Mcd vs Indermeet Kaur Kochhar
2012 Latest Caselaw 2414 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) 16210/2004 and 1773/2005

                                                         Decided on: 13.04.2012
IN THE MATTER OF
MCD                                                      ..... Petitioner
                        Through: Ms. Amita Gupta, Advocate


                  versus



INDERMEET KAUR KOCHHAR                                          ..... Respondent
                  Through: Mr. B.B. Jain, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


:     HIMA KOHLI, J. (ORAL)

1. The petitioner/MCD is aggrieved by the judgment dated

11.07.2003 passed by the Additional District Judge in HTAs No.21/2003 and

22/2003. By the aforesaid common decision, both the appeals preferred by

the respondent/assessee in respect of the property tax for the assessment

years 2001-02 and 2002-03 against the common assessment order dated

16.12.2002 passed by the petitioner/MCD determining the rateable value of

the first floor of the premises bearing No.C-209, Defence Colony, New Delhi,

were allowed and the impugned assessment order dated 16.12.2002 was set

aside. By the assessment order dated 16.12.2002, the rateable value of the

subject premises was fixed by the MCD at `2,38,000/- w.e.f. 01.04.2001

and at `4,08,000/- w.e.f. 15.11.2002. The assessment w.e.f. 01.04.2001

had been done on the basis of the purchase price of the subject flat, which

the respondent/assessee had purchased for a sum of `28 lacs vide sale deed

dated 13.11.2002. The assessment w.e.f. 15.11.2002 was done on the

rental basis, by taking into account the rent of `40,000/- per month, fetched

by the property after its purchase w.e.f. 15.11.2002.

2. The aforesaid assessment orders were assailed by the

respondent/assessee before the learned ADJ on various grounds. One of the

grounds taken in the appeals was that the petitioner/MCD had not issued

any statutory notice under Section 126 of the DMC Act either for the

assessment year 2001-02 or for the assessment year 2002-03 and that such

a statutory notice was neither served upon the respondent/assessee nor on

her predecessor-in-title and therefore, as per law, the petitioner/MCD did

not have any authority to increase the rateable value of the subject premises

for any of the two assessment years.

3. In support of its stand that the respondent/assessee had been

served with a notice under Section 126 of the DMC Act, the petitioner/MCD

had produced a post card, before the Court below, purported to be an

acknowledgement card to show that the notice under Section 126 of DMC

Act had been duly served upon the predecessor-in-title of the

respondent/assessee, namely, M/s R.K. Apartments. It was the case of the

petitioner/MCD that service effected on M/s R.K. Apartments by dispatching

the aforesaid post card ought to have been considered sufficient to establish

that service of the statutory notice under Section 126 of the DMC Act had

been effected on the respondent/assessee.

4. The aforesaid claim of the petitioner/MCD came to be examined

at length in the impugned order, wherein it was finally observed that the

post card in question did not bear the postal seal either of the sender's post

office or the addressee's post office and that the petitioner/MCD had failed to

produce any other proof of service of notice under Section 126 of the DMC

Act either on the respondent/assessee or her predecessor-in-title. It was

further held that even if it is assumed that the petitioner/MCD had received

back the post-card, which could be treated as an acknowledgement card for

the purpose of effecting service of the statutory notice under Section 126 of

the DMC Act, the petitioner/MCD had not been able to prove the service of

the notice by producing its dispatch register as maintained in its office that

would have contained the inward entry reflecting the receipt of the AD card.

In view of the above, the learned ADJ held that he had no option but to hold

that the petitioner/MCD had failed to prove service of statutory notice on the

respondent/assessee or her predecessor-in-title as per law. Consequently,

the impugned assessment order dated 16.12.2002 was held to be vitiated

for want of service of the statutory notice and both the appeals preferred by

the respondent/assessee were allowed by the learned ADJ.

5. Aggrieved by the aforesaid decision, the petitioner/MCD has

preferred the present petitions. The main plank of the arguments urged by

learned counsel for the petitioner/MCD is that the court below erred in

observing that the notice under Section 126 of the DMC Act had not been

served on the recorded owner, namely, M/s R.K. Apartments as per the

provision of law. She urged that the notice for amendment in the

assessment list is required to be served on the owner or lessee or occupier

of the building in terms of the provisions of Sections 124(3) and 126 of the

DMC Act and that in the present case, the court below ought to have held

that the notice, having been duly served on M/s R.K. Apartments, was

deemed to be adequate the service on the recorded owner of the property.

6. Learned counsel for the respondent/assessee refutes the

aforesaid submission and supports the impugned judgment by submitting

that the petitioner/MCD had failed to produce the inward entry of the

dispatch/Dak register, based on which it was contended that the post card

had been received back by the petitioner/MCD after service. He contends

that the post card in question, alleged to be the AD card, did not bear the

seal of the sender's post office or for that matter the receiver's post office

and even if it is assumed that the inward entry was recorded in the dispatch

register upon being received back in the office of the petitioner/MCD, this

fact was not established as the said register had not been produced by the

MCD before the court below. He further states that assuming without

admitting that the post card received back by the petitioner/MCD was ample

proof of valid service of notice under Section 126 of the DMC Act, by no

stretch of imagination, could the said service be treated as a service on the

respondent/assessee, for the reason that M/s R.K. Apartments was not the

predecessor-in-title of the subject premises or for that matter, the recorded

owner thereof.

7. The aforesaid submission made by learned counsels for the

parties was taken note of in the order dated 11.07.2011, on which date,

learned counsel for the petitioner/MCD was granted time to verify from the

records of the Department as to the status of the ownership of the first floor

of the subject premises at the relevant time. She was also directed to

produce the dispatch register/inward register maintained by the

petitioner/MCD in respect of the registered AD card, subject matter of the

present petitions. The petitioner/MCD was therefore directed to file the

extracts of the relevant records alongwith an affidavit while producing the

originals in Court. The said affidavit to be filed by MCD was required to

indicate the status of mutation of the subject property on the date when the

notice under Section 126 of the DMC Act had been issued by the

petitioner/MCD.

8. On 25.07.2011, learned counsel for the petitioner/MCD had

submitted that as per the records of the Department, the subject premises

had remained in the name of M/s R.K. Apartments and no steps for mutation

had been taken on the date when notice under Section 126 of the DMC Act

was issued by the petitioner/MCD to the aforesaid recorded owner. As

regards the production of the dispatch register/inward register, she had

stated that the said documents were not traceable in the office of the MCD.

9. Today, learned counsel for the petitioner/MCD states that an

additional affidavit had been filed on behalf of the MCD in September 2011,

in compliance with the order dated 11.07.2011. The said affidavit is

however not on record. A copy thereof is furnished by learned counsel for

the petitioner/MCD with a copy to the other side and the same is taken on

record.

10. As per the aforesaid additional affidavit filed by the

petitioner/MCD, the President of India had executed a perpetual lease deed

dated 06.05.1959 in respect of the subject plot in favour of one, Shri R.L.

Sharma. Vide registered sale deed dated 19.10.1959, the aforesaid owner,

Shri R.L. Sharma sold the subject plot to Smt. Ira De w/o Sh. K.C. De.

Smt.Ira De constructed ground floor and first floor on the subject plot. On

22.10.1993, she entered into an agreement with one Smt. Urmil Angurish

with respect to the roof rights of the first floor for construction of the second

floor. Smt. Urmil Angurish in turn entered into an agreement dated

23.02.1998 with one Smt. Sangeeta Butalia and transferred her rights in the

agreement dated 22.10.1993 to the latter.

11. On 05.02.1996, Smt. Ira De expired. By virtue of her last will

dated 18.01.1994, she bequeathed the subject property in favour of her son,

Shri Arijit De. Vide Agreement to Sell dated 04.12.1998, Smt. Sangeeta

Butalia purchased the ground floor and the first floor of the subject property

from Shri Arijit Dey. On 01.12.1999, a conveyance deed was executed by

the competent authority in favour of Shri Arijit De, converting the leasehold

rights in the subject property into freehold.

12. On 09.12.1999, Smt. Sangeeta Butalia entered into a

collaboration agreement with M/s R.K. Apartments for the re-development of

the subject property. In terms of the collaboration agreement, the

basement, ground floor, second floor and the terrace above the second floor

fell in the share of M/s R.K. Apartments, while the first floor fell in the share

of Smt. Sangeeta Butalia. After re-development of the subject property in

terms of the collaboration agreement, the first floor thereof was sold by

Smt. Sangeeta Butalia to the respondent/assessee herein by virtue of a sale

deed dated 13.11.2002, wherein Mr. Arijit Dey was the seller while Smt.

Sangeeta Butalia was made the confirming party.

13. In view of the aforesaid sequence of documents executed in

respect of the subject premises from time to time, it is apparent that at no

point in time was M/s R.K. Apartments the recorded owner of the first floor

of the subject premises. Even if it is assumed that by virtue of the

collaboration agreement, M/s R.K. Apartments had the authority to receive

the service of the statutory notice issued under Section 126 of the DMC Act,

the said authority would be limited to the basement, ground floor, second

floor and the terrace above the second floor of the subject premises, but not

to the first floor thereof, which had fallen to the share of Smt. Sangeeta

Butalia. It is also not the case of the petitioner/MCD that the statutory

notice under Section 126 of the DMC Act was ever received by Smt.

Sangeeta Butalia, being the predecessor-in-title of the respondent/assessee

herein, much less the respondent/assessee herself, who came into picture

only after execution of the sale deed on 13.11.2002.

14. In view of the aforesaid position, it has to be held that no notice

under Section 126 of the DMC Act was ever served by the petitioner/MCD for

the relevant assessment years in question, either on the previous recorded

owner of the subject premises, or on the respondent/assessee herein and in

such circumstances, this Court finds no reason to interfere in the findings

returned in the impugned order dated 11.07.2003, passed by the learned

ADJ in the two connected appeals preferred by the respondent/assessee. As

a result, the present petitions fail and the same are dismissed, while

maintaining the impugned order dated 11.07.2003 and leaving the parties to

bear their own costs.

15. As learned counsel for the respondent/assessee states that at

the time of filing the appeals, the respondent/assessee had deposited the

entire disputed amount with the petitioner/MCD, the petitioner/MCD is

directed to refund the said amount to the respondent/assessee within a

period of eight weeks from today. In case the amount is not refunded to the

respondent/assessee within the time granted, the said amount shall carry

simple interest payable @ 9% per annum from the date of expiry of eight

weeks granted by this order, till the amount is ultimately refunded to the

respondent/assessee. The trial court record be released forthwith.

                                                        (HIMA KOHLI)
APRIL   13, 2012                                           JUDGE
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