Sudesh vs Amitabh Bhola And Ors.
2002 Latest Caselaw 2061 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner and respondent 1 and 2 are co-owners of property No. A-23, Bunglow Road, Kamla Nagar, Delhi which is stated to have been purchased by the wife of the petitioner by a registered sale deed dated 30.4.1982. The building plans were sanctioned by respondent No. 3 MCD vide letter dated 8.3.1984 but thereafter in view of certain unauthorised construction the property was sealed under Section 345A of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act).

2. The property was directed to the desealed by an order of the appellate tribunal passed on 17.12.1991 in view of the owners giving an undertaking to carry out the rectification in the building in accordance with the rectification plan. However, after due proceedings the property was once again sealed in pursuance to the order dated 6.7.94 of respondent No. 3. The said order was set aside by the appellate tribunal vide order dated 15.2.1996 in view of the defect in service of the show cause notice but desealing was for part of the property.

3. It is thus stated that the property remained sealed from 4/12th December, 1987 to 17th December, 1991 and again from 6.7.94 to 15.2.96. It is also stated that between the period from 17.12.91 to 6.7.94 the property was under construction and substantial work was carried out for rectification of the unauthorised construction. The property was again sealed from 6.7.94 to 15.2.1996.

4. Respondent No. 3 passed a sealing order on 8.11.96 and desealing was directed on 15.11.96 except in ground floor. The petitioner filed a CM(M) 485/96 aggrieved by the same but it is stated that this petition was dismissed vide order dated 21.11.96 with the direction to the Administrator to hear and decide the appeal within a week.

5. The Administrator disposed of the appeal vide order dated 22.12.1996 upholding the order of respondent No. 3. It was held that the premises could not be used for purposes other than residence. The petitioner aggrieved by the said order filed CM(M) 525/96 and the said petition was admitted and respondent No. 3 was directed to deseal the property.

6. Respondent No. 3 issued a notice under Section 126 of the Act seeking to amend the assessment list for the year 1993-94 at the proposed value of Rs. 40 lacs as against the previous rateable value of Rs. 12,910/-. No copy of the same was filed with the writ petition and it is stated that the petitioner does not remember to have been served with the said notice. In the counter affidavit, however, it is stated to have been received by the assessed on 30.3.93. The rateable value was ultimately fixed on 25.3.1997 at Rs. 19,08,570/- w.e.f., 1.4.93 and Rs. 18,02,540/- w.e.f. 1.4.94. The petitioner made representations against said assessments claiming that during the that time the property was sealed and even for the intervening period the building was neither completed nor occupied and was under construction.It is further stated that though the petitioner was granted completion certificate on 17.9.93 but since the construction had not been carried out in accordance with the sanctioned plan the same was resealed on 6.7.94 and was desealed only on 15.2.1996.

7. It is stated that respondent No. 3 issued a bill dated 4.1.1999 claiming property tax on the basis of rateable value of Rs. 9,97,000/- amounting to Rs. 16,15,554/-.

8. The petitioner has filed the present writ petition seeking quashing of the notice under Section 126 of the Act proposing the rateable value of the property at Rs. 40 lacs for the year 1993-94 as also for the quashing of the impugned demand raised by the respondent as aforesaid and for determination of the assessment on the basis of purchase price of Rs. 6,25,000/- along with the construction cost of Rs. 26,24,000/-.

9. The writ petition was subsequently amended to incorporate certain subsequent developments. This was so in view of the fact that a rectification order dated 31.3.96 (also mentioned as dated 31.5.96 in writ petition) passed under Section 176 of the Act reducing the ratable value was also filed. A further bill dated 25.8.2000 was also issued on the basis of the modified ratable value for the period ending 31.3.2001.

10. In the counter affidavit plea of delays and laches has been taken in view of the fact the notice issued under Section 126 of the Act is sought to be challenged after a lapse of 7 years. It is further stated that the assessment orders passed subsequently as also the bills raised were never challenged.

11. It is stated that the occupancy certificate was granted 17.9.93 and thus the building in terms of Section 128 of the Act is amenable to property tax w.e.f., 1993. The Ground Floor was converted into a big banquet hall and the user was changed from residential to commercial. It was in view thereof that the orders of sealing were passed as also to revise the rateable value.

12. It is further stated that the assessed had preferred an appeal under Section 169 of the Act against the assessment order dated 31.3.98.

13. A further additional counter affidavit was filed in view of the amendment of the writ petition specifically stating that in view of the assessment order dated 31.3.98 the remedy of the petitioner was by way of an appeal.

14. I have considered the submissions advanced by learned counsel for the parties at the bar as also the written synopsis filed. It may be pointed out that in the written synopsis filed by the petitioner reference has been made to a number of judgments and proposition which were never advanced at the bar nor were the judgments cited. This is an unhealthy practice. The purpose of filing the written synopsis is to summarise the contentions advanced by the parties with reference to the judgments cited at the bar. The object is not to further improve the case which was contended before the court. The parties were granted full hearing before the court and no direction was passed to file written synopsis. There is another aspect of the matter since the opposite party can only deal with the submissions and distinguish the judgment cited at the bar. It would be unfair to the other party if by the process of written synopsis, submissions not advanced at the bar and judgments not referred too are sought to be introduced. In view thereof I have confined my judgment to what was contended before the court and have referred to the judgment cited at the bar.

15. Learned counsel for the petitioner contended that the appeal was not an efficacious remedy and relied upon the Division Bench judgment of this court in Ganga Ram Hospital Trust v. Municipal Corporation of Delhi 92 (2001) DLT 775 (DB). It was held by the Division Bench that the provision of appeal under the Act which has a pre-requisite condition of deposit of amount cannot be called an adequate or efficacious remedy since the condition is too onerous.

16. There can be no doubt that the remedy of the writ petition is not barred though the judgment in Ganga Ram Hospital's case (supra) referred to the remedy of a civil suit. It will, however, have to be examined in each case whether the condition of pre-deposit is so onerous in the circumstances of each case as to make the remedy illussionary. It is not necessary to deal with this aspect in detail since I have considered the controversy in question on merits dealing with the issues raised by the learned counsel for the petitioner.

17. The next submission advanced by learned counsel for the petitioner was based on the allegation that no notice had been served under Section 126 of the Act for the year 1993-94. In this behalf it may be stated that a specific plea of delay and laches has been raised in the counter affidavit filed in the present writ petition. It is relevant to note that in para 11 of the writ petition the petitioner has not denied the receipt of the notice under Section 126 of the Act but merely claims that he does not remember having been served with the said notice and did not file a copy of the same. This is at best a cleverly drafted pleading in order to avoid taking a false stand on affidavit that the petitioner has not been served with the notice. In the counter affidavit it is stated that this notice was received by the assessed on 30.3.93 in para 6(C). In my considered view the plea of the petitioner cannot be sustained on such vague allegations of not remembering the receipt of the notice specially when there is a categorical averment in the counter affidavit stating that the same has been received and specifying the date therein. It is also relevant that the petitioner did not impugn or challenge the same for almost 6 years and thus the challenge to the same by the present writ petition cannot be entertained as the same suffers from culpable delays and laches.

18. It may be noted that the petitioner had referred to the judgments of Hubli Municipality v. Subha Rao Hanumantharao Prayag and Ors.

and Gulabchand Bapalal Modi v. Municipal Corporation of the City of Ahmedabad and Anr. dealing with the issue of amendment list and that the same needs to be authenticated in the relevant year in order to be valid.

19. It was contended on behalf of the petitioner that under Section 176 of the Act only clerical errors can be corrected and once an assessment order has been passed there can be no question of passing a further assessment order. The contention thus is that once an assessment order is passed by the assessing officer as a delegate of the Municipal Commissioner and the same is found contrary to law even the Commissioner cannot pass any fresh assessment order. Reliance was placed on the judgment of the Supreme Court in Bombay Municipal Corporation v. Dhoundu Narayan Chowdhary . It was held that when the Commissioner delegates his control it did not mean that he reserved to himself right to intervene to impose his own decision upon the delegatee.

20. On the other hand, learned counsel for the respondent, contended that the power to pass an assessment order is specifically delegated to the assessing officer under Section 491 of the Act and thus the delegation of such power would include the power to rectify the same which would not require any separate delegation of power. It is thus contended that such power exits under Section 176 of the Act.

21. It may be noticed that the assessed appeared before the Assessing Authority in pursuance to the notice prior to passing of the order dated 31.3.98 in respect of the rectification of the assessment order passed on 25.3.97 and requested for the assessment order to be finalised on merit. Since the documents produced before the assessing officer established that the construction was started in 1986 and completed in 1993 as per the completion certificate, the rateable value was accordingly rectified. Thus the certification was carried out at the request of the petitioner on the basis of the documents placed before the assessing officer and in my considered view such rectification is permissible and cannot be said to arbitrary to the provisions of the Act.

22. The last submission advanced by learned counsel for the petitioner was that since the property was lying sealed over a considerable period of time the property was not capable of occupation for the said period of time and thus no property tax could be levied for the said period.

23. It is relevant to note that the occupancy certificate was dated 17.9.93 and a property becomes liable to be assessed from the date of completion or occupation whichever occurs first in terms of Section 129 of the Act. Thus the property of the petitioner was capable of occupation on the said date.

24. In the case of the petitioner the building was sealed on various occasions for unauthorised construction and the petitioner rectified the same from time to time. Further the petitioner was carrying on commercial activity of running a Banquet Hall contrary to the permissible user of a residential purpose. In such a case it cannot be said that the property was incapable of occupation so as to not liable to property tax. This would amount to giving of premium to the illegal conduct of the petitioner.

25. It may be noticed that an alternative defense raised by learned counsel for the respondent was that if at all remission/refund or reduction of tax is sought the same can only be in terms of Section 163 of the Act on the assessed making an application in that behalf which has admittedly had not been done in the present case. Further the circumstances under which the building is deemed to be vacant are prescribed under Section 167 of the Act and since the petitioner does not fall within the same it cannot be stated that the petitioner is entitled to any vacancy remission. A property lying sealed for unauthorised construction and change of user does not fall within the category of deemed vacant properties.

26. In view of the aforesaid position I find no merit in the writ petition. The same is dismissed with costs of Rs. 5,000/-.