Waqf Mohammad Hussain through its Mutwalli and Another vs Additional District Judge and Others

1. These appeals call in question an order of the High Court of Allahabad in CMWP No. 7855 of 1990 and CMWP No. 10826 of 1988 decided on 28th July, 1997 by one and the same order.

2. The subject matter of dispute is a portion of House No. 29/39, Kanpur Road, Allahabad. By an order dated 31st May, 1988 it was allotted in favour of respondent No. 3 (Petitioner in CMWP No. 7855 of 1990). it appears that the house was previously in the occupation of Shri R.B. Sethi, Advocate, who shifted to Bombay in 1983 where he died on 8th July, 1983. After his death, his son Vinay Sethi paid the rent of the premises for six months. On an application filed by the appellants, the Rent Control and Eviction Officer, taking into consideration the reports of the Inspector dated 23rd April, 1984 and 7th April, 1986, recorded the finding that Shri Ashok Kumar Srivastava was not staying in the premises as a guest but was an unauthorised occupant. The Rent Control and Eviction Officer on the basis of the material on the record also returned the finding that with effect from 12th April, 1984 i.e. date from which Shri Ashok Kumar Srivastava was found to be in an unauthorised occupation, there was no vacancy within the meaning of Section 12 of the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 and it was held that the premises in question would be deemed to be vacant since 12th April, 1984, That being the position, the appellants ceased to have any right to nominate any person for allotment under Section 17 of the Act, after the expiry of the prescribed period. The nomination made by the appellants in this case on 1st March, 1986, being beyond the prescribed period, did not merit any consideration and the learned Rent Control and Eviction Officer rightly did not consider it. The revisional Court fell in complete error in ignoring this aspect of the case and overlooking the legal position that after there is a deemed vacancy within the meaning of Section 12 of the Act, the right to nominate the tenant under Section 17(1) of the Act cannot be exercised after the prescribed period. The High Court, therefore, rightly reversed the finding of the revisional Court and restored the order passed by the Rent Control and Eviction Officer. We do not find any error to have been committed by the High Court in the established facts of this case. The appeals, therefore, have no merits, they fail and are dismissed with costs.