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Judgment
S.D. Bajaj, J.
Khushia Ram petitioner in C.W.P. No. 1291 of 1987 was the highest bidder in public auction of two properties bearing Nos. 404 D and 407 D situated at Dadri in district Bhiwani conducted on 19th May, 1959. The properties were from the compensation pool and the sale was conducted by the Rehabilitation Department. The highest bid at the auction was of Rs. 2025/ in respect of property No 404 D and Rs. 650/ in respect of property No. 407D. In terms of the proviso to sub rule (8) of Rule 90 of Displaced Persons (Compensation & Rehabilitation) Rules, 1955, the auction purchaser put in an indemnity bond in form Appendix XXIA in lieu of earnest money equivalent to 10% of the bid amount.
Verified claim of the petitioner auction purchaser on the basis whereof indemnity bond in form Appendix XXIA was furnished was rejected exparte on 24th September, 1966 in terms of rule 65 of the Displaced persons (Compensation and Rehabilitation) Rules, 1955 presuming that more than 4 acres of agricultural land had been allotted to the claimant. On the petitioner representing that the order rejecting his claim passed on 24th September, 1966, was passed exparte on factually incorrect hypothesis and wrong presumption, the wrong done to the petitioner was righted on 19th May, 1973.
Meanwhile acting on the order of rejection dated 24th September, 1966, the Rehabilitation Authorities called upon the petitioner to deposit earnest money in cash and on his failure to do so, ordered the aforesaid two properties to be reauctioned on l3th February, 1971. Therein respondents 5 and 6 purchased these properties as highest bidders. The petitioner knocked the doors of Rehabilitation Authorities from lowest to the highest to set aside the subsequent `Sale'' dated l3th February, 1971 in favour of respondents 5 and 6 but did not succeed. The cry made by the petitioner obviously fell on deaf ears. In this writ the petitioner has asked for quashing of the orders Annexures P. 5, P. 8. P. 9 and P. 14 as also of the reauction sale of the properties in dispute held in favour of respondents 5 and 6 on 13th February, 1971.
I have heard Shri P. C. Mehta, Advocate, for the petitioner, Shri Hemant Kumar, Advocate, for the respondents and have carefully perused the relevant record. State counsel was also present.
Procedure for setting aside the sale dated 19th May, 1959 is set out in rule 92 of the Displaced Persons (Compensation and Rehabilitation)
Rules which reads :
"92. Procedure for setting aside a sale where a person desires that the sale of any property made under rule 90 or 91 should be set aside because of any alleged irregularity or fraud in the conduct of sale (including in the case of a sale by public auction in the notice of the sale) he may make an application to that effect to the settlement Commissioner or any officer, authorised by him in this behalf to approve the acceptance of the bid or tender, as the case may be.
(2) Every application for setting aside a sale under this rule shall be made :
(a) Where the sale is made by public auction, within seven days from the date of the acceptance of the bid;
(b) Where the sale is made by inviting tenders, within seven days from the date when the tenders were opened.
(3) If after consideration of the facts alleged the officer to whom the application is made under this rule is satisfied that any material irregularity or fraud has been committed in the publication or the conduct of the sale, he may make an order that the property be reauctioned or be resold by inviting fresh tenders, as the case may be;
Provided that no sale can be set aside under this rule unless upon the facts proved such officer is satisfied that the applicant has sustained substantial injury by reason of the irregularity or fraud, as the case may be (4) Notwithstanding any thing contained in this rule, the Settlement Commissioner, may, of his own motion, set aside any sale under this chapter if he is satisfied that any material irregularity or fraud Which has resulted in a substantial injury to any person has been committed in the conduct of the sale."
In terms of sub rule (3) of rule 92 aforesaid disputed properties could be ordered to be reauctioned only if there had been any material irregularity or fraud either in the publication or conduct of the auction sale held on 1951959. Shri M.S. Kapur M. 0 (Sales), Jalandhar, having not reached this conclusion, in his order dated 17th November, 1966, Annexure P. 5. order Annexure P5 as so the reauction sale dated l3th February; 1971 held in pursuance of it are both nonest and faulty in the eyes of law. Impugned orders, Annexures P. 8. P. 9 and P. 14 are only affirmations of orders obtaining in Annexure P 5 and, therefore. fall through on the same ground of being; wholly without jurisdiction and violative of rule 92 of the ibid Rules.
Much ado about nothing, with his voice raised a little, was made by learned counsel for respondents 5 and 6 of their being bona fide purchasers for value of the disputed properties. It had, however, to be ignored on the ground of its being all in respect of split milk. A valid sale of the properties in dispute having already taken place in favour of the petitioner 12 years earlier on 19th May, 1959, the properties in dispute were obviously not available for sale a second time on 13th February, 1971. It does not stand to reason how could the Rehabilitation Authorities order the properties to be resold without setting aside. the previous sale in respect of the petitioner on any of the grounds set out in rule 92 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. Illegally or wholly without jurisdiction, second reauction sale, conducted on 13th February, 1971, cannot be termed either as legal or legally enforceable because respondents 5 and 6 were the highest bidders at it and have thereafter deposited the entire sale price. Nullity would remain a nullity for all times to come; inspite of their alleged bona fide action aforesaid.
Highest bid of the petitioner in respect of properties in dispute having been accepted by the Rehabilitation Authorities concerned vide their letters Annexures P. 1 and P. 2 and the petitioner having deposited earnest money equivalent to 10% of the bid amount through indemnity bonds in form Appendix XXIA in respect of his duly verified claim, the contract of sale in respect of the properties in dispute in favour of the petitioner was complete in all respect and could legally be avoided (if at all) only in terms of rule 92 of the Rules aforesaid.
Amongst the Rehabilitation hierarchy also Assistant Settlement Officer, Ambala, in his order dated 16th January, 1963 (Annexure P. 6), Managing Officer (Sales) Jalandar in his order dated 12th May, 1969 (Annexure P. 7) and the Commissioner and Secretary to Government, Haryana, in the Rehabilitation, Department in his order dated 19th June, 1973 (Annexure P 11) tried to see reasons and act in conformity with law but it so appears that the higher echelons therein overruled them by placing reliance upon Annexure P5 as due authority permitting resale of the properties in dispute on 13th February, 1971. The basis of their findings in Annexure P 8, P9 and P. 14 having fallen through on account of being a nullity and also as violative of rule 92 ibid, all the four aforesaid orders as also the resale held on 13th February, 1971 are all quashed. In result the writ succeeds and is allowed with costs Counsel fee assessed at Rs, 500/ only. In this view of the matter Civil Misc. No. 9488 of 1989 filed by respondents 5 and 6 for vacation of the stay order granted by the D.B. is wholly without merit and is consequently dismissed.