Delhi District Court
Municipal Corporation Of Delhi vs Smt. Meena Kediyal on 31 March, 2022
IN THE COURT OF SH SURENDER MOHIT SINGH,
ADDITIONAL DISTRICT JUDGE-04 NORTH : ROHINI
COURTS : DELHI
RCA DJ NO.219/16
MUNICIPAL CORPORATION OF DELHI
(NORTH) THROUGH ITS DY. ASSESSOR & COLLECTOR
HOUSE TAX DEPARTMENT,
ROHINI ZONE, SECTOR-17,
DELHI
............Appellant
Versus
SMT. MEENA KEDIYAL
W/O SH MOHAN PRASAD KEDIYAL
R/O FLAT NO. 201, BLOCK C,
SECTOR-18, ROHINI
DELHI-110085
........Respondent
Date of Institution : 20.08.2016
Date of Order : 31.03.2022
Final Order : Dismissed
JUDGMENT
1. Appellant/defendant has filed the present appeal under Section 96 CPC against the impugned judgment/decree dated 15.03.2016 passed by the court of Sh Rajesh Malik, Additional Senior Civil Judge, North West Delhi in the suit no. 291/2011 titled as Smt. Meena Kediyal v. MCD whereby suit of the respondent/plaintiffs was decreed.
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2. Brief facts relevant for disposal of the present appeal are that the respondent/plaintiff filed a suit for declaration of the liability towards the tax of the property bearing no. 201, Block C, Sector 18, Rohini, Delhi (hereinafter referred to as property in question) assessed on the basis of unit area method as well as to declare the letter no. Tax/R2/2009/481 as arbitrary, illegal, null & void and for refund of the access amount realized with interest @ 24% p.a. against the appellant/defendant in respect of abovesaid property. The abovesaid property was given by DDA vide possession slip dated 04.02.2000 to respondent/plaintiff (Ex.PW1/2). The appellant/defendant launched a benevolent scheme in March, 2004 for self-assessment and calculation of tax under Unit Area Method wherein the properties, which have not been assessed to tax in the earlier assessment, would be liable to pay tax from the date of coming into force of the Unit Area Method i.e. 01.04.2004.
3. According to the plaint, the plaintiff wanted to take advantage of the aforesaid scheme to file property tax on the basis of Unit Area Method (UAM) for assessment of property tax. Therefore, she opted for unit area method (UAM) to pay the property tax for the period from 2000-01 to 2003-04 @ Rs.1113/- per year. She deposited the cash of Rs. 4452/- on 13.04.2004 towards property tax for the period of 01.04.2000 to 31.03.2004. The above said self-assessment was not disputed by the MCD by way of any notice u/s 123C of DMC Act within 12 months after the year to which such self-assessment relates as stated in para 9 of the said property tax guide.
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4. As per the plaint, a notice dated 13.03.2009 bearing no. Tax/R2/2009/481 was issued to respondent/plaintiff forcing her to deposit a sum of Rs. 47,706/- and the same was deposited by respondent/plaintiffs on 17.03.2009 vide receipt no. 216005 (Ex.PW1/7) under duress and coercion. The respondent/plaintiff further requested the appellant/defendant to declare her year-wise liability for the said property for a period from 2000-01 to 2011- 12 on the basis of Unit Area Method. She was paying the property tax of Rs. 1052/- per year whereas she was forced to pay Rs. 12,000/- per year prior to 01.04.2004.
5. Therefore, the suit in the trial court was filed to declare the letter no. Tax/R2/2009/481 dated 13.03.2009 as arbitrary, illegal, null and void and to direct the respondent for refund the excess amount with interest @ 24% p.a.
6. The appellant/defendant filed its written statement in the ld trial court, raised preliminary objections and, inter-alia averred that the respondent/plaintiff has suppressed material facts. It is further averred that no statutory notice, prior to filing of present suit in the trial court, has been issued under the provision of 477/478 of DMC Act which is mandatory as per law. The appellant/defendant also averred that on 13.04.2004, PRT alongwith tax for the year 2004-05 was received by the appellant/defendant. It was also averred that the request of the respondent/plaintiff for the said option was received on 30.08.2008 and was rejected on 31.08.2008 by Commissioner's order dated 12.03.2007. It was further alleged that as per record RCA DJ NO.219/16 MCD V. MEENA KEDIYAL 3 of 10 of MCD, property in question was also assessed on merit on the basis of old RV Method on the request of respondent/plaintiff and she also got No Dues Certificate after clearing all dues on 17.03.2009. It is further averred that prior to 2004, property was assessed as old RV method on merit and a rectification order was passed on 13.03.2009 at the request of tax payer whereas assessment on exparte was made vide order dated 05.02.2004. Thus, on the basis of aforesaid fact, the suit of the plaintiff is not maintainable.
7. The respondent/plaintiff in her replication averred that she had taken steps to get the property assessed under Unit Area Method on 13.04.2004, that was much before withdrawl of beneficial scheme to get the property assessed through unit Area Method. It is further averred in the replication that ex-parte assessment order dated 05.02.2004 had never been conveyed to the plaintiff and was not brought to the notice of the plaintiff at the time of tendering and depositing the property tax under Unit Area Method on 13.04.2004.
8. From the pleadings following issues were framed :-
1. Whether the suit is not maintainable in view of provision of Section 477/478 of DMC Act? (OPD).
2. Whether the plaintiff is entitled to a decree of declaration as prayed for? (OPP)
3. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? (OPP)
4. Relief.
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9. Thereafter, parties led their evidence and after conclusion of the trial, the Ld. Trial court has allowed the suit declaring the demand by way of RV method of assessment 2000-04 as null and void and held the respondent/plaintiff for recovery of extra amount paid under RV method for the year 2000-04 alongwith interest @ 18% p.a.
10. Feeling aggrieved by the impugned judgment, the appellant/defendant has filed the present appeal on the following contentions/grounds :-
i. That the ld. Trial court failed to appreciate the fact that during the continuance of the scheme i.e. with effect from 01.03.2004, the assessment have not been finalized by the respondent/plaintiffs.
ii. That the ld. Trial Court failed to appreciate the fact that the property in question was assessed on the basis of old RV Method on the request of respondent/plaintiff as she wanted to liquidate the tax qua the property in question and after receipt of the payment in question from the respondent, the no dues certificate was also issued by the appellant to the respondent. Thus, the same was legal and the demands so raised by the appellant was valid.
11. It has been contended by counsel for the appellant/defendant that the Ld. Trial Court has patently erroneous in passing the impugned judgment and decree is liable to be stayed during the pendency of the present appeal. Hence, the judgment passed by ld. Trial Court is liable to be set aside on the abovesaid grounds.
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12. Per contra, Ld counsel for the respondent/plaintiff has concluded that the findings and observations made by ld. Trial Court are true and correct. Therefore, the Ld Trial court has rightly passed impugned judgment and it did not suffers from any illegality and the appeal being devoid of merits deserve to be dismissed.
13. I have heard ld. counsel for the parties and have perused the entire record.
14. As to the first contention raised by the appellant that the property of the respondent/plaintiff was not assessed during the continuance of the scheme, it is not in dispute that a benevolent scheme was introduced by MCD in March 2004. The following clause is relevant to decide whether the assessment was made during the continuance of the scheme or not. In clause 14 'Transitory Provisions' of the Property Tax Guide year 2004-05 (Unit Area System of property tax) issued by MCD (Ex.PW1/4) as under:-
"Properties not assessed to tax in earlier system:- properties which have not been assessed, to tax in the earlier system would be liable to pay tax from the date of coming into force of Unit Area Method."
"Cases where assessments have not been finalized:- Where assessment has not been finalized in respect of a vacant land or covered space of a building or both, on the date of commencement of the Delhi Municipal Corporation (Amendment) Act, 2003, the assessee will have the option to get RCA DJ NO.219/16 MCD V. MEENA KEDIYAL 6 of 10 land or building or both, as the cases may be, assessed on the basis of annual value i.e. on the basis of unit area method of property tax."
It is admitted by both respondent/plaintiff as well as appellant/defendant that MCD issued the aforesaid property tax guide for the year 2004-05, the option was given to the assessee for self-assessment of property tax. The respondent/plaintiff took the benefit of this scheme and paid the tax as per the Unit Area Method on 13.04.2004 when the scheme was in operation vide Ex.PW1/3. The scheme was in operation till 12.03.2007. The amount was paid during this period and receipt was also issued to plaintiff vide Ex.PW1/4A. Hence, it is proved that the property tax has been paid during the operation of the scheme.
15. As to the contention raised by the appellant that the amount was not finalized during the continuance of the scheme, let us see the relevant provisions of property tax guide issued by MCD/appellant under clause 9 of the Property Tax Guide year 2004-05 (Unit Area System of property tax) under the head "Self- assessment and calculation of tax under Unit Area Method :-
".
.
.
.
The above self-assessment shall be treated as assessment for the purposes of the Delhi Municipal Corporation Act, if the Commissioner does not issue any notice RCA DJ NO.219/16 MCD V. MEENA KEDIYAL 7 of 10 under Section 123C of the Act within twelve months after the year to which such self-
assessment relates."
16. A plain reading of the aforesaid clause specifically shows that if notice u/s 123C of the DMC Act is not issued by the Commissioner of MCD within 12 months, then it shall be treated as finalized. Here it is admitted by DW1 Sh. A K Singh that no notice under Section 123C of DMC Act was issued on or before 13.04.2005. Further the appellant has not produced on record any notice u/s 123C to prove this fact that it was issued by the Commissioner of MCD. Hence, in view of the fact that property tax guide was issued by MCD, assessment was made by the respondent/plaintiff and a receipt was issued by the opposite side, and no notice u/s 123C was issued by Commissioner of MCD, I am of the considered view that the respondent/plaintiff has assessed the tax on the basis of the Unit Area Method and the assessment was finalized during the continuance of the scheme. Hence, this contention is devoid of merits and deserves to be rejected and hereby rejected.
17. As to the second contention raised by the appellant that the property in question was assessed on the basis of old RV method on the request of respondent. It is not a disputed fact that vide Ex.DW1/7, a request for rectification of assessment and for issuing of no due certificate in respect of said property bearing flat bearing no. 201, Block-C, Sector-18, Rohini, Delhi was made by the respondent/plaintiffs. However the said request for rectification of assessment was made in accordance with the Unit Area Method and not under the old RV method. On perusal of the RCA DJ NO.219/16 MCD V. MEENA KEDIYAL 8 of 10 Ex.DW1/6, it is specifically mentioned therein that "the assessee may have the option to get their case assessed on the basis of Unit Area Method" however the said request was rejected despite the fact that it is admitted by the appellant that option was given to the respondent/plaintiffs to get their case assessed on the basis of Unit Area Method and plaintiff/respondent have made assessment on 13.04.2004 as per the property tax guide issued by the MCD/appellant.
18. As per the deposition of PW1 and PW2, it is specific to mention that Ex.DW1/5 was filled by plaintiff under coercion and duress. It is interesting to note that in the aforesaid Ex.DW1/5, no date is mentioned. The aforesaid exhibit is a performa document which neither bears the amount deposited nor the GR number. So the said fact, that the document was filled in duress and coercion cannot be presumed to be disproved.
19. Further as per Ex.DW1/4, a demand notice was issued in which the property tax was calculated on the basis of old RV method, despite the fact that the assesses have already paid the property tax as per the property tax Guide for the year 2004-05 under Unit Area Method scheme. In compliance to the aforesaid demand notice, plaintiff/respondent paid Rs. 47,706/- vide Ex.DW1/3 under old RV Method for the period of 2000-04 however the aforesaid property tax for the aforesaid period has already been assessed and paid by the respondent/plaintiffs on 13.04.2004 and receipt was also issued by appellant and in terms of Transitory Provisions of the property tax guide of the appellant, the assessment have been finalized and it is admitted RCA DJ NO.219/16 MCD V. MEENA KEDIYAL 9 of 10 case of MCD/appellant that an option was given to the respondent/plaintiffs to pay the tax as per Unit Area Method so the aforesaid amount of Rs. 47,706/- is in excess of the earlier amount. Keeping in view the aforesaid facts and circumstances, the said demand is not legal as the property tax have already paid by the respondent/plaintiff. Hence, this contention is devoid of merits and deserves to be rejected and hereby rejected.
20. From the above discussion, I am of the opinion that there is no substance in this appeal and I found no ground to differ from the opinion of the trial court already taken from the material on record. This appeal being devoid of merits deserves to be dismissed and is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly. Trial Court Record be sent back alongwith copy of this judgment.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, On 31.03.2022 (Surender Mohit Singh) ADJ-04, North District, Rohini Courts, Delhi RCA DJ NO.219/16 MCD V. MEENA KEDIYAL 10 of 10