JUDGMENT
Rajesh Tandon, J.
1. Heard Shri Lokpal Singh, counsel for the revisionist and Shri J.P. Joshi, counsel for the respondent.
2. By the present revision filed under Section 25 of Provincial Small Causes Courts Act the applicant has prayed for setting aside the judgment and order dated 27.09.2005 passed by the Additional District Judge, Dehradun dismissing the suit of the plaintiff.
3. Briefly stated, a suit was filed by the plaintiff praying for the eviction of the defendant. According to the plaintiff he is the owner/landlord of property No. 100, Dehradun Road, Rishikesh, Distt. Dehradun and the defendant was a month to month tenant in one shop at a monthly rent of Rs. 400/- besides taxes Rs. 102/- per month. According to the case of the landlord building was constructed in the year 1987 and was assessed to tax for the first time by the Municipal authorities in 1987. The defendant has not paid the rent and taxes since 16.1992 and, therefore, the plaintiff has send a notice to the defendant on 28.4.1998 which was refused by the defendant on 1.5.1998, but inspite of the notice having been served upon the defendant he has neither vacated the shop nor paid the rent. The plaintiff has claimed the arrears of rent and taxes, the details of which have been mentioned in paragraph 8 of the plaint. The same is quoted below:
8. That the defendant has been advised that the arrears of rent and taxes prior to 1.6.95 have become time barred. Without giving up this claim to the said time barred arrears of rent and taxes the plaintiff is claiming the following amounts from the defendant:
(a) Arrears of rent from 1.6.95 to 1.6.98 ... Rs. 14,000/-
(b) Arrears of taxes for same period ... Rs. 3,672/-
(c) Past mesne profits from 2.6.98
To 17.6.98 @ Rs. 1000/-p.m. ... Rs. 500/-
(d) Cost of notice ... Rs. 330/-
(e) Pendentelite and future mesne profits @ Rs. 1000/-p.m.
4. A written statement was filed by the defendant denying the service of the notice upon him and further he has stated that no amount is due and the amount has been deposited under Section 30 of U.P. Act, 1972. It was also denied that the premises is not covered under Act No. 13 of U.P. Act, 1972.
5. Parties were examined and cross-examined on oath. The plaintiff has deposed that the premises in question was assessed for the first time in the year 1987 and the same was occupied by the defendant on 2.9.1987 and, as such, the premises is not covered under the provisions of U.P. Act No. 13 of 1972.
6. The Judge, Small Cause Court has framed as many as 6 points for determination. Point No. 1 framed to the effect tat as to whether U.P. Act, 13 of 1972 is applicable to the disputed property or not. Point No. 2 was to the effect as to whether the arrears are due from defendant. Point No. 3 is related to the service of the notice. Point No. 4 was framed with regard to compliance of U.P. Act, 13 of 1972.
7. The criteria for determination of the construction has been laid down under Section 2(2) of the U.P. Z.A. & L.R. Act. The same is quoted below:
(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 forty 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 Ina 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 then the reference in this subsection 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 such loan or advance (including interest), whichever is shorter.]
[Provided further that where construction of a building is completed on or after April, 26,1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of [forty years] from the date on which its construction is completed.]
Explanation 1. – [For the purposes 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 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 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 either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;
(b) “construction” includes any new construction in palace of an existing building which has been wholly or substantially demolished;
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
[Explanation II. – The expression “bank” means –
(i) a banking company, as defined in the Banking Regulation act, 1949 ;
(ii) the State Bank of India constituted under the State Bank of India Act, 1959;
(iii) a subsidiary bank, as defined in the State bank of India (subsidiary Banks ) Act, 1959;
(iv) a corresponding new bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) act, 1970;
(v) a financing bank or Central Bank (as defined in the Uttar Pradesh Co-operative Societies Act, 1965), not being a Land Development Bank; and
(vi) any other financial institution notified by the State Government in the Gazette as a bank for the purpose of this Act;
Explanation III- A building shall be deemed to be constructed substantially out of funds obtained from sources mentioned in the proviso, if the funds obtained from one or more of such sources account for more than one-half of the cost of construction.]
8. The aforesaid criteria is a deeming provision. The Judge Apex Court in Raj Kumar Sharma v. District Judge Haridwar and Ors. 1993 (2) ARC, has held as under:
18. The question involved in the present case is to be determined the back ground of aforesaid position in law. The provisions contained in Section 2(2) of the U.P. Act No. 13 of 1972 clearly indicate the legislative policy of allowing exemption from the restrictive provisions of the Act to all the building for specified period to be computed from the date of the completion of their construction. Such an exemption was felt necessary in order to give incentive to appears desirous to construct new buildings. The Legislature has expressly recognized the need for encouraging the construction of new buildings by granting exemption to all such building which had not completed ten years from the completion of their construction to Section 2(2) of the Act. This period of exemption was raised from ten years to twenty years by an Ordinance and to forty years as provided by the U.P. Act No. 11 of 1988. In the statement of objects and reasons of the said Act it has been clearly indicated that the second proviso to Sub-section (2) of Section 2 of the Act provided that the buildings constructed on or after April 26, 1985 shall be exempted from the operation of the said Act for a period of twenty years from the date on which the construction was completed. In order to encourage the construction of new buildings in the State it had been decided to extend the period of said exemption from twenty years to forty years. It is, therefore, obvious that the provision of exemption envisaged under Section 2(2) of the U.P. Act No. 13 of 1972 had been made specifically for the benefit of the landlords and consequently in order to secure the benefit to be provided to the landlords the explanation has to be interpreted in a manner so as to ensure that the protection and its benefit extend to the landlords. As observed by the Supreme Court in its decision in the case of Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar and Anr. reported in 1991 J.T. (4) 500, a mechanical approach to construction is altogether out of step with modern positive approach. The modern positive approach, it was indicated, is to have a purposeful construction that is to effectuate the object and purpose of the Act. Further in determining either the general object of the legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubtful significance be presumed to be the true one.
27. It is, thus, obvious that in the presence of the unimpeachable documentary evidence establishing that the building in question had been assessed for the first time in the year 1987 it was not at all necessary for the Courts below to hold an enquiry into the existence or otherwise of the building in dispute during the period 1974-1979. I respectfully agree with the view expressed in the case of Smt. Samundri Devi (supra), decided by this Court wherein it has been clearly observed that where irrespective of the reality, the Legislature has unmistakably provided for assumption of the date of completion of the construction of a building in Explanation I to Section 2 (2) of the Act, it is immaterial whether the landlords admits or avers to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away. But that principle will be wholly inapplicable to a case in which the Legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality.
9. Relying upon the explanation of Section 2(2) of the U.P. Act No. 13 of 1972, the Apex Court in Sudha Rani Garg (Smt.) v. Sri Jagdish Kumar (Dead) and Ors. [2004 SCFBRC 449], has 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 fourth 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. There is no record showing that the building was constructed prior to year 1985. The Judge Small Cause Court shall record the finding after taking into consideration the assessment on the record and evidence to that effect.
11. So far as point No. 3 with regard to service of notice is concerned, it has come in record that the notice is refused. Further, the matter is fully covered by the Apex Court judgment in Gujarat Electricity Board an another v. Atmaram Sungomal Poshani. Para 8 of the judgment is relevant and the same is quoted below:
There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong an incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24.4,1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect.
12. In Madan and Co. v. Wazir Jaivir Chand the Apex Court has held that where the notice has been sent through registered post and at correct address and it has returned back to the sender by the postman, the notice shall be deemed to be served upon the defendant. The same is quoted below:
All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorized by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorized to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee, he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorized to affix the letter on the premises because of the addressee’s absence.
13. So far as point No. 2 and 4 with regard to deposit are concerned, benefit of 20(4) of U.P. Act is not available if the Act is not applicable to the building.
14. Shri Lokpal Singh, counsel for the appellant has referred 2002 Supreme Court & Full Bench Rent Cases 479 Shyam Lal v. Rasool Ahmed (Dead) by L.Rs. where it has been held that the jurisdiction under Section 25 of Provincial Small Causes Court Act is wider than a trial court. I fully agree with the observations made by Apex Court but at the same time since the finding is required in the light of the explanation under Section 2(2) and the deeming provision as held by the Apex Court, therefore the matter is sent back to the Court below for fresh hearing.
15. In view of the above, the matter is remanded to the court below for deciding the matter afresh in the light of observations made above (sic) adduce the evidence in connection with the construction of building. The Judge, Small Cause Court shall decide the suit within a period of 2 months from the receipt of the certified copy of the order.
16. In view of the aforesaid, revision is allowed. No order as to costs.
