Delhi High Court
Municipal Corporation Of Delhi vs L.P. Naithani And Anr. on 13 November, 2002
Equivalent citations: 2003 (66) DRJ 319
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. The matter in controversy dealing with the issue
of the notice under Section 126 of the DMC Act,
1957 (hereinafter referred to as the said Act) dealing
with the same society in question now stands fully
settled by the judgment in CR 1237/1997 MCD v. R K
Jain decided on 22.7.2002 and CWP No. 5872/99 decided on
on 13.8.2002. Thus the same directions are liable to
be issued in the present petition.
2. Learned counsel for the respondent, however,
disputes the aforesaid position on the basis that the
judgment in CR 1237/1997 was per incuriam being in
conflict with certain statutory provisions as also
contrary to an earlier judgment of the learned Single
Judge of this Court in Justice K S Gupta v. MCD
. Learned counsel for the respondent
has relied upon the judgment of the Supreme Court in
A R Antulay v. R S Nayak and Anr. Punjab Land Development and Reclamation Corporation
Ltd. v. Presiding Officer, Labour Court, Chandigarh
and Ors. . The Supreme Court
considered the expression per incuriam which is a latin
expression meaning through inadvertance. The Supreme
Court held that a decision can be said generally to be
given per incuriam when the court has acted in
ignorance of a previous decision of its own or when a
High Court has acted in ignorance of a decision of the
Supreme Court.
3. There would be no doubt over the aforesaid
proposition but the question remains whether the
decision in CR 1237/1997 can be said to be per
incuriam.
4. Learned counsel for the respondent has referred
to the provisions of Section 22 of the Delhi Apartment
ownership Act, 1986 which stipulates that for purposes
of assessment of tax each apartment shall be a separate
property. Sub-section 2 of Section 22 provides that
the multi-storeyed building or the property or the
common areas and facilities shall not be deemed to be
separate properties for purpose of levy of such tax.
The contention of the learned counsel for the
respondent is that the society was really never the
owner of the property in question and separate notices
were bound to be issued to each of the flat owners and
each such flat owner is entitled to a hearing in terms
of Section 126(2) of the said Act.
5. It is relevant to note that Section 124 of the
said Act provides for an assessment list to be prepared
while Section 126 provides for amendment of the
assessment list. Section 128 provides for notice of
transfers. It is not disputed that the society in
question, did not intimate the list of occupants of
each flat and neither did the flat owners approach the
petitioner corporation intimating about the flat
allotted to them. Thus in my considered view the
observations of the Supreme Court in MCD v. Trigon
Investment and Trading Private Limited 62 (96) DLT 222
would apply to the facts of the case. The ratio of the
said judgment is that the corporation should not be
running after the assesseds and enquiring from the
owner about the transfer of any property. It was the
duty of the society and the individual member to have
intimated the corporation about the same. This has
been the basis of the judgment rendered in CR 1237/97
and CR 5872/99.
6. In so far as the judgment in Justice K S Gupta's
case (supra) there is a material difference in as much
as it is not noted in para 6 of the said judgment that
the corporation had received the intimation about the
allotment of flat in question and thus while making the
first assessment order was obliged to give notice.
This is not the position in the present case.
7. In view of the aforesaid I am of the considered
view that the judgment rendered in CR 1237/97 and CW
5872/99 would squarely apply to the facts of the
present case and the same directions are liable to be
issued.
8. It is directed that the respondent shall appear
before the Deputy Assessor and Collector for hearing on
9.12.2002 at 3.00 P.M. when it will be open to the
respondents to produce all the relevant documents. The
respondents shall be given an opportunity of being
heard before the finalisation of the assessment.
9. The writ petition stands disposed of in the
aforesaid terms leaving the parties to bear their own
costs.
