Delhi High Court
Dcm Ltd. vs Mcd & Anr. on 6 September, 2012
Author: A.K.Sikri
Bench: Rajiv Sahai Endlaw, A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
5.
+ LPA 607/2012
DCM LTD. ..... APPELLANT
Through: Mr. B.B.Jain, Advocate.
Versus
MCD & ANR. ..... RESPONDENTS
Through: Ms. Amita Gupta, Advocate.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE: (ORAL)
Admit.
1 With the consent of learned counsel for the parties, we have heard the
matter finally at this stage itself and are proceeding with the order.
2. The appellant herein feeling aggrieved by the inaction of the Assessor & Collector in respect of its property bearing No. 7303-7661, Bara Hindu Rao, Delhi had filed writ petition under Article 226 of the Constitution of India, invoking extra ordinary jurisdiction of this Court. The submission of the appellant, inter alia, was that the assessment was to be made in accordance with the Unit Area Method and the respondent was not assessing the property on that basis. By that time the assessment order was not passed. However, during the pendency of the writ petition, order dated 30.8.2007 was passed by the Assessor & Collector; in a detailed order, various submissions of the appellant were taken note of including the plea Lpa 607/2012 Page 1 of 7 for assessing the property on Unit Area Method. The Assessor rejected that contention, inter alia, observing as under:-
"(G) With respect to the assessee's seventh contention to allow them the option of assessment under Unit Area Method(UAM), the same is not permissible under the rules. Any law, which prevailed on the date of omission or commission, will be applicable. A law cannot have retrospective effect. This is a well established rule of law and equity. The transitory provision mentioned under section 116(G) of the new Act was for the transitory period of notices issued between 1.8.2003 to 31.3.2004.
That is the period when the amendment was made i.e. 1.8.2003 to 31.3.2004 (when the amended provision and UAM system, came into implementation). It is not that the said provisions applied to all earlier pending case. If that interpretation is taken it will be against the rule of equitable justice. It will clearly discriminate between two class of persons similarly placed, i.e. one who honestly paid their tax under the rule prevailing at a particular period of time and one who did not pay on account of one reason or other, and subsequently comes up with the plea that he be assessed and taxed under the new rules which is more advantageous to him. In fact, the later persons has already enjoyed the benefit of keeping the due tax and using it for his benefit. No law can discriminate and put an honest taxpayer at disadvantage against a person not paying the tax in time. If assessee's contention is accepted, it will amount to putting a person not paying the tax and with holding the money due to ex-chequer in an advantageous position vis-à-vis- an honest taxpayer. The intention of law is not so. Since option of UAM is not available to the assessee in the present case, the other issues raised related to UAM by the assessee is not being discussed herein as no more relevant...."
3. After the passing of this order, the appellant moved an application for Lpa 607/2012 Page 2 of 7 amendment of the writ petition, incorporating challenge to the aforesaid order dated 30.8.2007. Some other prayers were also sought to be added, including the prayer that the Officer who passed the order was not qualified and could not hold the office of the Assessor & Collector and therefore the order was void on this ground alone. Another prayer which was sought to be added was that Unit Area Method should have been adopted even in respect of assessment orders w.e.f. 1.4.2002 to 31.3.2004.
4. The learned Single Judge, vide impugned order dated 7.8.2012 has disposed of the writ petition without entertaining the same on merits on the ground that there is an efficacious remedy available to the appellant by way of statutory appeal provided under Section 169 of the Delhi Municipal Corporation Act, 1957 and, therefore, it would be appropriate for the appellant to file the appeal and challenge the order dated 30.8.2007. Even the issue about the holding of office by the concerned Officer is remitted to the Appellate Authority.
5. In this appeal filed by the appellant, submission of the appellant is that the writ of quo-warranto which was sought by the appellant questioning the authority of the concerned person to hold the office of Assessor & Collector cannot be decided by the Appellate Authority. It is also argued that the amendment which was sought, to include the years w.e.f. 1.4.2002 to 31.3.2004 also cannot be decided by the Appellate Authority.
6. There appears to be some substance in this contention raised by the learned counsel for the appellant. However, it is not even necessary to go Lpa 607/2012 Page 3 of 7 into these issues. The main question which was raised by the appellant, challenging the order dated 30.8.2007 passed by the Assessor & Collector viz. adopting Unit Area Method, stands decided by the Division Bench of this Court in Municipal Corporation of Delhi Vs. Major General Inderpal Singh Kahai & Anr. 169 (2010) DLT 352 (DB). In this case the Division Bench in no uncertain terms held that as per the provisions of Section 116- G(2) of the Delhi Municipal Corporation Act, 1957, in all the pending assessment, the choice was to be given to the assessee to either choose the assessment of property tax in accordance with the previous method of assessment or as per Unit Area Method. Relevant portion of the said judgment is as under:-
"17.Our attention has been drawn to the Minutes of a meeting held by the Commissioner on 15th April, 2004. In para 4 of the Minutes it is recorded that an Assessee would have the option of choosing the Unit Area Method (annual value of the property) or any previous method of assessment in cases which are remanded back as on 1st April, 2004. Para 4 of the Minutes reads as follows:
"4.Re-opening of ex-parte cases/assessment cases:- The Assessee shall have the option of choosing U.A.M. or previous method of assessment in cases which are remanded back or ex- parte cases or pending assessments as on 1.4.2004."
18. It is quite clear from the above that even the Commissioner of the Municipal Corporation understood Section 116G(2) of the DMC Act to Lpa 607/2012 Page 4 of 7 mean that all pending assessments, whether at the original stage or pending as a result of having been set aside or otherwise remanded by a superior authority, would be assessments that are not "finalized" for the purposes of Section 116G(2) of the DMC Act. In respect of such assessments, the Assessee would be entitled to opt for having the property tax assessed on the basis of Unit Area Method.
19. Learned Counsel for the Municipal Corporation submits that the Minutes of the meeting held on 15th April, 2004 were subsequently withdrawn. Be that as it may, it really makes no difference in so far as the present case is concerned because the Minutes indicate the initial view taken by the Commissioner when the statutory amendment was introduced. That there may have been a change of opinion subsequently does not change the legal position as far as we are concerned. In our opinion, the view expressed in the Minutes represents the correct legal position.
20. In the present case, the Assessee has now opted for determination of property tax payable by him in terms of the Unit Area Method. This is consonance with the option available to him under Section 116G(2) of the DMC Act. Accordingly, while leaving open the issues raised by the Municipal Corporation in this appeal, we direct the Joint Assessor and Collector, in view of the changed circumstances, to assess the property of the Respondents towards tax in accordance with the Unit Area Method (annual value basis) for the assessment year under consideration."
7. We may record that the MCD has filed Special Leave Petition against this judgment, which was granted by the Supreme Court. However, Lpa 607/2012 Page 5 of 7 the appeal is still pending and there is no stay of the judgment of this Court. Needless to mention, if the judgment in Major General Inderpal Singh Kahai (supra) is ultimately set aside by the Supreme Court before the assessment orders are passed, the Assessor & Collector shall make the assessment order in accordance with the law laid down in the said case.
8. Mr. Jain, learned counsel appearing for the appellant also drew our attention to another judgment, of this Court delivered on 10.9.2009 in WP(C) 7913/2008 titled Shri Banarasi Dass Chandiwala Sewa Smark Trust Society Vs. MCD & Ors. where identical view was taken and the matter was remitted back to the Assessor & Collector for fresh assessment wherein the assessee had been given the option to be governed by the Unit Area Method. He also placed on record the fresh assessment orders passed in that case by the Assessor & Collector, assessing the property adopting the Unit Area Method.
9. When this Court has taken the aforesaid view in interpreting Section 116-G of the Act and there is no dispute of facts insofar as the present case is concerned, namely the appellant had given the option to be governed by the Unit Area Method, we feel in a case like this, there was no need to relegate the appellant before the Appellate Authority. On the basis of aforesaid legal position laid down by this Court, the assessment orders dated 30.8.2007 warranted to be quashed on this ground alone.
10. We accordingly allow this appeal and set aside the impugned order dated 7.8.2012 passed by the learned Single Judge.
Lpa 607/2012 Page 6 of 711. It is not necessary to remit the case back to the learned Single Judge. The application for amendment made by the appellant in the writ petition stands allowed. The order dated 30.8.2007 passed by the Assessor & Collector is hereby set aside and the Assessor & Collector shall pass fresh assessment orders for the period 1.4.2002 to 31.3.2004 adopting the Unit Area Method. It would be open to the appellant to contend before the Assessor & Collector that no tax is to be imposed upon the open land and the same shall be determined in accordance with law while passing the fresh assessment order.
12. In the mean time, the appellant shall deposit the tax which is payable as per the appellant on the adoption of the Unit Area Method. The appellant shall appear before the Assessor & Collector on 27th September, 2012 at 3.00 p.m.
13. This appeal stands disposed of in the aforesaid terms.
ACTING CHIEF JUSTICE (RAJIV SAHAI ENDLAW) JUDGE SEPTEMBER 06, 2012 skb Lpa 607/2012 Page 7 of 7