In the present revision, the revisionist has challenged the order dated 5.5.2011 passed by the Judge, Small Causes Court, Saharanpur in S.C.C. Suit N0. 31 of 2008 by which he has directed the revisionist to vacate the premises in dispute and pay the arrears of rent at Rs.13,688/- and the damages @ Rs.3,000/- per month till the vacation of the premises in dispute.
The revisionist is a tenant in a shop numbered as 3/6090/6 (old no.3/1506/9) situated at Agrawal Market, Bajoriya Road, Janakpuri Saharanpur, on a rent of Rs.1125/- per month. The landlord-opposite party given a notice dated 1.9.2008 to the revisionist under Section 106 of the Transfer of Property Act for terminating the tenancy and for eviction of the premises within 30 days on the ground that there is an arrear of rent for the period 1.10.2007 to 31.8.2008 for Rs.12,375/-. The first assessment of the premises after the construction was made on 1.4.1986 and, therefore, the provision of Act no. 13 of 1972 is not applicable in view of Section 2 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act").
A notice was served on 5.9.2008. There is no dispute in this regard. When the premises was not vacated, a suit no. 31 of 2008 has been filed. The rent along with other expenses has been deposited by the revisionist on the fist date of hearing and there is no dispute in this regard. However, it was contended that upto the month of February, 2008 the rent was paid in cash but the receipt has not been given by the landlord. On the receipt of the notice, a pay order dated 6.9.2008 for Rs.12,375/- has been sent to the landlord which has been refused by him and thereafter on 26.11.2008 the entire arrear of rent along with interest and expenses of the case, etc. at Rs.20,700/- have been deposited and claimed benefit of Section 20 (4) of the Act.
The issues were framed. Issue no. 3 was whether the Act no. 13 of 1972 was applicable to the present case and issue no. 4 was whether there was an arrears of rent, apart from other issues.
The trial court has held that the first date of assessment is 1.4.1986. The construction has not been intimated to the authority nor any notice has been issued by the authority about the completion of the construction, therefore, in view of the Explanation to Section 2 (2) the first date of assessment i.e. 1.4.1986 is relevant and taken as the date of construction. Since the period falls after 26.4.1985 the provision of the Act will not be applicable for the period of 40 years and accordingly it has been held that the provision of Act no. 13 of 1972 is not applicable and the revisionist is also not entitled for the benefit of Section 20 (4) of the Act.
For coming to the aforesaid conclusion, the court below has considered the statements of the parties and the witnesses. The court below has further held that there was an arrear of rent from 1.10.2007 to 31.8.2008. No evidence has been adduced to establish that the rent was paid inasmuch as arrears of rent has been paid by the revisionist also establishes that there was an arrear of rent. The trial court accordingly decreed the suit for eviction and arrears of rent by the impugned order.
Heard Sri M.K. Gupta, Advocate, assisted by Sri K.M. Tripathi, learned counsel for the revisionist and Sri Pankaj Agarwal, learned counsel appearing on behalf of the opposite party.
Learned counsel for the revisionist submitted that as per the statement of the plaintiff itself the property in dispute was in village when the construction took place. The Explanation to Section 2 (2) of the Act applies when the property is situated in a municipal area and, therefore, the Explanation to Section 2 (2) of the Act does not apply. The construction was admittedly completed in the year 1984 inasmuch as some of the shops of the market were let out in the year 1984 which establishes that the construction was completed prior to 26.4.1985 and, therefore, the benefit of 40 years exemption will not be available and the Act No. 13 of 1972 is applicable. In support of the contention he relied upon the decision of the learned Single Judge of this Court in the case of Ram Sanehi Vs. IIIrd Additional District Judge, Etah and others, reported in Allahabad Rent Cases 1992 (2)-653.
No other point has been raised.
Learned counsel for the respondent submitted that the plea that the property was situated in village outside of the municipal area when the construction was completed therefore the Explanation to Section 2 (2) of the Act is not applicable, has not been taken before the court below and, therefore, such plea cannot be raised for the first time in this Court. He further submitted that admittedly the opposite party is the landlord and the revisionist is a tenant. The property falls in the municipal area. There is no dispute that the first assessment after the construction took place on 1.4.1986. It is also not in dispute that on record there is no intimation by the opposite party to the Nagar Palika for the construction of the building and no notice has been issued by the authority for the completion of the building and the date of first assessment on 1.4.1986 is not in dispute. Therefore 1.4.1986 will be deemed to be the date of completion of construction in view of Explanation to Section 2 (2) of the Act. In support of the contention he placed reliance on the decisions of the apex Court in the case of Smt. Sudha Rani Garg Vs. Jagdish Kumar (Dead) and others, reported in [2004 (57) ALR 220] (S.C.) and Om Prakash Gupta Vs. Digvijendra Pal Gupta, reported in 1982 (8) ALR-242 and the decision of this Court in the case of Raj Kumar Rajpoot Vs. Smt. Usha Devi Lahauti and others, reported in [2009 (74) ALR 88].
I have considered the rival submissions and perused the impugned order.
It would be appropriate to refer Section 2 (2) of the Act along with Explanation.
"2. Exemptions from operation of Act.- (1) Nothing in this Act shall apply to-
(2)Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed :
Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a Bank or a Co-operative Society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of each loan or advance (including interest) whichever is shorter.
Explanation I.- For the purposes of this sub-section.-
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :
Provided that there may be different dates of completion of construction in respect of different parts of a building which are occupied separately by the landlord and one or more tenants or by different tenants."
The relationship of the tenant and the landlord is not in dispute. The property in dispute falls within the municipal area. The first assessment after the construction was made on 1.4.1986. A categorical finding has been recorded in this regard by the trial court. No contrary material has been placed by the revisionist. The trial court has further recorded a finding that there is no material on record that any information has been given about the completion of the building or any notice has been issued by the authority about the completion of the building. These two dates are not known and are not under consideration. The trial court has further recorded a finding that first assessment of the disputed shop no. 3/1506/9 was made on 1.4.1986 when Sri Surjit Singh was the tenant. The details of the assessment for the years 1991-1997, which is paper no. 29G reveals that M/s. Saran Medical Store was the tenant in the shop in dispute. The assessment for the years 1997-2003, which is paper no. 30G also reveals that M/s. Saran Medical Store was the tenant. The assessment for the years 2003-08, which is paper no. 31G, reveals that revisionist is the tenant of the shop in dispute. Paper no. 32G, which is a letter of the Executive Officer, Nagar Palika Parishad, Saharanpur, reveals that first assessment of house tax and water tax was made on 1.4.1986 and before this date there is no detail of house available in the record of Nagar Palika Parishad. On the basis of these materials it has been held that the first assessment was made on 1.4.1986.
The Explanation provides for four different dates for determining the date of completion of building. The dates are :
(1)When the completion of the building is reported to the local authority.
(2)When the completion of the building is otherwise recorded by the local authority.
(3)When the first assessment of the building comes into effect.
(4)When it is actually occupied.
Explanation further provides that in case for the first three categories, the dates are available then the earliest of the three dates will be the date of completion of the building and in case the first three dates are not available, then the fourth date will be the date on which construction of the building shall be taken to have been completed.
In case the first three dates are available, then the modality for working out the date of completion is provided in the Explanation.
In the case of Smt. Sudha Rani Garg Vs. Jagdish Kumar (Dead) and others (Supra), the apex Court held as follows :
"8. The Explanation I is a deeming provision. The word 'deemed' is used to a great deal in modern legislation. Sometimes it is used to impose for the purpose of a Statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes, it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes, it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible". { per Lord Radcliffe in St. Aubyn (L.M.) v. A.G. (No.2).
9. "Deemed", as used in statutory definitions, " to extend the denotation of the defined term to things, it would not in ordinary parlance denote, is often a convenient device for reducing the verbiage of an enactment, but that does not mean that wherever it is used, it has that effect; to deem means simply to judge or reach a conclusion about something, and words, 'deem' and 'deemed' when used in statute, thus simply state the effect or meaning which some matter or thing has the way in which it is to be adjudged; this need not import artificially or fiction; it may, simply be the statement of an undisputable conclusion" {per Windener, J. in Hunter Douglas Australia Pty. v. Prema Blinds).
10. When a thing is to be "deemed" something else, it is to be treated as that something else with the attendant consequences, but it is not that something else {per Cave, J., R. v. Norfolk County Court}.
"When a statute gives a definition and then adds that certain things shall be 'deemed' to be covered by the definition, it matters not whether without that addition the definition would have covered them or not" {Per Lord President Cooper in Ferguson v. MicMillan}.
11. Whether the word "deemed" when used in a statute, established a conclusive or a rebuttable presumption depended upon the context {See St. Leon Village Consolidated School District v. Ronceray}.
"I.........regard its primary function as to bring in something which would otherwise be excluded" {per Viscount Simonds in Barclays Bank v. I.R.C.}.
"Deemed" means "is of opinion" or "considers" or "decides" and there is no implication of steps to be taken before the opinion is formed or the decision is taken" (See R. v. Brixion Prison Governor ex. p. Soblen, (See Ali M.K. and others v. State of Kerala and others.
12. It is not in dispute that the first assessment came into effect from 1.4.1983 and in the relevant column relating to enhancement or reduction of the tax, "Q September, 1982" is recorded."
Para-13. According to learned counsel for the appellant, it means that the completion of the shop has been recorded by the local authority on 1.7.1982. The plea is clearly untenable. A quarter is a period of time, covering in the instant case from 1st July, 1982 to 30th September, 1982. It only shows that when assessment was made, construction was completed earlier sometime in the third quarter of September, 1982. The quarter started from 1st July, 1982. It cannot mean that the construction of the building was completed by the date. The date 1st July, 1982 to 30th September, 1982. The hypothetical presumption that the first date of the quarter being 1st July, 1982, it shall be deemed to be the date of completion of construction has no basis. In case the first three dates are available, then the modality for working out the date of completion is provided in the Explanation. As the records go to show, the first assessment came into effect on 1.4.1983. That is the third date provided in the Explanation."
In the case of Om Prakash Gupta Vs. Digvijendra Pal Gupta (Supra), the apex Court held as follows :
"As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967, and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of Section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appropriate this argument it will be expedient to refer to Explanation I to sub-section (2) of Section 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any report, recorded or assessment, the date on which it is actually occupied...............for the first time. A perusal of Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction, and in that view of the matter the building had not become more than ten years' old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of Section 39 of the Act to the appellant."
As held by this Court in the case of Raj Kumar Sharma v. District Judge Haridwar and others, reported in 1993 (2) ARC 103 the word 'deemed' is normally used to create a statutory fiction. While interpreting a provision creating a legal fiction it has to be ascertained as to for what purpose a fiction is created and it is only after ascertaining this all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction have to be assumed. It is well settled that in constructing the scope of legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate.
That Explanation 1 to Section 2 (2) was also considered by the apex Court in the case of Gopal Krishna Andely v. Vth Additional District Judge, Kanpur and others, 1982 (1) ARC 391 (SC) and the apex Court took the following view :
"A perusal of Explanation I, makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report on record of the completion of construction or no assessment thereof. If there is an assessment which will be deemed to be the date of completion of the construction, and in that view of the matter the building had not become more than ten years old on the date when the revision came to be decided by the High Court."
Hon'ble Apex Court in the case of Suresh Kumar Jain @ Sunni v. Shanti Swarup Jain and others, reported in 1996 (1) ARC 316 has held as follows :
"30. There is no dispute that the defendant- appellant is a monthly tenant covered by the provisions of the said Rent Act. It is apparent that for mitigating the hardship likely to be meted out to a landlord who has made new constructions by incurring substantial expenses the landlord in case of tenancy in a newly constructed building has been favoured with exemption of the rigours of the Tenancy Act in the matter of evicting a tenant inducted in such newly constructed premises. But such exemption is not unfettered but controlled by the provisions of section 2 (2) of the said Rent Act read with Explanation 1 and proviso to such Explanation 1. The outer limit of the period of exemption in respect of newly constructed building is ten years. Such outer limit of the period of exemption has been introduced for balancing the enquires between the landlord and the tenant. In order to ensure that such exemption in favour of the landlord is not extended indefinitely, the legislature has provided a mechanism for determining the date with reference to which the building in question will be deemed to have been constructed by indicating four distinct alternatives. As such four dates are likely to be different, Legislature, in its anxiety to ensure that the period of exemption is not unjustly extended beyond the period intended has indicated that such period of exemption is to be reckoned from the date which is on the earliest point of time amongst four different deemed dates provided for in Explanation I to sub-section (2) of the U.P. Rent Act. The four different dates for the purpose of exemption as to whether a newly constructed building is ten years old or not are as follows :
(i)the date on which completion of the building is reported to local authority.
(ii)the date on which the completion of the building is otherwise ; recorded by the local authority having jurisdiction;
(iii) the date on which the assessment of property tax is first made;
(iv) in the absence of any such report, record or assessment, the date on which the building was actually occupied.
31. In our view, in the facts of the cases, both the dates namely the date on which the completion of the building is reported to the local authority and the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction; are available. On January, 30, 1978 the building constructed by the respondent landlord was inspected by the section Head Clerk of the Etah Municipality and a report was filed by the said Head Clerk recording that the ground floor and the first floor had been rented at Rs.75 and Rs.60 per month respectively and the second floor of the building was in possession of the respondent owner. In the said report it was also indicated that the shop was well constructed. The Etah Municipality thereafter issued a letter on January, 30, 1978 to this respondent-landlord that the date of hearing the objection to the assessment of house tax fixed at 11.00 a.m. on February 1, 1978. Such notice as a consequential action on the part of the Head Clerk only indicates that Municipality has also noted the factum of completion of the building at least from the date of receipt of the said report. In our view, Dr. Singhvi recorded "used in Explanation I to section 2 (2) of the Rent Act should be constructed in a broad-based manner having wide amplitude, keeping in mind the beneficial purpose of the U.P. Rent Act for protecting the interest of tenants covered by the said Rent Act. We may also indicate there that such recording of the date of completion of the tenanted premises in question fully satisfies the recording of deemed date of construction under section 2 (2) of the U.P. Rent Act and it is not necessary to investigate whether for the purpose of assessment of rates and taxes of a building, inspection of the building had been done strictly in accordance with the Municipality Act."
In the case of Raj Kumar Rajpoot Vs. Smt. Usha Devi Lahauti and others (Supra), this Court held as follows :
"Para-11. On the touchstone of the provisions quoted above once this admitted fact that the first assessment of the building in question has been shown to be 1.4.1986, then in such contingency once first date of assessment is available, then by legal fiction, said date has to be treated as date of construction and the admission by any one in respect of the date of construction would in no way wipe out the effect of deeming provision, the date of occupation of the premises in question could have been taken into account only in the contingency which three dates as provided for were not available. Here, in the present case the first date of assessment is available, and in this background, finding of fact has been returned that the building in question was assessed for the first time in the year 1986, as such the conclusion which have been drawn to the effect that the provisions of U.P. Act No. XIII of 1972 are not applicable, are rightful conclusion and warrants no interference by this Court."
The plea of the revisionist that when the building was constructed it was in a village and it was not in municipal area and, therefore, the Explanation of Section 2 (2) of the Act does not apply, cannot be entertained at this stage. This plea has not been taken before the court below. In any view of the matter the plea cannot be accepted for the simple reason that admittedly the building falls within the municipal area when the opposite party became the tenant of the shop in dispute. The decision cited by the learned counsel for the revisionist in the case of Ram Sanehi Vs. IIIrd Additional District Judge, Etah and others (Supra) is distinguishable on the facts and inasmuch as it does not lay down correct law in view of the subsequent decisions of the apex Court and this Court.
In view of the above, the revision fails and is dismissed.
Dated: 7th July, 2011 OP Court No. 4.
Civil Revision N0. 276 of 2011 Ganesh Kapil..............................................................Revisionist.
Vs.
Jayanti Prakash Agrawal...........................................Opposite Party.
Hon'ble Rajes Kumar, J.
After the delivery of the judgment, learned counsel for the revisionist prayed that the revisionist may be allowed some reasonable time to vacate the premises in dispute.
In view of the above, the revisionist is allowed three months time to vacate the premises in dispute. The revisionist is directed to give an undertaking in this regard before the trial court within a period of one week.
Order Date :- 7.7.2011 OP