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TMI Blog2009 (2) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court. 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. 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. Ld Counsel for the appellant is right that normally when a statutory remedy is available, the same should be availed. In the instant case that aspect has also not been examined by the High Court. We are therefore of the considered opinion that the writ petition needs to be heard by the High Court afresh to be decided keeping in view the applicable legal provision. Since no counter affidavit had been filed by the present appellant before the High Court we permit it to do so within a period of one month. Till the disposal of the writ petition by the High Court afresh, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in favour of respondent No. 2 to which Anoop Singh again requested for reconsideration vide letter dated 11.11.1979. On 22.3.1980 appellant-administration informed Anoop Singh that even though Clause 5(2) of Lease Deed provides for transfer without affidavit - allotment of plot could not be possible unless original member establishes his own eligibility for allotment for plot. However, opportunity of personal hearing was granted to Anoop Singh. On 24.11.1980, Administrator of appellant-society removed the name of Anoop Singh categorically stating that it could not be transferred in favor of respondent No. 2. On 22.1.1982, Secretary of the society also by its letter informed Anoop Singh that transfer could only happen after submission of indemnity bonds and affidavits so it is suggested that respondent No. 2 be made fresh member of society w.e.f. date of transfer. On 1.02.1982 Anoop Singh tendered his resignation. On 14.02.1992 respondent No. 2 filed WP(C) being 686/92 without challenging the orders of the Administrator dated 26.03.1979, 29.05.1979, 11.07.1979 and 24.11.1979, seeking writ of Mandamus asking appellant and respondent No. 1 for allotment of plot or in alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court is indefensible. In any event it is submitted that plot has been allotted pursuant to the High Court's order and, therefore, by passage of time the petition has become infructuous. 6. We find that before the High Court there was no appearance on behalf of the present appellant. 7. Rule 25 of the Rules reads as follows: 25. Disqualification of Membership: No person shall be eligible for admission as a member of a co- operative society if he- (a) has applied to be adjudicated an insolvent or is an undischarged insolvent; or (b) has been sentenced for any offence other than an offence of a political character or an offence not involving moral turpitude and dishonesty and a period of five years has not elapsed from the date of expiry of the sentence: (c) in the case of membership of a housing society: (i) owns a residential house or a plot of land for the construction of a residential house in any of the approved or un-approved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free-hold basis or on power of attorney or on agreement for sale; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t importance. There is a deemed disqualification. The effect of it has not been examined by the High Court. 9. It is, as noted above, a deeming provision. Such a provision creates a legal fiction. As was stated by James, L.J. in Levy, Re, ex p Walton 1881 (17) Ch.D 746 when a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. After ascertaining the purpose full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end it would be proper and even necessary to assume all those facts on which alone the fiction can operate. (See Hill v. East and West India Dock Co. 1884 (9) AC 448; State of Travancore Cochin v. Shanmugha Vilas Cashewnut Factory MANU/SC/0096/1953 : [1954]1SCR53 ; American Home Products Corporation v. Mac Laboratories (P) Ltd. MANU/SC/0204/1985 : AIR1986SC137 and Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi MANU/SC/0487/1996 : AIR1996SC1963 . In an oft-quoted passage, Lord Asquith stated: (All ER p. 599 B-D) If yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident Cooper in Ferguson v. McMillan 1954 SLT 109 13. 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 Distt. v. Ronceray 1960 (23) DLR 32. I ...regard its primary function as to bring in something which would otherwise be excluded. Per Viscount Simonds in Barclays Bank v. IRC 1961 AC 509 (HL). 14. "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. Brixton Prison (Governor), ex p Soblen 1962 (3) All ER 641, All ER 669 C. 15. Learned Counsel for the appellant is right that normally when a statutory remedy is available, the same should be availed. In the instant case that aspect has also not been examined by the High Court. We are therefore of the considered opinion that the writ petition needs to be heard by the High Court afresh to be decided keeping in view the applicable legal provision. Since no counter affidavit had been filed by the present appellant before the High Court we permit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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