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The Co-Operative Assurance Company Limited Saharanpur v. D.J., Saharanpur And Others - WRIT - A No. 49462 of 2006 [2006] RD-AH 15643 (7 September 2006)


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   Court no. 7                                                        

         Civil Misc. Writ Petition No. 49462 of 2006

The Co-operative Assurance Company Limited, Ambala Road, Saharanpur through its Managing Director Ashish Raj.       Petitioner



District Judge, Saharanpur and others.                               Respondents                                      

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

Brief facts of the case are that the petitioner is the landlord of premises no. 7/2, Gatta Mill Colony, Saharanpur of which respondent no.3 was the tenant for the last several years at the rate of Rs.650/- per month.

It is alleged that on 22.3.2006 respondent no.3 wrote a letter to the petitioner that he is going to vacate the premises and the same would be vacated on 30.4.2006. The petitioner immediately intimated to the Rent Control and Eviction Officer, Saharanpur with regard to expected vacancy as per Section 15(1) of U.P. Act No. 13 of 1972. When no order was passed 21 days expired, the petitioner nominated respondent no.4, Sri Ram Saran Khare at the rate of Rs.1750/- per month inclusive of all taxes as per Section 17(1) of the Act. The premises in dispute was declared vacant 17.4.2006. 26.4.2006 was fixed for allotment/release. On 31.3.2006/19.4.2006 one Sri Gurpreet Singh and respondent no.2 filed their applications for allotment.

It is stated that on 25.4.2006 respondent no.3 moved an application that he is not going to vacate the premises and the proceedings of the declaration of vacancy be dropped. Similar application was moved before Rent Control and Eviction Officer in case No.6 of 2006. On 17.7.2006 application for recall filed by respondent no.3 was rejected and became final as the same was not challenged in any higher court of law.

The Rent Control and Eviction Officer, Saharanpur by order dated 25.7.2006 allotted the premises to respondent no.4 in view  of Section 15(1) and 17(1) of the Act after considering the need of the respective parties.

Aggrieved by the aforesaid order dated 25.7.2006 respondent no.2 preferred a revision before the Court of District Judge,Saharanpur. The revision was admitted by the District Judge vide order dated 23.8.2006, hence this writ petition.

The contention of the counsel for the petitioner is that no   application for condonation delay has been moved by respondent no.2 along with the revision, hence the revision could not have been entertained under any deeming provisions. He has relied upon paragraph 5 of the judgment rendered by the Hon'ble Apex Court in Ragho Singh Vs. Mohan Singh and others, Revenue Decisions, 2000(91) SC-689. The Apex Court in that case has considered all the arguments of the parties and held that:-

" since it was not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act  was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation."          

In the instant case, it appears that against the impugned order dated 25.7.2006 passed by the Prescribed Authority Revision no. 5 of 2006, Smt. Gulshan Vs. State of U.P. and others was preferred by respondent no.2.  The Revisional Court heard both the parties before passing the impugned order dated 23.8.2006. The Revisional Court has noted all the arguments of the petitioner raised before it on the ground of maintainability of the revision under Section 18 read with Section19 of U.P. Act No. 13 of 1972.  It is apparent from the impugned order that no objection was taken by the petitioner with regard to limitation even though detailed arguments on the ground of maintainability of the revision under Section 18 read with Section 19 of U.P. Act No. 13 of 1972 were advanced by the parties.

Since the petitioner did not raise any objection on the ground of limitation, he cannot raise this point for the first time in the writ petition. Moreover, it can not be said that the question of limitation was involved inter-se between the parties when the revision was being heard for admission, as such the law cited by the counsel for the petitioner Ragho Singh (supra) is not applicable at all to the facts of the present case. Moreover, from the aforesaid judgment Ragho Singh (supra) it is clear that it was a judgment rendered in the particular facts and circumstances of that case and it does not lay a law in this regard.

  For the reasons stated above, the writ petition is dismissed.      No order as to cost.

Dated 7.9.2006



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