Allahabad High Court
Madan Mohan Sharma vs Ashok Kumar Kaushik on 7 November, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 37631 of 2003 Petitioner :- Madan Mohan Sharma Respondent :- Ashok Kumar Kaushik Petitioner Counsel :- Pramod Kumar Jain,Amitabh Agarwal Respondent Counsel :- SC,Manoj Misra,Vishal Tandon Hon'ble Sudhir Agarwal,J.
1. Heard Sri P.K. Jain, learned Senior Advocate for the petitioner and Sri Vishal Tandon, learned counsel for the respondent.
2. This writ petition is directed against the order dated 28.05.2003 (Annexure-7 to the writ petition) passed by Additional District Judge, Court No. 7, Muzaffar Nagar allowing respondent-tenant's revision and setting aside Trial Court's judgment dated 12.10.1998, whereby petitioner's suit was decreed by Trial Court. The Revisional Court has remanded the matter to Trial Court.
3. The dispute relates to a shop of which petitioner is landlord and it was in the tenancy of respondent, Ashok Kumar Kaushik on a monthly rent of Rs. 600/- including water tax. The case set up by petitioner is that it was a new shop constructed in 1985 and onwards and first assessed by local municipal board for house tax in 1991, i.e., w.e.f. 01.04.1991. Accordingly it was a new construction which was completed in 1991 in terms of Section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"), therefore, Act, 1972 was not attracted to the shop in question when landlord filed SCC Suit No. 71 of 1991 after determining tenancy of respondent by notice dated 11.04.1991. It was pleaded that the map for construction of shop in question was submitted with Nagar Palika, Shamli on 20.05.1985 and it was registered in the municipal record for assessment of house tax w.e.f. 01.04.1991 though otherwise civil construction was over in 1988.
4. This suit was contested by respondent-tenant on the ground that shop is an old one and governed by the provisions of Act, 1972.
5. The Trial Court decided the suit vide judgment dated 12.10.1998 upholding the case set up by petitioner-landlord that it was a new construction which was completed in 1991 when for the assessment it was registered in Nagar Palika Shamli on 18.01.1991 and, therefore, Act, 1972 was inapplicable to the shop in question, at the time when suit was filed. It held that tenancy rights are governed by common law statutes and tenancy having been determined by landlord by issuing a valid notice, the defendant was liable to vacate the shop. The Trial Court accordingly decreed the suit with further direction for payment of arrears of rent.
6. The respondent took up the matter in SCC Revision No. 94 of 1998 observing that landlord having not been able to prove, when he informed, for the first time, Nagar Palika, Shamli, about construction and completion of shop, and, the mere fact that it was assessed w.e.f. 01.04.1991 by itself would not be sufficient to show that it was recorded or reported by local municipal board in 1991, for the first time. The onus lie upon landlord, hence the finding recorded by Trial court about inapplicability of Act, 1972 cannot sustain and the matter requires reconsideration, hence by means of impugned order dated 28.05.2003 the Revisional Court remanded the matter so as to decided by Trial Court, afresh.
7. Sri P.K. Jain, Senior Advocate, for the petitioner, contended that the mere fact that landlord could not inform as to on which date he submitted application before Nagar Palika Shamli for initiation of assessment proceedings, would not mean that the first assessment made in 1991 would be of no consequence. In absence of any evidence otherwise shown by tenant, the Revisional Court clearly misdirected itself by remanding the matter to Trial Court though on the basis of available evidence, it has already recorded a finding of fact. There was no reason or justification for Revisional Court to interfere therewith and it has exceeded with its revisional jurisdiction.
8. Sri Tandon, learned counsel appearing for respondent-tenant, on the contrary, has defended the judgment for the reasons stated therein.
9. So far as this Court is concerned, I have no manner of doubt that the onus to prove that Act, 1972 is inapplicable to a building, initially lie upon the landlord. While considering question, when construction of building, claim to be a new construction, completed or in other words when it can be said that construction had completed, we have to look into the "deeming clause" in the statute which leaves out scope of any otherwise interference by importing any other angle of the matter.
10. Section 2(2), Explanation (I)(a) provides, when construction of a building shall be deemed to have been completed. Since it is a legislative point of commencement, the scope of importing any other point of commencement has no place. The date of completion of construction is firstly when it is so reported to local authority having jurisdiction or the local authority otherwise has recorded it. Meaning thereby, the completion of building would be deemed if this completion is reported to by the act of owner of property or it is so reported and recorded to local authority by any other means. The factum of information to local authority, therefore, is relevant and not who did it and in what manner it was done. If both these dates are not available, if the building is subject to assessment, it is the date on which the first assessment thereof comes into effect.
11. The statute while making the date of assessment gives no importance to any other relevant fact as to when information is received by local authority for the purpose of assessment or when assessment proceedings are initiated by it and other incidental or ancillary issues culminating in the assessment. The importance attached by legislature while coining a deeming provision is to the date of which first assessment comes into effect. It further says that if the known dates, as provided in aforesaid provision, are more than one, namely, there are dates when information of completion of construction was reported to local authority and the date when it is recorded by local authority is also available and the date on which first assessment comes into effect is also available, then it is the earliest of the said dates. Then a fourth alternative is provides which says that in absence of any such dates, as above, it is the date on which the building is first occupied.
12. 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."
13. 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.
14. 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.
15. 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."
16. The Court also considered earlier two judgements of learned Single Judges in Hirday Narain Singh and another Vs. Maloo Lal Srivastava 1986 (1) ARC 74 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)
17. 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."
18. 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."
19. 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.
20. 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."
21. 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)."
22. The Apex Court's decisions clearly show, when a deeming provision has been made, it has to be given full effect and cannot be construed in a manner which may frustrate the very purpose of making such a provision.
23. 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.
24. 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)
25. 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).
26. 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).
27. "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)
28. "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)
29. 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.
30. 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."
31. 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 Judge, 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.
32. 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."
33. In view of above discussion, I have no manner of doubt that the date of construction, when 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.
34. In the present case it is nobody's case that date of reporting or recording of completion of construction with local authority is available on record. Assuming that no such date was given by landlord before courts below, that would make no difference for the reason that statute has taken care of providing a manner in which date of "completion of construction" can be determined by stating that it shall be the date on which the first assessment comes into effect.
35. In the present case the landlord has shown that first assessment of shop in question comes into effect w.e.f. 01.04.1991. Nothing contrary thereto has been shown by tenant. The landlord, therefore, apparently and successfully discharges his burden of prove that the building in terms of Section 2(2), Explanation (I)(a) is a new building, of which, the date of completion of construction would be, "deemed" to be the first date of assessment, becoming effective, i.e., 01.04.1991. Thereafter, if the tenant has pleaded otherwise, onus shifted upon him to place on record cogent evidence and prove a case otherwise than that pleaded and proved by landlord.
36. In the present case it is not the case of any of the parties that tenant adduced any evidence, credible and cogent, to prove otherwise. The Revisional Court, therefore, in absence of any evidence otherwise, has no reason to interfere to the well discussed findings of fact recorded by Trial Court that completion of construction of building shall be deemed to be w.e.f. 01.04.1991. The ordinary notion of completion of construction of a building in view of specific deeming provision in Act, 1972 would have no application in such matters. In my view the Revisional Court's judgment it is difficult to be sustained.
37. In the result, the writ petition is allowed. The impugned revisional order dated 28.05.2003 is hereby quashed and the judgment and order of Trial Court, dated 12.10.1998, is restored and confirmed.
38. No costs.
Order Date :- 07.11.2012 AK