Delhi Golf Club Limited vs New Delhi Municipal Corporation ...
1997 Latest Caselaw 575 Del

ORDER

R. C. Lahoti, J.

1. The petitioner seeks quashing of a demand to the tune of Ks. 4,37,56,295.90 p. on account of properly lux for the period 1-4-1969 to 31-3-1995 raised by the respondent as evidenced by its house tax bill dated 24-11-1994 (Annexure P3). noticed of demand dated 31-3-1995 (Annexure V-2) and letter dated 13-6-95 (Annexure P-1) refusing to recall the recovery on the grounds stated in the letter 4-4-1995 from the petitioner's advocate.

2. The petitioner is a limited company. It holds land measuring about 180 acres in the heart of New Delhi by the side of Wellesley Road. The lease of the land was granted to me petitioner by the Government of India, Ministry of Works Housing and Supply, Land and Development Office, New Delhi on the terms and conditions as contained in the letter dated 23-4-1968 (Annexure P-4). Term of initial allotment was upto 1980 only which term has been extended from lime to lime. Presently the term of the lease stand extended for a period of 20 years commencing 1-1-1991 and expiring with 31-12-2010 on the terms and conditions set out in the lessor's letter dated 20-7-1994 (page 144 of the paper book), Both the above said letters provide for a formal lease deed being executed between the parties but no such deed has been executed. The gram is governed by the Government grants Act, 1895.

3. The petitioner has laid challenge to the authority of the respondent to recover the property tax on two grounds firstly, that the tax is leviable only on an 'owner' which the petitioner is not being a lessee merely; secondly; the issue as to the liability of the petitioner to pay the property tax having been decided in favour of the petitioner exonerating it from such liability in two civil suits filed earlier, the respondent cannot raise the demand as the two judgments constitute res judicata and bind the parties.

4. The first question is whether the petitioner is at all liable to payment of tax?

5. It is not disputed that demand in question has been raised under and is governed by the provisions of the Punjab Municipal Act, 1911. According to Section 61(1)(a) tax on building and lands is a lax payable by the owner. The proviso appended to the above said provision provides for the tax being payable by the tenants in the case of lands and buildings occupied by the tenants in perpetuity. Sub-section (11) of Section 3 defines owner to include the person for the time being receiving the of lands and buildings, or cither of them, whether on his account or as agent or trustee for any person or society or for any religious or charitable purpose of who would so receive the same if the land or building were let to a tenant,

6. Excerpts from the letter dated 23-4-1968 (Annexure P4) under which the petitioner is holding the land, so far as relevant for the purpose of this petition, are as under:--

"The president has been pleased to sanction the temporary allotment of land measuring about 180 acres as shown on the plan for the use of Delhi Golf Club, Wellesley Road, New Delhi on the following terms and conditions:--

(i) The Delhi Golf Club shall use the land and the building existing thereon for the bona fide purposes of the Golf Club and for no other purpose.

(ii) The Delhi Golf Club shall pay rent for the land and building with effect from 8-11-1963 at the following rates :

xxxxx xxxxx xxxxx

(iii) The Delhi Golf Club shall not construct any building except with prior permission of the Lessor and that also with prior approval of building plans from the Local Body as well as the Land and Development Officer under terms of temporary lease.

(iv) All the trees standing on the land are government property shall not be removed or cut without approval of this office.

(v) The temporary lease hereby granted is terminable within one month notice from either side.....

 xxxxx        xxxxx xxxxx 
 

 (vii) The Club shall execute temporary lease deed at their own expenses.....  
 

 (viii) This allotment is purely temporary only upto 1980.  
 xxxxx         xxxxx xxxxx  
 

The additional ground rent for the building erected to be erected after 8-11-1963 on the basis of plans approved by New Delhi Municipal Committee is being calculated and will be. intimated to you soon."

7. So are the excerpts from the letter dated 20-4-1994 (page 144 of the paper book) as under:--"The Delhi Golf Club be allowed to use the land measuring 179 acres on Dr. Zakir Hussain Marg, New Delhi beyond 31-12-1990 on the following terms and conditions:--

I. The period of temporary lease will be for a period of 20 years i.e. from 1-1-1991 to 31-12-2010.

II. (i) The Delhi Golf Club shall be required to pay annual ground rent for 2.08 acres or area required as per building bye laws for the covered areas @ 5% of Rs. 39 lakhs per acre.

(ii) The Club shall pay the Licence Fee @ Rs. 1000/- per acre for the green area measuring 176.92 acres.

(iii) There will be complete ban of construction on green areas and prior permission of the Government would he necessary for any construction on 2.08 acres.

(iv) The Delhi Golf Club shall pay the property tax/service charges or any other lexes demanded by local bodies or pay the Government the equivalent amount (in case Government is billed by local bodies) for the entire land under their occupation. Though the properly tax for the period prior to 1-1-1991 does not form part of the Current lease Agreement. the Club shall however, settle al! issues pertaining to outstanding property tax etc. with N.D.M.C. as communicated to them vide their office letter dated 26-4-1993 and make necessary payments to N.D.M.C. in this regard. Their will be no liability in Government of India whatsoever towards properly lax.

III. The land shall be used for its bona fide activities of promoting the sport of Golf.

xxxxx xxxxx xxxxx

8. The learned counsel for the petitioner has submitted that the petitioner is merely a lessee and not an owner. Also no deed of lease has been executed. It is not even a lessee stricto sensu. Its status is that of a licensee, liable to be terminated at any time followed by eviction.

9. We are not impressed. It was an obligation of the petitioner to execute the lease deed. If the petitioner has not executed the deed, it cannot be heard taking advantage of its own wrong. The petitioner must be deemed to be holding the land on terms and conditions on which such holding was allowed. The terms are proposed in the two letters referred to hereinabove and the petitioner having entered into the possession and continuing therewith on the terms proposed, the petitioner cannot be heard to contend that it is holding the land on any terms other than those set out in the two letters above said.

10. The petitioner is not right in contending that it is only the owner ax commonly understood who is liable to pay me nt of property tax under the provisions of the Punjab Municipal Act, 1911. The definition of the owner, as given in the interpretation clause, merely extend sits meaning. The emphasis is on the right of the person to hold the I and and building so as to collect the rent or be capable of collecting the rent if the same were let to a tenant. As noted i n the succeeding paragraph s the petitioner has raised substantial buildings on the land. The buildings having been constructed by it, would remain liable to pay tax at least thereon. If the land and/or building arc let out, it is the petitioner who would be entitled to receive the rent. The petitioner is, therefore, owner of the land and building for the purpose of the Act.

11. On behalf of the respondent, it has been pointed out that the petitioner has from time to time raised several structures and carried out extensive additions and alterations some approved and authorised and some unauthorised. The following statement showing the extensive nature of the constructions by the petitioner has been filed by the respondent as Annexure R-xiii which is on the affidavit of Mrs. Madhu Mahajan, Director (Tax) and we have no reason to decide I have the same. It may be stated that during the course of hearing no challenge was laid to the correctness of the factual data contained in the statement which is as under :

Annexure R_XIII A list of application and other letters filed by the Secretary. Delhi Golf Club under S. 189(3) and other relevant provisions of the P. M. Act. 1911 and the sanctions issued by the NDMC thereto. S. No.   Dale of application of the Club Seeking NDMC's permission for    Decision of N.D.M.C.

1.

7-9-64

Erection of the building of the Delhi Golf Club

Plans  approved  vide Resolution No. 26 dated 13-1 1-64.

2.

10-01-66

Grant of occupation certificate to the Bldg. of Golf Club.

Occupation certificate granted vide Reso. No. 23Adl. 28-01-66

3.

21-02-1967

Addition/Alteration to the building of

Approved           vide resolution No. 85 dated 24-7-67.

4.

23-10-1967

Undertaking for adequate sanitary & drainage arrangements and application for construction of a canteen

Approved vide Reso. No. 190 dated 6- 11 -67.

5.

6-11-67

Addition/Alteration   to   Club Building

Approved vide Reso. 95 dt. 16-12-67

6.

I2-11-1970

Extension of kitchen and minor corrections to head-room.

Approved vide  Reso. No. 37 dated 4-12-1970

7.

16-3-1974

swimming pool and changing room

NDMC vide Reso. No. 26 di. 21-6-74. Finally approved by Reso. No. 20 dt. 27-5-74.    

8.

17-6-1974

Gram of completion certificate of the building of the Golf Club

9.

29-10-1976

Erection of a lockers room and regularisation of unauthorised!}' constructed area.

Approved vide  Reso. No. 33 dl. 27-11-76.

10.

25-10-78

Regularisation of 2 ACC sheds constructed unauthorisedly the Club.

Regularised by Reso. No. 62 dated 22- 12-78.

11.

8-12-81

Addition/alteration

Approved vide Reso. No. 14 dated 02-01-82

12.

12-5-82

-do-

Approved vide Reso. No. 05 dated 27-05-82

13.

2-5-86

Revalidation of plans

Revalidated by Reso.20 date 05-6-86.

14.

7-11-86

Addition/Alteration

Rejected by NDMC vide

15.

28- 11-86

An undertaking that no building material will be   stacked   on   the Municipal land.

Reso. No.  18 dated 4-12-86,    and    finally approved vide Reso. No. 01 dated 03-09-87

16.

28-12-89

"Addition/Alteration

Rejected vide Reso. No. 22 dated 10-1-90,

17.

02-01-90

Revalidation of plans

Rejected on 31-1-90

18.

13-7-91

Indemnity Bond and affidavit seeking exemption from U.L.C.R, Act.

Subsequently approved vide Resolution No. 27 dated 16.-07-91.

12. The term owner is a generic and relative term. It has a wide and also a narrow connotation. Its meaning depends on the context in which it is used.

12.1 Black's law Dictionary (6th Edition) defines owner as under : --

" owner. The person in whom is vested the ownership, dominion, or title of property; proprietor. He who has dominion of a thing, real or personal corporeal or incorporeal which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenent which restrains his right.

The temis, however, a nomen general assume and its meaning is to be gathered from the connection in which it is used, and from the subject matter to which it is applied. The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the term also includes one having a possessory right to land or the person occupying or cultivating it.

The term "owner" is used to indicate a person in whom one or more interests are vested for his own benefit."

(Underlining by us)

12.2 In the same dictionary, the term 'ownership has been defined to mean inter alia, as -- 'collection of rights to use and enjoy property, including right to transmit it to others the right of one or more persons to possess or use a thing to the exclusion of others. A right by which a thing belongs to someone in particular, to the exclusion of all other persons.

(Underlining by us)

12.3 In State of U.P. v. Renusagar Power Company. , it was held that the word "owned" is a generic term embracing within itself several gradations of title, dependent on the circumstances, and it does not necessarily mean ownership in fee simple; it means, "to possess to have or hold as property.

12.4 Looking at the context in which the word "owner" has been used in Section 61(1) (a) and the inclusive definition given in Section 2( 11), we arc of the opinion that to attract applicability of Section 61 one need not to be an owner of the property as holding full title therein including power of disposal it is enough if the person holding the properly has right to possess and use it to the exclusion of others.

13.In Section 61(1)(a) of the Punjab Municipal Act, the term 'owner' has been used in a wider sense. The object is to tax all such person who possess and use land within municipal limits. Anyone possessing land and using the same docs make use of municipal services. It is only reasonable that he should pay taxes.

14. There is yet another angle of looking at the question. Section 61(1) (a) speaks of imposition of lax on 'building and lands' and makes it payable by 'owner'. The Act defines 'building' but does not define 'lands' Black's Law Dictionary (Sixth Edition) defines land, inter alia, by saying -- "In its more limited seme,' land' denote the quantity and character of the interrupt or estate which a person may own in land. 'Land' may include any estate or interest in lands, cither legal or equitable, as well as casements and incorporeal heredctaments."

Applying the above definition the interest held by the petitioner in the land leased to it is "land" and the petitioner is 'owner' thereof within the meaning of Section 61(1)(a).

15. In the view which we have taken hereinabove, we are fortified by a few decisions of this Court.

15. 1 In Skipper Builders (P) Ltd. v. MCI) (CWP 942/80 decided on 24-1-1986) it has been held : (1) by virtue of Section 90 of the Registration Act, a lease granted by the Government in respect of Government land does not require compulsory registration; (2) Section 107 of T.P. Act is not applicable because of Section 2 of the Government Grants Act, and (3) for an instrument of grant of become effective, it need not comply with various formalities envisaged by the T.P. Act or any other statute. The grant becomes effective the moment it is sanctioned by competent authority and becomes binding on the Government from the date it is so made.

15. 2 In Skipper Builders (P) Ltd.'s case (supra), decision, of Dalip Kapur. J. in M/s. Vishal Builders (P) Ltd. v. MCD (CW 17/77) was also followed. In the later case, what is meant by 'land' came to be examined. The petitioner was in possession of a piece of land under a proposed lease and formal execution of deed of lease was yet to take place. It was held :--

The fact that there has been a sale shows that there is an interest in the property belonging to the petitioner which has been further transferred to others. It is that interest which falls within the definition of 'land' as given in Section 2(24) already reproduced. Let it not be forgotten that kind means not only land considered from the dictionary point of view, hut also any benefit in land and anything attached to the earth or permanently fixed to it. In that sense, whatever the petitioner has got by paying Rs. 16,00,000/-after a public auction is an interest or a benefit in land which is 'land' within the meaning of the Section and. is therefore, subject to property tax. This is one aspect of the matter. Another aspect is that the true legal position is not to be judged in the light of or in the absence of a formal document. The auction of the land was intended to transfer leasehold rights to the petitioner. It fructified into such a contract as a result of the auction. It may he that there were some defects in the auction which led to no transfer of property to me petitioner, but if, that is so, the proper remedy of the petitioner is to institute proceedings against the Delhi Development Authority to cancel the sale and to re-transfer the property back to the Delhi Development Authority. Until such proceedings arc taken, no third person can take into consideration the quest ion whether there has been an invalidity in the auction. This can certainly not be decided by the Delhi Municipal Corporation Act. 1957. I am, therefore, of the view that until the transaction is nullified, it is a lease even though no formal document has been executed."

15.3 In Vishal Builders (P) Ltd. v. DMC, (1982) 22 Delhi LT 131 the Division B,ench has confirmed the forequoted view of the learned single Judge.

15.4 In S.K. Construction v. M.C.D. it was held:--

"The leasehold rights in a plot of land leased (in this case in perpetuity) to a person (by the Delhi Development authority), fail within the meaning of the term "land" under me definition given in Section 2(24) of the Delhi Municipal Corporation Act, and, there lore. irrespective of the ownership of the land continuing to vest in the Union of India, such lessee lights can he made subject-matter of property tax under Section 114 of the Act."

15.5 In MCD v. Steel Sales Corporation (CR 721/89 decided on 22-3-1990) the assesses held the land on lease for 11 months but nevertheless continued in possession year after year -- beyond 11 months. It was held liable to payment of tax.

16. For several reasons we have to reject the first contention of the petitioner. The right which the petitioner holds is itself 'land'--as understood in law. It is not material if any lease deed has been actually executed or not so long us the petitioner is holding land on the terms proposed by the Government. It was for the petitioner to execute the lease. The petitioner has been conferred with a right to possess and use the land exclusively to its own benefit. It can exclude all others having no better title It cannot escape liability to pay property tax by its own act of not executing the deed of lease. The petitioner is an "owner" within the meaning of Section 61(1)(a) read with Section 2(13) of the Punjab Municipal Act, 1961. The first contention therefore fails.

17. We may now deal with the second contention. Two suits registered as S.No. and 387/90 were filed by me petitioner as implicating the respondent-NDMC as defendant. Both the suits were for permanent injunction with a prayer to restrain the defendant from realising house tax from the plaintiff. The two suits related to property fax assessed respectively for the year 1969-70 and 1970-71. Two issues framed in the suits were :--

(i) Whether the plaintiffs have only temporary lease of the disputed premises of the Golf Clube?

(ii) Whether the assessment of annual value of the disputed property is illegal and ultra vires as alleged in para 3 of the plaint?

17.1 Both the suits were disposed of by a common judgment (Annexure PS). A perusal of the judgment shows that the leaned trial Judge has by his judgment dated 27-4-1973 concluded that the petitioner was holding only a temporary lease. No formal deed of lease was executed. As the tax was leviable only on an 'owner', the petitioner was not liable to pay the property tax.

17.2 The NDMC preferred an appeal to the Court of Additional Distl. Judge. Delhi. By judgment dated 5-3-1977 (Anncxure P6). the learned Addl. Distl. Judge also held that the petitioner being not an 'owner', but a mere temporary lessee or a licences, was not liable to pay the house tax.

17.3 The NDMC preferred second appeals to the High Court which were unfortunately got dismissed as withdrawn on 30-8-1985. The reasons for withdrawal do not fired mention in the order of the High Court permitting the withdrawal (Annexure P-7).

18. Though the copies of the judgments have been filed hut copies of the pleadings were not filed. During the course of hearing, we called for copy of the plaint which was made available by the learned counsel for the petitioner and we have perused the same. A perusal of the plaint makes it clear that the suit filed by the plaintiff was for injunction merely. Demand of property tax for one particular year was challenged. The relief sought for was of a decree for a permanent injunction restraining the defendant from realising, demanding or recovering any amount as house tax from the plaintiff and/or enforcing the aforesaid impugned demand and/or from taking any coercive measures for the realisation of the said amount. No declaration was sought for. The suit was of a limited nature disputing the demand raised by the respondent for a particular year merely.

19. The contention canvassed by the learned counsel for the petitioner raises an issue : whether the judgment of a Civil Court restraining the respondent from recovering the amount of tax for any particular year can constitute res judicata stopping the defendant from raising a demand for subsequent year/s.

20. In Commr. of Income-tax West Bengal II, Calcutta v. Durga Prasad More, it was held :--

"Neither the principle of res judicata nor the rule of estoppel is applicable to assessment proceedings."

21. In M.M. Ipoh v.C.I.T.. Madras. . their Lordships have held (para 26) :--

The doctrine of res judicable docs not apply so as to make a derision on a question of fact or law in a proceeding for assessment in one year binding in another year. The assessment and the facts found are conclusive only in the year of assessment, the findings on questions of fact may be good and cogent evidence in subsequent years, when the same question falls to be determined in another year, but they are not binding and conclusive.

22. ft is true that the law was so stated by their Lordships of the Supreme Court when an order of assessment was sought to be relied un as res judicata in assessment proceedings for the subsequent year. What happens if the civil court renders a decision having a bearing on assessment proceedings or demand arising out of assessment for a particular year?

23. We may refer to Turner on Res judicata (Second Edition). where the subject has been succinctly dealt with and stated with precision.

23.1 Question of assessment from one year to another in taxation and rating cases form an interesting exception to the principles of issue estoppel, by which they arc not governed. They arc sui generis in this regard and issues involved in the determination of a question inter panes as to liability for tax or rates in one year, or on the fixing of one assessment list, even though the question determined he fundamental to liability. will not form the basis of an estoppel inter parties in other and subsequent proceedings in which the assessment format year or that list is not involved. (Turner, para 219 at p. 193).

23.2 It is now settled law that decisions on questions of land tax. income lax and rating assessments constitute an important exception to the general rules as to res judicata. and that such decisions given in regard, to one year's tax or rates, or as to given rating or assessment lists, do not give rise to estoppels binding the parties in respect of another year's tax or rates, or a later assessment list, (para 309 at p. 260 ibid).

23.3 But nut only decisions at an administrative level, but also those by courts of competent general jurisdiction fall within the exception to the general rule, and no estoppel can be founded upon them when the same point is raised again in another year of assessment or is in respect of a list other than that fixed in the original decision. This will be so even in cases, where there is a formal admission that no material circumstance has in the meantime changed. The reason appears to be because the question of the Iiability of the taxpayer for the subsequent year's tax or rate is not to be regarded as the same question as that of the liability for me first, (para 310 at p. 261 ibid).

24. It is interesting to note how this issue of importance raised a conflict of decisions within the Privy Council which has fortunately been resolved.

24.1 In Broken Hill Proprietary Co. Ltd. v. Broken Hill Municipal Council. 1926 AC 94, the question at issue was the construction of a section in a statute providing, the basis for assessment of rating value, and the earlier decision on this question of construction had been given by the High Court of Australia on appeal. It was held that the construction given to the section by the High Court as regards the assessment for the earlier year did not estop the parties from relit gating the same question on a subsequent year assessment.

24.2 In the same year Hoystead v. Taxation Commissioner, 1926 AC 155 was decided in which their Lordships held to the contrary.

24. In the year 1961, in Gaffoor v. Colombo Income-tax Commissioner, 1961 AC 584, the Privy Council was compelled to choose between its two former decisions. Their Lordships expressly adopted the principle laid down in Broker Hill's case (supra) and expressly disapproved Hoystead's case (supra).

24.3.1 Lord Rudeliffe put forward two bases for his conclusion that the two questions were not cadet question :--

"One consideration is that the jurisdiction of the tribunal to which the decision belongs by the administrative scheme is a limited one. It is limited in the sense that its function begins and ends with that of deciding what is to be the assessment or liability of a person for a defined and terminable period. "The assessment seems inherently to be of a passing nature". For the purpose of arriving at its decision the tribunal may well have to take account of, and form its own opinion on, questions of general law it may even have necessarily to consider one or more of such questions but in cither case the view adopted with regard to them is incidental to its only direct function, that of fixing the assessment. For that limited purpose it i s a court w ilh a jurisdiction competent to produce a final decision between the parties before it : but it is not a court of competent jurisdiction to decide general questions of law with that finality which is needed to set up the estoppel per rem judicator that arises in certain contexts from legal judgments."

24.3.2 The other consideration was the special position of the valuation officer/surveyor or equivalent official or comminute to whom he said the term "party" to Ms can he applied only with some reservations.

24.3.3 Lord Kith of Avonholm though concurring expressed himself differently as under:--

"What we are faced with here is an administrative act of a public official, the valuation officer, against which the parly affected has a right of appeal, to the local valuation court, with further appeals to higher courts. The valuation officer has a public duty to perform by making periodically every five years a valuation list of all hereditaments, with certain exceptions, in his ruling area. He must necessarily reconsider and revise the previous valuation list. He has no personal interest in any appeals taken against his valuations, and has a duty to hold the scales as fairly as he can among the ratepayers affected the occupiers of the various hereditaments. The general body of ratepayers is constantly changing. With each quantum the revaluations, will affect a new body of ratepayers. I doubt if the valuation officer owing such a duty to an ever changing body of ratepayers can be regarded as always !he same party in the sense in which that expression is used for the application of the rule of res judicata. What if the appellant society changes its habitat, and moves into another rating area with a different valuation officer?

I emphasis these aspects of the functions of a valuation officer under the statute, for they lead to what I regard as the true answer to the submission for the appellants, which is that a public officer in the position of the respondent cannot be estopped from carry ing out his duties under the statute. The case is, I think, a fortiori of the judgment of a Board of the Privy Council in Maritime Electric Co. Ltd. v. General Diaries, Ltd. where it was held, in the circumstances of that case, that a public utility company could not be estopped from carrying out its duty under a statute, It has been said on other occasions that there is no other occasion that there is no estoppel against a statute."

24.3.4 Lord Radeliffe then said that -- (a) the limited nature of the jurisdiction of the Court which decides taxation matters will in itself suffice to prevent its decision becoming a basis of res judicata in latter cases; (b) in any case can there be said to be a true lis between the same parties.?

24.3.5 Their Lordships added :--

"It may be that the principles applied in these cases form a somewhat anomalous branch of the general law of estoppel per rem judicator, and are not easily derived from or transferred to Other branches of litigation in which such estoppels have to be considered; but in their Lordships opinion they are well established in their own field, and it is not by any means to he assumed that the result is one that should be regretted in the public interest."

(See Paras 311 to 314 al pp 261-265, Res judicata, Turner, ibid)

25. The doctrine of res judicata as embodied in Section 11 of the CPC corresponds to what is known as estoppel by judgment in English law. It is one of convenience and rest and not of absolute justice. The section does not strike at the jurisdiction of the court. The very basis of rule of estoppel, is public interest. For two reasons, we arc not inclined to concur with the petitioner's contention on doctrine of res judicata. Firstly, there is no estoppel statute. If a properly is liable to be taxed under a statute which is law of the land it must be so taxed without regard to the fact that for an earlier year it has successfully escaped taxation on an erroneous view of facts and/or law. Secondly, public interest would be better served by-passing the rule of resjudicata and taxing the properly in a year of assessment if the incidence of tax be rightly attracted under the law and ignoring Ihe factum of its having escaped in an earlier year though by a conscious and deliberate decision.

26. We are, therefore, clearly of the opinion that a civil court's judgment restraining recovery of tax, in a suit based on cause of action arising out of assessment for a particular year and holding the plaintiff not liable to payment of tax docs not constitute res judicata for liability to pay lax or assessment of lax for subsequent years.

27. The second contention also, therefore, fails.

28. No other contention was raised.

29. Still the petitioner is entitled to a very limited relief. Assessment of properly lax and demand of lax for the years 1969-70 and 1970-71 was specifically the subject matter of two suits filed inter paries and decreed in favour of the plaintiff (petitioner herein).' The same demand cannot now he raised. The respondent NDMC could not have, while raising the demand for subsequent years, included therein the demand tor the years 1969-70 and 1970-71 which was restrained by the decree of civil court.

30. The petition succeeds in part. The impugned demand so far as it relates to the periods 1969-70 and 1970-71 is hereby quashed. Rest of the petition is dismissed with costs quantified at Rs. 5000/-.

31. Petition partly allowed.