Jain Sabha Lodhi Colony, Digamber ... vs Municipal Corporation Of Delhi ...
2002 Latest Caselaw 1689 Del

JUDGMENT

Vijender Jain, J.

1. Rule.

2. This writ petition has been filed impugning the order dated 28.3.1997 of the Municipal Corporation of Delhi assessing the premises on which a Jain Temple was being constructed. Mr. Jain, learned counsel for the petitioner has contended that the notice under Section 126 of the Delhi Municipal Corporation Act was not served on the correct address. He has also contended that the temple was not ready, therefore, the same could not have been assessed from 1993 as has been sought to be done pursuant to the notice issued under Section 126 of the DMC Act. It was further contended that it was brought to the notice of the respondent that the temple was still under construction and balance-sheet up to 1993-94 starting from 1.3.1994 till 1995-96 was filed before the respondent. Another argument of learned counsel for the petitioner was that the temple land was allotted to the petitioner society and the respondent could have assessed on the purchase price after deducting 100% unearned increase in view of the agreement under which the grant was made to the petitioner society and in this regard has referred to pages 66-67 of the paper-book. In this context reliance has been placed on a judgment of this Court in Salwan Education Trust v. Municipal Corporation of Delhi and Anr. CM(M) 429/98 decided on 27.3.2001, taking note of the dictum laid down in Commissioner of Wealth-tax v. P.N. Sikand AIR 1977 SC 1667 which reads as under:-

"That take us to the question as to how the leasehold interest of the assessed with the burden or limitation attaching under Clause (13) of the lease-deed should be valued. it is clear from the language of Section 7, Sub-section (1) that what the Revenue is required to do for the purpose of determining the value of an asset is to assume that the asset which is to be valued is being sold in the open market and to fix its value for the purpose of wealth tax upon that hypothesis. Now, whenever the value of an asset has to be determined on the basis of a hypothetical sale, the court has necessarily to embark upon speculations which may be quite difficult and in some cases, even artificial. Here the asset to be valued is the leasehold interest in land with the burden or restriction contained in Clause (13) of the lease deed and the inquiry has, therefore, to be directed to the question as to what is the price which this asset would fetch if sold in the open market. What would be the realisation value of this asset? It would indeed be difficult to speculate as to what the leasehold interest in the land would fetch in the open market when it is affected by the burden or restriction contained in Clause (13) of the lease deed. If the leasehold interest were free from this burden or restriction, it would be comparatively easy to determine its market value, for there are recognised methods of valuation of leasehold interest, but where the leasehold interest is cut down by this burden or restriction and some right or interest is abstracted from it, the problem of valuation becomes a difficult one and some method has to be evolved for resolving it. The only way it can be done in a case of this kind is by taking the market value of the leasehold interest as if it were unencumbered or unaffected by the burden or restriction of Clause (13) and deducting from it, 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale, as representing the value of such burden or restriction."

3. Counsel for the petitioner further relied upon Dr. Balbir Singh and Ors. v. M.C.D. and Ors., . Counsel for the petitioner has contended that in terms of the leasehold the value of the property was to be assessed on the purchase price after deducting 100% unearned increase.

4. It was further contended by learned counsel for the petitioner that when the land and the building is exclusively used for public worship, the respondent ought to have decided the question of exemption and thereafter assessed the building. What has been contended before me is that the effect of Section 115is to exempt the lands and buildings which are exclusively occupied for public worship. He has contended that in his representation before the respondent it was clearly mentioned that the temple was exclusively used for public worship, and exemption under Section 115 ought to have been granted and, therefore, there was no question of levying any house-tax on the temple.

5. On the other hand, counsel for the respondent has contended that although the notice was issued in the wrong name and address, however, petitioner had filed objections in response to the call letter sent by the respondent and the society was represented by the counsel. In any event of the matter without going into the points which have been raised before me, in view of the fact that the temple was not constructed till 1993 in view of balance-sheet for subsequent years having been filed before the respondent explaining expenses incurred on the construction of temple in these years subsequent to 1993, there was no justification for the respondent to issue the said impugned notice under Section 126 of the DMC Act. The stand of the respondent that the temple was constructed in 1993 is without any basis. The argument of the respondent that the building was ready for the temple is made on the basis of an inspection conducted on 23.3.1984. The report raises a suspicion about its credibility and not denying specifically the averment of the petitioner at page 7 para (g) of the writ petition that the temple was only occupied from May, 1996, that as on 31.3.1993 only a sum of Rs. 20,02,282.88 was spent and thereafter in 1993-94 another sum of Rs. 3,68,348.80 spent in its construction. In para (i) of the writ petition plea has been taken that the construction of the main building of temple was started in April, 1986. The details of the spending on the temple has been given at page 11 of the paper-book. The same is given below:

S. NO.

ACCOUNTING YEAR

VOLUNTARY CONTRIBUTION

MADE BY THE PUBLIC

CORPUS ACCOUNT

+NIRMAN ACCOUNT

TOTAL

1)

1986-87

55,782.50 +

2,22,856.00 =

2,78,638.50

2)

1987-88

33,790.00 +

1,05,232.00 =

1,39,022.00

3)

1988-89

24,482.00 +

66,822.20 =

91,304.20

4)

1989-90

1,52,906.00 +

1,00,309.00 =

2,53,215.00

5)

1990-91

63,970.00 +

1,27,190.00 =

 1,91,160.00

6)

1991-92

34,965.00 +

4,73,325.00 =

5,08,290.00

7)

1992-93

45,516.00 +

2,16,427.00 =

2,61,943.00

8)

1993-94

1,31,574,00 +

2,28,545.00 =

3,60,119.00

9)

1994-95

1,03,872.00 +

53,627.00 =

1,57,499.00

10)

1995-96

2,75,912.00 +

1,10,860.00 =

3,86,772.00

GRAND TOTAL

Rs.

26,27,912.00

6. Therefore, the same has not been considered by the respondent while passing the impugned order. Therefore, I quash the impugned notice dated 28.3.1997 and direct the respondent to re-assess the temple constructed by the petitioner society after considering the applicability of Section 115 of the DMC Act as a Jain Temple is in existence at the site in question.A direction is also issued to the respondent that, after consideration of Section 115 of the Act, the respondent shall re-assess the rateable value of the property from May, 1996 taking as cut-off date of the occupation of the building as temple in accordance with law.

7. Petition stands disposed of. Rule is made absolute.

8. CM 8423/97 also stands disposed of.