AZAHAR MOHAMMAD Vs. PRESCRIBED AUTHORITY

JUDGEMENT

(1.) HEARD Sri B.P. Nautiyal, Advocate for the petitioner and Sri Jitendra and Sri Munish Bhardwaj, Advocate for the respondents.

(2.) BY the present writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 28-10-2004 passed by the Civil Judge (Senior Division), Dehradun.

(3.) A perusal of the record shows that no objections were filed by the respondent No. 2 in reply to the application under Section 23 of the U.P. Act No. 13 of 1972. On 28-10-2004, the Prescribed Authority/Civil Judge (Senior Division) passed the order that under Article 137 of the Limitation Act, the limitation has been prescribed to the extent of three years and, therefore, the execution being time barred the application under Section 23 is not maintainable. Aggrieved by the said order the petitioners have approached under Article 226/227 of the Constitution of India. A short counter-affidavit has been filed on behalf of the respondent No. 2 where the respondent No. 2 has referred paragraph No. 3 in which it has been stated that the execution application is not maintainable in order to execute the release order and is barred by the provisions of Section 21(1)(a) of U.P. Act No. 13 of 1972. Further in paragraph No. 5 it has been stated that the claim of the petitioners for the release of the accommodation is not maintainable in as much as it was for the personal requirement of Smt. Qayum Begam and after her death the personal requirement of the petitioners are not maintainable and, as such, there being no personal need the application under Section 23 is not maintainable. Further in paragraph No. 7 of the counter-affidavit it has been stated that the order under Section 21(1)(a) of the Act being not a decree, no execution application is maintainable under Article 136 of the Limitation Act. From the perusal of the record it is evident that the application under Section 23 of the Act was filed by the petitioners, the same was not controverted by the respondent No. 2. Neither any objections in the form of reply nor any other objections in the form of the executability of the order under Section 21(1)(a) of the Act was filed before the Prescribed Authority. However, the petitioners have filed the present writ petition challenging the order passed by the Prescribed Authority dated 28-10-2004 on the following points: