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Wednesday, August 12, 2015

116. Determination of rateable value of lands and buildings assessable to property taxes. (1) The rateable value of any land or building assessable to property taxes shall be the annual rent at which such land or building might reasonably be expected to let from year to year less— (a) a sum equal to ten per cent of the said annual rent which shall be in lieu of all allowances for costs of repairs and insurance, and other expenses, if any, necessary to maintain the land or building in a state to command that rent, and (b) the water tax or the scavenging tax or both, if the rent is inclusive of either or both of the said taxes: Provided that if the rent is inclusive of charges for water supplied by measurement, then, for the purpose of this section the rent shall be treated as inclusive of water tax on rateable value and the deduction of the water tax shall be made as provided therein: Provided further that in respect of any land or building the standard rent of which has been fixed under the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952), the rateable value thereof shall not exceed the annual amount of the standard rent so fixed. Explanation.—The expression "water tax" and "scavenging tax" shall mean such taxes of that nature as may be levied by an appropriate authority.”

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.6718 OF 2004



M.C.D. & ANR.                                …APPELLANTS

                                   VERSUS


M/S. MEHRASONS JEWELLERS (P) LTD.    ...RESPONDENT

                                    WITH

                        CIVIL APPEAL NO.8341 OF 2011
                        CIVIL APPEAL NO.8342 OF 2011
                      CIVIL APPEAL NO.________ OF 2015
                (ARISING OUT OF SLP (CIVIL) NO.32342 OF 2011)

                         CIVIL APPEAL NO.632 OF 2013
                        CIVIL APPEAL NO.8340 OF 2011


                               J U D G M E N T

R.F. Nariman, J.

1.    Leave granted.

2.    In this batch of appeals  there  appear  to  be  two  distinct  groups
dealing with two separate questions that have been  raised  by  counsel  for
the Municipal Corporation of Delhi. Civil Appeal No. 6718 of 2004  raises  a
question as to the correctness of the judgment of the Division Bench of  the
Delhi High Court in Municipal Corporation  of  Delhi  v.  Dhunishaw  Framroz
Daruwala, 100 DLT 679  (2002),  decided  on  23.7.2002,  whereas  the  other
appeals raise a question as to  the  correctness  of  the  judgment  of  the
Division Bench  of  the  Delhi  High  Court  dated  21.4.2010  in  Municipal
Corporation of Delhi v. Major General Inderpal Singh Kahai & Anr.,  169  DLT
352 (2010) (DB).

3.    The first question raised by  counsel  for  the  MCD  in  the  present
appeals concerns itself with a post 1994 scenario – that is after the  Delhi
Municipal  Corporation  came  out  with  the  “Delhi  Municipal  Corporation
(Determination of Rateable Value) Bye- Laws, 1994” published in the  gazette
on 24.10.1994.  By these  bye-laws,  the  Delhi  Municipal  Corporation  has
taken  upon  itself  the  determination  of  rateable  value  of  lands  and
buildings according to principles laid down therein.

4.    Under Section 116(1) of the Delhi  Municipal  Corporation  Act,  1957,
the Corporation  is  to  determine  the  rateable  value  of  any  lands  or
buildings assessable to property taxes at the  annual  rent  at  which  such
land or building might reasonably be expected to let from year to year.  The
said provision reads as follows:

“116. Determination of rateable value of lands and buildings  assessable  to
property taxes.

(1) The rateable value of any land or building assessable to property  taxes
shall be the annual rent at which such land or building might reasonably  be
expected to let from year to year less—

(a) a sum equal to ten per cent of the said annual rent which  shall  be  in
lieu of all allowances  for  costs  of  repairs  and  insurance,  and  other
expenses, if any, necessary to maintain the land or building in a  state  to
command that rent, and

(b) the water tax or the scavenging tax or both, if the  rent  is  inclusive
of either or both of the said taxes:

Provided that if the rent is inclusive of  charges  for  water  supplied  by
measurement, then, for the  purpose  of  this  section  the  rent  shall  be
treated as inclusive of water tax on rateable value  and  the  deduction  of
the water tax shall be made as provided therein:

Provided further that in respect of any land or building the  standard  rent
of which has been fixed under the Delhi and Ajmer  Rent  Control  Act,  1952
(38 of 1952), the rateable value thereof shall not exceed the annual  amount
of the standard rent so fixed.

Explanation.—The expression "water tax"  and  "scavenging  tax"  shall  mean
such taxes of that nature as may be levied by an appropriate authority.”



5.    The fleshing out of  the  skeleton  contained  in  Section  116(1)  is
thereafter done by bye-law 3 of the 1994 bye-laws which provides as under:-

“3. Determination of rateable value of lands  and  buildings-  (1)  For  the
purposes of sub-section (1) of Section 116  of  the  Act,  the  annual  rent
shall be determined as under:

(a)  where  the  premises  are  on  rent,  the  rent  actually  realised  or
realisable, unless the same is  collusive  or  concessional,  shall  be  the
annual rent. Where the tenancy commences on or after the 1st day  of  April,
1995 and where the commissioner has reason  to  believe  that  the  declared
rent does not represent the prevalent rent of the year of  letting  and  the
difference between declared rent and the prevalent rent is more than  twenty
five percent of the declared rent, the annual rent shall  be  the  prevalent
rent;

Explanation-For the purposes of this clause the  prevalent  rents  shall  be
determined by a Panel of Assessors to  be  appointed  by  the  Commissioner.
Such  Panel  shall  include  a  representative  from   the   Government,   a
representative  of  the  Corporation,  a  representative  of  any   Taxation
Department (other than the Corporation) or a Valuer and a representative  of
the property owners of the zone of which  the  prevalent  rents  are  to  be
determined.

(b) in the case of the premises which are sub-let, the rent paid or  payable
by the occupier shall be the annual rent.

Explanation-For the purposes of clause (a) and clause (b), it is  immaterial
whether the building and the fixtures and fittings affixed to  the  building
and the land let for use and  enjoyment  therewith,  are  let  by  the  same
contract or by different contracts, and if by different  contracts,  whether
made simultaneously  or at different times;

(c)  in case premises are used and occupied or are lying vacant for use  and
occupation by the owner himself:

(i) where the building has been erected or land which  is  on  rent  and  no
premium has been paid, the annual rent  or  the  building  or  part  thereof
shall be the aggregate of the annual rent of the land  paid  or  payable  in
the year or assessment and an amount calculated at ten percent of  the  cost
of construction of the building, cost of fixtures and fittings and  cost  of
additions, alterations and improvements;

ii) where the building or part thereof, is used or to be used as  a  banquet
hall, cinema hall, club, guest house, hotel, nursing home or  as  house  for
marriages and such other functions, the annual  rent  shall  be  the  amount
calculated at ten percent of the  market  price  of  land  in  the  year  of
assessment and the cost of construction of the building,  cost  of  fixtures
and fittings and cost of additions, alterations  and  improvements,  or  the
prevalent rent, whichever is higher;

iii) where the premises are not covered by sub-clause (i)  and  (ii)  above,
the annual rent shall be the amount calculated at ten percent  of  the  cost
of the  premises  upto  the  year  of  assessment  or  the  prevalent  rent,
whichever is lower;

 Provided that where the premises are  used  for  residential  purposes  and
cost of the premises is determined under  Bye-law  2(l)(b)(iv),  the  annual
rent of the portion of the building completed upto the  year  1993-94  shall
not be more than the annual rent determined for the year 1993-94;

(d) where the building or part thereof, is lying  vacant  for  letting,  the
annual rent of such building or part thereof, shall be ten  percent  of  the
cost of the premises;

(e) in respect of the properties in the unauthorised  colonies,  regularised
unauthorised colonies, on plot allotted under  Economically  Weaker  Section
and Low Income Group schemes and in respect of flats  used  for  residential
purposes upto a covered area of 75 sq. mts., where  the  Commissioner  feels
that determination of value of land, cost of construction or  the  prevalent
rent is difficult, he may determine the annual rent by Unit Area Method.

Explanation I-Where the  premises  has  an  illuminated  or  non-illuminated
advertisement on the walls, hoardings, posts or structures  affixed  to  the
premises, the annual rent of the premises shall include the rent  from  such
advertisement.

Explanation Il-For the purposes of this bye-law,  the  annual  rent  of  the
premises includes the annual rent of the  land  and  building  thereon,  and
such other fixtures and fittings as are considered  necessary  for  the  use
and enjoyment of the land and building for the purpose for  which  they  are
intended to be used and  shall  include  lifts,  elevators,  storage  tanks,
pipelines, railways lines,  runways,  underground  cables,  air-conditioning
plant in centrally air-conditioned buildings,  swimming  pools,  chairs  and
screen in cinema halls, theatres and  auditoria,  cost  of  insulations  and
racks in cold storage buildings, but, save as aforesaid,  no  account  shall
be taken of the value of any fixtures and fittings contained or situated  in
or upon any land or building.

(2) Where the premises, as per prevalent practice, are  let  or  transferred
by charging pugree or through some other arrangement on nominal  rents,  the
Commissioner may estimate the annual rent of the premises after taking  into
consideration the rents paid  or  payable  by  public  undertakings  or  the
government organisations  or  the  premises  let  by  such  undertakings  or
organisations  either  in  the  same  locality  or  in  the  nearby  similar
locality.

(3) In the case  of  premises  to  which  rent  restriction  legislation  is
applicable, the annual rent determinable under sub-bye-law (1) above,  shall
not be more than the rent realised or realisable under the rent  restriction
legislation.

(4) Where the annual rent of the building is determinable  under  more  than
one clauses of sub-bye-law (1), the annual rent of  the  building  shall  be
the aggregate of the annual rent determined under various  clauses  of  that
sub-bye-Iaw.

?(5) Where the premises have been provided with any  fixtures  and  fittings,
the deduction for the maintenance of such  premises  shall  be  fifteen  per
cent of the annual rent and not ten per cent of the annual rent as  provided
under sub-section (1) of Section 16 of the Act.

(6) When any land is purchased or new building is erected  or  any  building
is rebuilt or enlarged or where there is change  in  the  ownership  of  the
land or building, change in tenancy or increase in rents, after the 31st  of
December of the year the increase in the rateable value shall  be  effective
from the commencement of the succeeding year.”



6.    In Daruwala’s case (supra), a Division Bench of the Delhi  High  Court
following Dr. Balbir Singh & Ors. Etc. Etc. v. Municipal Corporation,  Delhi
& Others, (1985)  1  SCC  167,  and  Lt.  Col.  P.R.  Chaudhary  (Retd.)  v.
Municipal  Corporation  of  Delhi,  (2000)  4  SCC   577   has   held   that
notwithstanding the advent of the 1994 bye-laws, “annual  value”  has  still
to be determined on the principles laid down in these  two  judgments.   The
bone of contention is that, according to learned counsel for  the  Municipal
Corporation of Delhi, once the MCD lays down its  own  bye-laws,  principles
laid down in the two Supreme Court judgments referred to  no  longer  apply,
as they were applied in situations where the MCD did  not  itself  lay  down
how annual value was to  be  determined.   Secondly,  these  judgments  were
confined to fact situations in  which  the  Delhi  Rent  Control  Act,  1958
applied.  Per contra, learned counsel for the assessees contended  that  the
impugned judgment of the Delhi High Court was  correct  and  that  equitable
principles had been laid down which are required to be followed  even  after
the Municipal Corporation’s own bye-laws have been framed by it.

7.    It  has  been  pointed  out  by  learned  counsel  for  the  Municipal
Corporation that in Municipal Corporation of  Delhi  v.  Delhi  Urban  House
Owners’ Welfare Association, (1997) 8 SCC 335, the bye-laws as a whole  have
been upheld and that, therefore, it is important that once these are  framed
they are followed in letter and spirit.

8.    We are of the view  that  the  counsel  for  the  MCD  appears  to  be
correct.  Both Balbir Singh’s case and P.R. Chaudhary’s case were  judgments
dealing with a situation  where  the  Delhi  Rent  Control  Act  applied  to
premises governed by the said Act, and the context  of  both  judgments  was
that the principle of parity evolved in  Balbir  Singh’s  case  would  apply
only because annual rent in those cases had to be fixed regard being had  to
the maximum that could possibly be fixed in a situation where standard  rent
under the Delhi Rent Control Act  would  be  the  ceiling  above  which  the
amount fixed as per parameters under the Delhi Rent Control  Act  could  not
be exceeded.  This becomes clear  from  the  following  paragraphs  in  P.R.
Chaudhary’s case:-


“4. We are concerned in these appeals with the law as it  existed  prior  to
the amendment of the Rent Act in 1988.  By  the  Act 57  of  1988  the  Rent
Act was not to apply to certain premises as provided  in  Section  3 of  the
Rent Act.


5.    In  Dr.  Balbir  Singh's  case  this  Court  was  concerned  with  the
determination of rateable value in respect of properties situated  in  Delhi
and governed by the provisions of the Delhi Municipal Corporation Act,  1957
and the Punjab Municipal Act, 1911.  The  Court  considered  four  different
categories  of  properties,  namely  (1)  where  the  properties  are  self-
occupied, that is, occupied by the owners;  (2)  where  the  properties  are
partly self-occupied and partly tenanted; (3) where the land  on  which  the
property is constructed is  leasehold  land  with  a  restriction  that  the
leasehold interest shall not be transferable without  the  approval  of  the
lessor; and (4) where the property has been  constructed  in  stages.  Under
the provisions of the Delhi Municipal Corporation Act as well as the  Punjab
Municipal Act, the criterion for determining rateable value of the  building
is the annual rent at which such building  be  reasonably  expected  to  let
from year  to  year.  The  word  “reasonably”  in  the  definition  is  very
important.  What  the  owner  might  reasonably  expect  to   get   from   a
hypothetical tenant, if the building were let from  year  to  year,  affords
the statutory yardstick for determining the  rateable  value.  Now  what  is
reasonable  is  a  question  of  fact  and  it  depends  on  the  facts  and
circumstances of a given situation. The Court considered various  provisions
of the Delhi Municipal Corporation Act and the Punjab Municipal Act as  well
as that of the Delhi Rent Control Act,  1958.  Delhi  Rent  Control  Act was
amended in 1988 when certain properties were taken out  of  the  purview  of
that Act. The four categories have been considered at pages  461,  466,  468
and 473 of the Report. We quote the  statement of  law  laid  down  by  this
Court after considering various statutory provisions made in respect of  the
first category: (SCC pp. 186-187 para 11).

“The  rateable  value  of  the  premises,  whether   residential   or   non-
residential, cannot exceed the standard rent, but, as  already  pointed  out
above, it may in a given case be less than the  standard  rent.  The  annual
rent which the owner of the premises may reasonably expect  to  get  if  the
premises are let out would depend  on  the  size,  situation,  locality  and
condition of the premises and the amenities provided therein and  all  these
and other relevant factors would have to be  evaluated  in  determining  the
rateable value, keeping in mind the upper limit fixed by the standard  rent.
If this basic principle is borne in mind,  it  would  avoid  wide  disparity
between  the  rateable  value  of  similar  premises  situate  in  the  same
locality, where some premises are old premises constructed  many  years  ago
when the land prices were not high and the  cost  of  construction  had  not
escalated and others are recently-constructed premises when  the  prices  of
land have gone up almost 40 to 50 times and the  cost  of  construction  has
gone up almost 3 to 5 times in the last 20 years. The standard rent  of  the
former category of  premises  on  the  principles  set  out  in  sub-section
(1)(A)(2)(b) or (1)(B)(2)(b) of Section 6 would be comparatively low,  while
in case of latter category of premises, the standard  rent  determinable  on
these principles would be unduly high. If the standard rent were to  be  the
measure of rateable  value,  there  would  be  huge  disparity  between  the
rateable value of old premises  and  recently-constructed  premises,  though
they may be similar and situate in the  same  or  adjoining  locality.  That
would be wholly illogical and irrational. Therefore, what is required to  be
considered for determining rateable value in  case  of  recently-constructed
premises is as to what is the rent which the owner might  reasonably  expect
to get if the premises are let out and that is bound  to  be  influenced  by
the rent which is obtainable for similar premises  constructed  earlier  and
situate in the same or adjoining locality and  which  would  necessarily  be
limited by the standard rent of such premises. The  position  in  regard  to
the determination of rateable value of self-occupied  residential  and  non-
residential premises may thus  be  stated  as  follows:  the  standard  rent
determinable on the principles set out in sub-section (2)(a)  or  (2)(b)  or
(1)(A)(2)(b) or (1)(B)(2)(b) of Section 6, as may be applicable,  would  fix
the upper limit of the rateable value of the premises and within such  upper
limit, the assessing authorities would have to determine as to what  is  the
rent which the owner may reasonably expect to get if the  premises  are  let
to a hypothetical tenant and for the  purpose  of  such  determination,  the
assessing  authorities  would  have  to  evaluate  factors  such  as   size,
situation, locality and condition of the premises and the amenities  therein
provided. The assessing authorities would also have  to  take  into  account
the rent, which the  owner  of  similar  premises  constructed  earlier  and
situate in the same  or  adjoining  locality,  might  reasonably  expect  to
receive from a hypothetical tenant and which  would  necessarily  be  within
the upper limit of the standard rent of such premises, so that there  is  no
wide disparity between the rate of rent  per  square  foot  or  square  yard
which the owner might reasonably expect to get in case of the two  premises.
Some disparity is bound to be there  on  account  of  the  size,  situation,
locality and condition of the premises and the amenities  provided  therein.
Bigger size beyond a certain optimum would depress the rate of rent  and  so
also would less  favourable  situation  or  locality  or  lower  quality  of
construction or unsatisfactory condition  of  the  premises  or  absence  of
necessary amenities  and  similar  other  factors.  But  after  taking  into
account   these   varying   factors,   the   disparity   should    not    be
disproportionately large.” (Paras 4 & 5).


9.    This Court has dealt with three different groups of  cases  that  have
come before it dealing with property tax legislation in the  various  States
of this country.  The first group is a group of cases  where  the  Municipal
Acts of the States define annual value to be the hypothetical  rent  that  a
landlord could reasonably be expected to receive if  his  property  was  let
out to a hypothetical tenant.  It is in this situation that this Court  held
that such  hypothetical rent could not exceed the  standard  rent  fixed  or
fixable under the rent control statute which obtained in that  State.   This
was laid down in The Corporation of Calcutta v. Padma Debi  &  Others,  1962
SCR (3) 49 and followed in a  number  of  judgments,  which  include  Balbir
Singh’s case and P.R. Chaudhary’s case.

10.   The second group of cases is where  the  language  of  the  particular
Municipal Corporation Act contains a non obstante clause owing to which  the
standard rent under the particular rent statute  of  that  particular  State
could not be taken to be the maximum rent which could  possibly  be  fetched
by a hypothetical landlord from a hypothetical tenant. This class  of  cases
is contained in Municipal Corporation, Indore & Others v. Smt. Ratna  Prabha
& Others (1996) 4 SCC 622 and the judgments that follow it.

11.   Another group of cases is contained in the judgment of this  Court  in
Assistant General Manager, Central Bank of India & Others  v.  Commissioner,
Municipal Corporation for the City of Ahmedabad & Others, (1995) 4 SCC  696.
 This was a case where the Ahmedabad Municipal Act itself provided the  mode
of determination of the annual value, so that it became  unnecessary  to  go
to the provisions of the Rent Act of that State.  The law thus laid down  by
this Court is summarized in East India Commercial  Company  Private  Limited
v. Corporation of Calcutta, (1998) 4 SCC 368 as follows:-

“17. From the aforesaid decisions, the principle which is deducible is  that
when the Municipal Act requires the determination of the annual value,  that
Act has to be read along with Rent Restriction Act which  provides  for  the
determination of fair rent or standard rent.  Reading the two Acts  together
the ratable value cannot be more than the fair or standard  rent  which  can
be fixed under the Rent Control Act.  The exception to  this  rule  is  that
whenever any Municipal Act itself provides the mode of determination of  the
annual letting value like  the  Central  Bank  of  India  case  relating  to
Ahmedabad or contains a non obstante clause as in Ratnaprabha case then  the
determination of the annual letting value has to be according to  the  terms
of the Municipal Act.” (at Para 17).



12.   In The Commissioner v. Griha Yajamanula Samkhya  &  Others,  (2001)  5
SCC 651, this  Court  disposed  of  a  batch  of  writ  petitions  involving
assessment of property  tax  of  buildings  located  within  the  limits  of
different Municipal Corporations in the  State  of  Andhra  Pradesh.   After
referring to various judgments of this Court including the judgment  in  the
Central Bank case and East  India  Commercial  Company’s  case,  this  Court
held:-

“From the statutory provisions  noted  above,  it  is  clear  that  the  Act
provides that the tax shall be levied at such percentages  of  the  rateable
value as may be fixed by the Corporation. It  further  provides  the  method
and manner of determination of the rateable value. The determination of  the
annual rental value which is the  basis  for  calculation  of  the  rateable
value is also provided in the Act and the Rules. The Act mandates  that  the
Commissioner shall determine the tax to be paid by the person  concerned  in
the manner prescribed under the statute and the rules. It is our  view  that
the Act and the  Rules  provide  a  complete  code  for  assessment  of  the
property tax to be levied for the buildings and lands within  the  municipal
corporation. There is no  provision  in  the  statute  that  the  fair  rent
determined under the Rent Control Act in respect of a  property  is  binding
on the Commissioner. The legislature has wisely not made  such  a  provision
because determination of annual  rental  value  under  the  Act  depends  on
several criteria. The criteria for such  determination  provided  under  the
Act may not be similar to those  prescribed  under  the  Rent  Control  Act.
Further the time when  such  determination  was  made  is  also  a  relevant
factor. If in a particular case the Commissioner finds that there  has  been
a recent determination of the fair rent of the  property  by  the  authority
under the Rent Control Act he may be persuaded to accept the amount  as  the
basis for determining the annual rental value of the property. But  that  is
not to say that the Commissioner is mandatorily required to follow the  fair
rent fixed by the authority under the  Rent  Control  Act.  The  High  Court
therefore did not commit any error in  holding  that  the  determination  of
fair rent under the  Rent  Control  statute  will  not  be  binding  on  the
Commissioner for the purpose of assessment of property tax under  the  Act.”
(at Para 35)



13.   The present appeals before us refer to assessment years post 1994  and
are said to be in a factual scenario where after the amendment  of  1988  to
the Delhi Rent Control Act, the  Delhi  Rent  Control  Act  does  not  apply
either for the reason that the rent fixed is more than Rs.3,500/- per  month
or that the property has been newly  constructed  and  is  exempt  from  its
provisions for a period of 10 years.  In situations such as  the  above,  an
instructive judgment of  this  Court  is  contained  in  Government  Servant
Cooperative House Building Society Limited & Others  v.  Union  of  India  &
Others, (1998) 6 SCC 381.  In this judgment, this  Court  noticed  the  1988
amendment to the Delhi Rent Control Act and various  judgments  referred  to
hereinabove and concluded as under:

“8. Therefore, the annual rent actually received by  the  landlord,  in  the
absence of any special circumstances, would be a good guide  to  decide  the
rent  which  the  landlord  might  reasonably  expect  to  receive  from   a
hypothetical tenant.  Since  the  premises  in  the  present  case  are  not
controlled by any rent control legislation, the annual rent received by  the
landlord is what a willing  lessee,  uninfluenced  by  other  circumstances,
would pay  to  a  willing  lessor.  Hence,  actual  annual  rent,  in  these
circumstances, can be taken as the annual rateable  value  of  the  property
for  the  assessment  of  property  tax.  The  municipal   corporation   is,
therefore, entitled to revise the rateable value  of  the  properties  which
have been freed from rent control on  the  basis  of  annual  rent  actually
received unless the owner satisfies the  municipal  corporation  that  there
are other considerations which have affected the quantum of rent.” (at  Para
8).



14.   Having regard to the  aforesaid  statement  of  law,  we  are  of  the
opinion that the Division Bench of the Delhi High Court in  Daruwala’s  case
(supra), is not correctly decided for the simple  reason  that  this  appeal
falls within the exception created by the  Central  Bank  judgment,  namely,
cases where the Municipal Corporation of  a  particular  State  itself  lays
down as to how annual value is to be determined. We,  therefore,  hold  that
for assessments made after the  1994  bye-laws  came  into  existence,  such
assessments shall be governed by these bye- laws alone  and  the  principles
laid down in Balbir Singh’s case and P.R. Chaudhary’s case,  would  have  no
relevance in such a situation.  We answer question number 1 accordingly.

15.   In order  to  determine  the  answer  to  question  number  2,  it  is
necessary to first extract two Sections of the Delhi  Municipal  Corporation
Act, both inserted with effect from 1.8.2003. Section 116G of the  said  Act
reads as follows:

?“116G. Transitory provisions.-Notwithstanding  anything  contained  in  this
Act, as amended by the Delhi Municipal Corporation (Amendment) Act, 2003,  a
tax on vacant land or covered space of building or both, levied  under  this
Act immediately before the date of coming into force of the Delhi  Municipal
Corporation (Amendment) Act, 2003, shall, on the coming into  force  of  the
Delhi Municipal Corporation (Amendment) Act, 2003, be deemed to be  the  tax
on such vacant land or covered space of building or both, levied under  this
Act as amended by the Delhi Municipal  Corporation  (Amendment)  Act,  2003,
and shall continue to be in force until such tax is  revised  in  accordance
with the  provisions  of  this  Act,  as  amended  by  the  Delhi  Municipal
Corporation (Amendment) Act, 2003.

(2) Notwithstanding anything contained in sub-section (1), where  assessment
has not been finalized in respect of a vacant land or  covered  space  of  a
building or both, on the date of the commencement  of  the  Delhi  Municipal
Corporation (Amendment) Act,  2003  the  assessee  may  have  such  land  or
building or both, as the case may be, assessed on the basis  of  the  annual
value.”



Section 169 after the amendment of 2003 reads as follows:

“169. Appeal against assessment, etc.-(I) An  appeal  against  the  levy  or
assessment or revision of assessment of any tax under this Act shall lie  to
the Municipal Taxation Tribunal constituted under this section:

Provided that the full amount of the  property  tax  shall  be  paid  before
filing any appeal:

Provided  further  that  the  Municipal  Taxation  Tribunal  may,  with  the
approval of the District Judge of Delhi, also take up  any  case  for  which
any appeal may be pending before the court of such District Judge:

Provided also that any appeal pending before  the  court  of  such  District
Judge shall be transferred to the Municipal Taxation Tribunal for  disposal,
if requested by the applicant for the settlement thereof  on  the  basis  of
annual value.

(2) (a) The  Government  shall  constitute  a  Municipal  Taxation  Tribunal
consisting of a Chairperson and such other members  as  the  Government  may
determine:

Provided that on the recommendation of the Government, the  Chairperson  may
constitute one or more separate Benches, each Bench comprising two  members,
one of whom shall be a member of the Higher Judicial Service of a  State  or
a Union territory and  the  other  member  from  the  higher  administrative
service, and may transfer to any such Bench any appeal for disposal  or  may
withdraw from any Bench any appeal before it is finally disposed of.

(b) The Chairperson, and not less than half of the  other  members,  of  the
Municipal Taxation Tribunal shall be  persons  who  are  or  have  been  the
member of the Higher Judicial Service of a State or a Union territory for  a
period of not less than five years,  and  the  remaining  members,  if  any,
shall have such qualifications and  experience  as  the  Government  may  by
rules determine.

(c) The  Chairperson  and  the  other  members  of  the  Municipal  Taxation
Tribunal shall be appointed by the Government for a period of five years  or
till they attain the age of sixty-five years, whichever is earlier.

(d) The other terms and conditions of service of  the  Chairperson  and  the
other members of the Municipal Taxation  Tribunal,  including  salaries  and
allowances, shall be such as may be determined by rules by the Government.

(e) The salaries and allowances of the Chairperson and the other members  of
the Municipal Taxation Tribunal shall be paid from the Municipal Fund.



(3) In every appeal, the costs shall be in the discretion of  the  Municipal
Taxation Tribunal or the Bench thereof, if any.

(4)  Costs  awarded  under  this  section  to  the  Corporation   shall   be
recoverable by the Corporation as an arrear of tax due from the appellant.

(5) If the Corporation fails to  pay  any  costs  awarded  to  an  appellant
within ten days from  the  date  of  the  order  for  payment  thereof,  the
Municipal Taxation Tribunal may order the Commissioner to pay the  costs  to
the appellant.”



16.   Assailing the Division Bench judgment  of  the  Delhi  High  Court  in
Municipal Corporation of Delhi v.  Major  General  Inderpal  Singh  Kahai  &
Anr., learned counsel for the Municipal Corporation  referred  us  to  these
two Sections and argued that Section 116G is  only  a  transitory  provision
which is meant to tide over  difficulties  felt  in  enforcement  of  a  new
regime of property tax – what is  called  the  unit  area  method.   Learned
counsel argued that earlier,  under  Section  124  of  the  Delhi  Municipal
Corporation  Act,  the  Corporation  could  revise  rateable  value  of  any
property after giving a notice and hearing objections  to  the  same.   Post
August 2003, this tax regime has been replaced by Sections 123A and 123B  by
a self-assessment procedure based on what is called  the  unit  area  method
laid down under Section 116E of the said Act. According to learned  counsel,
Section 116G being a transitory provision therefore seeks to deal only  with
assessments that have not been finalized in respect  of  property  tax  just
before the 2003 amendment has come  into  force  and  would  refer  only  to
assessments  not  finalized  at  the  initial  stage  before  the  assessing
authority itself.  This would become clear from a  correct  reading  of  the
third proviso of Section 169 which states  that  applicants  in  appeal  can
only apply for “settlement” on the basis of annual value as defined  in  the
2003 amendment. Since such settlement does not refer to adjudication but  is
only consensual, it is obvious that all appeals pending at the date of  2003
amendments would have to be decided in accordance with the  old  substantive
law and no option could be given to assessees to opt for the  new  procedure
and levy of property tax post 2003 in respect of assessment years  prior  to
2003.  Counsel, therefore, argued that  the  basis  of  the  Division  Bench
judgment was wholly incorrect and therefore ought  to  be  set  aside.   Per
contra, learned counsel for the assessees has maintained that  the  impugned
judgment is absolutely correct and that even where an  assessment  has  been
finalized at the initial stage but an appeal  is  pending,  an  assessee  is
entitled to ask for an appellate decision on the basis of “annual value”  as
newly defined by the 2003 amendment.   Since  counsel  on  both  sides  have
referred us to provisions other than Sections 116G and 169 as well,  we  set
them out in order to better understand their arguments.

17.   By the 2003 Amendment Act to  the  Delhi  Municipal  Corporation  Act,
Section 2(1A) was added which reads as follows:

 “2 (1A)    “Annual value” means the annual value  of  any  vacant  land  or
covered space of any building determined under section 116E;”



18.   Section 116E says:

“116E. Determination of annual value of covered space  of  building  and  of
vacant land -(l) The annual value of any covered space of  building  in  any
ward shall be the amount arrived at by multiplying the total  area  of  such
covered space of building by the final base unit area value of such  covered
space and the relevant factors as referred to in clause (b)  of  sub-section
(2) of section 116A.

Explanation-"covered space", in relation  to  a  building,  shall  mean  the
total floor area in all  the  floor  thereof,  including  the  thickness  of
walls, and shall include the  spaces  of  covered  verandah  and  courtyard,
gangway, garrage, common service area, staircase, and balcony including  any
area projected beyond the plot boundary and  such  other  space  as  may  be
prescribed.

(2) The Corporation may require the total  area  of  the  covered  space  of
building as aforesaid to be certified by an architect registered  under  the
Architects Act, 1972 (20 of, 1972), or any licensed  architect,  subject  to
such conditions as may be prescribed.

(3) The annual value of any vacant land in any  ward  shall  be  the  amount
arrived at by multiplying the total area of such vacant land  by  the  final
base unit area value of such land and the relevant factors  as  referred  to
in clause (b) of sub-section (2) of section 116A.

?(4) If, in the case of any vacant land or covered  space  of  building,  any
portion ,thereof is subject to different final base unit area values  or  is
not self-occupied, the annual value of each such portion shall  be  computed
separately, and the sum of such annual values shall be the annual value  for
such vacant land or covered space of building, as the case may be.”



19.   Section 126(4)(b) as it obtained prior to 2003 read as follows:

“126. Amendment of assessment list – (4)     No amendment under  sub-section
(1) shall be made in the assessment list in relation to –

(a)   xxx

(b)   the year commencing on the 1st day of April 1988, or  any  other  year
thereafter, after the expiry of three years from the  end  of  the  year  in
which the notice is given under sub-section (2) or sub-section (3),  as  the
case may be :

Provided that nothing contained in this sub-section shall apply  to  a  case
where the Commissioner has to amend the Assessment list  in  consequence  of
or to give effect to any direction or order of any court.”



20.   Section 123A and Section 123B, post the amendment  of  2003,  read  as
follows:

“123A. Submission of returns-(l) The Commissioner  shall,  with  a  view  to
determining the annual values of vacant land and covered space  of  building
in any ward and the person primarily liable  for  the  payment  of  property
tax, by public notice, or by notice, in writing, require the owner  and  the
occupier of such vacant land or covered space of  building  or  any  portion
thereof, including such owner or the person computing the tax due under  the
provisions of section 123B, to furnish a return  in  such  form  as  may  be
prescribed by bye-laws and within such time,  not  being  less  than  thirty
days from the date of publication  of  such  notice,  as  may  be  specified
therein, containing the following particulars, namely:-

(a) the name of the owner and the occupier;

(b) the number of the ward, the name of the colony, and the number  and  the
sub-number of  the  premises  of  such  vacant  land  or  covered  space  of
building, as the case may be;

(c) whether the building is pucca, semi-pucca or katcha;

(d) year of completion of construction of the building, or year or years  of
part construction thereof, as the case may be;

(e) the use with reference to the provisions of clause  (f)  of  sub-section
(1) of section 116A to which such vacant land or covered space  of  building
is put or intended to be put;

(f) the area of the vacant land and the covered space of the  building  with
break-up of the area under various uses;

(g) whether wholly owner-occupied  or  wholly  tenanted,  or  partly  owner-
occupied and partly tenanted, and the areas thereof; and

(h) such other particulars as may be prescribed by bye-laws.

(2) (a) Every owner and every  occupier  as  aforesaid  shall  be  bound  to
comply with such notice and to furnish a return with a declaration that  the
statement made therein is correct to the best of  knowledge  and  belief  of
such owner and  occupier.

(b) Whoever omits to comply with such requisition, shall in addition to  any
penalty to which he may be  liable,  be  precluded  from  objecting  to  any
assessment made by the Commissioner in respect of such land or building.

(3) The Commissioner or any person subordinate to him  and  duly  authorized
by him in this behalf, in writing, or any licensed architect, may,  with  or
without giving any previous notice to the owner or the occupier of any  land
or building, enter upon,  and  make  any  inspection  or  survey,  and  take
measurement of such land or building with a view to verifying the  statement
made in the  return  for  such  land  or  building  or  for  collecting  the
particulars, referred to in sub-section (1)  in  respect  of  such  land  or
building:

Provided that no such entry shall  be  made  except  between  the  hours  of
sunrise and sunset.

123B. Self-assessment and submission of return -(l) After  the  coming  into
force of the Delhi Municipal Corporation (Amendment) Act,  2003,  any  owner
of any vacant land or covered space of building or any other  person  liable
to pay the property tax or any occupier in the  absence  of  such  owner  or
person, shall file a return of self assessment  within  sixty  days  of  the
coming into force of the aforesaid Act.

(2) Such owner or other person or occupier,  as  the  case  may  be,  shall,
thereafter, file the annual return only in those  cases  where  there  is  a
change in the position as compared to  the  previous  return,  within  three
months after the end of the financial year in which the change  in  position
has occurred.

(3) Any owner of any covered space of building or vacant land or  any  other
person liable to pay the property tax, or any occupier  in  the  absence  of
such owner or person shall  compute  the  tax  due  under  section  114A  or
section 114C, as the case may be, and pay  the  same  in  equated  quarterly
instalment by the 30th day of June, 30th  day  of  September,  31st  day  of
December and 31st day of March of the financial year for which tax is to  be
paid. In the event of tax being paid in one lump sum for the financial  year
by the 30th day of June of the financial year,  rebate  of  such  percentage
not exceeding fifteen per cent as may be notified  by  the  Corporation,  of
the total tax amount due shall be allowed.

(4) Any owner of any vacant land or covered space of building or  any  other
person liable to pay the property tax or any  occupier  in  the  absence  of
such owner or person, who computes such property  tax  under  this  section,
shall, on such computation, pay the property tax  on  such  vacant  land  or
covered space of building, as the case may be, together  with  interest,  if
any, payable under the provisions of this Act on-

(a) any new building or existing building which has not been assessed; or

(b) any existing  building  which  has  been  redeveloped  or  substantially
altered or improved after the last assessment, but has  not  been  subjected
to revision of assessment consequent upon such redevelopment  or  alteration
or improvement, as the case may be.



(5) Such owner or  person,  as  the  case  may  be,  shall  furnish  to  the
Commissioner a return of self-assessment in such form, and in  such  manner,
as may  be  specified  in  the  by-laws  and  every  such  return  shall  be
accompanied by proof of payment of property tax and interest, if any.

(6) In the case of any new building for which an occupancy  certificate  has
been granted, or which has been occupied, after the  coming  into  force  of
the Delhi Municipal Corporation (Amendment) Act, 2003,  such  payment  shall
be made, and such return shall be  furnished,  within  thirty  days  of  the
expiry of the quarter in which such  occupancy  certificate  is  granted  or
such building is occupied, whichever is earlier.

Explanation.-For the removal of doubt, it is hereby declared that  occupancy
certificate may be provisional or final and may be  for  the  whole  or  any
part of the building and occupancy may be of the whole or any  part  of  the
building.

(7) After the determination of the annual value of vacant  land  or  covered
space of building under section 116E or section  116F  or  revision  thereof
under section 123C has been made, any amount paid on  self-assessment  under
this section  shall  be  deemed  to  have  been  paid  on  account  of  such
determination under this Act as amended by the Delhi  Municipal  Corporation
(Amendment) Act, 2003.

(8) If any owner or other person as aforesaid, liable to  pay  the  property
tax under this Act, fails to pay the same together  with  interest  thereon,
if any, in accordance  with  the  provisions  of  this  section,  he  shall,
without prejudice to any other action to which he may be subject, be  deemed
to be a defaulter in respect of such property tax,  or  interest,  or  both,
remaining unpaid, and all the provisions of  this  act  applicable  to  such
defaulter shall apply to him accordingly.

(9) If after the assessment of the annual  value  of  any  land  or  covered
space of building  finally  made  under  this  Act,  the  payment  on  self-
assessment under this section is found to be less that than  of  the  amount
payable by the assessee, the assessee shall pay the  difference  within  two
months from the date of final assessment, failing which  recovery  shall  be
made in accordance with the provisions of this Act,  but,  after  the  final
assessment, if it is found that the assessee has paid  excess  amount,  such
excess amount shall be refunded:

Provided that in any case where the amount of tax determined  in  the  final
assessment is more than the amount of tax paid  under  self-assessment,  and
the difference in the amount of tax is, in the opinion of the  Commissioner,
the result of wilful suppression of facts as defined in  the  bye-laws,  the
Commissioner may levy a penalty  not  exceeding  thirty  per  cent  of  such
difference in the tax besides the interest thereon:

Provided further that the levy of such penalty shall be in addition  to  any
other punishment provided for under this Act:

Provided  also  that  the  procedure  for  sending  of  notice,  hearing  of
objection and determination of tax and penalties shall be  such  as  may  be
specified in the bye-laws.

(10) Where no notice is sent by the Commissioner under section  123C  within
twelve months after the year to which  such  self-assessment  relates,  such
self assessment shall be regarded as assessment made under this Act:

Provided that in any case,  where  there  has  been  wilful  suppression  of
facts, penalty up to thirty per cent of the tax due may be imposed:

Provided further that the  procedure  for  sending  of  notice,  hearing  of
objection and determination of tax and penalties shall be  such  as  may  be
specified in the bye-laws.”



21.   Since what is being assailed is the correctness  of  the  judgment  in
Major General Inderpal Singh Kahai’s case (supra)  passed  by  the  Division
Bench of the Delhi High Court, it is important to  set  out  its  reasoning.
The Division Bench, after referring to Sections 116G and 169, then stated:

“9.   It is clear from the third proviso to Section 169(1) of  the  DMC  Act
that even where an assessment is finalized, but an  appeal  is  pending,  an
assessee is entitled to ask for a decision  in  the  appeal  on  the  annual
value basis.  In other words, even at an appellate  stage,  an  assessee  is
empowered to ask for a decision on the basis of  the  annual  value  of  the
property.

10.   Therefore, three situations are postulated:

      Firstly, where an assessment has  been  finalized  and  no  appeal  is
filed against it, then the assessment will continue to  be  operative  until
it is revised.

      Secondly, where an assessment has been finalized  but  an  appeal  has
been filed against it, then as per the third proviso to  Section  160(1)  of
the DMC Act, the assessee can ask for an assessment  on  the  basis  of  the
annual value of the property.

      Thirdly, where the assessment is not finalized, then  as  per  Section
116-G(2) of the DMC Act, the assessee can  ask  for  an  assessment  on  the
basis of the annual value of the property.

11.  It appears to us that the intention of the Legislature was to  commence
the levy of property tax with effect from 1st April, 2004 on a  clean  slate
– in respect of all pending  assessments  and  in  respect  of  all  appeals
pending against finalized assessment orders.  All assessments in such  cases
would be made after 1st April, 2004 on the option of the  assessee,  on  the
basis of the annual value of the property.  If the  statutory  amendment  is
read and understood in this light, it is clear that Section 116-G(2) of  the
DMC Act not only entitles an assessee to seek an assessment  on  the  annual
value basis, in an assessment not yet finalized, but it  also  empowers  the
assessee in making such a demand as a matter of right.

12.   Looked at from another point of view, if Section 116-G(2) of  the  DMC
Act does not so empower an assessee, then not  only  would  the  purpose  of
that Section be lost, but a rather strange and anomalous situation would  be
created – namely, that in a pending appeal against a  finalized  assessment,
an assessee can demand an assessment on the basis of  the  annual  value  of
the property (third proviso to Section 169(1) of  the  DMC  Act)  but  in  a
pending assessment, the assessee cannot demand an assessment  on  the  basis
of the annual value.  Surely, such an odd situation  is  not  postulated  by
the law or by the Legislature.

15.   In our opinion, there is an error in the submission  made  by  learned
counsel for the Municipal Corporation.  The error  is  in  appreciating  the
term `finalized’ assessment.  An assessment in the context of  Section  116-
G(2) of the DMC Act means an  assessment  that  has  been  accepted  by  the
assessee and is not the subject matter of a statutory appeal.  It  does  not
include an assessment set aside in appeal nor does it include an  assessment
challenged by way of a statutory appeal.   This  being  so,  the  assessment
made by the Joint Assessor and  Collector  and  set  aside  by  the  learned
Additional District Judge by his order  dated  1st  April,  2002  is  not  a
`finalized’  assessment within the meaning of Section 116-G(2)  of  the  DMC
Act.  The assessment in the case of the respondents having  been  set  aside
and remanded back for re-determination of the rateable value by the  learned
Additional District Judge clearly indicates that  the  assessment  was  wide
open.  In that sense, it was not ‘finalised’ in so far as the provisions  of
Section 116-G(2) of the DMC Act are concerned.

16.    According  to  learned  counsel  for   the   Municipal   Corporation,
notwithstanding this, once the assessment is made by the  Joint  Assessor  &
Collector, it must be taken to be finalized for the purpose of Section  116-
G(2) of the DMC Act.  This submission would be  correct  if  the  assessment
order is accepted by the assessee or is not challenged  in  appeal,  but  in
the present case where the assessment order itself has been set  aside  with
a direction by the learned Additional District  Judge  to  re-determine  the
rateable value (and no fresh order has been passed  by  the  Joint  Assessor
and Collector in terms of the directions given by  the  Additional  District
Judge) it cannot be said that the assessment has been finalized at least  at
the hands of Joint Assessor and Collector.”



22.   We are of the opinion that this is a correct view of  the  law.  Under
Section 169 3rd proviso, appeals that are pending before the  Court  of  the
District Judge are to be transferred to the Municipal Taxation  Tribunal  to
be set up under the  2003  Amendment  for  disposal,  if  requested  by  the
applicant, for the settlement thereof on the basis of  annual  value.   This
proviso means that an appeal pending  before  a  District  Judge  is  to  be
transferred compulsorily to the Taxation Tribunal (after it is  set  up)  if
an applicant requests for disposal of the appeal  on  the  basis  of  annual
value. Obviously, the word “settlement” would not in this  context  means  a
consensual  arrangement  between  both  parties  but  would  only   mean   a
determination to be made by the Tribunal  on  the  basis  of  annual  value.
Once this position becomes clear, the impugned judgment cannot  be  faulted.
It is clear then that even at the appellate stage an applicant  can  opt  to
apply for the new unit area method provided for in Section 116E so that  his
property tax assessment may be decided in accordance with  the  said  method
even though it pertains to an assessment year prior to 2003.

23.   The second proviso to Section 169 would apply in  cases  where,  after
the Taxation Tribunal is set up, there is no request  by  any  applicant  to
determine his case on the basis of annual value.  In such  cases  also,  the
Tribunal once set up may  take  up  the  appeal  of  such  person  with  the
approval of the earlier appellate authority,  namely,  the  District  Judge.
Thus understood, it is clear that the logic of the  Division  Bench  of  the
High Court cannot be faulted.

24.   This being the position in  law,  an  assessment  that  has  not  been
finalized in all cases where an appeal is pending before the District  Judge
as also in all cases which have not become “final” in  the  sense  that  the
appellate authority or the High Court or  Supreme  Court  (after  2003),  in
respect of an assessment of property tax prior to 2003, remands  the  matter
for fresh determination, would all be covered by  the  language  of  Section
116G(2). We are, therefore, of the view that the High Court is  correct  and
this group of appeals, therefore, consequently stands dismissed.

25.   We have been informed that in the appeal which dealt  with  the  first
question decided by us,  various  other  points  were  raised  in  the  writ
petition filed before the Delhi High Court which were not  adjudicated  upon
as Daruwala’s case was followed. Having  set  aside  Daruwala’s  case,  such
other points that have been raised by the petitioners in the  writ  petition
filed before the Delhi High Court may now be agitated  by  them  before  the
High Court and a remand is made of  this  case  for  determination  of  such
questions by the High Court.  As this is an old writ  petition,  we  request
the High Court to take up this writ petition at an early date.



                                  ……………………….J.
                                  (A.K. Sikri)


                                  ……………………….J.
                                  (R.F. Nariman)
New Delhi;
August 11, 2015




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