Delhi High Court

Bansi Lal Kohli vs Surjit Singh Sahni & Anr. on 30 May, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 26.05.2011
                               Judgment delivered on : 30.05.2011

+                  R.S.A.No. 47/2010

BANSI LAL KOHLI                                  ...........Appellant

                         Through:    Mr. Manish Garg and Mr. D L
                                     Sahni, Advocate

                         Versus

SURJIT SINGH SAHNI & ANR.          ..........Respondents
                 Through: Mr. Vishwa Lochan Madan,
                          Advocate

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

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

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

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

6.2.2010, which has reversed the finding of the trial judge dated

17.11.2004. Vide judgment dated 6.2.2010 the suit of the plaintiff

seeking recovery of Rs.1,28,543/- had been dismissed. Impugned

judgment had reversed this finding. Suit stood decreed.

2. Plaintiff claimed to be owner of property bearing no.725-

726, Chota Bazar, Kashmere Gate, Delhi. He had purchased it

from Amar Nath vide sale deeds dated 8.4.1993 and 22.2.1993.

Defendant was an old tenant of the suit premises. Tenancy was

for a commercial purpose at the rate of Rs.440. Suit property

comprised of a 2 ½ storied building; in 1975, two other tenants

had surrendered their tenancy and the same had been given to

the defendant by the erstwhile owner. In the first quarter of 1991

additions and alterations in the suit property carried out by the

defendant had changed the character of the property; they were

in utter disregard of the municipal bye-laws; rateable value of the

property tax was enhanced from Rs.1670/- to Rs.7,20,000/-;

objections were filed by owner; notice has been issued to

defendant on 21.9.1992 to demolish this illegal and unauthorized

construction. MCD thereafter reduced the rateable value from

Rs.7,20,000/- to Rs.33,120/- w.e.f. 1.4.1988. Enhancement of the

rateable value is only because of the illegal construction raised by

the defendant. Defendant is liable to pay the difference in the

property tax as this cannot be the liability of the plaintiff. Legal

notice dated 21.2.1995 has also been sent to the defendant. The

present suit has accordingly been filed.

3. Defendant contested the suit. It was denied that the

defendant was liable to pay the property tax because of the

enhanced rateable value.

4. Following three issues were framed:

1. Did the defendant carry out material additions and alterations in the property of plaintiff?

2. Has the house tax been enhanced on account of such additions and alterations?

3. To what amount, if any, is the plaintiff entitled?

5. Oral and documentary evidence was led. Suit of the plaintiff

was dismissed by the Trial Court.

6. In appeal this finding was reversed; enhancement of the

rateable value of the property was held to be because of the

illegal construction raised by the defendant; he was liable to pay

the property tax in the sum of Rs.1,28,543/- being the arrears of

house tax which liability had been fastened upon the plaintiff.

7. This is a second appeal. It has been admitted and on

15.2.2011 a substantial question of law was framed.

"Whether the impugned judgment dated 6.2.2010 had construed the provisions of Section 121 of the Delhi Municipal Act (which had admittedly stood repealed w.e.f. 01.08.2003) in the correct perspective and if not, its effect."

8. On behalf of the appellant, it has been urged that the

judgment of the trial court decreeing the suit of the plaintiff is a

perversity; property tax could not be fastened as a liability of the

defendant as there was no evidence before the court below to

substantiate the submission of the plaintiff that any illegal or

unauthorized construction had been carried out by the defendant

pursuant to which the rateable value had been enhanced. It is

pointed out that this suit had been filed by the plaintiff only to put

pressure upon the defendant and use it as a device to evict him

from the tenanted premises. Counsel for the appellant has placed

reliance upon (2006) 5 SCC 545 Hero Vinoth Vs. Seshammal to

submit that a second appeal lies in such a circumstance. For the

same proposition reliance has also been placed upon AIR 2003 SC

1905 Bondar Singh & others Vs. Nihal Singh & others. It is

pointed out that where the finding returned in the impugned

judgment is perverse, interference is called for by the first

appellate court.

9. Arguments have been countered. It is pointed out that on no

count does the finding in the impugned judgment calls for any

interference. It is pointed out that the provisions of Section 121 of

the Delhi Municipal Act, 1957 (hereinafter referred to as the DMC

Act) have admittedly been repealed in 2003 but this provision was

prevailing at the time when the lis between the parties was

pending i.e. when the suit was filed by the plaintiff in 1999;

relying upon this legal proposition, the impugned judgment had

decreed the suit which on no count calls for any interference.

Attention has been drawn to Section 6 (c) of the General Clauses

Act, 1897; it is pointed out that even if an enactment is repealed,

repeal shall not affect any right, obligation or liability acquired,

accrued or incurred under the enactment so repealed.

10. Record has been perused. The averments in the plaint have

also been perused. The case of the plaintiff is that the defendant is

a tenant of the premises at a rent of `440/- per month; in the first

quarter of 1991, the defendant had carried out material additions

and alterations in the suit property by increasing its walls; these

illegal constructions were in disregard of the municipal bye-laws;

because of these additions and alterations, the ex-parte

assessment of the MCD was made which had increased the initial

rateable value from `1,670/- to `7,20,000/-; pursuant thereto on

the representations made by the plaintiff enhanced rateable value

of `7,20,000/- was reduced to `33,120/-. This was vide assessment

order (Ex.PW-1/7) dated 01.12.1998; the plaintiff was called upon

to pay the aforenoted amount which he has since paid and this is

evident from Ex.PW-1/9 to Ex.PW-1/22. This suit sum of

`1,28,543/- is on account of this enhanced rateable value. The

plaintiff is liable to reimburse the defendant for the said reason.

Admittedly in these pleadings, provisions of Section 121 of the

DMC Act had not been adverted to.

11. The plaintiff had examined himself as PW-1; one witness had

been examined in defence. Testimony of the sole witness of the

plaintiff is relevant. He has stated that the enhanced rateable

value was only because of unauthorized construction in the suit

property which was made by the defendant; there were

considerable additions and alterations. It is relevant to state that

no date of this alleged addition or alteration has been given. This

is the sum total of evidence of the plaintiff qua these additions/

alterations purported to have been carried out by the defendant in

the suit property. PW-1 had also proved the site plan Ex.PW1/3 of

the suit property which had shown the situation of the suit

property at the time when the tenancy had been created in favour

of the defendant. Ex.PW-1/3 comprised of three blocks i.e. three

shops in the first block, two rooms and a kitchen and open

verandah as also the third block containing two rooms and an

open verandah. Ex.PW-1/4 is the site plan showing the present

position of the suit property. This site plan comprised of four

blocks. All of them have been mentioned as halls. The assessment

order Ex. PW-1/7 is dated 01.12.1998; this is the assessment for

the period between 1988 to 1999. In his cross-examination, PW-1

has admitted that the previous owner (Amarnath from whom he

had purchased the property) has paid house tax up to 1992-1993.

The plaintiff had purchased this property vide sale deeds dated

22.2.1993 and 08.04.1993; this is an admitted document; clause 6

states that the taxes assessed of the property up to date i.e. up to

08.04.1993 shall be borne by the erstwhile owner Amarnath and

after that period the property tax shall be borne by the vendee

namely the plaintiff Surjit singh Sahni. It has also come on record

that upto 1993, the erstwhile owner Amarnath had cleared all

dues.

12. The plaintiff had admittedly purchased this property on

08.04.1993. His contention in the plaint is that in the third quarter

of 1991, the defendant had made unauthorized additions and

alternations in the suit property which had led to the

enhancement of rateable value of the suit property; admittedly at

that time, the plaintiff was not in the picture; he was the owner;

he had become the owner of the suit property in April, 1993; what

was the position and status of the suit land in the third week of

January, 1991 was admittedly now known to him; his averment in

the plaint that these additions and alternations had been carried

out by the defendant is based purely on his own imagination. The

assessment order Ex. PW-1/7 is also relevant on this count. It has

recorded that the assessee namely the plaintiff Surjit Singh Sahni

does not have any valuation report or building plans about the

start of the construction or its completion; inspite of opportunity

the plaintiff had failed to produce these documents before the

assessing officer; Ex.PW-1/7 has further recorded that because of

non-production of documents, site had been got inspected; reports

dated 04.02.1998 & 05.02.1998 had reported that construction on

the ground floor, first floor and second floor measuring 533

square feet on each floor; this has been a case of reconstruction

and not of any addition or alternation; Ex.PW-1/7 had further

noted that though the assessee had claimed that the tenant had

made additions and alternations in the property in the year 1987-

1988 yet the reports of inspection dated 04.02.1998 & 05.02.1998

and the third report dated 07.04.1998 had reported a case of

reconstruction and not being a case of addition or alteration.

Ex.PW-1/7 clearly states that 533 square feet constructions on

each floor in the suit premises is a reconstruction and not an

addition or alteration; case of the plaintiff falls flat on this ground

only as the foundation his case is that the defendant has made

additions and alterations; the plaintiff had failed to lead any

evidence on this score; in fact he could not have had any know-

how of the status of the building prior to April, 1993 i.e. when he

had purchased the suit land. In the plaint, his averment was that

the addition and alternation had been made by the defendant in

the third week of January, 1991; his contention noted in Ex.PW-

1/7 was that the additions and alterations had been made by the

defendant in 1987-1988 by spending an amount of `1,30,000/-.

Besides the fact that these are contrary and conflicting stands;

even otherwise Ex.PW-1/7 has recorded a categorical finding that

this is a case of reconstruction and not of additions or alterations.

Enhancement of rateable value for this reason is thus not

acceptable.

13. The whole case of the plaintiff is bordered upon the

averment that the defendant had carried out unauthorized and

illegal constructions pursuant to which the rateable value has

been enhanced; this has not been proved.

14. The Trial Judge had dismissed the suit. The impugned

judgment has proceeded on the argument of Section 121 of the

DMC Act; this was never a plea in the plaint. The impugned

judgment had noted that being a question of law, it had adverted

to it. The court had noted and rejected the contention of the

plaintiff that the issues should be reframed; issues had been

answered in terms of the issues framed by the trial court and as

noted supra. However, without adverting to these issues and

dealing with them, the Court had resorted to the provisions of

Section 121 of the DMC Act. It had not returned any finding on

issues No. 1 & 2 as to whether the additions and alterations

alleged to have been carried out by the defendant had in fact been

carried out or not; this position was not even examined. This was

a perversity. This question had necessarily to be answered in the

impugned judgment. It was no done so.

15. Provisions of Section 121 of the DMC Act were not

applicable. Section 121 of the DMC Act reads herein as under:-

"121 Appointment of liability for property taxes when the premises assessed are let or sub-let.- {Rep. by the Delhi Municipal Corporation (Amendment) Act, 2003, (Delhi Act 6 of 2003), sec. 12 (w.e.f. 01.08.2003).} (See Annexe). "

16. Admittedly this Section has been repealed w.e.f. 01.08.2003.

17. Even presuming that Section 121 was an existing provision

on the statute book on the date when this lis was filed i.e. in the

year 1999 (in terms of Section 6(c) of the General Clauses Act),

the plaintiff cannot seek any shelter under this provision. Case of

a plaintiff has to be founded on the averments made in his plaint;

averments made in his plaint are plain and simple; they are

bordered on the averment that the defendant had made

unauthorized additions and alterations and being opposed to

municipal bye-laws, this had led to the enhancement of rateable

value; he had failed to prove these averments. It was never proved

that the defendant had raised any unauthorized addition or