Delhi District Court
Mr. Yakesh Anand vs The New Delhi Municipal Council on 22 May, 2017
IN THE COURT OF SH. JITENDRA KUMAR MISHRA,
ADDITIONAL DISTRICT JUDGE - 01, PATIALA HOUSE COURTS, NEW
DELHI DISTRICT, NEW DELHI
HTA Nos. 51/17, 52/17, 53/17, 54/17, 55/17,56/17, 57/17, 58/17, 59/17,
60/17, 61/17, 62/17
1. Mr. Yakesh Anand
S/o. Late Dr. K.L. Anand
R/o S-471, Greater Kailash Part-II,
New Delhi-110048.
2. Mr. Sanjeev Anand
S/o. Late Dr. K.L. Anand
R/o Y-10, 2nd Floor,
Green Park ( Main)
New Delhi-110016.
3. Mrs. Kajal Chandra
D/o. Late Dr. K.L. Anand
R/o 123, Dayanand Vihar,
Vikas Marg-II
New Delhi-110092.
......... Appellants
Versus
The New Delhi Municipal Council
Through its Chairperson
Palika Kendra Building
Opp. Jantar Mantar
Parliament Street
New Delhi-110001. ........ Respondent.
Suit presented On : 25.04.2017
Arguments Concluded On :16.05.2017
Judgment Pronounced On : 22.05.2017
JUDGMENT
1. By this common judgment this court is going to adjudicate HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 1 of 13 appeals HTA No. 51/2017, HTA No. 52/2017, HTA No. 53/2017, HTA No. 54/2017, HTA No. 55/2017, HTA No. 56/2017, HTA No. 57/2017, HTA No. 58/2017, HTA No. 59/2017, HTA No. 60/2017, HTA No.61/2017 and HTA No. 62/2017. All such appeals have been preferred under Section 115 of the New Delhi Municipal Council Act, 1994 on behalf of the Appellants for the years 2005 to 2007. Both the counsels have advanced arguments for all such appeals at the same time as they submitted that, common questions of law and facts have been involved in such appeals and therefore, arguments have been advanced for all appeals at the same time by both the counsels.
2. The appellants have challenged the arbitrary and illegal action of the respondent, being order dated 06.01.2017 purportedly under Section 72 of the New Delhi Municipal Council Act, 1994 ( referred to as "NDMC Act), claiming to dispose of, by the said common order, three notices dated 31.03.2006, 28.03.2009 and 29.03.2011.
2.1 It is contended by the appellant that the respondent by its own, suddenly without notice and without hearing, after 11 years, 8 years and 6 years of the respective dates of the three notices revised the existing rateable value of Rs.83,900/- to Rs.44,700/- from 01.04.2005; revising the rateable value to Rs.32,46,600/- from 01.04.2008; and revising the rateable value to Rs.42,32,700/- from 01.04.2010 with respect to the premises being Shop & Flat No.176, Sarojini Nagar Market, New Delhi, owned by the appellants. The appellants have also impugned a consolidated bill dated 18.01.2017 raised by the respondent on the basis of order dated 06.01.2017 making a huge additional single demand of Rs.96,01,050/- for 11 years covering the period from 01.04.2005 to 31.03.2016 and calling upon the appellants to pay the same by 08.02.2017.
3. The present appeal has been challenged by the appellant in HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 2 of 13 the facts and circumstances:-
(a) Sarojini Nagar Market, New Delhi was constructed by the Ministry of Rehabilitation, Government of India for settling the refugees who had left there everything in Pakistan during partition and came to India in 1947. In the said market, the Government of India provided on the Ground Floor, a shop and a residential flat on the first floor.
(b) Somewhere in late 1950's, Shop no. 176 & flat no. 176 were allotted to Late Dr. K. L. Anand, the father of the appellants. Initially the allotment was on the licence basis vide Perpetual Lease Deed dated 17.07.1984, leasehold rights of the shop and vide Perpetual Lease Deed dated 24.07,1984, lease hold rights of the flat were granted by the Government to the father of the appellants who died on 30.01.1995. Vide mutation letter dated 20.09.1996 issued by the Land & Development Office, the shop and flat were mutated in the name of the appellants.
(c) After demise of the father of the appellants, around 1996 the flat was vacated as there was no one to reside at the said flat. The appellants were residing in their own residential homes with their families. Since then till date, the flat has remained vacant and not occupied by anyone. Despite all efforts the appellants have not been able to let out the flat, not being letable, the main reason for the same is that it is a market area very crowded all the time with large number of people visiting the market daily and as such no more livable and no family would like to reside in that area. Thus the flat has become non-habitable. The construction is HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 3 of 13 very old and the accommodation is very less.
(d) The shop has an area of 775 Sq.ft. Upto 31.03.2008, entire shop was in self occupation of the appellants, however, with no activity being undertaken from the said shop.
(e) Vide registered lease agreement dated 30.04.2008 the appellants let out 480 sq.ft. approximately ( carpet area) of the shop with effect from 01.04.2008 to one M/s. Primus Retail Pvt. Ltd. at a monthly rent of Rs.2,76,000/-. Primus determined the lease vide letter dated 01.11.2009 with effect from 31.01.2010.
(f) A fresh registered lease agreement dated 24.11.2010, the appellants let out 456 sq. ft approximately ( carpet area) of the shop with effect from 01.10.2010 to one M/s Pantaloon Retail ( India ) Limited ( Sports Division) at a monthly rent of Rs. 2,46,000/-, initially for a period of 36 months ( 3 years) with an automatic renewal for a further term of 36 months.
(g) The appellants and the tenant later on renewed the lease deed w.e.f. 01.04.2017 upto 31.03.2019 & rent of the shop shall be Rs. 2,40,000/- per month plus service tax.
(h) It is contended by the appellants that the respondent has levied property tax, both on the shop and flat of the appellants and raising property tax bills which were being duly paid by the appellants. The last combined annual value fixed by the respondent of the shop and flat was Rs.8300/- on which the property tax of Rs.1660 was being demanded by HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 4 of 13 the respondent and paid by the appellants regularly.
(i) The appellants sent objections dated 31.07.2009 to the notice dated 28.03.2009, in which objection was also taken to the proposed increase in rateable value to Rs.44,700/- w.e.f. 01.04.2005. It was pointed out that the shop and flat are two separate and distinct portions forming part of the same building and flat is a residential property and had never been let out and has been lying vacant for the last more than 14 years and thus the appellants are entitled to a remission of tax for the said flat. It is further objected that the rent of shop no. 29 could not be the basis for fixing the rateable value of the shop and flat of the appellants.
(j) On 29.03.2011 anther notice purported to be under Section 72 of the NDMC Act, proposing to increase the existing rateable value of Rs.8300/- to Rs.42,32,700/- from 01.04.2010 giving the reasons for the said increase to be New Annual Rent Bye Laws, 2009 and comparable rent basis was issued by the respondent. This notice was also not served on the appellants, but by chance received by them.
(k) Vide letter dated 25.04.2011, reply to the said notice and while objecting to the proposed rateable value of Rs. 42,32,700/- w.e.f. 01.04.2010, also once again objected to the proposed revising of the rateable value on various grounds.
(l) All of a sudden, vide impugned order dated 06.01.2017, the respondent had decided the notices and the HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 5 of 13 rateable value, revising the rateable value w.e.f. 01.04.2008 at Rs. 32,46,600/- as proposed in the notice and w.e.f. 01.04.2010 at Rs.42,83,900/- without any further notice and without according any personal hearing to the appellant and without dealing with the objections taken by the appellants.
(m) The appellants have challenged the impugned order and demand many on the ground that the rateable value of the flat from 01.04.2010 has been assessed under Unit Area Method, which is wholly contrary to the provisions of the NDMC Act. The rateable value of the flat is also to be determined in terms of Section 63(1) of the NDMC Act and is the annual rent at which the property might reasonably be expected to let from year to year less a sum equal to 10%.
(n) It is further challenged that the impugned order and demand are bad as Section 110 of the NDNC Act entitles the appellants to seek remission or refund of the property tax if the property remained vacant and unproductive of rent for sixty or more consecutive days.
(o) The respondent has not assessed the rateable value of the flat as per Section 63(2) and the judgment of the Hon'ble Supreme Court on the basis of annual expected hypothetical rent of the flat, but has assessed it on its own whims and fancies.
(p) The impugned order does not refer to any document or statement of the tenant in writing in support of the fact that the shop was let out to Primus since 2005.
HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 6 of 13
(q) In the light of the facts of registered lease deed dated 30.04.2008. The respondent ignored the information furnished by the appellants that it could be let out only 450 Sq. ft and the remaining shop was in the possession of the appellants.
(r) The impugned order and action are barred by the limitation.
4. Arguments heard as advanced by Ms. Sonam Anand, Ld. counsel for the appellants and Sh. Sanjay Sharma, Ld. counsel for the respondent.
4(i) Impugned order dated 06.01.2017 is perused wherein inter alia it is observed by Ld. assessing authority.
"..... Thereafter, no information / lease deed was provided by the assessee. Scrutiny of the letters of the assessee as well as of the proceedings held before the Assessing Authority, shows that the assessee is relevant to provide correct rental details. The assesse has informed that the rent of the portion of the shop measuring 456 Sq.ft. was Rs.2.45 lacs w.e.f. 01.10.10 but did not provide the copy of lease deed and the rental information prior to 01.10.10. As per information available in file, the shop was on rent with M/s Primus Retails Pvt. Ltd. since 2005 but the rental details were not provided....."
5. During Arguments when the court put its query from Ld. counsel for the appellants about non supply of lease agreement dated 30.04.2008 then she has submitted that since the same was only for the relevant year, therefore, the information was given to the assessing authority about lease agreement dated 24.11.2010. This is not a sufficient ground. It appears that the appellants were trying to conceal material fact from the assessing HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 7 of 13 authority. It was the duty of the appellants to supply all the information what ever was available with them. The appellants never supplied the information to the assessing authority about lease agreement dated 30.04.2008. It is further submitted by Ld counsel for the appellants that since the premises were vacated after one year, therefore, it was not necessary. This court does not agree. First of all it was the duty of the appellants to supply all the relevant information which affects rateable value of the premises in any manner, to the assessing authority in annual property return to be filed by the appellants regarding the property to the respondent. When the court puts specific enquiry then Ld. counsel for the appellants could not submit any reply or answer whether this fact was mentioned in the annual property return to be filed by the appellants. An evasive reply was given during arguments. Fraud and concealment of material facts vitiate all solemn acts and the benefits obtained by any party become void. This was held by the Hon'ble High Court of Allahabad at Lucknow in Mushtaq Ahmad Versus State of U.P. and Others 2007 SCC OnLine All 2240 : (2007) 103 RD 64.
6. Similarly, the Hon'ble Allahabad High Court held in Sanwaria Traders v. Debt Recovery Tribunal 2013 SCC OnLine All 1172 :
"In Ram Saran v. IG of Police, CRPF, (2006) 2 SCC 541, the Apex Court held " that a person who seeks equity must come with clean hands.
In Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, 2003 ( Suppl,) 3 SCR 352, it was reiterated after referring to various earlier decisions of the Apex Court that fraud misrepresentation and concealment of material fact vitiates all solemn acts. In State of Andhra Pradesh v. T. Suryachandra Rao, AIR 2005 SC 3110, the Apex Court after referring to various earlier decisions held that suppression of a material document would also amount to a fraud on the Court. The same view has been reiterated in Bhaurao Dagdu Paralkar v. State of Maharashtra, AIR 2005 SC 3330. In R. Vishwanatha Pillai v. State of Kerala, JT 2004 (1) SC 88, the Apex Court HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 8 of 13 observed that a person, who seeks equity, must act in a fair and equitable manner. In Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody, AIR 1964 SC 345, it was held that if there appears on the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal. The same view was reiterated and followed in Vijay Syal v. State of Punjab (2003) 9 SCC 401."
7. In Lokeshwar Prasad vs. Smt. Om Kumari Saxena Jairo in 2014 SCC OnLine All 4314 : (2014) 104 ALR 322 :
6. "In Ram Saran Vs. IG of Police, CRPF and others, (2006) 2 SCC 541, the Apex Court observed "A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. ..............."
7. In Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and others, 2003 (Suppl.) 3 SCR 352, it was reiterated after referring to various earlier decisions of the Apex Court that fraud misrepresentation and concealment of material fact vitiates all solemn acts. In State of Andhra Pradesh & another Vs. T. Suryachandra Rao, AIR 2005 SC 3110, the Apex Court after referring to various earlier decisions held that suppression of a material document would also amount to a fraud on the Court. The same view has been reiterated in Bhaurao Dagdu Paralkar Vs. State of Maharashtra & others, AIR 2005 SC 3330. In R. Vishwanatha Pillai Vs. State of Kerala & others, JT 2004(1) SC 88 the Apex Court observed that a person, who seeks equity, must act in a fair and equitable manner. In Rajabhai Abdul Rehman Munshi Vs. Vasudev Dhanjibhai Mody, AIR 1964 SC 345, it was held that if there appears on the part of a person, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal. The same view was reiterated and HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 9 of 13 followed in Vijay Syal & another Vs. State of Punjab & others (2003) 9 SCC 401".
8. It was the duty of the appellants to submit and supply lease deed dated 30.04.2008 to the respondent which was not supplied by the appellants and this court considers it as an attempt to conceal material fact from the respondent by the appellants. This court further refers objection dated 31.07.2009 submitted by the appellants to the respondent wherein no whisper was made regarding lease deed dated 30.04.2008 by the appellants. This fact was not informed by the appellants to the respondent.
Thus, there was concealment on behalf of the appellant to this material fact from the respondent. This court again further observed that it is a case of the appellants that M/s. Primus determined the lease deed vide letter dated 01.11.2009 and when objections dated 31.07.2009 were submitted with the respondent then at that time M/s. Primus was very well as a tenant was there in the shop premises and despite this fact the appellants vide objection dated 31.07.2009 did not inform to the respondent about the presence of M/s Primus Retails Pvt. Ltd. at the shop premises.
9. Similarly this court refers letter dated 25.04.2011 submitted by the appellants to the respondent wherein it was informed by the appellants that the shop was let out w.e.f. 01.10.2010 at a monthly rent of Rs. 2.45 lakhs and remaining shop was in their possession. But again there was concealment of material fact that the shop was also let out by lease agreement dated 30.01.2008. This fact was not informed by the appellants.
10. Similarly vide letter dated 25.04.2011 the appellants informed about the letting out of the premises w.e.f. 01.10.2010 but again there was concealment that the shop was let out in the year 2008 also.
11. Another ground raised by the appellants in the present appeal that the shop and flat are two different premises. To HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 10 of 13 substantiate this fact, the appellants have referred copy of mutation letter dated 20.09.1996 issued by the Land and Development Office. This document is perused whereby this document it is specifically mentioned :-
........."Sub division of the property will not be allowed at any stage and they will remain as co-lessee."...............
12. However, no document has been filed on behalf of the Appellants to establish that property no.176, Sarojini Nagar Market, New Delhi is having two different premises i.e. shop and flat. As per the own documents supplied by the appellants it is only a flat no.176. Surprisingly, the appellants have not come up with any document i.e. mutation letter or perpetual lease to establish that flat and shop are two different premises as allotted by the respondent. If shop and flat are two different premises then definitely there must be separate sub lease for both the premises, separate mutation for both premises, separate allotment letter for both premises and separate annual property returns must have been filed for both premises by the appellants for the years but nothing as such has been brought on the record.
13. During arguments Ld. counsel for the appellant has relied upon judgments:-
• M/s. Sunil Rai & Co. Pvt. Ltd. Vs. Municipal Corporation of Delhi & Anr. ILR (1993) I Delhi 453.
• Shyam Kishore & Ors. Vs. MCD & Anr. (1993) 1 SCC 22. • M/s. Godfrey Philips India Ltd. Vs. New Delhi Municipal Council & Ors. W.P.(C) No. 2392 /2017, Decided on 21.03.2017.
She further relied upon State Trading Corporation India Limited. vs. New Delhi Municipal Council (2016) 12 Supreme Court Cases 603 where in para 13 the Hon'ble Supreme Court held:
HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 11 of 13 "As for the first category, where the building is self- occupied and where there is no sub-lease, the annual rent will have to be fixed as held by this Court in Dewan Daulat Rai Kapoor and in India Automobiles (1960) Ltd. v. Calcutta Municipal Corpn. on the basis of what the landlord might reasonably expect to get from a hypothetical tenant. Such fixation has to be made only as per the NDMC Act. It is for the assessing officer to make the fixation in accordance with law. The assessment for the disputed period shall be completed within three months from today".
14. However, these judgments are not going to support the case of the appellants in as much as it was the appellants who are guilty of concealment of material facts and no document was ever supplied by the appellants themselves to establish that there was allotment or mutation letter or perpetual sub lease exist at any time in favour of the appellants regarding property no.176 for different premises i.e. shop and flat. If shop and flat are two different premises then definitely must be documents which could be refer and submitted before the court by the appellants. No such different sets of documents have been brought on the record. Rather as per the documents submitted by the appellants the premises was alloted only single and that premises have not to be divided or partitioned by the appellants as directed by mutation letter dated 20.09.1996.
15. This court further observes that the conduct of the appellants shows that they did not come before Ld. Assessing Authority with complete documents to inform that premises were very well let out in the year 2008. Therefore, this court is of the considered opinion that possibility cannot be ruled out that the premises must have been let out prior to 2008 also. Moreover, the appellants have not disclosed any reason for not letting out the premises prior to 2008 and in such circumstances this court is of the considered opinion that the appellants if would have supplied the copy of lease deed dated 30.04.2008 to the respondent then definitely the conduct HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 12 of 13 of the appellants would have been considered and in those circumstances reasons for not letting out the premises prior to 30.04.2008 would have also be enquired by the Ld. Assessing Authority.
16. Therefore, appeal is devoid of any merit and the same is dismissed with a cost of Rs.25,000/- for every appeal adjudicated herein to be payable by the appellants to the respondent.
17. Signed copy of this judgment be placed in all the files of appeal and thereafter all appeal files be consigned to the record room.
Pronounced in open Court on 22.05.2017 (Jitendra Kr. Mishra) Additional District Judge-01, NDD/PHC/ New Delhi/ 22.05.2017rd HTA No. 51/2007 Mr. Yakesh Anand vs. The New Delhi Municipal Council Page no. 13 of 13