the House Building Loan Scheme, by mortgaging the plot with the building erected or to be erected thereon. The loan was taken on the basis of security bond dated May 31, 1961. The loan was was repayable in 30 instalments of Rs. 601.90 payable half yearly. The first instalment was payable on June 6, 1962.
Before entering into the agreement of sale with Smt. Vidya Wanti, Respondent 5 had fallen in arrears in the payment of five instalments of the loan amounting to Rs. 3009-50 which amount was declared recoverable from him as arrears of land revenue by Respondent 3, the Estate Officer, Chandigarh, by means of a certificate issued u/s 3(1) of the Revenue Recovery Act. I of 1890, by memo dated January 15, 1964. The house was directed to be attached by the Estate Officer exercising the powers of Collector on December, 17, 1964, for the recovery of Rs. 2814-50 as 200/- had been paid, after the recovery certificate was issued, by Respondent 5. Rs. 5/- were added to Rs. 2809-50 on account of warrant of arrest and warrant of attachment. The Collector sent a sale statement of the said house to the Commissioner, Ambala Division, for obtaining his orders for the sale of that property. On May 17, 1965, the Commissioner, Ambala Division, sanctioned the sale of the house by open auction. Thereafter the house was directed to be sold on June 30. 1965. Respondent 5 filed C.W. 1768 of 1965 in this Court in which the state of the house was stayed. Ultimately an order was passed in that writ petition on December 20, 1965, that in case Respondent 5 paid the amount within one month, no proceedings would be taken against him. Respondent 5 did not pay the amount and entered into the agreement for sale with Smt. Vidya Wanti on March 3, 1966. In that agreement it has been mentioned that the Collector had attached the house under the Punjab Land Revenue Act for the recovery of five instalments of the loan amounting to Rs. 3009-50. It appears that the house was again ordered to be sold on December 20, 1967. The sale was advertised in the Tribune dated November 21, 1967. On November 28, 1967, the amount due from Respondent 5 on account of loan was mentioned as Rs. 1898430. At the auction Respondent 4, Munshi Ram, made the highest bid of Rs. 19600/-. Against that auction sale Respondent 5, Mohan Lal through his general attorney K.L. Pasricha, filed an appeal which was heard by Shri Damodar Dass, Commissioner, Chandigarh. K. L. Pasricha is one of the sons of Smt. Vidya Wanti in whose favour Respondent 5 had executed a power of attorney. At the hearing of that appeal, Respondent 5 appeared and stated that he had withdrawn the power of attorney given by him in favour of K. L. Pasricha and, therefore, Shri Pasricha had no locus standi to prosecute that appeal. The learned Commissioner, however, went into the matter and passed an order that the house may be re-auctioned after giving due publicity with a starting bid of K.L. Pasricha of Rs. 21000/-. It was further stated in the order that "if Shri Pasricha fails to give a bid of Rs. 21000/-, the auction already held in favour of Munshi Ram at Rs. 19600/- be considered as final". This order was passed on April 29, 1968 and in pursuance thereto the auction of the house was fixed for July 15, 1968. Before the auction was held on July 15, 1968. Smt. Vidya Wanti tendered a demand draft for Rs. 4000/- on the Punjab National Bank Limited dated July 8, 1968 and prayed for the stay of the auction. The said prayer was refused on the ground that the auction could not be stayed unless the entire amount due was paid. The highest bid was again by Munshi Ram. Respondent 4, of Rs. 24900/- and the sale was knocked down in his favour. Shri K. L. Pasricha alleges to have paid Rs. 257/- on July 15, 1968 to the Estate Officer and another sum of R. 257/- by a demand draft in August, 1968. After sale by auction, Smt. Vidya Wanti and K. L. Pasricha filed objections to the sale u/s 91 of the Punjab Land Revenue Act, the relevant objections being as under:
That the Petitioners gave an application to the Collector on June 12, 1968, that in view of the appreciating prices of plots in Chandigarh fetched in the general auction held on May 26, 1966. the minimum value of the house is Rs. 24000/- The Petitioners, therefore, gave in writing that the sale be advertised in the Tribune, Times of India, Hindustan Times, "Hind Samachar", Milap, Partap and Tej, by giving two insertions. The applicants gave in writing that they are willing to pay the entire cost of advertising. This request was not acceded to by the Collector and the advertisement only appeared in Tribune ;
that the advertisement notice has not been properly published as provided under the law. A copy of the publication proclamation has not been served upon the defaulters as provided in Section 81 of the Act ;
that no proclamation was made by the beat of drum or other customary methods as provided u/s 22 of the Act;
that on 5th July, 1968 the Petitioners gave an application to the Collector that they are prepared to pay Rs. 6822 80, the amount which had been declared recoverable as arrears of land revenue but the Collector did not accept this payment and proceeded with the sale against the provisions of Section 84 of the Act ;
that the office of the Collector and Assistant Collector were out to help Respondent 2 in the purchase of this house. Previously they had sold it for Rs. 19600/- and now for Rs. 24900/-without considering the written request of the Petitioners ;
that the Petitioners have suffered substantial injuries by reason of irregularities of the Collector and Assistant Collector. The house is not worth less than Rs. 34,000/ in any case.
In this objection petition, Smt. Vidya Wanti and K. L. Pasricha gave the history of the acquisition of the house by Smt. Vidya Wanti from Respondent 5. To this application the Collector gave his comments para wise and paras 7 to 12 of his reply are as under:
Request of the applicant had been rejected because he was not a party to the case and the Collector was not bound to make publicity through the mode suggested by the Petitioner. Necessary publicity as required vide rules had been made and in addition thereto auction notices had also been published in two daily new-papers, Daily Milap dated the 12th June 1968 page 77 of this office file No. 212 (vii) 67 and Daily Tribune. (Necessary cutting has not been received from the Deputy Director, Publicity who is being requested to produce the cutting in your Court on 28th August 1968).
Denied, Shri Mohan Lal, the defaulter, was not available, hence the substituted service had been effected by affixing a copy of the notice at the front wall of his house and by giving auction notices in two daily news-papers.
Denied. Necessary proclamation by the beat of empty tin had been made.
Admitted. The Petitioner could not be allowed to make part payment of arrears outstanding against Shri Mohan Lal actual defaulter as by making this payment the Petitioner wanted to complicate the matter and made an attempt to get an irregular transaction regularised. Besides this, Section 84 of the Punjab Land Revenue Act, 1887 provides that sale could be postponed in case the arrears are cleared in lull before the auction is held. The condition was not fulfilled by the defaulter.
Denied. The house had been put to open auction and any body could participate in the proceedings. In fact the Petitioner himself made the opening bid at Rs. 21000/-.
Denied. The Petitioner is neither the owner of the house nor a party in this case. The question of sustaining any injury by him. therefore, does not arise.
This matter was heard by the Commissioner, Union Territory, Chandigarh, on August 31, 1968, and the objections were dismissed with the result that the sale in favour of Respondent 4 was confirmed. Against that order, Smt. Vidya Wanti and K. L. Pasricha filed an appeal before the Financial Commissioner, Chandigarh The learned Financial Commissioner held that no appeal was competent against the order of the Commissioner as it was made final by Section 92 of the Punjab Land-Revenue Act but he treated the appeal as a revision and finding no adequate grounds for interference, he dismissed the same on May 8. 1969. The Petitioners then filed the present writ petition in this Court on May 14, 1969.
Separate written statements to the writ petition have been filed by Respondents 1 to 3, Respondent 4 and Respondent 5. The main objection raised is that the Petitioners have no right in the house and have no right to file the present writ petition. Respondent 5 has also stated that the Petitioners have acquired no right in the house because Smt. Vidya Wanti and the Petitioners have not complied with the terms of the agreement of the sale executed between him and Smt. Vidya Wanti on March 3, 1966.
The first point for decision is whether the Petitioners have any right to file the present writ petition. The decision of this question in turn depends on the answer to the question whether Smt. Vidya Wanti and K. L. Pasricha had any right to file objections against the sale of the house held on July 15, 1968. Admittedly, they were not the defaulters. The defaulter was Respondent 5 and he filed no objections. Smt. Vidha Wanti had not acquired any proprietary rights in the house by the agreement of sale. There is no doubt that in part performance of the agreement Respondent 5 had put her in possession of the house. u/s 53-A of the Transfer of Property Act, Smt. Vidya Wanti had the right to retain the possession of the house as against Respondent 5. provided she performed or was willing to perform her part of the contract. Die sale of a house of the value of more than one hundred rupees can be made only by a registered instrument as is provided in Section 54 of the Transfer of Property Act which is applicable to the Union Territory of Chandigarh. In the absence of such a registered instrument of sale, no title passes to the transferee. Admittedly no instrument of the sale has so far been executed by Respondent 5 in favour of the Petitioners nor was any executed in favour of Smt. Vidya Wanti, Section 91 of the Punjab Land Revenue Act does not state as to who can file the objections to the sale. If an analogous provision in the CPC is looked into, it is Order 21 Rule 8b which provides that the objections to the sale can be filed by the person owning the property or holding an interest therein by virtue of a title acquired before such sale. Even under that rule Smt. Vidya Wanti and K. L. Pasricha had no right to file objections for setting aside the sale. If they had no right to apply for setting aside the sale u/s 9i of the Punjab Land Revenue Act, they have no right to file the present writ petition.
But assuming that they had the right to file an application for setting aside the sale, they could only raise objections with regard to the irregularities in the publication and conduct of the sale. No other objection to the sale could be taken. Their objection with regard to the publication of the sale was that the sale had not been advertised in the various news papers suggested by them and was only advertised in the Tribune It has not been shown that the advertisement made in the Tribune was not in occordance with the rules or law. It has also been stated by the Collector in his reply to the application u/s 91 of the Punjab Land Revenue Act filed by Smt. Vidya Wanti and K. L. Pasricha that the sale had also been advertised in ''Dialv Milap'' dated June 12, 1968. It is thus clear that the sale was advertised in two newspapers and necessary proclamation by the beat of empty tin had also been made. It has also been stated that the copy of the auction notice was affixed at the front wall of the house of Respondent 5 as he was not personally available and, therefore, substituted service had to be done. Before me it has not been urged as to how the sale was not properly published. No fault has been found with the conduct of the sale. No other objection was available to the Petitioners or Smt. Vidya Wanti or K. L. Pasricha.
Before me, the learned Counsel for the Petitioners has emphasised that Sections 72 and 75 of the Punjab Land Revenue Act the sale could not be effected for the recovery of Rs. 18984-30 when the house had been attached only for the recovery of Rs. 2814-50 which amount was offered by Smt. Vidya Wanti before the sale was held on July 15, 1968. No such objection was taken before the learned Commissioner nor can it be allowed to be taken now. The period of limitation for filing an application for setting aside a sale is thirty days and the objections can only be made with regard to the proper publication and conduct of the sale. This matter should have been raised before the house was auctioned. In fact K. L. Pasricha did not raise any such objection in his appeal against the sale held on December 20, 1967, which was decided by the learned Commissioner on April 29, 1968. Before the learned Commissioner K. L. Pasricha undertook to give the starting bid of of Rs. 21000/- in case the house was ordered to be re-auctioned. It was on this undertaking of his that the re-auction was ordered with the proviso that if he failed to give the starting bid of Rs. 21000/-, the auction already held in favour of Respondent 4 for Rs. 19600/- would stand. No such objection was available to the Petitioners or Smt. Vidya Wanti after the auction-sale held on July 15, 1968.
In order to have an auction-sale set aside, the objector has also to show that he has sustained sustantial injury by reason of the irregularity or mistake in publishing or conducting the sale, as has been laid down in Section 91(2) of the Punjab Land Revenue Act. Beyond making an averment in para 13 of the application u/s 91 of the Punjab Land Revenue Act, Smt. Vidya Wanti and K.L. Pasricha did not satisfy the Commissioner that they had suffered any substantial injury. In their application dated June 12, 1968, they themselves had stated the house was worth Rs. 24000/- as has been stated in para 7 of the objection application dated August 12, 1968, which has been reproduced above. It is not shown how in a months'' time the value of the house went up by another Rs. 10000/-. This point does not appear to have been pressed before the learned Commissioner as he has not referred to it in his order dated August 31, 1968, dismissing the application.
8 For the reasons given above. I find no merit in this petition which is dismissed with costs. Counsel''s fee Rs. 100/-.