1 D.B. CIVIL SPECIAL APPEAL (WRIT) NO.429/1999 (Brij Lal & Anr. Vs. State of Raj. & Ors.) DATE OF ORDER:16.04.2007 HON'BLE MR.JUSTICE RAJESH BALIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.R.S.Saluja & Mr.R.N.Upadhyaya, for the appellants Mr.L.R.Upadhyaya, Government Advocate Mr.J.L.Purohit, for the respondent BY THE COURT(PER HON'BLE MR.BALIA J.) Heard learned counsel for the parties. This appeal is directed against the order of learned Single Judge dated 17th February, 1999 allowing the writ petition filed by Mani Ram S/o Sheokaran the son of original allottee of land in question and setting aside the order passed by the respondent No.2 permitting the present appellants to deposit amount of installments due against the allotment of land in question along with interest and other rates chargeable thereon in terms of the High Court order. The facts of the case are that Sheokaran, the father of Mani Ram, was allotted 50 Bighas of land in question way back on 16.2.1963. The said Sheokaran parted with the 2 possession of the land in question on 25.6.1973 under an agreement to sale in favour of Harbans Singh, Manjit Kaur and Nasib Kaur, who subsequently transferred the land in question in the first instance on 1.8.1975 by executing an agreement to sale in favour of Gurmeet Singh, Gurbachan Singh and Dalbir Singh sons of Tulsi Ram, who in their turn transferred the aforesaid land in two parts of 25 Bigha each to appellant Brij Lal S/o Sheopat Ram Jat and Shravan Kumar S/o Ghadsi Ram Jat on 26.6.1992. These transferees realised that some where between the period the installment due had not been paid, therefore, they moved an application before the Collector in the first instance for getting Khatedari rights. The said Brij Lal and Shravan Kumar made their applications which were pending before the Collector. Brij Lal and Shravan Kumar also moved a joint application for accepting the payment of the installment due with interest for the first time on 31.10.1994, Mani Ram filed an objection against the acceptance of amount from said Brij Lal and Shravan Kumar for conferment of Khatedari rights as they have committed default in payment of installments in due time. During this period some litigations were pending before this Court about the power of the respondent to charge 3 current market price for regularising the allotments, who had defaulted in making payment of installments in due time. This litigation was ultimately decided by the Supreme Court on 23rd February, 1994 holding that current market price is not chargeable from the allottees, but they are liable to pay the interest on amount of the default made by them. The application remained pending with the Collector. Since the matters were pending with the Collector for allowing them the Khatedari rights, without deciding the same, the present appellants approached the Revenue Minister for intervening in the matter. The respondent petitioner had also participated in the proceedings before the Revenue Minister and in the first instance before the Minister he had raised an objection that alleged transfer of land by his father Sheokaran on 25th June, 1973 to Harbans Singh, Manjit Kaur and Nasib Kaur was only a mortgage and not the sale. However, the possession was not with said Mani Ram is not in dispute. An interim order was passed by the Revenue Minister in favour of the present appellants on 27.6.1994. Said Mani Ram S/o Sheokaran respondent in this appeal and petitioner, preferred S.B.Civil Writ Petition No. 189/1995 challenging the proceedings pending before the 4 Revenue Minister inter alia on the ground that the respondent No.2, the Revenue Minister, has no power to interfere with the matter as the matter is relating to the allotment of land as well as in regard to possession of the land. If the respondents No.5 & 6 want to enforce the agreement to sale executed in their favour, they should have filed a suit in the proper court under the Tenancy Act or they should have filed the suit under the Specific Relief Act. In fact he has asked for quashing of the entire proceedings pending before the Revenue Minister as they are being continued without jurisdiction. However, subsequent to filing of the petition, the petitioner unconditionally withdrew the writ petition on 19.10.1995 and it was dismissed as withdrawn. Subsequent thereto when the Revenue Minister passed the impugned order the respondent petitioner Mani Ram filed S.B.Civil Writ Petition No.3587/1995 raising the same grounds about the lack of jurisdiction in Revenue Minister to hold the proceedins and pass the impugned order allowing the present appellants to deposit the amount of installments due, in the light of Supreme Court judgment and directing the Collector to pass appropriate orders. In reply to the writ petition a specific plea was taken by the present appellants that in view of the fact that petitioner's 5 earlier approached this Court by way of filing a writ petition being S.B.Civil Writ Petition No.189/95 and had withdrawn the writ petition with respect to the same relief, he is not entitled to maintain the second writ petition on the same grounds. The said preliminary objection has been rejected by referring to the fact that the earlier writ petition was filed while the matter was at interim stage. Now the final order has been passed by the Revenue Minister. Hence withdrawal of earlier petition cannot come in the way of appellants to approach the court afresh. We are of the opinion that the view taken by the learned Single Judge in this regard cannot be sustained. The earlier writ petition was filed not merely challenging the order by way of interim relief but was filed to challenge jurisdiction of the Revenue Minister to proceed with the matter pending before him on the ground that he had no jurisdiction and for that reason sought a writ of prohibition to quash the pending before Revenue Minister in their entirety. The petitioner having raised the plea about inherent lack of jurisdiction for seeking writ of prohibition against the proceedings before the Revenue Minister and deliberately withdrawn the writ petition without any reservation, he cannot be permitted to raise the same issue again at a later stage of the 6 same proceedings without having reserved right to file fresh petition against the final order passed in the proceedings. A writ of prohibition is usually pursued only for challenging the power of an authority to proceed, where he lacks inherent jurisdiction. The petitioner had withdrawn the earlier writ petition. He cannot later be permitted to raise the same issue again at a later stage of proceedings against the final order, once he had availed the same at an earlier stage. We are, therefore, of opinion that the writ petition deserved to be dismissed on this ground alone. Moreover, it is also not in dispute before us that the respondent petitioner has already resorted to file a suit on whatever pleas that may be available and those proceedings are pending. It is stated before us that having lost in the trial court now appeal is pending before this Court in respect of said suit. Be that as it may, we do not express any opinion on the merit of grounds raised in said appeal except to the extent same relates to jurisdiction of Revenue Minister to proceed with the application moved before him. Said plea is not available to the respondent petitioner Mani Ram. However, we noticed the fact that executing an agreement to sale by the father of the 7 petitioner in favour of Harbans Singh, Manjit Kaur and Nasib Kaur is not a fact which has been disputed. On the contrary in S.B.Civil Writ Petition No.189/95 he has specifically averred that the land in question was transferred by his father in favour of three persons named above. Same fact has been averred in present writ petition also. In view of sustaining a preliminary objection raised by the present appellants the appeal is liable to be allowed. Accordingly, the appeal is allowed. The writ petition filed by Mani Ram S/o Sheokaran is dismissed as having been filed on the same ground on which a writ petition earlier was withdrawn without reserving his right to file fresh petition at later stage of the proceedings. No cost. (BHANWAROO KHAN) J. (RAJESH BALIA) J. BKS/-