Power Grid Corporation Of India vs East Delhi Municipal Corporation ...
2013 Latest Caselaw 1321 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on : 15.03.2013
                                Judgment pronounced on : 18.03.2013
+      LPA No.161/2013
       POWER GRID CORPORATION OF INDIA                     ..... Appellant
                           Through :   Mr. Goolam E. Vahanvati,
                                       Attorney General with Mr. Pawan
                                       Upadhyay,       Ms.     Sharmila
                                       Upadhyay, Ms. Anisha Upadhyay,
                                       Mr. Sarvjit Pratap Singh, Mr.
                                       Ankit Sibble and Mr. Rohit Yadav,
                                       Advs.
                  versus

       EAST DELHI MUNICIPAL CORPORATION & ANR.
                                                ... Respondents
                    Through : Mr. Anoop Bagai, Adv. for R-1
                              Mr. Rajiv Ranjan Mishra, Adv. for
                              R-2/UOI
       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The appellant - Power Grid Corporation of India is a Government

Company is engaged in transfer of bulk electrical energy from generating

power plants to electrical sub-stations located near demand centres and

for this purpose, it has laid transmission towers in various parts of the

country, including Delhi. Vide assessment order dated 2nd February,

2013, the Assessor and Collector of the respondent East Delhi Municipal

Corporation held that such towers are included in the definition of

"towers" given in Section 9(l) and 14 of Delhi Municipal Corporation

Property Tax Bye Laws, 2004 and definition of „building‟ given in

Section 2(3) of Delhi Municipal Corporation Act, 1957 and accordingly,

property tax is payable by the appellant in respect of such towers to the

extent they fall in the jurisdiction of the appellant Corporation. A

demand of Rs.38,81,48,253/- for the period from 1st August, 2007 to 31st

March, 2013 was raised by the respondent in respect of the aforesaid

towers. The appellant filed a writ petition challenging the very

jurisdiction of the respondent to levy property tax in respect of the

aforesaid towers and sought quashing of the assessment order dated 2nd

February, 2013 and all subsequent proceedings. Since bank accounts of

the appellant were attached by the respondent in order to recover

Rs.38,81,48,253/-, the amount of property tax demanded by it from the

appellant, an application was filed seeking refund of the aforesaid

amount. The learned Single Judge vide impugned order dated 8th March,

2013, while issuing notice in the writ petition directed stay of the warrant

issued by the respondent subject to the appellant depositing 50% of the

tax which has been assessed. He further directed that the respondent will

re-deposit the banker‟s cheque in the account of the appellant and within

three working days thereafter, the appellant will deposit the aforesaid

50% amount with the respondent.

2. In exercise of the powers conferred upon it under Sub-Section (1)

of Section 481 read with Section 483 of Delhi Municipal Corporation

Act, 1957, as amended by the Delhi Municipal Corporation (Amendment)

Act, 2003, Bye Laws called The Delhi Municipal Corporation (Property

Taxes) Bye Laws, 2004 were framed by MCD, with the previous

approval of Government of NCT of Delhi. Section 9(l) of the aforesaid

Byelaws defines towers as under:-

(l) "towers" shall include TV towers, cable towers, telecom towers or any other tower erected on the surface or top or on any other open space of a building;"

The contention of respondent no.1 is that the towers put up by the

appellant, come within the purview of the above referred Byelaw. The

aforesaid definition appears to have been necessitated on account of

Section 14 of the said Byelaws which, to the extent it is relevant provides

that the covered space in relation to a building shall, inter alia, include

TV/Telecom Towers. Byelaw 14, in turn, relates to Section 116E of

MCD Act which prescribes the method of determining the annual value

of any covered space in relation to a building and of vacant land.

3. Appearing for the appellant, the learned Attorney General

contended that the expression "towers" as defined in Section 9(l) of the

aforesaid Byelaws would include only such towers which are erected (1)

on the surface of a building or (2) on the top of a building or (3) on any

other open space of a building, meaning thereby if a tower has been put

up outside a building, it would not be covered in the aforesaid definition.

The learned counsel for the respondent, on the other hand, submitted that

any tower on the space even if such surface be outside a building would

also be included in the aforesaid definition.

Considering that the expression „tower‟ appears to have been used

only in Section 14 of the Byelaws and that section relates only to covered

space in a „building‟, prima facie, we are of the view that the definition

given in Section 9 applies only in relation to such towers which are in or

upon a „building‟ and not to the towers, which are outside a building.

4. This was also the contention of the learned Attorney General that

since Section 114 of DMC Act provides for levy of property tax only on

lands and buildings and the towers laid by the appellant are not

"building" within the meaning of Section 2(3) of DMC Act and the land

on which such towers have been laid does not belong to the appellant, no

property tax can be levied in respect of such towers even if they come

within the purview of Section 9(l) of the Byelaws. We are in agreement

that in view of the provisions contained in Section 114 of DMC Act,

property tax can be levied only on land or „building‟, as defined in the

said Act, and, therefore, the towers put up by the appellant would attract

payment of property tax only if they are found to be „building‟, within the

meaning of Section 2(3) of the Act.

5. The expression "building" has been defined in Section 2(3) of

MCD Act which reads as under:-

"Building" means a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter;"

The contention of the learned Attorney General was that the word

"structure" in the aforesaid sub-Section should be read ejusdem generis

with the word "house", "outhouse", etc. which precede the word

"structure" in the sub-Section, particularly, when the definition given in

the sub-Section is exhaustive and not inclusive. The learned counsel for

the respondent No.1, on the other hand, contended that any structure,

irrespective of its nature and the purpose for which it is to be used, would

be covered under Section 2(3) of the Act. In support of his contention,

the learned counsel for the respondent referred to the decision of a Full

Bench of this Court in MCD versus Pradeep Oil Pvt. Ltd.¸ AIR (2010)

Delhi 119, the decision of a Division Bench in United Taxi Operators

Co-operative (Urban) Thrift & Credit Society Ltd. & Anr. versus

Municipal Corporation of Delhi, 2(1966) DLT 281 (DB) and the

decision of a learned Single Judge in Cellular Operators Association of

India & Ors. v. Municipal Corporation of Delhi 179 (2011) DLT 381.

6. In United Taxi Operators (supra), the Municipal Corporation of

Delhi was seeking to dismantle a petrol pump located in New Delhi,

which ESSO, an oil company, had installed on an underground storage

tank, on the ground that it had been built in contravention of Building

Byelaws of the Corporation. The contention of the petitioners was that an

underground filling station, with structure over the ground was not a

building as defined in sub Section (3) of Section 2 of Delhi Municipal

Corporation Act and, therefore, MCD had no authority to interfere with

the said structure. Holding the aforesaid structure to be a building as

defined in sub Section (3) of Section 2 of the said Act, a Division Bench

of this Court was of the view that though the expression "or any other

structure, used in the said sub Section if read in isolation was wide

enough to include a structure of the type in question, the question will

have to be determined on the facts and circumstances of each case and the

magnitude of the structure will also have a bearing on the meaning to be

attributing to the word „building‟. The Court, however, rejected the

contention that the word „erection‟ meant raising something from lower

level to higher level. The petitioner before the Court contended that since

the aforesaid underground tank was not used for human habitation or

keeping or living human beings, it could not be termed as "building".

Rejecting the contention, it was held that accepting the said contention

would amount to drawing an impossible artificial line which would

destroy the very object of the Act since in such a case when a mezzanine

underground celler used for storing grains would also be excluded from

the purview of the Act, if the grains are drawn with the aid of a suction

pump and no human being or animal enters there.

7. In MCD versus Pradeep Oil Pvt. Ltd. (supra), the issue before the

Full Bench of this Court was whether the oil storage tanks would be

building within the meaning of Section 2(3) of the aforesaid Act or not.

The petroleum/ oil storage tanks erected by the respondent before this

Court, rested on a foundation of sand having a height of more than 2 ft

and there was a four inch thick asphalt layer (bituminous pitch) to retain

the sand. The steel plats were spread on the asphalt layer and the tanks

were put on the steel plates that acted as the bottom of the tanks and the

tanks remained in the same position by virtue of their weight. In order to

serve as storage for the oil, each tank had a staircase along the side and

the tanks were connected with the pump house with the pipes for

receiving the oil in the tanks. The Full Bench came to the conclusion that

the tank having been permanently erected without being shifted from

place to place were building within the meaning of the Act.

The decision of the learned Single Judge in Cellular Operators

Association of India (supra), deals with levying fee for granting

permission for installation of cellular towers on roof tops of building for

providing cellular mobile phone services and, therefore, has no

application to the case before us.

8. In M.C. Mehta Vs.Union of India [(2000) 6 SCC 399], the

Supreme Court in the context of the ceiling of the building being used in

contravention of building and land use laws, observed that the definition

of the expression „building‟ shows that it is very vide and encompasses

any structure only excluding portable shelters.

9. We notice that the underground storage tank in United Taxi

Operators (supra) as well as the storage tanks in Pradeep Oil Pvt. Ltd.¸

(supra), were meant for storage of goods, whereas the towers of the

appellant are not meant either for living or for storage, but, we are also

conscious of the fact that the writ petition filed by the appellant is still

pending disposal before the learned Single Judge and, therefore, any firm

view taken by us on the question as to whether the towers laid by the

appellant constitutes „towers‟ within the meaning of Section 9(l) of the

Building Byelaws and/or "building" within the meaning of Section 2(3)

of the Act or not, may influence his decision on the merits of the writ

petition. We, therefore, refrain from taking a final view on the aforesaid

issues. However, considering the decisions referred earlier by us, it would

be difficult for us to outrightly accept the contention of the learned

Attorney General which, in our view, requires a thoughtful and serious

consideration, taking into account the nature of the towers put up by the

appellant and all the relevant provisions of MCD Act and Property Tax

Bye Laws. We, therefore, are of the view that the issue raised by the

learned Attorney General should be considered first by the learned Single

Judge in the writ petition pending before him. Considering the facts that

(i) though an appeal against the order of assessment is provided under

Section 169 of DMC Act, but the appellant has not availed the remedy of

appeal on account of the condition that such an appeal cannot be

entertained without depositing all the taxes with the Corporation, (ii) the

learned Single Judge has entertained the writ petition despite availability

of the remedy of appeal, and (iii) the amount directed to be deposited by

the appellant constitutes only 50% of the impugned demand and (iv) the

attachment had already been effected before filing of the writ petition, we

are of the view that the interim order passed by the learned Single Judge

does not call for any interference by us. We, however, direct that in the

event of writ petition being ultimately allowed and the impugned demand

being quashed, the aforesaid amount shall be refunded to the appellant

forthwith, along with interest on that amount at the rate of 12% per

annum. We, however, make it clear that the observations made in this

order will not affect the decision of the petition on merits.

10. Considering the importance of the issues involved in this petition

and also the fact that such towers have been laid by the appellant not only

in the jurisdiction of the respondent Corporation but also at various other

places, we would request the learned Single Jude to hear the writ petition

on merits and decide the same, as far as possible, within a period of three

months from today. The appeal stands disposed of in terms of this

direction.

V.K.JAIN, J

CHIEF JUSTICE

MARCH 18, 2013 'sn'/'rd'