Smt. Sudha Rani Garg Vs.
Sri Jagdish Kumar & Ors  Insc 521 (8 September 2004)
Arijit Pasayat & Prakash
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
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.
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 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;" 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
(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
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 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) 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
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.