Allahabad High Court
Rajeev Kumar Alias Happi vs Rohit Khosala And 2 Ors. on 21 February, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- S.C.C. REVISION No. - 178 of 2014 Revisionist :- Rajeev Kumar Alias Happi Opposite Party :- Rohit Khosala And 2 Ors. Counsel for Revisionist :- Abu Bakht,Pramod Kumar Jain Counsel for Opposite Party :- Siddhartha Verma,Bipin Lal Srivastava, Sumit Daga. Hon'ble Surya Prakash Kesarwani, J.
Heard Sri Promod Kumar Jain, learned Senior Advocate, assisted by Abu Bakht, learned, learned counsel for the defendant-tenant/revisionist and Sri Bipin Lal Srivastava, learned counsel for the plaintiff-landlord/respondent.
The relief sought in this revision is that the judgment dated 26.03.2014 in SCC Suit No.9 of 2007 (Rohit Khosala and others Vs. Rajeev Kumar alias Happi) passed by the Judge Small Causes Court/Additional District judge, Court No.1, Muzaffarnagar, may be set aside.
Submission of Sri P. K. Jain, learned Senior Advocate is that as per provision of Section 2(2) of U.P. Act 13 of 1972, the period of construction could be established only by documentary evidences regarding completion of the construction as reported to or otherwise recorded by the local authority having jurisdiction, and in case of building subject to assessment, the date on which the first assessment thereof comes into effect. He submits that since the legislature itself has provided for evidences to prove the date of construction, therefore, it can be proved in the manner as provided by the Statute and not otherwise. In support of the submission, he relied upon the judgment of the Hon'ble Supreme Court in Ram Saroop Rai Vs. Smt. Lilawati 1980 ARC 466 SC (para 10) in which it has been held that whenever the new building is completed, a report has statutorily to be made and on a completion survey and certificate, occupation is ordinarily permitted and these records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witness is indicated to determine the date of completion and the nature of the construction. This statutory guideline cannot be overlooked.
Learned counsel for the respondents supports the impugned order.
I have carefully considered the submissions of learned counsel for the parties.
It is recorded in the impugned judgment that the P.W. 2, Purshottam Das in his evidence clearly stated that immediately after the shop was constructed, he had let out the shop to Rajeev (the defendant-tenant/revisionist herein) and it was perhaps the winter season of the year 2001. The rent was Rs. 600/- per month. The aforesaid P.W. 2 was also cross-examined. Alongwith the rejoinder affidavit, the defendant-tenant/revisionist has filed a copy of cross examination of P.W. 1. In his cross examination, the P.W. 1 also specifically stated that the disputed shop was constructed in the year 2000. Against these evidences no evidence could be led by the defendant-tenant/revisionist. Thus, it was proved by the plaintiff-landlord/respondent that the disputed shop was constructed in the year 2000.
In the case of Sudha Rani Garg (Smt) Vs. Jagdish Kumar (Dead) & Ors. (2004) 8 SCC 329, (Paras 07 to 15), Hon'ble Supreme Court considered the provisions of Section 2 (2) and held 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].
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 devise 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) A.L.J.R.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. R. v. Norfolk County Court, 60 L.J.Q.B.380)
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 S.L.T. 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 District v. Ronceray (1960 (23) D.L.R. (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. I.R.C. (1961) A.C.509)
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. Brixion Prison Governor ex.p.Soblen (1962 (3) All E.R. 641) (See Ali M.K. and Ors. v. State of Kerala and Ors. (2003 (11) SCC 632)"
The judgment in the case of Sudha Rani Garg has been followed in the case of Shri Mundri Lal Vs. Smt. Sushila Rani (2007) 8 SCC 609.
Similar view has been expressed by this Court in the case of Naresh Chandra Jain Vs. Smt. Sarla Misra, 2003 (2) AWC 1586 (LB); Laxman Prasad Vs. Vth A.D.J, Ballia 1999 (2) AWC 1444; Hanumant Lal Tripathi Vs. Additional District Judge, 2003 (1) ARC 395 and Riyaz Fatima Vs. Special Judge, Bijnor (2005) (1) A.R.C 850.
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.
It is noteworthy that the date of first three categories are not available in the present set of facts. Hence the date of completion of building is to be determined under the fourth category i.e. when the building is actually occupied. The plaintiff/landlord/respondent has proved the date when he actually occupied the disputed building. Therefore, as per the evidences led by the parties and the findings recorded thereon, the date of completion of the disputed shop was the date when it was actually occupied, i.e. in the year 2000. Thus, the provision of U.P. Act 13 of 1972 has been correctly held to be not applicable with respect to the disputed shop.
In view of the above discussion, I do not find any merit in this petition. Consequently, the revision fails and is hereby dismissed.
After this order was dictated in open Court, Sri Pramod Kumar Jain, learned Senior Advocate stated on instruction of the defendant/tenant/revisionist that the defendant/tenant/ revisionist is ready to submit an undertaking on oath before the court below that he shall vacate the disputed accommodation within four weeks from today and shall hand over its' peaceful and vacant possession to the plaintiff/land-land/respondent on or before 31.07.2018 and shall also deposit a sum of Rs.10,000/- within the same period for use and occupation of the disputed accommodation for the period from today till 31.07.2018 apart from depositing the decretal amount after adjustment of amount, if any, earlier deposited and then in that event, no coercive action may be taken against the defendant/tenant/ revisionist to dispossess him from the disputed accommodation till 31.07.2018.
Learned counsel for the plaintiff/land-lord/respondent has no objection to the aforesaid request.
In view of the aforesaid, it is provided that if the defendant/tenant/revisionist submits an undertaking on oath as aforementioned and also deposits the amount as aforesaid then in that event no coercive action shall be taken against the defendant/petitioner to dispossess him till 31.07.2018. If any of the conditions as aforementioned are not complied with by the defendant/tenant/revisionist, the protection as provided above, shall automatically stand vacated.
It is further provided that in the event the conditions aforementioned are complied with, but the disputed accommodation is not vacated and it's vacant and peaceful possession is not handed over by the defendant/tenant to the plaintiff - landlord /respondent on or before 31.07.2018 then the plaintiff/ landlord/ respondent shall be entitled to initiate appropriate proceedings against the defendant-tenant / revisionist including the proceeding for contempt.
The revision is dismissed.
Order Date :- 21.02.2018.
Vinod.