Delhi High Court
Johri Lal Jain vs Mcd on 5 March, 2012
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4085/2001
Decided on: 05.03.2012
IN THE MATTER OF
JOHRI LAL JAIN ..... Petitioner
Through: Mr. B.B.Jain, Advocate
versus
MCD .... Respondent
Through: Mr. Nalin Tripathi, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (ORAL)
1. The present petition is filed by petitioner praying inter alia for
quashing the Assessment Order dated 25.4.2001 passed by the Joint
Assessor and Collector, MCD in respect of property bearing No.1630-XII,
Sohan Ganj, Sabzi Mandi, Delhi for the Assessment Year 1991-92 and the
impugned bill dated 26.4.2001 for a sum of `2,59,442/- raised on him
towards the property tax bill for the Assessment Year 2000-01. By virtue of
the impugned order dated 25.4.2001, an amended order was passed by the
respondent/MCD under Section 176 of the Delhi Municipal Corporation Act,
1957 fixing the rateable value of the property as `86,360/- w.e.f. 1.4.1994.
The aforesaid order came to be passed in view of an application filed by the
petitioner/assessee on 28.3.2000 praying inter alia that the ex-parte
Assessment Order passed in respect of the subject premises, may be
rectified w.e.f. 1.4.1991. It was further stated by the petitioner in his
application that the property tax in respect of the subject premises be
calculated on the basis of the site report dated 28.3.2001 and the
assessment order be rectified accordingly.
2. As per the impugned order, upon inspection of the subject
premises, in the year 1991-92, it had transpired that an additional
construction of 4161 sq.ft. had been carried out in the built up structure of
the premises alleged to be the first letting. In respect thereto, the
petitioner/assessee had stated in his application dated 30.10.1999 submitted
to the respondent/MCD that the tenants had undertaken the said
unauthorized construction and therefore property tax may not be imposed
on him as they were in illegal possession of the said additional construction.
It is further noted in the impugned order that as per the site report dated
28.3.2001, there is an old construction in the subject premises, which is in
possession of the tenants and some portion is self-occupied and further that
one Sh.Vinod Kumar, who is stated to be in occupation of a part of the
subject premises on the ground floor, did not permit inspection of the area
occupied by him and he stated that he is a relative of Mr.Vijay Kumar &
Mr.Girdhar, but not a tenant. According to the Joint Assessor and Collector,
as per Form-A of the years 1991-92, first tenancy was shown as 4161 sq.ft.
and the rent was assessed at `2.70 per sq.ft. p.m. After considering the
aforesaid facts and circumstances, the tax of the property was assessed at `
2/- per. sq.ft., ie., 4161x2= `8,322/- or `99,864/-. Upon giving a rebate of
10%, the rateable value was fixed at `91,390/- assessed from 1.4.1991.
Further, under the amended Bye-laws 1994, the rateable value was reduced
from `91,390/- to `86,360/- w.e.f. 1.4.1994.
3. Learned counsel for the petitioner states that the impugned
order is erroneous inasmuch as the petitioner is not the owner of the
additional area that has been constructed on the ground floor by some
tresspassers, and that the same has been constructed by them from their
own funds and without obtaining the prior consent of the petitioner. He
further states that the additional constructed area has not yet been
dismantled by the petitioner, as possession thereof remains with the
aforesaid tresspassers against whom the petitioner has filed legal
proceedings. It is stated that Mr.Vinod Kumar, who is in occupation of the
additional construction on the ground floor, has been held to be a trespasser
in the civil proceedings pursuant to which the petitioner has filed execution
proceedings for implementation of the judgment passed by the Supreme
Court, which is pending.
4. The aforesaid ground cannot be available to the petitioner to
dispute the impugned assessment order inasmuch as the said order was
passed on the basis of the actual construction existing at the subject
premises. It is a different matter that the petitioner could lodge a claim
against the unlawful occupant for recovery of the excess amount that he
shall have to pay to the respondent/MCD on account of the additional
property tax calculated by the MCD by taking into consideration the
aforesaid unauthorized additional construction. It may further be noted that
although it is argued by learned counsel that the petitioner had brought to
the notice of the respondent/MCD the fact that the additional construction on
the ground floor of the subject premises had not been put to commercial use
w.e.f. 1992, there is no document placed on record by the petitioner to
evidence any such written intimation having been communicated to the
respondent/MCD for it to have acted upon the same and consequently
reduced the property tax by treating the additional construction in question
to be residential in nature. As regards the order dated 28.8.1992 passed by
the DCP(Licensing), Delhi Police and placed on record by the petitioner as
Annexure P-3, wherein, the licence to Mr.Vijay Kumar to run the printing
press from the subject premises had been withdrawn, with a copy forwarded
to the Zonal Officer, Civil Lines Zone, 16, Rajpur Road, Delhi, the aforesaid
intimation of cancellation of licence in favour of Mr.Vijay Kumar, cannot be
treated as an intimation by the petitioner to the respondent/MCD that
misuser of the premises in question had ceased from the date of passing of
the said order as that date would certainly be a subsequent date, which has
admittedly not been intimated by the petitioner to the respondent/MCD.
Nor has any document been placed by the petitioner on record, evidencing
such an intimation.
5. In view of the above facts and circumstances, the impugned
order is upheld and the writ petition is dismissed as being devoid of merits,
while leaving the parties to bear their own costs.
(HIMA KOHLI)
MARCH 05, 2012 JUDGE
mk
