Mcd vs Rani Arya
2010 Latest Caselaw 4337 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 15th September, 2010.

+                   W.P.(C) 6989/2009 & CM No.2386/2009 (for stay).

MCD                                                             ..... Petitioner
                               Through:      Mr. Mukesh Gupta, Advocate.

                                          Versus

RANI ARYA                                                         ..... Respondent
                               Through:      Mr. Bhupinder Chandohk and
                                             Mr. Arya Girdhari, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                       Yes

2.       To be referred to the reporter or not?                Yes

3.       Whether the judgment should be reported               Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner MCD by this writ petition impugns the judgment dated

11th September, 2008 of the Municipal Taxation Tribunal allowing the

appeal of the respondent against the order dated 23 rd October, 2006 of the

Assistant Assessor and Collector of the petitioner MCD with respect to the

assessment of property tax of Flat No. B-67, Pink Apptt., Paschim Vihar,

New Delhi and allowing vacancy remission to the respondent for the period

from 26th January, 1988 to 25th December, 1995.

2. Notice of the petition was issued. The counsel for the parties have

been heard. The challenge is only to allowance of vacancy remission.

3. The provision for vacancy remission was to be found in Section 164

of the DMC Act, 1957 as stood prior to its amendment in the year 2003.

The test laid down in Section 164 permitting vacancy remission is "if any

building ..... has remained vacant and unproductive of rent ......"

4. In the present case there is no dispute that the flat was lying vacant

and unproductive of rent for the period between 26 th December, 1988 and

25th December, 1995. The counsel for the petitioner MCD has however

urged that "vacant and unproductive of rent" should be "for reasons beyond

the control of the owner". The counsel for the petitioner MCD has argued

that the MCD cannot be deprived of full tax by the owner of a property of

his own volition keeping the property vacant and unproductive of rent and it

is only when the property remains vacant for reasons beyond the control of

the owner and/or when the owner for reasons not attributable to him is

neither able to occupy the same himself nor able to let out the same, that he

becomes entitled to vacancy remission. Reliance for contending so is placed

on a text book published by Nabhi Publications on Property Tax Laws

where the author has observed that "where due to factors beyond his control,

the tax payer is not in a position to occupy the flat after taking over

possession of the same, vacancy remission from the date of taking over

possession to the date of occupation may be allowed."

5. The interpretation of statute cannot be based on a view taken by a

particular publisher/author. I am unable to find from a bare perusal of

language of Section 164 that to be entitled to vacancy remission, it has to be

demonstrated that the vacancy was for reasons beyond the control of the tax

payer. If that was the intent, nothing prevented the legislature from

providing so.

6. The Supreme Court in State Vs. Parmeshwaran Subramani (2009) 9

SCC 729 observed;

"It is settled that where there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to undertake any exercise to read something into the provisions which the legislature in its wisdom consciously omitted. Such an exercise if undertaken by the courts may amount to amending or altering the statutory provisions.

In a plethora of cases, it has been stated that where, the language is clear, the intention of the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what it should be. The courts adopt a construction which will carry out the obvious intention of the legislature but cannot set at naught legislative judgment because such course would be subversive of constitutional harmony."

7 In my opinion the only requirement for availing vacancy remission is

that the building has remained vacant and unproductive of rent. The twin

test has been laid inasmuch as in a particular situation it is possible that the

property may be lying vacant though yielding rent to the owner. The tenant

after taking the property on rent may choose not to occupy it for some time

and in which case the vacancy remission cannot be claimed.

8. Vacancy remission is in the nature of exception to the general law of

the building being liable for property tax. The Supreme Court in UOI Vs.

Wood Papers Ltd. AIR 1991 SC 2049 has held;

"When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction."

Following the above, I find that once a building is found entitled to

vacancy remission, fetters thereon need not be placed.

9. The Tribunal has also referred to the judgments of this court in

Hamdard (Wakf) Laboratories India Vs. MCD 103(2003) DLT 459 and

Angel Properties P Ltd. Vs. MCD 144 (2007) DLT 651 for granting

vacancy remission to the respondent. In Hamdard (Wakf) Laboratories

India, this Court negatived the plea of MCD that vacancy remission could

be availed of only between two lettings and not for the period the building

remained vacant and unproductive of rent prior to its first letting. The

Division Bench in judgment reported in 114 (2004) DLT 142 dismissed the

appeal.

10. The counsel for the respondent has today also placed reliance on

MCD Vs. Lawrence Cold Storage Pvt Ltd 100 (2002) DLT 467 wherein

Departmental Instructions dated 9th July, 1980 of the MCD reproduced in

para 41 of the judgment and from a reading whereof also it follows that a

property becomes entitled to vacancy remission for vacancy at the time of

or before the first assessment itself.

11. The counsel for the respondent has however sought to urge that the

vacancy in the present case was also for reasons beyond the control of the

respondent. It is contended that the flat was situated in a Cooperative Group

Housing Society, possession whereof was delivered by the contractor in

December, 1987 and the society had in January, 1988 issued possession

letters to all the members but there were no amenities in the society till then

making it impossible for the members to occupy the flat. It is contended

that the respondent occupied the flat as soon as it was possible. The counsel

for the petitioner MCD has rejoined by contending that no such findings

have been returned by the Tribunal. However, in view of what has been

held by me hereinabove, the same is immaterial inasmuch as the said factors

are not found relevant under Section 164 of the DMC Act.

12. There is no merit in the petition. The same is dismissed. No order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE)

15th September, 2010 M