IMPORTANT POINT
Auction Sale – Restriction on Transfer – Government cannot put restriction on alienation/transfer of the immovable property purchased in public auction with retrospective effect.
Auction Sale – Proclamation carried out in the village where the property is situated would not be sufficient once it is to the knowledge of the officials that owners do not reside in that village.

ANIL KSHETARPAL, J.

1. By this judgment, two appeals one preferred by the plaintiff-appellant and second preferred by the State of Haryana-defendant shall stand decided as the facts and issues which need determination are common.

2. In the considered opinion of this Court, following substantial questions of law arise for adjudication:-

(i) Whether the restriction on alienation/transfer of the immovable property purchased in a public auction can be validly imposed by the Government with retrospective effect without enabling provision in the Statute?

(ii) Whether an order, cancelling the allotment/sale, which results divesting the rights in an immovable property can be passed by the government officials, without service of personal notice to the owners?

(iii) What is the affect of non-disclosure of earlier writ petition pending between the parties, while filing a suit particularly when such fact has been disclosed, while filing the replication?

3. These appeals have been remanded back by Hon’ble the Supreme Court, while observing as under:-

“The High Court while recording such a finding has not examined the alleged violation of the condition incorporated in the sale certificate as to whether such condition on the basis of subsequent policy of the Government could have been incorporated in the Sale Certificate or not was required to be examined by the High Court and that on the alleged violation of the condition regarding non-alienation of the property sold in public auction in favour of the vendor of the first respondent, the alleged grant of land could have been cancelled and re-auctioned the said property.”

4. After remand, when the case was listed for hearing, the State Government was called upon to produce entire record with regard to clause providing for restriction on the alienation of the immovable property sold in public auction. In deference thereto, the Government counsel admitted that there is no statute providing for such restriction with respect to the power of the auction purchaser in a restricted sale (public auction restricted to only those persons who belong to Scheduled Castes or Scheduled Tribes). Learned counsel for the State has produced before the court instructions issued by the Government dated 31.10.1967. Operative part of the instructions reads as under:-

“It has been decided that if any Harijan, who has purchased rural evacuee land in restricted auction tenders the balance price in lump sum instead in instalments, the amount should be accepted but the condition of sale/transfer/mortgage etc for ten years should continue and be enforced. In all such cases, the sale certificate already issued should be cancelled and revised sale certificate in the form enclosed issued.”

5. Along with the instructions, form under which sale certificate is issued to the auction purchaser provides as under:-

“The purchaser has paid the entire prince in lumpsum on______. He shall not be entitled to sell, transfer or mortgage the land till the expiry of ten years from the date of purchase and in the event of default of this condition, the land shall be liable to be resumed and the amount paid by the purchase liable to be forfeited to Government.”

6. However, vide decision dated 27.8.1974, restriction on the sale of the immovable property purchased in a public auction was consciously omitted by the Government by issuing a fresh policy decision. It was provided that those purchasers belonging to the Scheduled Castes to whom the sale certificates have already been issued, amended sale certificate be issued omitting such clause. However, it was further provided that in case a purchaser belonging to Scheduled Caste category has not paid the amount of sale consideration, the restriction on the sale of the property would operate for a period of 20 years. However, it was further provided that the moment entire sale consideration is paid, the restriction on the sale/alienation of the property shall stand omitted. Once again, the State G