08 September 2004
Supreme Court
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SUDHA RANI GARG Vs JAGDISH KUMAR (DEAD) .

Bench: ARIJIT PASAYAT,PRAKASH PRABHAKAR NAOLEKAR
Case number: C.A. No.-004963-004963 / 2000
Diary number: 5025 / 2000
Advocates: Vs ABHA JAIN


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CASE NO.: Appeal (civil)  4963 of 2000

PETITIONER: Smt. Sudha Rani Garg                                             

RESPONDENT: Sri Jagdish Kumar (dead) and Ors.                        

DATE OF JUDGMENT: 08/09/2004

BENCH: ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       The tenant is in appeal against the judgment of  learned Single  Judge of the Allahabad High Court.  It was  held by the High Court that  the suit filed by respondents  1 to 5 in this appeal (Respondents 3 to  7 before the High Court) has been rightly decreed by the Revisional  Court, as the Uttar Pradesh Urban Buildings (Regulation of Letting,  Rent, and Eviction) Act, 1972 (in short ’the Act’) was not applicable  to the case.   

       The respondents 1 to 5  filed a suit for ejectment giving notice  under Section 106 of the Transfer of Property Act, (in short the ’T.P.  Act’).  The ground set out in the suit was that the tenancy was at will  and provisions of the Act being not applicable, the tenant was liable  for eviction.  The only issue which was taken up by the trial court  related to applicability of the Act.  Evidence was led.  According to  the respondents 1 to 5 as the assessment in respect of the building  came into effect from 1.4.1983, and the suit was filed on 21.8.1992 the  ten years period stipulated in Section 2(2) of the Act had no  application, thereby making the Act inapplicable.  Tenant on the other  hand submitted that in the first assessment of the shop at column 10 it  was clearly indicated as "Q September 1982".  According to her the date  of construction of building has to be taken as 1.7.1982 and, therefore,  the period stipulated i.e. 10 years was over.  The Trial Court accepted  the plea, while Revisional Court reversed it and as noted above the  High Court confirmed the Revisional Court’s view.

       In support of the appeal, learned counsel submitted that the  Revisional Court and the High Court have not considered the provisions  of Section 2(2) in the proper perspective.  The burden is on the  landlord to prove that the building is exempt from the operation of the  Act.  There was no specific pleading as to date of construction in the  plaint or the date of reporting of the completion of construction. When  the assessment clearly indicated that the period was "Q September 1982"  the trial Court was right in concluding that the date of completion was  1.7.1982.  Though mandated under Section 148, landlords have not  reported the date of completion.  They cannot be benefited for the  lapse.

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       It is submitted that the legislation being a beneficial one the  meaning given by the trial Court should have been accepted.  It was  submitted that in the absence of details which the landlord was to  furnish, reference to the Explanation to Section 2(2)  as done by the  Revisional Court and the High Court has no relevance because the  landlord was to prove that he was exempt from the requirements of  Section 2(2).   

       In response, learned counsel for the contesting respondents  submitted that the Revisional Court and the High Court have taken note  of the Explanation correctly and, therefore, there is no infirmity to  warrant interference.                     Section 2(2) of the Act reads as follows:

"2.     Exemptions from operation of Act: (1) Nothing  in this Act shall apply to \026

xxx                     xxx                     xxx   

(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 than 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 each loan or  advance (including interest) whichever is shorter.

Explanation I: For the purposes of this sub-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 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 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 occupied separately by  the landlord and one or more tenants or by different  tenants;"

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       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.   

       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.   

       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).

       "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  \026 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)

       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)

       "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).

       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).

       "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)

       "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)

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                It is not in dispute that the first assessment came into effect  from 1.4.1983 and in the relevant column relating to enhancement or  reduction of the tax "Q September 1982" is recorded.  

       According to learned counsel for the appellant it means that the  completion of the shop has been recorded by the local authority on  1.7.1982.  The plea is clearly untenable.  A quarter is a period of  time, covering in the instant case from 1st July 1982 to 30th September,  1982.  It only shows that when assessment was made, construction  was  completed earlier sometime in the third quarter of September 1982.  The  quarter started from 1st July, 1982.  It cannot mean that the  construction of the building was completed by the date. The date of  completion of construction can be any date falling between two  terminals i.e. 1st July, 1982 to 30th September, 1982.  The hypothetical  presumption that the first date of the quarter being 1st July 1982 it  shall be deemed to be the date of completion of construction has no  basis.  In case the first three dates are available then the modality  for working out the date of completion is provided in the Explanation.   As the records go to show, the first assessment came into effect on  1.4.1983.  That is the third date provided in the Explanation.  

       Above being the position, the High Court’s judgment confirming  the Revisional Court’s order is in order and  needs no interference.   

A residual plea was raised by learned counsel for the appellant  that the tenant occupied the premises for nearly two decades and a  reasonable time for vacating the premises may be granted.  Considering  the peculiar circumstances of the case, we permit the tenant to occupy  the premises till the end of 2005 subject to filing the usual  undertaking before the Trial Court with a clear stipulation that the  rent fixed shall be paid within the stipulated time, and  arrears, if  any, shall be paid within two months.

       Appeal is dismissed. No costs.