Delhi High Court
Shri Chet Ram Sharma And Ors. vs Municipal Corporation Of Delhi on 30 September, 2002
Equivalent citations: 100 (2002) DLT 653
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. Rule.
2. With the consent of learned counsel for the
parties, the matter is taken up for disposal.
3. The petitioner has impugned the order dated
13.9.2002 passed by the Joint Assessor and Collector on
the ground that the land in question was not capable of
being built upon and thus cannot be subjected to house
tax under Section 162 of the MCD Act.
4. The petitioners are the owners of the land in
pursuance to sale deeds. The petitioner applied for
approval of the lay out plan on 11.1.1994 but the same
was not sanctioned. This was so since when the MCD
asked the DDA for intimation of the land use, the DDA
informed that the land would be acquired. This issue
remained pending for number of years and the petitioner
filed the C.W. No. 6091/2000. The said writ petition was
allowed only on 26.9.2002 since admittedly the land had
still not been acquired.
5. The grievance of the petitioner is that on one
hand the plan of the petitioner was not being
sanctioned on the ground that the land was going to be
acquired while on the other hand the same property is
being subjected to vacant land tax. Learned counsel
for the petitioners has relied upon the Section 116(2)
of the Delhi Municipal Corporation Act, 1957 which is
as under:
"116(2) The rateable value of
any land which is not built upon but
is capable of being built upon and of
any land on which a building is in
process of erection shall be fixed at
five per cent of the estimated
capital value of such land."
6. Learned counsel has also referred to judgment of
the Full Bench of this Court in CW No. 1336/1990
Municipal Corporation of Delhi v. Shashank Industries
Private Limited and Ors. decided on 17.9.2002. The
Full Bench has observed as under:
"48. It may be true that in a
given case, grant of sanction may be
delayed, or the person entitled
thereto may not like to construct a
building having regard to the fact
that, the basic infrastructure like
water, electricity or sewerage had
not been extended, but the Court is
not concerned with any individual
hardship inasmuch as in such an
event, the rateable value may come
down but only by reason thereof, the
assessed cannot be held to have been
discharged of its statutory burden
except to the extent indicated
hereinabove. In terms of the Act, a
lessee has a right to construct the
buildings if he acquires a land,
which is capable of being built
upon, but if he does not chose to do
so for a long time, the same by
itself cannot be a ground for
non-levy of tax unless the assessed
is able to establish that on account
of a genuine impediment, which is
beyond his control, no construction
on the land could be undertaken."
"53. In our opinion unless there
exists any statutory interdict, or a
genuine impediment beyond the control
of the assessed, the property tax is
leviable in respect of a land which
is otherwise capable of being built
upon meaning thereby which falls
which such areas/zones of Master Plan
and Zonal Development Plan, where
construction is permissible."
7. Learned counsel for the petitioner thus contends
that if the land is lying vacant and is not constructed
upon the same can be subject to tax. However, in the
present case, it is contended that the land was not
capable of being built upon and thus it would fall
within the definition "genuine impediment beyond the
control of the assessed" as observed by the Full Bench
aforesaid.
8. I am in agreement with the contention of learned
counsel for the petitioners. The petitioners were
willing to construct as far as back in 1994 and applied
for sanction of plan. The plans were not sanctioned
and kept pending in view of the query of the MCD from
DDA requiring it to disclose the user of the land in
question. The DDA intimated to the MCD that the land
was in the process of being acquired. Thus for no
fault of the petitioner, the petitioner has been unable
to construct on the land in question in view of the
inaction on the part of the DDA and consequently the
MCD. It is only after the direction has been passed by
this Court on 26.9.2002 in CW No. 6091/2000 that the
land is now capable of being constructed upon. In view
thereof, the impugned order dated 13.9.2002 is not
sustainable and is hereby quashed.
9. Learned counsel for the petitioner, however,
further contends that the date when the property was
subjected to tax should be the date when the plan is
sanctioned and not from the date of the order as
mentioned aforesaid. I am unable to accept the said
contention of learned counsel for the petitioner.
10. The Full Bench in MCD v. Shashank Steel
Industries case (supra) considered the issue as to
whether the property is capable of being built upon
within the meaning of Section 116(2) of the Act. It
was held that the said expression is of wide amplitude.
The Full Bench observed as under:
44. It is not in dispute that
prior permission from the
Commissioner is required in terms of
the provisions of the said Act under
Section 332 thereof. Section 340,
enjoins a duty upon the Commissioner
to grant permission unless erection
of building would violate any
provisions of law. In terms of the
provisions contained in Section 6 to 14 of the Delhi Development Act,
1957, the Master Plan and the Zonal
Plans are required to be made. Such
zones may be allocated for different
purposes.
45. If there exists an approved
layout plan having regard to the land
uses, construction of a building
would be permitted, almost as a
matter of course, and thus such a
land, in our opinion, would come
within the purview of the expression
"capable of being built upon."
46. Tax is being levied under
the DMC Act in order to enable the
Corporation to meet its statutory
liabilities. The tax being
compensatory in nature, the charging
section must, therefore, be given its
natural meaning."
11. In my considered view, the observations made in
para 48 and 53 mentioned earlier have to be appreciated
in the context of the observations made in the
aforesaid paragraphs. Merely because there is a gap
between applying for sanction and grant of sanction
will not imply that the land is not even being capable
of constructed upon and the same cannot be subjected to
vacant land tax. "Statutory interdict" referred to in
para 53 of the judgment of the Full Bench would deal
with the situation where the statute prohibits
construction and cannot imply that where a land can be
constructed upon and plan has been submitted for
sanction, no tax can be levied for the period till the
sanction is so granted. It has also to be appreciated
that there may be cases where the plan submitted is
such that the same cannot be sanctioned for any defect
or otherwise though there is no per se impediment for
construction on the land. In such a situation vacant
land tax would still be liable to be paid.
12. In view of the aforesaid the matter is remanded
back to the Joint Assessor and Collector to determine
issue of rateable value is concerned, it will be open
to the petitioner to raise all issues as are available
to him in law for determination of the said rateable
value including the issue arising from bye law 4 of the
Delhi Municipal Corporation Act (Determination of
Rateable Value) Bye-laws, 1994.
13. Petitioner to appear before Joint Assessor and
Collector on 29th November, 2002 at 3.00 P.M.
14. Writ petition stands disposed of in the
aforesaid terms leaving the parties to bear their own
costs.
C.M. No. 10655/2002
15. No further orders are called for in this
application in view of the disposal of the writ
petition. Application stands disposed of.
16. dusty.
