M.N.SHUKLA, J. - (1.) THE plaintiff-respondent filed a suit for ejectment of the petitioner from the house in dispute and for recovery of rent and mesne profits etc. The plaint case was that the accommodation was not subject to the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972), hereinafter referred to as 'the Act' because it was assessed to Municipal tax on 1.10.1972. It was further alleged that the building was required for the own use of the family of the plaintiff, that the tenancy of the petitioner was, therefore, determined by a notice under Section 106 of the Transfer of Property Act, which was served on the petitioner. The petitioner contested the suit with the allegations that the house in dispute had been actually inspected by the Assessment Inspector on 21.5.1972 who had submitted a report about the completion of the building on 3.7.1972 and consequently the petitioner was entitled to the benefit of Section 39 of the Act. The petitioner also denied that he was a defaulter. The trial court gave the benefit of Section 39 of the Act to the petitioner and held that he was not a defaulter and consequently dismissed the suit. The respondent-landlord filed a revision which was allowed by the IIIrd Addl. District Judge, Aligarh and the suit of the respondent was decreed. It was held by the revisional court, and in my opinion rightly, that the construction of the building must be deemed to have been completed on 3.7.1972, when the Assessment Inspector reported the matter to the Assessment Officer after having inspected the building in dispute on 21.5.1972. The trial court was in error in accepting the date of actual assessment, namely, 1.10.1972, as the date of construction of the building. The finding of the trial court was based on an erroneous interpretation of clause (a) of Explanation I of sub-section (2) of Section 2 of the Act, on the basis that the building completed its ten years on 3.7.1982 whereas the application under Section 39 of the Act was moved on 30.10.1982, the learned Judge held that even on the resumption that the Act applied to the case, the deposit by the petitioner having been made after that one month calculated from 3.10.1982, he was not entitled to benefit of Section 39 of the Act. For these reasons the revisional Court decreed the plaintiff's suit. Aggrieved by the aforesaid decree the petitioner has filed this writ petition.
(2.) SHRI S.S. Bhatnagar, learned counsel for the petitioner, has canvassed only one point before me. He has challenged the validity of clause (a) of Explanation I of sub-section (2) of Section 2 of the Act on the ground that it provides for an artificial date to be taken as the date of completion of construction of the building and is for that reason violative of Article 14 of the Constitution. Some times an argument gains in crisoness by taking examples to illustrates a point. I was urged that effect of the explanation was to give rise to manifestly anomalous positions. Thus, for instance it was urged that two tenements simultaneously constructed and completed would have to bear two different dates of complation of their construction depending upon the fact that in respect of one of them an assessment was made whereas in respect of the other it was not made. Likewise in respect of one of them the completion of construction was reported to the authorities concerned and in the case of the contiguous construction it was not so done. This was bound to result in obvious discrimination, even though the buildings were constructed and completed at more or less the same point of time. The example, no doubt, is attractive but before pressing into service any illustration for the purpose of assailing the 'vires' of a provision of law, care should be taken that we do not travel entirely in the realm of fantasy. An elementary awareness of the realities of life and the probabilities of the situation and the modus operandi of the various institutions of society such as the local bodies etc. is essential for the purpose of testing the validity of a Legislation. Section 2(2) provides : "22). 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." Explanation I, clause (a) reads : "I-(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 it to effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record of assessment the date on which it is actually occupied (not including occupation merely for the purpose of supervising the construction or guarding the building under construction) for the first time." The above explanation makes use of an important legal fiction. The criticism that there is no rationale behind it is wide of the mark. It is not difficult to perceive the purposeful intention of the Legislature in creating such legal fiction. The essence of a legal fiction is that it assumes the existence of something which does not in fact exist. If a mere departure from actually were taken as a valid ground of attack on the legality of a provision, the whole concept of 'legal fiction' would stand demolished. Legal fictions have their grass-roots in reality; it is a superficial view which regards them as either myth or figments of fancy. On the contrary, they are the veritable products of pragmatism, practical expedients devised for the purpose of illumining distinctly the dim contours or an elusive vista and making it amenable to legal adjudication. It is the difficulty born of actual experience which induces the legislature to restore to the machanism of a legal fiction. Where a situation is so inherently nebulous or an event is shrouded in such uncertainly that it is difficult to discern with precision whether such event has transpired or not, the Legislature attempts to dissipate such vagueness by adopting some readymade tangible formulas which palpably enable the court of to arrive at definite conclusions of fact the light of which the relevant law may be applied. Thus, an element of fiction determines the orientation of law but it is unmistakably with the object of evolving certainty out of uncertainty, order out of choose and conclusiveness out of ambivalence. When we fail to capture in static words the subtle essence of a volatile truth, we borrow the opinions of legal fiction. The experience of litigation arising under the U.P. Rent Control Act must have convinced the legislature that it was not always easy to define as to when a house or building had been completely constructed or whether it was still in the process of completion. In order to mitigate these difficulties encountered in litigation, the Legislature choose to prescribe certain objective tests which might be applied in order to determine whether the construction of an accommodation had been completed or not. It is an intriguing situation where the court is faced with two diametrically opposite versions one that the construct of the building is complete and the other that it is still incomplete. A landlord may assert that a building has not been plastered or that a stair-case has not yet been provided and so the construction is not complete. On the other hand, animpetuous tenant may maintain that plaster or no plaster, staircase, or no stair case, the house is fit for occupation and so the construction is complete. To avoid such conflicting interputation the Legislature has furnished specific criteria which might be helpful in deciding what constitutes a completed construction. Instead of leaving it to the vagaries of oral witness deposing with or without scruples the better thing was to provide tangible touchstones which may be utilised for determining as to whether a building had been completely constructed or not. It is with that object perhaps that Clause (a) of Explanation 1 to sub-section (2) of Section 2 of the Act was added. It is not a surplusage and certainly not irrational.
(3.) THE analogy drawn earlier to high light the discrimination which might result with respect to the contiguous accommodations being treated differently on account of the fortuitious circumstances that one of them had been assessed by the local authority while the other had not been assessed or that one of them had been reported for assessment and the other had not been so reported, is wholly inapt. It is not correct to raise the plea of discrimination by referring to purely hypothetical situations untrammel, led by the bonds of reality. It would be a sorry state of affairs. Indeed, if a Municipal Board or others local authority slept over the matter for ten years or more and did not care to assess a building for purposes of taxation. It is also highly improbable bordering on the limits of a absurdity, that a house completed 15 years ago would never be occupied by any tenant for all this period or that it would never be assessed and that it would persistently escape the vigilant eye of the local assessing authorities. These are circumstances which are wholly imagins and the validity of the provisions of law cannot be tested on these imgainery touchstones. There are statues which govern the procedure of bringing constructed houses under assessment and also for bringing to book those offenders who try to evade such processes of law. Such abnormal or extremely hypothetical cases cannot be made the basis for the purpose of assailing the validity of a law under Article 14 of the Constitution.;