Municipal Corporation Of Delhi vs Shri A.K. Trakru And Anr.
2004 Latest Caselaw 204 Del

JUDGMENT

Vikramajit Sen, J.

1. By way of this Writ Petition the MCD has assailed the Order of the learned Additional District Judge dated 18.9.2002 allowing the Appeal of the Respondent/assessed which had been filed under Section 169 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as `the DMC Act`). The Appeal had been allowed principally on two grounds. Firstly, that the Notice under Section 126 of the DMC Act had not been served within the financial year for which the Rateable Value was sought to be increased/revised, and secondly, that in the opinion of the learned Additional District Judge, the Notice was found not be in consonance with law.

2. So far as the first question is concerned, the DMC Act does not contain any provision prescribing the date or time on which a Notice issued under any provision or purpose of the Act will be deemed or considered to have been served. Section 444 of the DMC Act only deals with the method or mode of the service of a Notice. In the case at hand since the assessed is an individual, Clause 1(d) of that Section gets attracted. This Clause contemplates three methods by which an assessed can be served with any notice under the Act:-(i) the Noticee can be served on the individual in person, or (ii) if such person cannot be found, it can be affixed on some conspicuous part of the concerned building, or (iii) it can be sent by Registered Post to the assessed. All three methods can be employed severally or simultaneously.

3. In the present case it is the second and third mode of service that has been adopted. It is not in dispute that the Notice under Section 126 of the DMC Act was dispatched by Registered Post Acknowledgment Due on 27.3.1999 and was served on the assessed on 3.4.1999. The contention of learned counsel for the Petitioner/MCD is that in these circumstances the Notice must be deemed to have been served on the assessed within the same financial year ending on 31.3.1999. Reliance has been placed on the decision of MCD vs. Ram Kishan Khandelwal & Ors., , the factual matrix of which was that the subject Assessment Order had been passed on 15.3.1999, was diarised in the dispatch Register on 31.3.1999 and was posted (sic. posted or received) on 6.4.1999. After comprehensively discussing the precedents on the point, it has been held by my Learned Brother, Sanjay Kishan Kaul, J. that the giving of the Notice is complete when the same is dispatched though the time period for filing of the Objections would start once the Notice was received. Justice Sanjay Kishan Kaul had applied the ratio in Khandelwal's case (supra) even to a Notice, in Jyoti Construction Co. vs. MCD, CWP No.6165/2003, where the Notice which was dated 22.3.1999, was stated to have been dispatched on 23.3.1999 and received only on 1.4.1999, i.e. in the next financial year.

4. Learned counsel for the Respondent has cited the decision of the Hon'ble Supreme Court in The State of Orissa vs. Sudhansu Sekhar Misra and Ors., , to buttress his contention that the said Judgment does not deal with the question of the service of a Notice issued under Section 126 of the DMC Act. Even if that be so, and the decision in Khandelwal's case (supra) would not strictly apply to the facts of the present case, I am in respectful agreement with the view proferred therein. The Proviso to Section 126 of the DMC Act employs the word "given" and I find no reason to depart from the view taken by my Learned Brother even in the case of the issuance of a Notice in contradistinction to the passing of an Assessment Order. In any event the decision in Jyoti Construction case (supra) applies on all fours. In these circumstances, since one of the modes for service prescribed under Section 444 of the DMC Act has been complied with and completed, it must be held that the assessed had received notice within the financial year in respect of which the rateable value was to be increased.

5. Learned counsel for the assessed has relied on a portion of the Notice itself in order to make good his submission that if the principle of contemporanea expositio is given effect to, the only conclusion that can be arrived at is that the MCD is bound by its own understanding that the notice could not be implemented for the financial year ending on 31.3.1999. The passage reads as follows:-

"As per proviso to sub-section (1) of Section 126 of the DMC Act, you shall not be liable to pay any tax or increase in tax, due to the amendment in the assessment list, for any period prior to the first day of the financial year in which notice is given. Thus if you receive this notice up to 31-3-99, please pay taxes from 1-4-98 and if you receive this notice on or after 1-4-99, please pay from 1-4-1999".

It is contended by Mr. Bhalla that the Apex Court in Oswal Agro Mills Ltd. Etc. vs. Collector of Central Excise and Ors., observed that-"Equally the doctrine of contemporanea expositio is also being invoked to cull out the intendment by removing ambiguity in its understanding of the statute by the executive. This Court in a latest case Indian Metals & Ferro Alloys Ltd. v. Collector of Central Excise, (1991) 51 E.L.T. 165(SC), cited all the decisions up to date and applied the doctrine to the understanding by the revenue of the provisions in Income-tax Act. In Desh Bandhu Gupta and Ors. v. Delhi Stock Exchange, , this Court held that this principle can be invoked, though the same will not always be decisive on the question of construction. But the contemporaneous construction placed by administrative or executive officers charged with executing the statute, although not controlling, is nevertheless entitled to considerable weight as highly pursuasive. We may also add that if the interpretation is erroneous, court would without hesitation refuse to follow such construction. This Court also equally expressed the view that its application was in restricted sense to ancient legislation in J.K. Cotton Spinning and Weaving Mills Ltd. and Anr. v. Union of India and Ors. (1987) Supp. SCC 350 and in Doypack Systems Pvt. Ltd. case 1000 F to H. In State of Madhya Pradesh v. M/s. G.S. Dall and Flour Mills, (1992) Supp. 1 SCC 150 at 153 para 18, this Court doubted the application of the doctrine of contemporanea expositio as given to the construction or its applicability to a recent statute that too in the first few years of its enforcement".

6. As is evident from the passage itself this doctrine would not apply against an exposition of the law made by a Court of competent jurisdiction. Even otherwise, the question still remains whether the word "given" in Section 126 of the DMC Act should not be treated as synonymous to the word "received" in the extracted part of the Notice. There is no impediment in deeming that the receipt of a Notice would be contemporaneous with its issuance. This is, in fact, the ratio of Khandelwal's case(supra).

7. There has been a lot of argument on the question of whether it was open to the MCD to contend that the second mode of service, i.e. by affixation on a conspicuous part of the concerned building had been correctly carried out. In which mode of the service by Registered Post Acknowledgment Due this aspect has been rendered somewhat otiose. Reliance has also been placed on the Judgment of Usha Mehra, J. in Paramjit Kaur & Anr. vs. M.C.D. & Ors., it had been observed that affixation could be adopted only if it is clear that the person concerned cannot be found at the address, and since no specific finding has been endorsed by the MCD to this effect, it cannot be taken that the affixation was correctly completed. Support is also garnered from the observations of the Hon'ble Supreme Court in Yakub Abdul Razak Memon vs. Competent Authority, where the Notice sought to be treated as having been affixed under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, the provision of which are less onerous than the MCD Act, was held not to have been legally effected, since it was not established that the person could not be found. Learned counsel for the Respondent, however, states that a Division Bench of this Court in LPA No.118/1994 entitled K.L. Rathee vs. Municipal Corporation of Delhi decided on 11.9.2003 has not considered it essential that the Person/Noticee should not be found or be available at the site, as a prerequisite for resort to be taken to service by affixation. Learned counsel contends that this decision envisages two modes of service even within this statutory fasciculous of service through affixation, but this does not significantly advance the case any further. On the basis of the two decisions delivered by Sanjay Kishan Kaul, J. with which I am in respectful agreement, I hold that the assessed was sufficiently served, since the Notice was `given' by Registered AD Post within the subject financial year.

8. The next ground on which the impugned Order has been assailed is that the reasons contained in the Notice for the revision of the Rateable Value do not conform with legal imperatives. In this respect the Notice reads thus:

"Reasons in brief for amendment in the Assessment List: Erroneously, valued, increase in rent, alteration/renovation".

On the face of it, the reasons are all encompassing and omnibus. The learned Additional District Judge was of the opinion that the Notice was defective in view of the pronouncement of this Court in Savitri Devi vs. M.C.D., (DB) and K.L. Rathee vs. Municipal Corporation of Delhi, . It cannot be gainsaid that every Notice must clearly indicate the grounds on which the MCD proposes to increase the Rateable Value; it should not be nebulous or vague, since an assessed is expected to effectively and fully show cause against it. So far as the facts of the present case are concerned, it is not controverter by the assessed that a fresh term of letting had come into effect in the concerned assessment year. It is not the assessed's case that there is no increase in the rent. The Additional Assessor and Collector has found that contrary to the assessed's assertion that the rent was Rs.1,04,000/- per month, the statement of the Tenant/Bank was that the rent payable was Rs.2,08,000/- with a security deposit of Rs.10,44,000/-. No doubt, the Notice also mentions alterations and renovations which appears to be irrelevant to the present case. In K.L. Rathee's case (2001) (supra) the Division Bench had taken note that the Notice was completely reticent on the reasons for the proposed amendment of the Rateable Value. The fact remains that the impugned Notice contains, as one of the grounds, the increase in rent, which has indubitably taken place. In these circumstances I find that there was no formal or other defect in the Notice. The assessed could not have been unaware that he was required to explain why the proposed amendment to the Rateable Value for the assessment year ending on 31.3.1999 would be out of order or legally impermissible in spite of the increase in rent, knowledge of which could not possibly have been denied. A Division Bench of this Court has also held to this effect in DCM Limited vs. Municipal Corporation of Delhi and Ors., (DB). It is contended by learned counsel for the Respondent that in consonance with this Judgment the MCD was required to give an exact computation by which it had arrived at the proposed rateable value. Learned counsel for the Respondent has interjected and stated that this Judgment, in fact, does not expect the `computation` to be stated but the `basis`. If that is the correct understanding of the pronouncement, I cannot appreciate what further requires to be mentioned beyond the factum of the increase in rent, since that constitutes the very basis of the proposal to revise the rateable value. Therefore, rather than enuring to the benefit of the assessed, the DCM's case (supra), in fact, supports the MCD and militates against the assessed's case. In the absence of any reasons being stated in the notice, or where the essential particulars are not mentioned, the notice is vitiated and thus the attempt to amend the assessment list is completely thwarted. There may be instances where, while claiming that there has been an escalation in the rent, the MCD has been remiss in recording the computation whereby the proposed Rateable Value has been arrived at. The assessed would then be heard to say that the increase is excessive. I would not go to the extremity of holding the notice to be legally inefficacious in such an event. It must immediately be underscored that Savitri Devi's case concerned additions and alterations to the property, which change could not have been effectively repulsed unless the MCD had given complete details of the offending construction. As has been highlighted by the Division Bench in K.L. Rathee's case (supra) the earlier Division Bench had concluded its Judgment in Savitri Devi's case in these words:

"In these circumstances, we quash the notices dated 5th March, 1993 and 13th January, 1993. In the peculiar facts of this case, we direct the respondent to issue a supplementary show cause notice giving all particulars mentioned above. After issuing supplementary notice, it will for the petitioner to submit an explanation in regard thereto. Thereafter a hearing will be given to the parties and the questions of law will be disposed of while passing a reasoned order. Writ petition is disposed of accordingly."

Applying this ratio a 'supplementary' notice or explanation giving the exact computation can always be ordered, although this would scarcely be required in the event of an increase in rent.

9. By the impugned Order the Appeal of the assessed had been allowed on the two aforementioned grounds. The learned Additional District Judge, therefore, did not find it appropriate or necessary to consider the merits of the case. Assuming that the Notice was valid in all material aspects, it was then incumbent on the Appellate Court to return a finding on whether the proposed rateable value was correctly calculated. In these circumstances this Petition is disposed of by directing the learned Additional District Judge to reconsider the Appeal and state his decision on the legal propriety of the proposed Rateable Value. Parties to bear their respective costs.