Hirday Ram vs Harbhajan Singh Kochar

M.P. Mehrotra, J.—This revision arises out of a suit whereby the Plaintiff-landlord sought to eject the tenant-Defendant after determining the hitter''s tenancy. The trial court decreed the suit and the lower revisional court dismissed the revision. Now the tenant has come up in the instant revision and in support thereof I have heard Sri G.C. Dwivedi, learned Counsel for the applicant. Sri Naithani, learned Counsel for the opposite party, has made his submission in opposition. The only controversy raised is whether the tenant is entitled to the benefit of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972) on the ground that during the pendency of the litigation, the period of ten years from the date of the construction of the shops in dispute has expired and thus the said Act has become applicable to the accommodation in question. The applicant''s learned Counsel has contended that the period of ten years is to be computed from September, 1966 when, according to the Plaintiff opposite party himself, the shops in dispute were constructed. On the other hand, according to the learned Counsel for the Plaintiff-opposite party, the period of ten years should be computed from 1-4-1967 when the shops were for the first time assessed by the Municipal Board to House Tax and Water Tax under the U.P. Municipalities Act. This controversy has to be decided on a true interpretation of Sub-section (2) of Section 2 of the aforesaid U.P. Act XIII of 1972 which lays down as under:

(2) Except as provided in Sub-section (2) of Section 24 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.

The explanation to the said provision is as follows:

Explanation.- For the purpose of this 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.

Sri Dwivedi has drawn my attention to the plaint in the suit wherein the Plaintiff-landlord clearly admitted that the shops in dispute were constructed in 1966. Subsequently, in the witness box, the Plaintiff adhered to the said stand and stated that the shops were constructed in September, 1966. He also stated that House Tax and Water Tax was levied with effect from 1st April, 1966. The learned Counsel''s contention is that in a situation where there is a clear admission of the party concerned about the date of construction, then Explanation to Sub-section (2) of Section 2 of U.P. Act XIII of 1972 will not be attracted. He also contended that a landlord should not be entitled to take advantage of his own wrong in not reporting the fact of the completion of the building to the local authorities. He has drawn my attention to Section 148 of the U.P. Municipalities Act which lays down as under:

148.- Obligation of supplying information for purposes of amendment- (1) when a building is built, re-built, or enlarged, the owner shall give notice thereof to the board within fifteen days from the date of completion of such building, rebuilding or enlargement, or from the date of the occupation of such building, whichever date happens first.

(2) Any person failing to give the notice required by Sub-section (1) shall be punished upon conviction with a fine which may extend to fifty rupees or ten times the amount of the tax payable on the said building or enlargement for a period of three months, whichever is greater.

Sri Naithani has contended that Sub-section (2) of Section 2 of the said Act with its explanation is a deeming provision and full effect has to be given to the fiction irrespective of the actual date of construction. He has placed reliance on two reported decisions of this Court, namely, Shamim Ahmad Alvi v. Azizul Rehman Khan 1974 ALJ 527 and Tilakrai v. Sardar Devendra Singh 1976 (2) ALR 721. He has also placed reliance on a passage at page 213 in Sri Jagdish Swarup''s Legislation and Interpretation which is as follows:

A deeming provision creates a legal fiction. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under certain circumstances.

Before considering these rival contentions, it is necessary to make one thing clear. It is obvious that in the statement of the Plaintiff made in the witness box, 1-4-1966 has been wrongly recorded. It could not have been 1-4-1966 but it should be 1-4-1967. The shops in dispute, according to the Plaintiff''s own case, were not in existence on 1st April, 1966. They came into existence in September, 1966 and, therefore, there could not be any question of assessment being made on the non-existent shops on 1st April, 1966. Moreover, the trial court itself thought that it was an error in recording the statement and this is also sustained from the fact that the Defendant himself, while in the witness box, clearly admitted that House Tax and Water Tax assessment of the shops in question was made for the first time on 1st April, 1967. In this situation, it seems to me that the courts below rightly proceeded on the basis that the shops in dispute were first assessed to House Tax and Water Tax on 1st April, 1967. It should be borne in mind that we are dealing with a deeming provision and on the welt established principles, a deeming provision is bound to be given full scope and effect to effectuate the intention of the Legislature in enacting such a provision. It seems that the Legislature felt that a controversy about the date of completion was bound to give rise to much conflicting oral evidence and, therefore, it should interpose to put the matter on a firm footing by laying down objective criteria for determining the date of construction. This was done by engrafting an Explanation to Sub-section (2) of Section 2 of the U.P. Act XIII of 1972.

It is significant that in the Explanation the actual date of construction has not been laid down to be the date on which the building is to be deemed to be completed. In other words, irrespective of the actual date of such construction, that date shall be deemed to be the date of completion which satisfies the criteria laid down in the aforesaid Explanation. It may be a date when the completion is reported to the local authority by the house-owner or, it may be a date when the local authority itself records the fact of the completion of the building, or, it may be a date on which the first assessment of the building is made by the local authority. It is obvious that all these three dates are bound to be different, not only from one another, but also from the date of actual construction. In this state of affairs when 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. If the reality of the matter or the factual aspect of the matter were to be considered, then that course will be in the teeth of the deeming provision. Now, in the instant case, the Plaintiff stated the factual position about the completion of the shops in question. But that factual position has no relevance to the fiction on the basis of which the controversy about the completion has to be decided. In this view of the matter, I do not think that any significance can be attached to the statement in the plaint and the statement made by the Plaintiff in the witness box about the actual date of the construction.

It is true that Section 148 of the U.P. Municipalities Act, 1916 makes it incumbent on an owner to report "within fifteen days from the date of completion of such building, rebuilding or enlargement, or from the date of the occupation of such building, whichever date happens first". This statutory obligation was, therefore, there on the Plaintiff. But the Explanation to Sub-section (2) of Section 2 of the U.P. Act XIII of 1972 deals with the fact of the report and not with the effect of the statutory obligation which is there on the owner of the building. It is well known that despite statutory obligations, the persons concerned are sometimes in breach thereof. Sub-section (2) of Section 148 lays down the consequences of a breach of the obligation. It makes the breach an offence and the owner is liable to conviction but all that has really no materiality when construing the Explanation to Sub-section (2) of Section 2 of the U.P. Act XIII of 1972 which, as I stated above, deals with the fact or otherwise of the report to the local authority about the completion of the building. In this view of the matter, as the said Explanation stands, the completion of a building is to be decided on the basis of the objective tests laid down in the said provisions and irrespective of the actual date of construction and also irrespective of whether an owner has or has not failed to comply with the provisions of Section 148 of the U.P. Municipalities Act.

In this view of the matter, the revision fails and is hereby dismissed but, in the circumstances, I shall make no order as to costs.