IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1014 of 2008. Date of Decision: 3.7.2008 ________________________________________________________________ Himat Ram Saini … Petitioner Versus State of H.P. & ors. … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting? For the Petitioner(s): Ms. Anita Gupta, Advocate with Mr. Surinder Verma, Advocate. For the Respondent(s): Mr. Rajesh Mandhotra, Additional Advocate General. ____________________________________________________________ Deepak Gupta, J. (Oral). The brief facts necessary for disposal of the present petition are that the land of Shri Thanu Ram, father of the present petitioner was acquired for construction of the Beas Sutlej Link Project. A scheme known as “Scheme for Rehabilitation/Resettlement of Beas Sutlej Link and Uhl Project Oustees of Mandi District” was prepared and in terms of this scheme, land measuring 998 Sqr. mts was granted to Shri Thanu Ram. The grant was evidenced by 2 a Patta dated 5.6.1993 issued in this behalf. One of the terms of the Patta was that the land granted under the terms of the Patta would not be transferred by the grantee for a period of 15 years. One Shri Madan Lal filed an appeal before the Deputy Commissioner, Mandi challenging the grant made in favour of the grantee. The main ground in this appeal was that the appellant had transferred 63 Sqr. Mts. land out of the land granted to him to Shri Labh Singh and Devinder Kumar and 192 Sqr. Mts. to Shri Vivek Mohan. The Deputy Commissioner, Mandi allowed the appeal and came to the conclusion that the respondents had committed breach of the terms of the conditions of Patta and therefore, cancelled the allotment made in favour of the Shri Thanu Ram. An appeal was filed by Shri Thanu Ram in the Court of the Commissioner, Mandi. This appeal was dismissed on 9.12.1998. Thereafter a revision petition was filed in the Court of Financial Commissioner, H.P. by the present petitioner who is the legal representative of late Shri Thanu Ram. This petition was rejected on 23.5.2006. A writ petition being CWP No.570/2006 was filed before this Court. This Court came to the conclusion that 3 under the terms of the scheme only two appeals could be filed and no third appeal or revision was maintainable before the Financial Commissioner. On merits also it was held that the order of the authorities is correct since the original allottee has violated the terms of the allotment by selling the land within a period of three years of its allotment which was against the rules. Thereafter the petitioner filed a review petition being Civil Review No.2/2008 in which a plea was raised that the condition of the Patta that the land could not be sold for a period of 15 years is contrary to the scheme. This Court came to the conclusion that this point had not been specifically raised in the writ petition and it was for the first time urged in the review petition. The review petition was rejected vide order dated March 24, 2008. It appears that thereafter the petitioner filed a petition for leave to appeal before the Supreme Court of India. This petition was also rejected on 15.5.2008. After the Apex Court rejected the Special Leave Petition, the Tehsildar, Sundernagar sent a notice dated 21.6.2008 to the petitioner that since the grant made in his father’s name has been cancelled, he is directed to remove his belongings and vacate the land on or before 4 4th July, 2008 on which date the possession will be taken over by the Tehsildar. This order is under challenge before this Court. We have heard Ms. Anita Gupta, learned counsel for the petitioner. It has been urged on behalf of the petitioner that the earlier order passed by the Deputy Commissioner in appeal was a nullity and without jurisdiction and, therefore, the same cannot be given effect to. The learned counsel for the petitioner has cited a number of judgments including AIR 1954 SC 340, Kiran Singh and others versus. Chaman Paswan and others, (2005) 3 SCC 232 Sonepat Cooperative Sugar Mills Ltd. versus. Ajit Singh, (2005) 4 SCC 592 Hari Chand and others versus. Faridabad Complex Administration & others and (2005) 4 SCC 603 Motia Devi and others versus. Municipal Corporation, Faridabad and contends that the strict principles of res judicata are not applicable to the writ proceedings and further the principles of res judicata will not apply since the order of the Deputy Commissioner is a nullity. She therefore argues that despite the dismissal of the earlier writ petition, this Court can set aside the order of the Deputy Commissioner. 5 We are unable to accept this contention. The petitioner in the previous writ petition was free to take all points but had not challenged the order of the Deputy Commissioner on the ground that the same was without jurisdiction. In the second round of litigation, in our opinion, the petitioner cannot be permitted to raise new grounds which were available to him when the first petition was filed. This point was not even taken in the review petition filed before this Court. We are constrained to observe that in the present writ petition, the petitioner has not even made any mention that he had filed the aforesaid review petition. This fact was sought to be concealed from this Court. The order passed by this Court in the previous writ petition has been upheld by the Apex Court. Therefore, in our opinion, the petitioner cannot be permitted to raise fresh points in this petition. Even on merits, we are unable to accept the argument of the petitioner. The contention is that the order of the Deputy Commissioner is without jurisdiction since Clause 15 of the Scheme only permits an appeal to be filed by the allottee or the person to whom allotment has been refused. We are totally un-impressed with this contention. Clause 15 reads as follows:- 6 “An appeal from an order of the Land Acquisition Officer shall lie to the Deputy Commissioner, Mandi and second appeal to the Commissioner. There will be no third appeal.” A bare reading of this clause shows that the right to file an appeal has not been restricted to any particular party. Under general law, any party aggrieved can file an appeal. Therefore, Madan Lal who was one of the inhabitants of the area was also an aggrieved party and could have filed the appeal. It has been contended that in the terms of Patta, there was a clause of arbitration and the party should have been relegated to arbitration. The arbitration clause at best would apply only between the grantor and the grantee and would not affect the rights of the third party. It is also contended that the appeal was time barred and no application for condonation of delay was filed and without condoning the delay the appeal has been heard and therefore, the order is without jurisdiction. This point was not urged at any stage in the previous proceedings. Even otherwise, this point is without any merit. The cause of action to file an appeal arose only 7 when grantee Thanu Ram sold the land. He sold the land in 1996 and the appeal was filed immediately thereafter. It is lastly contended that a number of other allottees have sold their land and no action has been taken against them. Article 14 does not apply to the judicial proceedings. In the case of the present petitioner, action was initiated and all the authorities including this Court found that the act of the allottee in selling the land within three years of the allotment was violated of the provisions of the Patta whereby he was debarred from selling the land for a period of 15 years. The facts of the other cases may be different and no relief can be granted on this score also. We are, therefore, of the considered view that there is no merit whatsoever in the petition which is dismissed in limine. Dasti copy. ( Deepak Gupta ), J. July 3, 2008 ( V.K.Ahuja ), J. s. 8