1. Heard Sri Sudhir Shandilya, learned counsel for petitioner and Sri Dharm Pal Singh, Senior Advocate, assisted by Sri S. Niranjan, Advocate, for respondents.
2. This is a tenants' petition under Article 226 of the Constitution. The writ petition is directed against the judgment and decree dated 1.8.1994 passed by respondent no. 2 in J.S.C.C. Suit No. 1 of 1994 and judgment dated 16.2.1995 and decree dated 18.2.1995 passed by respondent no. 1 in J.C.R. No. 9 of 1994. The Courts below have passed decree of eviction against the petitioner.
3. Both the Courts below have held that U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") is not applicable to the premises in question i.e. the shop owned by the landlord-respondent no. 3 situated at Mohalla Gopalganj, Orai at Jalaun.
4. The landlord pleaded that construction of shop in question was made in August, 1983 but it was assessed for the first time by Nagar Palika, Orai in 1992-93 and therefore, the Act, 1972 is not applicable. Both the Courts below have recorded a concurrent finding that the said Act is not applicable to the shop in question.
5. Learned counsel for petitioner, however, relied on Hirday Narain Singh and another Vs. Maloo Lal Srivastava 1986 (1) ARC 74 and Ram Krishna and others Vs. Jhaman Das 1986 (1) ARC 276 and contended that once the date of construction was mentioned in the plaint as August 1983, there was no occasion to look either to the date of assessment or the date of occupation to determine the application of the Act. An admission of landlord about date of construction is final and conclusive. It could not have been ignored by Courts below.
6. Learned counsel appearing on behalf of respondents, per contra, submitted, when a legal fiction has been created by legislature, it has to be given effect to since a fiction contemplates a situation which otherwise in fact may not have been there but by legal fiction has been declared to exist and, therefore, the date of construction when it is completed is to be read strictly in accordance with Explanation to Section 2(2) of Act, 1972 and not otherwise. He also drew my attention to some authorities which I propose to discuss later.
7. From the pleadings, the facts in brief as discern from record are that the shop in dispute is situated in Mohalla Gopalganj, Orai, District Jalaun. It was constructed in August, 1983. The petitioner-defendant executed an agreement entering into tenancy of premises in dispute on 1.7.1990 which was for a period of three years. The assessment of shop in dispute was made for the first time in 1992-93 by Nagar Palika, Orai. The landlord alleging that the tenant has not paid rent from September, 1993 and has damaged the walls and floor of shop and also made material alternation, filed Plaint dated 31.1.1994 praying for eviction and arrears of rent and damages. It was registered as SCC Suit No. 1 of 1994. The parties also stipulated in the tenancy agreement that Act, 1972 does not apply to the shop in question.
8. The suit was decreed by Trial Court vide judgment dated 1.8.1994 observing that Act, 1972 does not apply to the shop in question, tenant is guilty of non payment of rent and the tenancy having been terminated, he is liable for eviction and payment of arrears of rent. The above judgment has been confirmed in Revision vide judgment dated 16.2.1995 passed by Revisional Court i.e. District Judge, Jalaun dismissing petitioner-tenant's Revision No. 9 of 1994.
9. Now the sole question up for consideration is whether landlord's own assertion in the plaint that shop in question was constructed in August, 1983 is sufficient to apply Act, 1972 to the shop in question.
10. In support of this contention, learned counsel for petitioner placing reliance on Hirday Narain Singh (supra) and Ram Krishna (supra), contended that the admission in pleadings itself is sufficient to take that fact proved and such an admission is admissible under Section 58 of Evidence Act and it can form basis to decide a particular issue, and, if so applicable, the entire case itself.
11. This Court has to consider the application of Act, 1972 in the light of provisions contained in Section 2 (2) of Act, 1972. It reads as under:
"2(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 such loan or advance (including interest), whichever is shorter:
Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed.
Explanation I.--For the purpose of this 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 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 either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants.
(b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition."
Explanation II.- ...
Explanation III.- A building shall be deemed to be constructed substantially out of funds obtained from sources mentioned in the proviso, if the funds obtained from one or more of such sources account for more than one-half of the cost of construction."
(emphasis added)
12. The phrase making the Act applicable to a building under Section 2 (2) of Act, 1972 is "ten years from the date on which its construction is completed". It does not talk only of the factum of construction i.e. when the building was constructed, but it is further clarified with the words "is completed", meaning thereby mere "construction" is of no consequence but it is date of "construction" when it is completed and wherefrom the period of ten years would commence so as to determine applicability of Act, 1972. Reason is quite obvious.
13. Mere word "construction" may have different meanings and shades. It is quite vague, ambiguous and liable to create a lot of confusion. Some may argue that the "construction" means when new structure is complete, some may go further to treat when the furnishing etc. is completed and so on. The mere word "construction" is capable of different interpretations and may refer to different stages. The legislature, therefore, has tried to oust any ambiguity in the interpretation of aforesaid provision. Not only it has used the words "construction is completed" but has further explained it vide Explanation appended to Section 2 (2) of Act, 1972 giving a deeming clause so as to create a point with due specification, certainty and definiteness. Theses two points when "construction of a building is deemed to be completed" are when its completion is reported or is otherwise recorded by local authorities having jurisdiction; and, in respect to a building subject to assessment, the date on which first assessment thereof is made. It further says, when the aforesaid two dates are different, the earliest of the said dates would be determinative and in absence of any report, record or assessment, the date on which it is actually occupied for the first time. Therefore actual construction of a building in the understanding of owner or others regarding its completion is not relevant at all. It is not dependent on the perception of individual(s) but on certain definite points bringing a third party into picture. In other words, what has been stated is that construction shall be deemed to have completed when; (1) such completion is reported to local authority having jurisdiction, (2) it is otherwise recorded by local authority having jurisdiction, (3) in respect to building subject to assessment, the date on which first assessment comes into effect, and (4) in absence of the above three, the date of actual occupation for the first time. Any date or any understanding or misimpression of individual regarding completion of construction of a building for the purpose of attracting Act, 1972 is of no consequence or legal affect; since, by a deeming fiction created by Legislature, such understanding has been excluded.
14. That being so, a mere statement or admission even by owner, in my view, would have no consequences.
15. So far as decision cited at the bar in support of petitioner's case i.e. Hirday Narain Singh (surpa) is concerned, this Court has no doubt that said decision, to some extent supports the contention of petitioner that outside the date of completion of construction explained in Section 2 (2) Explanation, there can be something else also but even if the judgment is given effect to in favour of petitioner, that would not help him in the present case for the reason that in the plaint, it is not the admission of landlord that "construction of building" was completed in August, 1983" but what he says is that "building was constructed in August 1983". As already discussed, mere "construction" and "when the construction is complete" are two different things. To quote the actual words, pleading in para 3 of plaint reads as under:
^^;g nqdku futkbZ ekg vxLr lu~ 1983 bZ0 esa fufeZr gqbZ gSA vkSj ftl ij x`gdj uxjikfydk mjbZ ls o"kZ 1992&93 bZ0 esa yxk;k x;k gSA^^ English Translation by the Court:
This shop in question has been constructed in the month of August' 1983 on which assessment of house tax has been made by Nagar Palika, Orai in the year 1992-93.
16. The alleged admission is only in respect to "construction" and not that "construction had completed". What is required under Section 2 (2) is the date when construction is completed so as to commence period of ten years whereafter only the applicability of the Act, 1972 would come into picture. The Act will have no application as soon as a building is "constructed". The period of ten years will start running under Section 2 (2) of Act, 1972 from the date when the "construction is completed" and from that date, for next ten years, the Act, 1972 shall not be applicable. It will be attracted only after expiry of ten years from the date of "completion of construction of building". Mere assertion that construction was made is not sufficient. The Legislature itself has not stopped by saying that it is the date of construction but has further specified that it is the date when construction is completed. The stress is on the word "completion" and this has been explained by a deeming clause in the Explanation. It depicts the intention of Legislature to make the thing very certain, specific and clear. Such intention of Legislature cannot be diluted by any judicial presumption, assumption and prediction. When the Statute admits no doubt or ambiguity, the normal principle of interpretation applicable is to read the Statute as it is and to interpret without any addition, alternation or exclusion. Neither any word is to be added nor is to be excluded nor has to be moulded in any manner. The presumption, intention and policy of Legislature would not be required to be considered to incorporate something which is not conceivable by a plain reading of the Statute leaving no doubt or ambiguity.
17. Whenever, a deeming clause is there, how it has to be interpreted has been considered by Apex Court time and again. The word "deemed" is normally used to create a statutory fiction. A provision creating a legal fiction whenever comes for interpretation, the Court has to ascertain the purpose for which fiction is created and thereafter only all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction have to be assumed. This is what has been said in Commissioner of Income Tax, Delhi Vs. S. Teja Singh AIR 1959 SC 352. The Court quoted with approval the observation of Lord Asquith in East End Dwellings Co. Ltd. Vs. Finsburg Borough Council 1952 AC 109 as under:
"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."
18. A Statute having a deeming clause earlier came to be considered by Privy Council in Commissioner of Income Tax Bombay Presidency Vs. Bombay Trust Corporation AIR 1930 PC 54. It 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. Privy Council was very much emphatic in the aforesaid decision when it observed, when a person is 'deemed to be', sometime 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 was. The use of word "deemed" normally has the effect to render certain thing which otherwise may not be there. This word is apt to include the obvious, the uncertain, and, the impossible. It is not possible to contradict statutory fiction else the very purpose for which fiction is created may/would stand defeated. Where a deeming provision is made in a statute, the state of things will have to be assumed though such things may not exist and the rights of the parties may have to be determined on such imaginary things.
19. In State of Travancore-Cochin Vs. Shanmugha Vilas Cashewnut Factory AIR 1953 SC 222, the Court said, when a statutory provision creates a fiction, it is first necessary to find out the purpose for which it was created in order to understand the scope and implications of the fiction. Where the Legislature provides that something is to be deemed other than it is, the Court must be careful and see within what points and for what purpose it is to be so deemed.
20. Section 2 (2) of Act, 1972 and its Explanation came to be considered by this Court in Raj Kumar Sharma Vs. District Judge and others 1993 (3) AWC 1503 and in para 18 and 19 of judgement, the Court said:
"18. The question involved in the present case is to be determined the back ground of 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 persons desirous to construct new buildings. The Legislature has expressly recongnised the need for encouraging the construction of new buildings by granting exemption to all such building 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 26, 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 building in the State it had been decided to extend the period of said exemption from twenty year, 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 extend to the landlords. As observed by the Supreme Court in its decision in the case of Administrator Municipal Corporation, Bilaspur v. Dattatraya Dahankar 1991 JT (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 cases of doubtful significane be presumed to be the true one.
19. If the language used in explanation I 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 alone 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 I 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 was 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 16-6-67, however, it was assessed for the first lime on 1-4-68. The question which had come for consideration was as to whether in the presence of the assessment dated 1-4-68 the date of occupation of the building i.e. 16-6-67 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 interpretation. 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."
21. The Court also considered earlier two judgements of learned Single Judges in Hirday Narain Singh (supra) and Ram Sanehi Vs. IIIrd Additional District Judge, Etah 1992 (2) ARC 653 and held that both the decisions are per incuriam since they have failed to notice earlier decision in Kailash Chandra Vs. Ram Naresh 1982 ACJ 608 in reference to Hirday Narain Singh (surpa). In Smt. Samundri Devi Vs. Nand Kishore Marwah 1986 (2) ARC 428, the Court had considered Hirday Narain Singh (surpa) and distinguished. In para 26 of judgment In Raj Kumar Sharma (supra) the Court said:
"26. It is thus, obvious that in the presence of the unimpeachable documentary evidence establishing that the building in question had been assessed for the first time in the year 1987 it was: not at all necessary for the courts below to hold an enquiry into the existence or otherwise of the building in dispute during the period 1974-1979. I respectfully agree with the view expressed in the ease of Smt. Samundri Devi (supra) decided by this Court wherein it has been clearly observed that where irrespective of the reality, the Legislature has unmistakably provided for assumption of the date of completion of the construction of a building in Explanation I to Section 2(2) of the Act, it is immaterial whether the landlords admit or aver to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away. But that principle will be wholly inapplicable to a case in which the Legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality."
(emphasis added)
22. The decision in Raj Kumar Sharma (supra) has been followed in Kailash Chand Singhal Vs. Sri Krishna Janam Asthan 2003 (1) AWC 491 and it has reiterated in para 19 as under:
"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."
23. In Fakir Chand Jatav Vs. Surendra Kumar Gupta 2003 (2) ARC 14, this Court in para 23 specifically observed:
"...if the first assessment is available , the date of actual construction or the date of actual occupation of the building would not be relevant for determining the date of completion of the construction of the building."
24. Hereinabove this Court relied on Apex Court's decision in Saleem Vs. District Judge, Muzaffernagar and others (1998) 7 SCC 242 and Om Prakash Gupta Vs. Dig Vijendrapal Gupta AIR 1982 SC 1230.
25. Later on, Apex Court in Suresh Kumar Jain Vs. Shanti Swarup Jain and others, 1997(9) SCC 298 in para 30 of judgment has construed Section 2 (2) of Act, 1972 and its Explanation as under:
"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 as provided for in Explanation 1 to sub-section (2) of Section (2) of the U.P. Rent Act. The four different dates for the purpose of compensation 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 the 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."
26. Subsequently, this very issue came up straightway before Apex Court in Smt. Sudha Rani Garg Vs. Jagdish Kumar (dead) and others AIR 2004 SC 5120 and the Court in para 7, 8 and 9 said as under:
7. 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.
8. The 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 forth date will be the date on which construction of the building shall be taken to have been completed.
9. The Explanation I is a deeming provision. The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes 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)(1951) 2 ALL E.R. 473 (HL)."
27. The Apex Court's decisions clearly show that when a deeming provision has been made, it has to be given full effect and cannot be construed in order to frustrate the very purpose of making such a provision.
28. The word "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 the words 'deem' and 'deemed' when used in a 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 by fiction; it may simply be the statement of an undisputable conclusion.
29. 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, 60 L.J.Q.B.380)
30. 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. McMillan, 1954 S.L.T. 109).
31. 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 (1960 (23) D.L.R. (2d) 32).
32. "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. (1961) A.C.509)
33. "Deems" 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 (1962 (3) All E.R. 641, Ali M.K. and Ors. v. State of Kerala and Ors. 2003 (11) SCC 632)
34. The above dictum has been followed and reiterated by a learned Single Judge of Uttrakhand High Court in Yogesh Kumar Vs. Ajay Luthra 2007 (1) ARC 923.
35. In Hanumant Lal Tripathi Vs. Addl. District Judge, Court No. 8, Saharanpur and another 2003 (1) ARC 395, a Single Judge of this Court also read Section 2 (2) Explanation in the manner this Court has discussed above and in para 16, said:
"16. It is thus, evident that the date of completion of the construction of a building is to be determined on the basis of the aforesaid deeming provision. Such determination is to be done on the basis of report/record, or assessment as mentioned in the said provision, or the earliest of such dates if the dates are different. However, in case, there is no such report or record or assessment, then the date of actual occupation of the building for the first time will be deemed to be the date of completion of construction of such building."
36. The decision of this Court in Hirday Narain Singh (supra) has been considered and held no longer a good law in the light of Apex Court decision in Om Prakash Gupta (supra). The decision in Raj Kumar Sharma (supra) based on Apex Court's decision Om Prakash Gupta (supra) has been followed by Hon'ble R.H. Zaidi, J in P.K. Chakravarty Vs. Xth Addl. District and Sessions Judge,Kanpur Nagar 2000 (41) ALR 49. Same view has been taken by Hon'ble Anjani Kumar, J. in Rajeshwar Dayal Vs. Vith Addl. District Jduge, Muzaffarnagar and others 2005 (58) FLR 255 and by Hon'ble Mukteshwar Prasad, J. in Smt. Riyaz Fatma Vs. Special Judge/ A.D.J. Bijnor and others 2005 (3) AWC 2208.
37. In Laxman Prasad Vs. Vth Addl. District Judge, Ballia and others 1999 (2) AWC 1444, Hon'ble Sudhir Narain, J. in para 8 and 9 of judgment said:
"8. The construction of a building can be proved by oral as well as documentary evidence. Explanation 1 (a) of Section 2 (2) of the Act provides a deeming clause as to when the building shall be deemed to have been completed. It is a statutory fiction in regard to date of completion. The building might have been constructed earlier and occupied by the tenant but in case there is assessment of the building and such assessment record is produced, the date of completion of the building shall be taken the date of first assessment, where the completion of the building is recorded or otherwise recorded by the local authority having jurisdiction, it is the date of reporting or recording by the local authority and in absence of any such report, record or assessment, the date on which it is actually occupied for the first time.
9. The Hon'ble Supreme Court in Om Prakash Gupta v. D. 1. G. Vijendra Pal Gupta, 1982 (1) ARC 391, held that Explanation 1 makes it abundantly clear that the date of occupation would be taken to be the date of completion of construction only when there is no report or record of the completion of construction or no assessment thereof. If there is an assessment, it will be the date of first assessment, which will be deemed to be the date of completion of construction. This view was reaffirmed by their Lordships of the Supreme Court in Salim v. District Judge, Muzajfarnagar and others, 1998 (2) ARC 617."
38. In view of above discussion, I have no manner of doubt that the date of construction when it is completed has to be ascertained strictly in the light of deemed dates as mentioned in Explanation I, Section 2 (2) of Act, 1972 and not otherwise. Admittedly for the first time assessment in respect to building in question was made for the year 1992-93. Neither the mere date of construction nor the date of occupation of premises in dispute would determine the date of completion of construction. Hence the date of construction stated by landlord in his plaint is of no relevance since it is the date of construction when it is completed and not otherwise.
39. The Courts below, therefore, have rightly held that suit having been filed in 1994 i.e. within two years of the deemed date when "construction is completed" as per Explanation to Sub-section (2) of Section 2 of Act, 1972, the Act, 1972 was not applicable in the present case. The Courts below, therefore, have not committed any error apparent on the face of record warranting interference.
40. In the result, writ petition, being devoid of merit, is hereby dismissed with cost which I quantify to Rs. 5,000/-.
Dt. 13.7.2012 PS