1998 INSC 0752
                       Waqf Mohammad Hussain Through Its Mutwalli and Another

                                                           Vs

                                      Additional District Judge and Others

                                     Civil Appeals Nos. 5767-5768 of 1997

                                     (Dr. A. S. Anand, S. Saghir Ahmed JJ)

                                                      24.09.1998

                                                        ORDER

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 28-7-1997 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 31-5-1988, it was allotted in favour of Respondent 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 8-7-1983. 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 23-4-1984 and 7-4-
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 12-4-1984, i.e., the date from
which Shri Ashok Kumar Srivastava was found to he in unauthorised occupation, there was no
vacancy within the meaning of Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 and it was held that the premises in question would be deemed to be vacant
since 12-4-1984. 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 1-3-1986, 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.