JUDGMENT S.P. Srivastava, J.
1. Heard the learned counsel for the parties.
2. Perused the record,
3. The tenant-defendant-revisionist has approached this Court by means of the present revision invoking the jurisdiction envisaged under Section 25 of the Provincial Small Cause Courts Act, 1887, seeking redress praying for the setting aside of the decree passed in favour of the plaintiff for the eviction of the tenant-revisionist from the premises in dispute with a further direction that subject to the payment of the court fee on the execution side, the plaintiff will be entitled to adjust the amount deposited by the defendant in Court towards the payment of rent and will also be entitled to damages for use and occupation @ Rs. 500 per month till the recovery of possession.
4. The facts in brief shorn of details and necessary for the disposal of this revision lie in a narrow compass.
5. The plaintiff-respondent had filed the suit giving rise to this revision alleging that the accommodation/building which had been let out to the defendant had been newly constructed in the year 1975. It was claimed that since the plaintiff was a registered religious institution, the provisions contained in the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972) were not attracted to the accommodation/ building which was the subject-matter of the suit as it fell beyond its purview. It was also claimed that the building/accommodation in question had been assessed for the first time under the Municipal Laws on 1.10.1978 and on this court also, it had to be taken to fall outside the purview of the aforesaid Act. The suit was filed on 7.7.1980. It was claimed that the tenant had not paid the rent due since 1.12.1979 in spite of the notice terminating the tenancy which had been issued on 22.4.1980.
6. The defendant had contested the aforesaid suit on various grounds. It was asserted that since the year 1978 a consolidated amount of Rs. 500 per month was being accepted under single receipts towards the rent of the premises in question which consisted of four shops. It was denied that the shops in dispute had been constructed in the year 1975 asserting that in fact they had been constructed in the year 1963 and in that view of the matter clearly fell within the purview of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The defendant further claimed that an amount of Rs. 2,000 had been sent to the plaintiff by two separate money-orders of Rs. 1,000 each on 21.4.1980, towards the rent due for the period 1.12.1979 to 31.3.1980, which had been accepted by an employee of the plaintiff. The validity of the notice was also challenged.
7. The trial court considered the oral evidence and documentary evidence brought on record. It was found that the notice terminating the tenancy was perfect and valid in law. The plea that the suit was bad for multifariousness of causes of action was also negatived. The trial court further came to the conclusion that the accommodation/building in suit had to be taken to fall outside the purview of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as it had been assessed by the Municipal Board for the first time on 1.10.1978. It was also held that since the plaintiff was a registered religious institution, on that ground also the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, could not be deemed to have been attracted taking into consideration the implications arising under Section 2 (2) (1) (f) of the said Act. The trial court after carefully considering the evidence brought on record had disbelieved the defendant's version that the municipal assessment relied upon by the plaintiff was not genuine. In fact on an evaluation of the evidence, the claim of the plaintiff that the building in question had been assessed for the first time by the Municipal Board on 1.10.1978 was accepted.
8. The learned counsel for the defendant-appellant has strenuously urged that since the letting had taken place in the year 1975 and the building had been constructed much before the year 1970, the first assessment by the Municipal Board in the year 1980 was wholly immaterial and could not be taken to lift the bar envisaged under Section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, placing the accommodation/building in dispute to be outside the purview of the said Act.
9. The trial court had found the first municipal assessment dated 1.10.1978 to be genuine and duly established from the evidence and the material brought on record. The question in regard to the effect of the first municipal assessment in case of the building which had been let out prior to such an assessment or constructed even before the letting out had taken place was also decided against the tenant-revisionist.
10. It has been urged that the claim of the plaintiff on account of its being a public religious institution and on that count, to be taken to fall outside the purview of U.P. Act No. 13 of the 1972, is not tenable in law. So far as this aspect of the matter is concerned, it is obvious from the decision of this Court in the case of Smt. Champa Devi and Ors. v. Rent Control and Eviction Officer and Anr., Civil Revision No. 33653 of 1996, decided on 11.1.2002, vide the judgment rendered by a Division Bench that the insertion of the new provision envisaged under Section 2 (1) (b) (bb) will not affect the proceedings pending on the date of enforcement of U. P. Act No. 5 of 1995. In the present case, the suit had been filed much before the enforcement of U. P. Act No. 5 of 1995. The plaintiff, therefore, cannot be held entitled to the benefit of the aforesaid new provision in the U. P. Act No. 13 of 1972.
11. Learned counsel for the tenant-revisionist has urged that in the facts and circumstances of the case, the building in question could not be taken to fall outside the purview of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972. In this connection, it may be noticed that the court below had proceeded to compute the period of exemption envisaged under Section 2 (2) of the U. P. Act No. 13 of 1972, taking the starting point for this purpose as the date of first assessment of the building which was proved to be 1.10.1978.
12. It is apparent from the perusal of the impugned judgment that no importance or significance was attached to the alleged existence of the building prior to the aforesaid year or its occupation as claimed by the tenant in view of the availability of the date of first assessment of the building in dispute. The question in regard to the effect of the presumption envisaged under the provisions contained in Section 2 (2) of the U. P. Act No. 13 of 1972, was considered in quite detail in the decision of this Court in Raj Kumar Sharma v. District Judge, Haridwar and Ors., 1993 (3) AWC 1503 : 1993 (2) ARC 103.
13. From a perusal of the aforesaid provision, it is apparent that for the purposes of Section 2 (2) of the Act, 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, earliest of the said dates. 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. As clearly pointed out by the Apex Court in its decision in the case of Commissioner of Income-tax, Delhi v. S. Teja Singh, AIR 1959 SC 352, it is well-settled that in construing the scope of the legal fiction, it would be proper and even necessary to assume all those facts on which alone the fiction can operate. The Hon'ble Supreme Court in that case quoted with approval the observation of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109, which are to the following effect :
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it. ........................ The statute says that you must imagine a certain state of affairs ; it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
14. It may usefully be noticed at this stage that the Privy Council in its decision in the case of Commissioner of Income-tax, Bombay Presidency v. Bombay Trust Corporation, AIR 1930 PC 54, had observed that what is Implicit in the words must rule whatever may be the general consideration as to what the Legislature was minded or was likely to do. The Privy Council was very much emphatic in the aforesaid decision when it observed that when a person is 'deemed to be' some time the only meaning possible is that whereas he is not in reality that something, the Act of Parliament requires him to be treated as if he were.
15. The aforesaid observation occurred in a judgment of the Privy Council given in an Indian Appeal which had come up for decision before the jurisdiction of the Privy Council was abolished under the Privy Council Jurisdiction Act, 1949. Taking into consideration the provisions contained in Section 8 of the Privy Council Jurisdiction Act, 1949, read with Article 374(2) of the Constitution, it is apparent that the decision in the aforesaid case has the effect as if it were an order made by the Hon'ble Supreme Court and, therefore, binding under Article 141 of the Constitution.
16. It is, therefore, obvious that ordinarily while using the word 'deemed', the object normally is to render certain that which might otherwise be uncertain and the impossible. Further, it is not permissible to contradict the statutory fiction as in that case the very purpose for which the fiction is created may stand defeated. Thus, where a deeming provision is made in a statute the state of things will have to be assumed, though such things do not exist and the rights of the parties will have to be determined on such imaginary things.
17. The deeming clause contained in Explanation 1 (a) of the Section 2 (2) of the Act makes available a presumption of fact in regard to the date of completion of the construction. However, it cannot be lost sight of that the question of applying presumptions can arise only when the facts are not known or there are gaps in the evidence which are sought to be filed in with their aid. The purpose behind the presumption of fact in regard to the date of completion of the construction as envisaged under Section 2 (2) of the Act appears to be to ensure that the benefits available under the Act to a tenant may get secured in his favour on the expiry of the period envisaged under Section 2 (2) of the Act. It is in this view of the matter that out of the three dates, that is to say, the date on which the completion of the building is reported, the date on which the completion is recorded by the local authority having jurisdiction, the date on which the first assessment of a building subject to assessment comes into effect, the earliest of these dates is to be deemed to be the date of completion of the building and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time not merely for the purpose of supervising the construction or guarding the building under construction which has to be taken as the date of completion of the construction. The reason for making available such presumption of fact relating to the date of completion of a building is obvious. It is difficult for a tenant to procure direct evidence in regard to the actual date of completion of a building because this matter is specially within the knowledge of the landlord, who gets the building constructed. Moreover, a landlord may for oblique motive come forward with a case giving out a wrong date of completion of construction of a building to defeat a just claim of a tenant about his entitlement to the protections envisaged under the Act. It is in order to get over such a situation that the Legislature has provided for a presumption of fact about the date of completion of a building.
18. The question involved in the present case is to be determined in the background of the aforesaid position in law. The provisions contained in Section 2 (2) of the U. P. Act No. 13 of 1972, clearly indicate the legislative policy of allowing exemption from the restrictive provisions of the Act to all the building for specified period to be computed from the date of the completion of their construction. Such an exemption was felt necessary in order to give incentive to appear desirous to construct new buildings. The Legislature has expressly recognized the need for encouraging the construction of new buildings by granting exemption to all such buildings which had not completed ten years from the completion of their construction computed in accordance with the provisions contained in the Explanation to Section 2 (2) of the Act. This period of exemption was raised from ten years to twenty years by an ordinance and to forty years as provided for by the U. P. Act No. 11 of 1988. In the statement of objects and reasons of the said Act, it has been clearly indicated that the second proviso to Sub-section (2) of Section 2 of the Act provided that the buildings constructed on or after April 26th, 1985, shall be exempted from the operation of the said Act for a period of twenty years from the date on which the construction was completed. In order to encourage the construction of new buildings in the State, it had been decided to extend the period of said exemption from twenty years to forty years. It is, therefore, obvious that the provision of exemption envisaged under Section 2 (2) of the U.P. Act No. 13 of 1972, had been made specifically for the benefit of the landlords and consequently in order to secure the benefit to be provided to the landlords, the Explanation has to be interpreted in a manner so as to ensure that the protection and its benefit gets extended to the landlords. As observed by the Supreme Court in its decision in the case of Administrator, Municipal Corporation, Bilaspur v. Dattatraya Danankar and Anr., JT 1991 (4) 500, a mechanical approach to construction is altogether out of step with modern positive approach. The modern positive approach, it was indicated, is to have a purposeful construction that is to effectuate the object and purpose of the Act. Further, in determining either the general object of the Legislature or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all case of doubtful significance be presumed to be the true one.
19. If the language used in Explanation 1 to Section 2 (2) of the Act is examined in the light of the principles indicated above, it will be apparent that the statutory fiction employed therein read with the use of the words 'in the absence of any such report, record of assessment' contained therein leave no manner of doubt that in the presence of an assessment of a building subject to assessment, only it is this date at one which has to be taken to be the date which furnishes the starting point for computing the period of exemption and the other factors, such as the date of occupation, etc., lose all significance. As a matter of fact, the effect of the words 'in the absence of as used in Explanation 1 to Section 2 (2) was noticed by the Apex Court in its decision in the case of Om Prakash Gupta v. Digvijendra Singh, AIR 1982 SC 1230 (2), which has the case decided by a Bench of three Hon'ble Judges of the Supreme Court. In that case the building in question was shown to have been occupied on 16.6.1967, however, it was assessed for the first time on 1.4.1968. The question which had come for consideration was as to whether in the presence of the assessment dated 1.4.1968, the date of occupation of the building, i.e., 16.6.1967, could be taken to be the date providing the starting point for computing the period of exemption. The Hon'ble Supreme Court, while interpreting the Explanation to Section 2 (2) of the Act, observed that primarily the language employed is the determining factor of the intention of the Legislature. It was further observed that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. The Apex Court found that the language of Sub-section (2) of Section 2 of the Act was implicit and unambiguous and further that it was not capable of two interpretations. Having come to the aforesaid conclusion, the Apex Court observed that the date of occupation could be taken to be the date of completion of the construction only when there was no report or record of the completion of the construction or no assessment thereof. Since in that case the assessment was there, it was held that the date of the first assessment was to be deemed to be the date of completion of the construction. It is obvious from a perusal of the aforesaid decision that in the presence of the first assessment, the date of occupation of the building during the period anterior to the first assessment was held to be of no significance whatsoever.
20. It is well-settled by a series of decision of the Hon'ble Supreme Court that if the building was outside the purview of the Act on the date of the institution of the suit, the fact that it came within the purview of the said Act during the pendency of the litigation is wholly irrelevant. See Shiv Kumar v. Jawahar Lal, 1988 (2) AWC 1245 (SC) : 1988 (2) ARC 465. In the present case, on the finding recorded by the trial court about the first assessment of the building in question, there can be no doubt that the provisions of the U. P. Act No. 13 of 1972, could not held to be applicable to the building and there could be no impediment in the grant of the decree about the eviction of the revisionist as prayed for.
21. In my considered opinion, the court below could not be held to be in error when it took the date of first assessment of the building in question in the year 1978 as the date furnishing the stating point for computing the period of exemption contemplated under Section 2 (2) of the Act.
22. Taking into consideration the facts and circumstances as brought on record in their totality, no justifiable ground can be said to have been made out requiring any interference in the impugned judgment and decree.
23. This revision, consequently, fails and is dismissed.
24. There shall, however, be no order as to costs.
25. The learned counsel for the tenant-revisionist has, however, sought for an indulgence of this Court praying that some time may be granted for vacating the premises in dispute. A.W.C. 32
26. Learned counsel for the plaintiff-respondent has been heard on this aspect of the matter also.
27. Taking into consideration the facts and circumstances, it is provided that in case the revisionist files an undertaking before the executing court within 10 days indicating that the peaceful vacant possession of the premises in dispute shall be delivered to the plaintiff-landlord on or before 15.1.2003 and further deposits with the said Court the entire amount due under the decree together with the rent and damages for use and occupation covering the period ending 15.1.2003, in that event the decree for eviction shall not be executed till 15.1.2003.
In the event of default in complying with any of the conditions indicated herein above, the impugned decree shall become executable forthwith.