Delhi High Court
Sh. K.R. Manjani vs The Commissioner, Mcd & Anr. on 20 July, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th July, 2010.
+ W.P.(C) No.5195/2008
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SH. K.R. MANJANI ..... Petitioner
Through: Advocate Petitioner in person.
Versus
THE COMMISSIONER, MCD & ANR. ..... Respondents
Through: Mr. Anshum Jain & Ms. Suparna
Srivastava, Advocates for R-1.
Mr. M.K. Barnwall, Assistant
Assessor & Collector, Central Zone,
New Delhi for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner, claiming to be the owner of Flat No.98/1401 & 1415,
Nehru Place, New Delhi, preferred this petition impugning the action dated
18th February, 2008 of the respondent no.1 MCD of attaching the rent of the
said flat on account of non payment of property tax arrears of Rs.3,89,990/-
for the period ending 31st March, 2004. It is the case of the petitioner that
the property tax for the year upto 31st March, 2004 had been paid; that there
are no arrears and as such the rent could not have been attached. Upon the
representations of the petitioner to the Deputy Assessor & Collector
(respondent no.2) of the respondent no.1 MCD meeting with no success, this
petition was filed for quashing of the attachment order. Notice of the petition
was issued. The respondent no.1 MCD in its counter affidavit stated that the
rateable value of the flat was fixed at Rs.3,75,620/- with effect from 1st
April, 2000 vide ex parte Assessment Order dated 30th January, 2003 upon
the failure of the petitioner to respond to the notice under Section 126 of the
Delhi Municipal Corporation Act, 1957. It is contended that the additional
tax in terms of the said revised rateable value having not been paid,
attachment was effected. It was further stated in the counter affidavit dated
2nd December, 2008 that after adjusting the payments by the petitioner, a
sum of Rs.2,11,951/- was still outstanding for the period ending 31st March,
2004.
2. This Court vide order dated 22nd April, 2009 directed the respondent
no.1 MCD to inter alia file an affidavit indicating as to whether the notice
under Section 126 of the DMC Act of revision of the rateable value was
served on the petitioner or not and if served, to place the proof of dispatch
before this Court. On 12th January, 2010, the counsel for the respondent
no.1 MCD conceded that there was no proof on record of dipatch of notice
under Section 126 of the DMC Act of enhancement of rateable value. The
counsel for the respondent no.1 MCD however pointed out that there exists
on the record of the MCD a letter dated 9th April, 2001 of the petitioner
agreeing to the enhancement of the rateable value. In view of the said letter,
both respondent no.1 MCD and the petitioner were directed to file affidavit.
The MCD along with its affidavit has placed a copy of the said letter on
record. The petitioner has however denied the said letter to have been sent
and has also denied the signatures thereon.
3. Mr. K.R. Manjani, Advocate who has filed this petition as attorney of
the petitioner Smt. Sarojini Choudhary and the counsel for the respondent
no.1 MCD have been heard.
4. In the exercise of writ jurisdiction this Court cannot decide as to
whether the letter dated 9th April, 2001 on the record of the respondent no.1
MCD was sent by the petitioner or not. The admitted position is that the
petitioner Smt. Sarojini Choudhary has been residing abroad. She is being
represented here by others. Mr. K.R. Manjani, Advocate has filed a copy of
the General Power of Attorney given by Smt. Sarojini Choudhary to him as
far back as in the year 1985. Ordinarily, there is a presumption of the
official acts having been done in the normal course of duty. However, the
fact remains that no mention of the said letter was made in the counter
affidavit filed by the respondent MCD; it has also not been able to produce
proof of dispatch of the notice under Section 126. The letter dated 9 th April,
2001 also does not admit the increase in rateable value from the earlier
rateable value of Rs.2,61,300/- to Rs.3,75,620/- in toto. Rather it is stated
therein that there was only 15% increase in rent with effect from 7 th July,
2000 and the increase in rateable value could correspond to the increase in
the rent only and not more than that. The petitioner also does not controvert
such increase in rent.
5. In the aforesaid circumstances, without entering into the controversy
as to whether the notice under Section 126 of the DMC Act for increase in
rateable value was served or not and without requiring the same to be
resolved, the writ petition is disposed of with the following directions:
(i) The Joint / Deputy Assessor & Collector of the respondent no.1
MCD shall rectify the ex parte Assessment Order (on the basis
whereof attachment of rent was effected) after hearing the
petitioner / her Attorney / her representative. The petitioner /
her Attorney / her representative shall be entitled to satisfy the
Joint / Deputy Assessor & Collector of the respondent no.1
MCD as to what should be the revision in rateable value with
effect from 1st April, 2000, whether to Rs.3,75,620/- or of any
lesser value. The petitioner in this regard shall produce before
the Joint / Deputy Assessor & Collector all documents with
respect to the rate of rent with effect from 1 st April, 2000
onwards
(ii) The petitioner / her Attorney / her representative to appear for
this purpose before the Joint / Deputy Assessor & Collector of
the petitioner at 1100 hours on 28th July, 2010. The Joint /
Deputy Assessor & Collector to decide on the said rectification
application within 45 days thereof by passing a reasoned order.
(iii) The petitioner, if aggrieved, by the said order shall have her
remedies in law.
(iv) The order of attachment shall be dealt with in accordance with
the said rectified order.
The writ petition is disposed of leaving the parties to bear their own
costs.
RAJIV SAHAI ENDLAW
(JUDGE)
20th JULY, 2010
gsr
