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PETITIONER: SURESH KUMAR JAIN

       Vs.

RESPONDENT: SHANTI SWARUP JAIN & ORS.

DATE OF JUDGMENT:       21/11/1996

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      G. N. Ray, J.      This appeal is directed against judgment dated December 21, 1995  passed by  the Allahabad High Court in Civil Misc. Writ Petition  No. 1556  of 1995. It may be stated here that against the earlier judgment of the High Court passed in the said Civil  Misc. Writ  Petition, this  Court was  moved  by filing S.L.P.  (C) No.  4280 or  1995.  Such  Special  Leave Petition was  disposed of  by this  Court and by order dated July 24,  1995, the  Writ Petition  was remanded to the High Court for  fresh adjudication  in the  light of observations made in the judgment of this Court.      The appellant  was inducted  as a  tenant on the ground floor of  building numbered  as 29  Mainganj ward No.4 Block No.2,  Kapra   Market,  Etah,  within  the  limits  of  Etah Municipality at  a monthly  rental or  Rs. 75/-  with effect from March,  1973, by  the  owner  landlord  respondent  Sri Shanti Swarup Jain.      For the  purpose of  appreciating rival  contentions of the parties in this appeal, the following facts which are on record appear to be relevant.      (a) The  Executive Officer,  Municipal Committee, Etah, gave notice  dated November  15, 1977  to the owner landlord respondent Sri  Shanti Swarup Jain under Section 143 of U.P. Municipalities Act,  1916 that  in respect of house Nos. 29, 29A, of the said Etah Municipality, the annual valuation had been fixed  at Rs.  1,800/- and  the House  Tax for the said premises had  been assessed at Rs. 90/-. It was indicated in the said notice that if the landlord had any objection, such objection  would  be  filed  during  the  working  hours  on December 20,  1977 or  earlier. It  may  be  indicated  that originally the  House No.  29 before  reconstruction  was  a single storied  building. After  reconstruction the building comprises  ground,   first  and   second  floor   and   such reconstructed building  has been  numbered as House Nos. 29, 29A AND  29B. The receipt of said notice of the Municipality under Section  143 was  acknowledged by the owner respondent on November 25, 1977.      (b) In  reply to  the said  notice of  assessment,  the owner respondent filed his objections that the assessment of

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House Tax  was high  and that only one shop was let out on a monthly rental  of Rs. 75/- and the remaining portion of the building was  lying unused. In the said objections the owner landlord did  not state  that the  construction of  the said house Nos. 29, 29A and 29B was not completed.      (c) On  January 30,  1978, the  building constructed by the respondent  was inspected  by the  Section Head Clerk of the Municipality  and a  report was  filed by  the said Head Clerk recording  that the  ground floor  and the first floor had been  rented respectively  at Rs.  75/- and Rs. 60/- per month and the second floor of the building was in possession of the respondent owner. In the said report it was indicated that the shop was well constructed.      (d) The  Municipality issued a letter dated January 30, 1978 to  the respondent which was received by him on January 31, 1978,  intimating the date fore hearing the objection to the assessment  of house  tax, was fixed on February 1, 1978 at 11.00  A.M. An order of assessment in respect of the said house Nos.  29, 29A  and 29B was passed on February 2, 1978. Such assessment  was, however,  challenged by the respondent and the  assessment of house tax ultimately came into effect from April  1, 1981  on the conclusion of pending litigation on account  of challenge of the order of assessment of House Tax.      On December 19, 1990, the plaintiff respondent No.1 Sri Shanti Swarup  Jain, instituted  a suit  for eviction of the appellant from the suit premises in which he was inducted at a monthly  rental of  Rs. 75/-  in the Court of Munsif Small Causes being Suit No.18 of 1990. The defendant tenant who is the  appellant   herein  raised   an  objection  as  to  the maintainability of  the said  Eviction Suit  No.18  of  1990 before the  learned Munsif  Small Causes.  It was  contended inter alia by the tenant appellant that under the provisions of U.P.  Urban Building  (Regulation of  Letting,  Rent  and Eviction) Act,  1972, the jurisdiction to entertain the said suit by  the learned  Munsif. Small Causes, was barred under Section 20  of the said Rent Act. Section 2 of the said Rent Act provides  for exemption  from the  operation of  the Act under  certain  conditions  but  such  conditions  were  not fulfilled  in   the  instant   case.  The   deemed  date  of construction of the building is provided in Explanation I of Sub-Section (2) of the Section 2 of the Rent Act. It will be appropriate to refer to the Explanation I of Sub-Section (2) of Section 2 of the said Rent Act.      Explanation I  - (For  the purposes      of  this   Section)   -   (a)   the      construction of a building shall be      deemed to have completed 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,      the earliest of the said dates, and      in 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

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    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.      Dr. A.M.  Singhvi, the learned Senior Counsel appearing for the  appellant, has  submitted that there is no scope to dispute that if the building in question in respect of which the said  eviction suit  was instituted  in the court of the learned Munsif,  Small Causes, had not been completed within ten years  from the  date of  institution of  the said suit, the same  was not maintainable being barred under Section 20 of the said Rent Act.      Dr. Singhvi has submitted that the Explanation I of the Sub-Section (2)  of Section  2 of  the said Rent Act clearly indicates that  the legislature  has with  the intention  of balancing the equities between the landlord and the tenants, exempted the  landlord from  the protection  granted to  the tenants against  eviction under  the said  Rent  Act  for  a limited period  of ten  years from the date of completion of newly  constructed  building.  In  order  to  safeguard  the interest of  the tenants  for which the rent legislation was primarily  enacted,   and  in   order  to  ensure  that  the protection   in favour  of  the  landlord  is  not  extended indefinitely, the  legislation has  provided a mechanism for determined the  date on  which building  in question will be deemed to  have been  constructed by providing four distinct alternatives and  also providing  that in the event the said dates are  different, the  earliest of the date would be the deemed date of construction.      Dr. Singhvi  has further  submitted that  the ratio  or principle behind  the said provision to take the earliest of the deemed  dates of  construction, was  obviously  to  give protection  due   to  the   tenant  once   the  building  is established to  be ten  years old  on the  earliest point of time amongst  the various  dates of deemed construction. Dr. Singhvi has  also submitted  that it  is significant to note that the  proviso to Explanation I of Sub-Section (2) of the Rent Act  specifically states  that there  may be  different dates of  completion of construction in respect of different parts of  a building which are designed as separate units or occupied separately  by the  landlord or one or more tenants or by different tenants.      Dr.  Singhvi   has  contended  that  various  dates  as indicated in  Explanation I  for  computing  the  period  of completion of  the premises  in question  for the purpose of finding  whether completion was within ten years or not, are as follows :-      (a) The date on which completion thereof is reported to the local authority having jurisdiction;      (b)  The  date  on  which  the  completion  thereof  is otherwise      recorded  by   the  local   authority  having jurisdiction ;      (c) The  date on  which the  assessment to property tax comes into effect;      According to  Dr. Singhvi,  landlord, according  to the case pleaded  by him  in the  plaint of  eviction suit,  has pleaded and accepted that the contention of the ground floor and indeed the entire building i.e. ground, first and second floors were  completed in March, 1973 when the appellant was inducted as  a tenant  at a  monthly  rental  of  Rs.  75/-. Although the  landlord did not specifically make a report to the  local   authorities  having   jurisdiction  about   the

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completion of  the  building,  the  local  authorities  have clearly recorded  vide the said inspection report of January 30, 1978,  that the  building bearing  No.29, 29A and 29B is well  constructed.   Dr.  Singhvi  has  submitted  that  the expression "otherwise  recorded" used  in Explanation  1  to Section 2  (2) of the Rent Act must necessarily be given the widest possible  meaning as the words have no restriction in the  Explanation   and,  therefore,  a  recording  by  local authorities that  the building is complete or constructed as found on  inspection for  the purpose of assessment of house tax would satisfy the requirements  under the Explanation I, Hence, it  would not  be open  to the  respondent to contend that the date on which first assessment to property tax came into effect  would be  the governing  date for computing the period of ten years.      Dr. Singhvi  has also  submitted that the objections of the respondent landlord to the notice of assessment of House Tax clearly  indicated that  there had been admission of the landlord that the building though constructed was lat out to a tenant  and other  portions were lying vacant or unused on the date of said objection i.e. on December 16, 1977.      Dr. Singhvi  has also  submitted that  in the  suit for eviction, the  landlord respondent has sought for possession of the  ground floor  of the  said building  from the tenant appellant. The ground floor has admittedly been treated as a separate  and  construct  part  of  the  building  and  such distinct  and  separate  part  was  in  the  occupation  and exclusive possession  of the  tenant  appellant  ever  since March, 1973.      It has  been contended  by Dr.  Singhvi that in view of the fact  that construction of ground floor was completed in 1977 and  the appellant  was inducted  as a  tenant in  such constructed unit ever since March, 1973 under the proviso to Explanation I  which specifically  provides  that  different parts  of   the  building   may  have   different  dates  of construction, the  eviction suit  must be  held  as  clearly barred under  Section 20  of the  Rents Act because the said constructed unit  comprising tenancy  of the  appellant  had been built in 1973.      Dr.  Singhvi   has  submitted   that  the   proviso  to Explanation  I   clearly  reveals   the  intention   of  the legislature to  limit the benefit or exemption of provisions of Rent Act upto a period of ten years from the construction of building  or any  separate unit of the building but after the expiry  of such  period of  ten  years,  the  tenant  is entitled   to   full   protection   under   the   beneficial legislation, namely,  the said  Rent Act. As in the facts of the case,  the said  Rent Act.  As in the facts of the case, the appellant  tenant has  been able  to clearly demonstrate with reference to records which are not disputed that  House No. 29  since let  out to  him ever since March, 1973, stood constructed at  the time  of inception  of tenancy  and  the tenant has  all along  been in  exclusive possession of this separate unit  from the  date of  inception of  tenancy,  it cannot but  be held  that the  tenanted premises  being  the separate unit  of the  building having been constructed long before the  period of   ten  years prior  to the date of the institution  of   the  Eviction  Suit,  the  said  suit  was hopelessly barred  under Section  20 of the Rent Act and the decree  passed   on  such   suit  by   wrongfully   assuming jurisdiction by  the learned Munsif, Small Causes Court is a nullity.      Dr. Singhvi  has been  disputed the  contention of  the landlord respondent  that the  recording  of  completion  of construction in  the process  of  assessment  to  house  tax

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cannot be  taken as  the date  of computation in view of the provisions of  Section 182 of U.P., Municipalities Act. 1976 by  conferring   that  such  contention  is  devoid  of  any substance. Dr.  Singhvi has submitted  that the said Section provides  for   inspection  of  the  work  of  the  building requiring sanction.  Hence, in  the case of a building which does not  require sanction,  being the subject matter of the eviction suit,  there would be no occasion to have a date of completion recorded  in the  municipal records. But the only date available  would be  either a date of occupation or the date of  first assessment coming into force. Dr. Singhvi has submitted that  any construction  of various dates mentioned in Explanation  I to  Section 2  (2) of  the Rent  Act in  a restricted manner  will make  the various criteria specified therein redundant.      Dr. Singhvi  has, therefore,  submitted that  the  High Court  has   failed  to   appreciate  the   true  import  of Explanation I  read with  proviso under Section 2 (2) of the Rent Act  and on  a total  misconception of  the  facts  and circumstances of  the case  and the  materials on record has come  to   an  erroneous  finding  that  the  eviction  suit instituted in the Court of the learned Munsif, Small Causes, was maintainable  and the decree for eviction passed in such suit was  legal and  valid. Dr.  Singhvi has  submitted that since the  eviction suit,  in the facts of the case, was not maintainable in  law, the decree for eviction passed in such suit is  a nullity  and is  of no  consequence. This  appeal should, therefore,  be allowed  by setting  aside the decree for eviction  and dismissing the said suit for eviction with cost. Shri  Shanti Swarup  Jain, the  respondent herein, has appeared in  person and  has made  submissions in support of his case.  The respondent has not disputed that the eviction suit was  instituted by him against the tenant appellant who was inducted  by him  as tenant  in  1973  in  the  tenanted premises comprising  a portion  of the  building  which  was reconstructed by him after demolishing he old structure. Sri Jain has submitted that the reconstructed shop in respect of which the  appellant is a tenant was assessed to tax for the first time  in 1981  and the  assessment of  the said  newly constructed building  was made effective from April 1, 1981. The eviction  suit was  instituted  on  December  19,  1990. Accordingly, Rent  Act (U.P.  Act  No.3  of  1972)  was  not applicable in  respect of  the tenanted  premises because 10 years period  as contemplated under Explanation I to Section 2 (2)  had not  expired at  the time  of institution  of the suit. Sri  Jain has  submitted that  on a clear finding upon consideration of oral and documentary evidence that April 1, 1981 being  the date  of first effective assessment of house tax, was  the  date  of  completion  of  the  building,  the maintainability of  the eviction suit was found in favour of the landlord.      Sri Jain  has submitted  that  the  appellant  tenant’s main  contention   in  the   said  suit   was  that  no  new construction was made and the tenanted premises being in the same condition  as it  was in  1970, the said premises could not be  held to  be a newly constructed building. The tenant appellant also raised the same plea in the revision petition filed before  the District Judge, Etah, assailing the decree for eviction  passed by  the learned Munsif of Small Causes. The said  Revision Case No.41 of 1982 was disposed of by the learned Additional  District Judge  upholding the finding of the learned  Munsif. Sri  Jain has  further  submitted  that before the trial court he filed documentary evidence showing that one  Ashrafi Lal  Jain was  the tenant  was the  tenant under   him at  a monthly  rental of  Rs. 14/-  and the said

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Ashrafi Lal  having died  on March  9, 1971,  his heirs were arrayed as  defendants. The landlord Sri Jain got possession of the tenanted premises on August 20, 1972 by executing the decree for  eviction. The appellant has no connection in the tenancy in  respect of  the shop  in which Ashrafi Lal was a tenant. But  the appellant  tenant made  false assertion  of tenancy in  respect of  the said tenancy of Ashrafi Lal. Sri Jain has contended that as the appellant tenant had restored to false  assertions and has not come with clean hand, he is liable to  be punished under the Contempt of Courts Act. Sri Jain has  submitted that  such false  assertion  as  to  his tenancy right  in respect  of shop  in which Ashrafi Lal was tenant was  made with  an oblique  purpose to  rely  on  the earlier assessment of house tax in 1970.      Sri Jain  has contended that the finding of fact in the said eviction  suit became  final with  the disposal  of the said Revision Case No. 41 of 1982 and the concurrent finding of fact  could not  be challenged  before the  High Court in view of  provisions of  Section 100  Civil  Procedure  Code. After unsuccessful attempt to assail the decree for eviction before the High Court, a special leave petition was moved by the appellant  tenant by  suppressing relevant  facts.  Such Social Leave  Petition (Civil) No. 4280 of 1995 was disposed of by  this Court  and the  matter was  remitted back to the High Court  for deciding  the  date  of  completion  of  the building in  question in   accordance  with Section 2 (2) of the said Rent Act.      Sri Jain  has submitted  that  the  contention  of  the appellant made in ground No. V of the Special Leave Petition concerning  this   appeal  that   the  court  below  had  no jurisdiction to  hold that  the first assessment was made on April 1, 1981 in the absence of any document to that effect, is  without  any  basis  and  incorrect  on    the  face  of assessment order dated April 1, 1981. Sri Jain has contended that Explanation  I to Sub Section (2) or otherwise recorded by the  local authority  having jurisdiction (3) in the case of building  subject to  assessment, the  date on  which the first assessment  comes into  effect  and  where  dates  are different the  earliest of the three dates is to be taken as the date  of completion  and (4)  in the absence of any such report, record  or assessment,  the  date  on  which  it  is actually occupied.      Sri Jain  has further contended that the date of report or any specific date of recording has not been proved by any evidence on record by the tenant appellant. In the aforesaid facts, the  date of  assessment made  effective on  April 1, 1981,  is   the  only   earliest  date  as  referred  to  in Explanation I.  Hence, acceptance  of such date by the trial court is  legal and  justified. Sri  Jain has also contended that the  landlord in this case has discharged his burden of proving the  date  of  completion  of  construction  of  the tenanted building  with  reference  to  first  date  of  the assessment made  effective on  April 1,  1981. If the tenant appellant intends to dispute such date of completion, it was for the  tenant to establish any other date of completion as specified in  Explanation I  but the  tenant has  failed  to prove any other date of construction.      Sri Jain has submitted that the tenant appellant cannot be permitted  to allege  any date  of  construction  of  the building in  question in  view of  specific case pleaded and argued by  the tenant  that the  tenanted premises  was  not constructed but  the tenant  had continued as  tenant in the old construction.  Sri Jain  has submitted that jurisdiction under Article  136 of  the Constitution  being equitable and discretionary, the  appellant does  not deserve any exercise

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of such  discretionary jurisdiction  in his  favour in  this appeal as  the appellant  has resorted  to falsehood and has not come with clean hands.      Sri Jain  has submitted  that no new plea which had not been taken  in the  courts below  can be  taken before  this Court for  the first  time.  The  appeal  is  liable  to  be dismissed on the ground of suppression of material evidence. The evidence  assessed by  the courts  below should  not  be reappreciated or reassessed by this Court. Sri Jain has also contended that  inspection report  dated November  15,  1987 cannot be  taken to  be an  inspection  report  contemplated under Section  182 of  the Municipalities  Act.  The  tenant appellant did  not plead  in the  written statement that any inspection was  made  by  the  municipal  authorities  under Section 182  of the  Municipal Act. No evidence has been led to establish  that such inspection was made by the municipal authorities. It  has been  clearly held  by the  trial court that no  date of actual construction has been proved in this case.      Sri Jain has also contended that in the order of remand passed by this Court, the finding of the court below that in the facts  and circumstances  of the case, April 1, 1981 had to be  taken as  the date  on which  fresh assessment of the building was  made, had not been disturbed. In the aforesaid facts, no  interference is called for in this appeal and the same should be dismissed with costs.      In the  additional  written  submission  filed  by  the respondent, it has been contended that the khoka of the shop was completed  in 1973 but the rest of construction was done in  piecemeal in view of certain calamities in the family of the  respondent.   If  the   entire  construction  had  been completed in  1973, the  Nagar Palika  would not have issued notice for  assessment  in  1977-78.  It  has  been  further contended that  this Court will not embark on a enquiry into the facts  and evidences of the case and will not allow this Court to  be converted  as  the  court  of  fact.  For  such contention,  the   appellant  has  placed  reliance  on  the decision in Sheonandan Vs State of Bihar (1987 (1) SCC 288).      Sri  Jain   has  contended   that  if   the   essential ingredients necessary  for finding  of fact  have  not  been found by  the courts  below, then  this Court should examine whether any  injustice or wrong has been done and the burden to show  that the  concurrent decision of two or more Courts or Tribunals is manifestly unjust, is on the appellant. Once such burden  is discharged, it is not only be right but also a  duty   of  this  Court  to  remedy  injustice.  For  this contention, Sri  Jain has  referred to  the decision of this Court in Dipak Banarjee Vs Lilabat Chakrabarty (1987 (4) SSC 188). Sri  Jain has  also contended that this Court has laid down that  although Article  136 is  couched in  the  widest phraseology, the  jurisdiction of this Court is limited only its discretion.  It has  been held  by this  Court that this Court has jurisdiction and  power to exercise all the powers of an  appellate court  but exercise of such power has to be regulated by  the practice of this Court and the practice of the Privy Council and followed by Federal Court and  also by this Court  is not  interfere on questions of fact except in exceptional cases which shock the conscience of the Court or the findings  were made  in disregard  to the  forms of  the legal process or finding are made in violation of principles of natural  justice or  the decision has occassined gave and substantial injustice.      Sri  Jain   has  submitted  that  the  High  Court  had considered the implication of the deeming clause in  Section 2 (2)  of the  Rent Act  as indicated in the decision of the

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High Court  in Gamunderi Devi Vs. Nand Kishore (1987 All CL. 82) and  it was  observed in the said decision that the date of deemed  construction must  be known  with definiteness in order to  achieve this,  the legislative  engrafted a  legal fiction in  the  said  Explanation  I.  Sri  Jain  has  also submitted that  the High  Court has  also placed reliance on another decision  of the  same High  Court in  Tilak Raj Vs. Debendra Singh  (1975 All  L R  721) wherein it was observed that a  building is  deemed to  be constructed  if    it  is subjected to  assessment on  the date with effect from which the first assessment is made. Reliance has also been made in the decision  in Hriday Ram Vs. H.S. Kochar (1977 A R C 323) wherein it  has  been held that when a law has interposed to lay down  a fiction,  it is  not open  to fall  back on  the reality of  the factual  aspect of the matter because if the factual aspects  of the  matter were  to be  made considered then the course will be in the teeth of deeming provision.      Sri Jain  has submitted  that the very essence of legal fiction is  assumed existence  of something  that  does  not actually exist  and that  even though  may be different from actual state  of affair, yet the law does not take notice of the actual  fact unless  it is followed by the fulfilment of one of  the conditions mentioned  in Explanation I. Sri Jain has further  submitted that  the provision  in question is a legislative device  for assuming  something which in reality it was not and that the mere fact that the deeming provision is expressed  to be  an explanation  will not alter is basic character and  will also  not limit it to a mere explanation of substantive  provision. In  support of  such  submission, reliance has  been placed  in the decisions of this Court in the State of Bombay Vs. Pandurano Vinayak (AIR 1953 SC 244), G.C. Mahajan Vs. State of Maharashtra (AIR 1985 SC 1982). S. Sundaram Pillai  Vs. V.R.  Patturianan (AIR  1985 SC  1982). Ganpat Lodh Vs. Babalal Mohanlal (AIR 1980 SC 954). Sri Jain has also  submitted that  the special  leave petition  filed against the  decision in  Samundari Debi  (supra)  has  been dismissed.      Sri Jain  has  also  submitted  that    for  proving  a negative fact, the plaintiff is  not required to do anything more than  substantiating his  allegation prima  facie.  The onus to  repudiate then  shifts to  the defendant  of  prove positively the  assertion made  by the  defendant.  In  this case, it  was for  the defendant to prove date of completion of  building  but  such  proof  has  not  ben  give  by  the defendant. The essential distinction between burden of proof as a  matter of  law  and  pleading  as  a  matter  of  fact requiring evidence  to be  led has  been indicated  by  this Court. In  K.S. Nangi  Company Vs. Jata Shanker (AIR 1961 SC 1474). Sri Jain has submitted that in the facts of the case, no interference  is called  for against  the well considered judgment of  the High Court both on the question of fact and on question  of  law  involved  in  the  case.  The  appeal, therefore, should be dismissed with cost.      After giving our careful consideration to the facts and circumstances of  the  case  and  the  submissions  for  the respective party, it appears to us that the premises tenancy act is  a beneficial  legislation intended  to  protect  the tenant from  being evicted by the landlord at his will or on flimsy  ground.   The  pleasure  doctrine  implicit  in  the Transfer of  Property Act entitles the landlord to evict his tenant by determining the tenancy by appropriate notice. For such eviction,  the landlord does not owe any explanation to the tenant. The action for eviction is basically actuated by the desire  to evict  the tenant.  The U.P.  Urban  Building (Regulation of  Letting, Rent  and Eviction)  Act, 1972 like

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other Rent Acts also envisages protection of tenant governed by the  Rent  Act  from  being  evicted  from  the  tenanted premises except  on specified  grounds for such eviction and on conditions for such eviction being fully complied with.      There is  no dispute  that the defendant appellant is a monthly tenant  covered by  the provisions  of the said Rent Act. It is appellant that for mitigating the hardship likely to be  meted out to a landlord who has made new construction by incurring  substantial expenses, the landlord, in case of tenancy in  a newly  constructed building  has been favoured with exemption  of the  rigorous of  the Tenancy  Act in the matter  of   evicting  a   tenant  inducted  in  such  newly constructed premises.  But such  exemption is not unfettered but controlled by the provisions of Section 2(2) of the said Rent Act  read  with  Explanation  I  and  proviso  to  such Explanation I. The outer limit of the period of exemption in respect of  newly constructed  building is  ten years.  Such outer limit  of the  period of exemption has been introduced for balancing the equities between the landlord and  tenant. In order  to ensure  that such  exemption in  favour of  the landlord is  not extended  indefinitely, the legislature has provided a mechanism for determining the date with reference to which  the building  in question  will be  deemed to have been constructed  by indicating  four district alternatives. As such  four dates are likely to be different, 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 I to sub-section (2)  of Section  (20 of  the U.P.  Rent Act. The four different  dated for  the purpose of compensation as to whether dates  for the purpose of compensation as to whether a newly  constructed building is ten years old or not are as follow :-      (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.      In our  view, in the facts of the case, both the dates, namely, the  date on which the completion of the building is reported to  the local  authority and  the date on which the completion of  the building  is otherwise  recorded  by  the local  authority  having  jurisdiction,  are  available.  On January 30, 1978, the building constructed by the respondent landlord was inspected by the Section Head Clerk of the Etah Municipality and  a report  was filed by the said Head Clerk recording that the ground floor and the first floor had been rented at  Rs. 75/-  and Rs. 60/- per month respectively and the second  floor of  the building  was in possession of the respondent owner.  In the  said report it was also indicated that the  shop was  well constructed.  The Etah Municipality thereafter issued  a letter  on  January  30,  1978  to  the respondent landlord  that the  date of hearing the objection to the  assessment of  house tax  was fixed at 11.00 A.M. on

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February 1,  1978. Such  notice as a consequential action on the report  of the  Head Clerk  only  indicates  that    the Municipality has  also noted the factum of completion of the building at  least from  the date  of receipt  of  the  said report. In  our view, Dr. Signhvi has rightly contended that the import  of the  expression "otherwise  recorded" used in Explanation I  to Section  2(2) of  the Rent  Act should  be construed in  a broad  based manner  having wide  amplitude, keeping in mind the beneficial  purpose of U.P. Rent Act for protecting the   interest   of  tenants covered  by the said Rent Act.  We may  also indicate here that such recording of the date  of completion of the tenanted premises in question fully satisfies the recording of deemed date of construction under Section  2(2) of  the U.P.  Rent Act  and  it  is  not necessary  to   investigate  whether   for  the  purpose  of assessment of  rates and  taxes of a building, inspection of the building  had been  done strictly in accordance with the Municipality Act.      The contention  of the  respondent  landlord  that  the tenant appellant  having wrongly  contended that he had been continuing in  the old  premises even  prior to 1973, is not permitted to  rely on  the subsequent  construction  of  the tenanted premises, can not be accepted for the simple reason that the landlord having instituted the eviction suit in the Small Causes  Court, instead  of filing  such eviction  suit before the appropriate forum under the Rent Act, on the plea that the  building in  which the tenant was inducted in 1973 was a  newly constructed  building for which he was entitled to exemption  under Section  2(2) of the Rent Act, was under an obligation to strictly prove that such building, in fact, had been  constructed within  ten years from the date of the institution of the suit.      The other contentions raised by the respondent landlord about the  finality of  the concurrent  finding of   fact or deemed date  of construction and impropriety of interference in exercise of discretionary remedy under Article 136 of the Constitution  cannot   be  accepted   being  devoid  of  any substance. The  deemed date of construction as found earlier by the  courts below  was not  approved  by  this  court  in allowing the  appeal arising out of the tenant appellant and the High  Court was  specifically directed  to decide    the deemed date  of construction  under Section 2(2) of the Rent Act in  the light of the observation made by the this Court. In the  facts of the case, such determination of deemed date of construction  by appreciating  and interpreting municipal records and  assessment proceedings  was   not determination involved a determination of  mixed question of law and fact. It is the case of the landlord that after evicting erstwhile tenant, the appellant tenant was inducted for the first time in 1973  at a  monthly rental  of Rs.  75/-. It  is  not  in dispute that the tenant appellant is in exclusive possession of  the  shop  room  in  question  as  a  tenant  under  the respondent  landlord.   Such  shop  room  is  undoubtedly  a separate unit of construction  and the same in possession of the   tenant appellant. The very fact that the appellant was inducted as  tenant in respect of the said shop room clearly indicates that  such unit of tenancy had been constructed as a unit  fit  for  occupation  at  least  in  1973  when  the appellant was  inducted as  a tenant  in such shop room. The report of the  Head Clerk of the Municipality is also to the effect the  shop room is well constructed. The eviction suit was instituted  only in 1990. It will be travesty of justice if such   suit  is   decreed in  favour of  the landlord  by allowing the  untenable plea  that the  premises in question was constructed  within a  period of ten years from the date

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of the  institution of  the suit.  The appeal is, therefore, allowed and  the impugned  judgment of the High Court is set aside and the eviction suit stands dismissed with costs.