1. Heard Sri Sheshadri Trivedi, learned counsel for the petitioner and Ms. Akanksha Gaur, learned counsel for the respondents.
2. By means of the present petition, the order dated 21.07.2018 passed by the Judge Small Causes Court in S.C.C. Suit No. 29 of 2011 in terms of which the S.C.C. Suit which had been filed for eviction and recovery of rent had been decreed. The order dated 12.02.2019 passed by the 7th Additional District Judge, Aligarh in S.C.C. Revision No. 18 of 2018 is also sought to be challenged.
3. The sole contention which has been raised by the counsel for the petitioner to assail the aforementioned orders is that the provisions of the U.P. Act No. 13 of 1972 are not applicable to the premises in dispute and as such the tenancy of the petitioner could not be terminated as per the provisions contained under Section 106 of the Transfer of Property Act, 1882.
4. The issue with regard to the applicability of the U.P. Act No. 13 of 1972, was specifically framed as a point of determination by the trial court. In this regard the trial court has taken into consideration the evidence filed by the plaintiff landlord by way of an affidavit (Paper No. 17-Ga) wherein it was asserted that the shop in question was part of a market known as 'Azad Market', which was newly constructed in December, 1985, and as such the provisions of U.P. Act No. 13 of 1972 would not be applicable. Along with the affidavit, a list of documents was also filed which included a certified copy of a document which showed that the map of the aforementioned construction was sanctioned by the Executive Engineer Nagar Palika Khair on 1.11.1985. A copy of the sanctioned map was also filed as evidence (Paper No. 19-Ga/3), before the trial court.
5. The judgment of the trial court specifically records that the documentary evidence filed by the plaintiff landlord with regard to the sanction of map granted on 1.11.1985, was not controverted by the defendant tenant. The defendant-tenant who had appeared as a witness before the trial court, in his cross-examination had specifically admitted that he had been inducted as a tenant in the year 1990 and the shop which had been made available to him was in a vacant state, and that there was no tenant in occupation of the shop prior to him. In the affidavits filed as evidence by the defendant no. 1 Shekhar and the defendant no. 2 Sukhdev there was no assertion to the effect that the provisions of U.P. Act No. 13 of 1972 were not applicable to the shop in dispute. This together with the fact that no documentary evidence was filed by the defendant-tenant to prove that the shop had been constructed prior to the year 1985, the trial court came to the conclusion that the shop in question had been constructed after 1.11.1985 and in view of the same recorded a finding that the provisions of the U.P. Act No. 13 of 1972 were not applicable.
6. The revisional court has also recorded a similar finding on the basis of evidence available on record with regard to the applicability of U.P. Act No. 13 of 1972.
7. The relevant statutory provision which may be looked into for deciding the issue with regard to the applicability of the U.P. Act No. 13 of 1972, and which has been duly taken note of by the courts below is as follows :-
"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 Life Insurance Corporation of India or a bank or a cooperative 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 purposes 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;"
8. The courts below have placed reliance upon the judgments in the case of Vinod Kumar Vs. Naresh Chandra Sharma and others, 2016 (2) ARC 146, Amrit Prasad Singhal Alias Banshi Wale Vs. Baal Kishan Gupta, 2017 (1) ARC 120 and Rajeev Kumar alias Happi Vs. Rohit Khosala and others, 2018 (2) ARC 547 for the purposes of interpreting the provisions contained under Explanation I to Section 2 of U.P. Act No. 13 of 1972. The proposition of law enunciated in the aforementioned judgments may gainfully be referred to.
9. In Vinod Kumar Vs. Naresh Chandra Sharma (since deceased) and others1, this Court held as follows :-
"7. A careful perusal of section 2 (2) and its explanation shows that four different dates for the purpose of determination as to whether the newly constructed building is exempted or not have been given therein which are as follows:-
a. the date on which the completion of the building is reported to the local authority.
b. the date on which the completion of building is otherwise recorded by the local authority having jurisdiction.
c. the date on which the assessment of property tax is first made.
d. in the absence of any such report/record or assessment, the date on which the building was actually occupied.
8. The Explanation further provides that, in a case where for the first three categories the dates are available then the earliest of three dates will be the date of completion of the building. The fourth date i.e. the date of occupation will be the date of completion of building only in case, where the first three dates are not available.
9. Deeming clause as contained in the Explanation to section 2(2) has been interpreted by this Court in the case of Madan Mohan Sharma Vs. Ashok Kumar Kaushik reported in 2013 (1) ADJ 313 wherein placing reliance upon the judgment of the Apex Court in Om Prakash Vs. Dig Vijendrapal Gupta, AIR 1982 SC 1230 it has been held that the date of occupation can be taken to be the date of completion of construction only where there was no report or record of the completion of the construction or no assessment thereof. In a case where the date of first assessment is available, only that would be the date of completion of the construction and the date of occupation of building during the period anterior to the first assessment was of no significance whatsoever."
10. In the case of Amrit Prasad Singhal Alias Banshi Wale Vs. Bal Kishan Gupta2, it was held as follows :-
"9. In my considered opinion, the Explanation I-A to Section 2 (2) is relevant for the purposes of the case. This explanation among other things provides that in the absence of any report, record or assessment, the date on which, the accommodation was actually occupied, would be deemed to the date on which the construction of the building was completed."
11. In the case of Rajeev Kumar alias Happi Vs. Rohit Khosala and others3, it was observed as under :-
"9. From perusal of Section 2 (2) of the Act read with Explanation (I) and the law laid down by Hon'ble Supreme Court in the case of Sudha Rani Garg (supra), it is evident that the Explanation (I) to Section 2 (2) of the Act provides for four different dates for determining the date of completion of building in four categories. Firstly, when the completion of building is reported to the local authority. Secondly, when the completion of building is otherwise recorded by the local authority. Thirdly, when the first assessment of building comes into the effect and fourthly when it is actually occupied. The explanation further provides that in case for the first three categories the dates are available then earliest of the three dates will be the date for completion of the building and in case the first three dates are not available, then the date under the fourth category will be the date on which construction of the building shall be deemed to have been completed."
12. The provisions contained under Explanation I to Section 2 of the U.P. Act No. 13 of 1972 fell for consideration before the Supreme Court in the case of Sudha Rani Garg (Smt.) Vs. Jagdish Kumar (Dead) and others4, and it was held as follows :-
"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 fourth date will be the date on which construction of the building shall be taken to have been completed.
9. 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. Attorney General (No. 2) [(1951) 2 All ER 473 : 1952 AC 15 (HL)] , p. 498 F-G.]
10. "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 fiction; it may simply be the statement of an undisputable conclusion" (per Windener,J. in Hunter Douglas Australia Pty. v. Perma Blinds [(1970) 44 Aus LJR 257] ).
11. 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. in R. v. Norfolk County Court [(1891) 60 LJQB 379 : 65 LT 22] ).
12. "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 SLT 109] .)
13. 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 Distt. v. Ronceray [(1960) 23 DLR (2d) 32] .)
14. "I ... regard its primary function as to bring in something which would otherwise be excluded." (Per Viscount Simonds in Barclays Bank v. IRC [1961 AC 509 (HL)] .)
15. "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. Brixton Prison (Governor), ex p Soblen [(1962) 3 All ER 641 : (1963) 2 QB 243 : (1962) 3 WLR 1154 (CA)] , All ER p. 669 C.] (See Ali M.K. v.State of Kerala [(2003) 11 SCC 632 : 2004 SCC (L&S) 136] .)"
13. From a plain reading of the Explanation I to Section 2 of the U.P. Act No. 13 of 1972 and the law laid down in the case of Sudha Rani Garg (supra) it is clear that the Explanation provides for four different dates for determining the date of completion of building : (i) when the completion of the building is reported to the local authority; (ii) when the completion of the building is otherwise recorded by the local authority; (iii) when the first assessment of the building comes into effect; and (iv) when it is actually occupied.
14. In terms of the aforementioned Explanation I it is further provided 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.
15. In the present case, the courts below have taken note of the evidence available on record which goes to show that the map for the new construction was sanctioned on 1.11.1985, and the defendant-tenant who appeared as a witness (D.W.1) had specifically admitted that he was a tenant from the year 1990, and prior to him there was no other tenant. In such a situation, in terms of the deeming provision under Explanation I, the date of occupation of the shop in question i.e. the year 1990, would be deemed to be the date of completion of the building, and in view of the provision contained under Explanation I to Section 2, the building in question would clearly be exempt from the operation of the U.P. Act No. 13 of 1972.
16. No other point has been argued by the counsel for the petitioner.
17. The provisions of U.P. Act No. 13 of 1972 having been held to be not applicable to the building in question, and the factum of service of notice terminating the tenancy in terms of Section 106 of the Transfer of Property Act having not been disputed and the tenant defaulted in payment of rent, the order passed by the trial court decreeing the suit cannot be faulted with. The affirmation of the aforementioned order passed by the revisional court also does not suffer from any error.
18. The power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil5, and also in the case of Radhey Shyam and another Vs. Chhabi Nath and others6.
19. The learned counsel for the petitioner has not been able to point out any material error or illegality in the orders impugned which may warrant interference by this Court in exercise of its supervisory jurisdiction.
20. The petition lacks merit and is, accordingly, dismissed.
Order Date :- 29.4.2019 Pratima (Dr.Y.K.Srivastava,J.)