Delhi High Court - Orders
Saroj Tandon vs New Delhi Municipal Council And Ors on 16 May, 2024
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~11 to 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6815/2022 and CM Nos.20682/2022 & 32744/2022
SAROJ TANDON ..... Petitioner
Through: Mr M.A. Niyazi, Ms Anamika Ghai
Niyazi, Ms Kirti Bhardwaj, Ms
Nehmat Sethi and Mr Arqnam Ali,
Advocates.
versus
NEW DELHI MUNICIPAL COUNCIL
AND ORS ..... Respondents
Through: Mr Vipul Ganda, ASC with Mr
Amodini Raina and Mr Sakshi
Rastogi, Advocates for NDMC.
AND
+ W.P.(C) 8101/2022 and CM No.24595/2022
SAROJ TANDON ..... Petitioner
Through: Mr M.A. Niyazi, Ms Anamika Ghai
Niyazi, Ms Kirti Bhardwaj, Ms
Nehmat Sethi and Mr Arqnam Ali,
Advocates.
versus
NEW DELHI MUNICIPAL COUNCIL
& ANR. ..... Respondents
Through: Mr Vipul Ganda, ASC with Mr
Amodini Raina and Mr Sakshi
Rastogi, Advocates for NDMC.
AND
+ W.P.(C) 8306/2022 and CM Nos.25036/2022 & 37176/2022
JYOTI DHANDA ..... Petitioner
Through: Mr M.A. Niyazi, Ms Anamika Ghai
Niyazi, Ms Kirti Bhardwaj, Ms
Nehmat Sethi and Mr Arqnam Ali,
Advocates.
versus
NEW DELHI MUNICIPAL COUNCIL
AND ANR ..... Respondents
Through: Mr Vipul Ganda, ASC with Mr
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 31/05/2024 at 21:47:35
Amodini Raina and Mr Sakshi
Rastogi, Advocates for NDMC.
AND
+ W.P.(C) 8892/2022 and CM No. 26733/2022
ASHOK SHARMA(SHOP) ..... Petitioner
Through: Mr M.A. Niyazi, Ms Anamika Ghai
Niyazi, Ms Kirti Bhardwaj, Ms
Nehmat Sethi and Mr Arqnam Ali,
Advocates.
versus
NEW DELHI MUNICIPAL COUNCIL
AND ANR ..... Respondents
Through: Mr Vipul Ganda, ASC with Mr
Amodini Raina and Mr Sakshi
Rastogi, Advocates for NDMC.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORDER
% 16.05.2024 W.P.(C) 6815/2022 and CM Nos.20682/2022 & 32744/2022
1. This court is informed that respondent no.7 has since expired.
2. Mr Niyazi, learned counsel appearing for the petitioner states that it is not necessary to implead the legal heirs of respondent no.7, and he be deleted from the array of parties. An amended Memo of Parties be filed on the next date of hearing.
3. The petitioner has filed the present petition, inter alia, challenging the proviso to Section 72 read with Section 72(1)(f) of the New Delhi Municipal Council Act, 1994 (hereafter the Act) as ultra vires the Constitution of India.
4. It is the petitioner's case that in terms of Section 63(1) of the Act, the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/05/2024 at 21:47:35 property tax has to be assessed on the basis of rateable value determined in terms of Section 63(1) of the Act - the annual rent at which the land and building may reasonably expected to be let from year to year less a sum equal to 10%. However, the New Delhi Municipal Council (hereafter NDMC) is, at its whims and fancies, assessing certain shop owners and flat owners in Khan Market, Delhi as well as in Connaught Place, New Delhi on the basis of Unit Area Method (hereafter also referred to as UAM), which has been struck down.
5. It is contended that this is a fraud on the statute, where the NDMC has consciously adopted a different method for assessing the property tax payable by similarly placed property owners. Whilst some properties are being assessed in accordance with Section 63(1) of the Act; others are being assessed by UAM in complete disregard of the law.
6. Mr Niyazi, the learned counsel for the petitioner referred to Paragraph nos.7 and 8 of the counter affidavit filed by the NDMC, which are set out below:
"7. Thus, post passing of the Hon'ble Supreme Court judgment, the NDMC; for the purposes of assessment of property tax; assessed property tax for various categories of assessees in the following manner:
(a) For those assessees who had challenged the bye laws and whose notices were pending before the pendency of the proceedings before this Hon'ble Court and the Hon'ble Supreme Court - the pending assessments were carried out in terms of section 63 of the NDMC Act.
(b) For those assessees who had not challenged the bye laws and fell within 95% of the assessees who had accepted the bye laws and whose assessments were pending till the passing of the Hon'ble Supreme This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/05/2024 at 21:47:35 Court judgment were carried out as per the bye laws. (ref. para 87 of the Supreme Court judgment).
(c) Post the Hon'ble Supreme Court judgment - for the assessees who fell in the 95%, who were previously assessed under the now set aside bye laws - NDMC has continued with the same Rateable Value, till such time a notice under section 72 of the NDMC Act was not issued/decided. In such cases, where there has been a re-assessment pursuant to a notice u/s 72 NDMC has determined the Rateable Value as per the NDMC Act by a revised rateable value.
8. All the above-mentioned steps have been taken by the NDMC keeping in view the large interest of majority of the assesses and being mindful of the fact that till such time an amendment in the NDMC Act takes place, a workable arrangement is put in place, keeping in mind the provisions of the Act as well as the interest of the assesses and the interest of the NDMC."
7. It is apparent from the above that it is the NDMC's case that the properties are being assessed by Unit Area Method notwithstanding that the same is not in accordance with the Act, till such time as notices under Section 72 of the Act are issued. Paragraph 8 of the counter affidavit also suggests that no notices under Section 72 of the Act have been issued despite the Chairman, NDMC being fully aware that the property tax being collected on the basis of UAM is contrary to law. The petitioner has also filed a list of rateable values in respect of various shops and flats in Khan Market. The same indicates that the lowest rateable value is ₹600/- and the highest is ₹3,69,36,000/-. Although the rateable value of the properties may differ based on size, location and other factors, such wide variation in rateable value is, prima facie, inexplicable.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/05/2024 at 21:47:35
8. We are prima facie of the view that if certain officials of the NDMC have consciously adopted a method of collecting lower tax than as imposed in law, then the said officials must be held accountable for the loss caused to the exchequer.
9. The Chairman, NDMC shall file a personal affidavit setting out the number of shop owners, who have been assessed to property tax on Unit Area Method after 22.01.2019 - being the date of the decision of the Supreme Court in New Delhi Municipal Council and Ors. v. Association of Concerned Citizens of New Delhi and Ors.: (2019) 15 SCC 303, whereby UAM was struck down.
10. Insofar as the petitioner's prayer of quashing the order dated 28.03.2022 under Section 72 of the Act is concerned, it is noticed that the said document is not an order, but a notice under Section 72 of the Act proposing to increase the annual rateable value of the petitioner's shop (Shop No.49A, Khan Market) from ₹64,80,000/- to ₹98,26,300/-.
11. It is the petitioner's case that the rateable value of her shop is sought to be increased on the basis of the rent in respect of a shop in the vicinity of Shop No.49A, Khan Market, New Delhi. But the rateable value of the said shop is much lower than the provisionally proposed rateable value of ₹98,26,300/-.
12. It apposite for this Court to consider this issue in these proceedings. The petitioner is entitled to respond to the said notice and take all objections for proposed increase in the rateable value. Needless to state that the objections raised by the petitioner are required to be considered by the concerned authorities before passing an order revising the rateable value of the petitioner's property. In the event that an order adverse to the petitioner This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/05/2024 at 21:47:35 is passed, the petitioner has an efficacious remedy of filing a statutory appeal under Section 115 and 116 of the Act.
13. The petitioner also prays for refund of a sum of ₹37,69,069/- claiming that an excess amount was paid during the period of October, 2017 to March, 2020. The petitioner claims that the rateable value fixed by the concerned authority was higher than the actual rent collected by the petitioner in respect of the shop in question.
14. No such relief can be granted to the petitioner. The petitioner had full notice of rateable value and in the event the petitioner was aggrieved by the fixing of the rateable value, he was required to take appropriate remedies at the said stage. There is no question of this court re-opening assessments which were accepted by the petitioner at the material time, in these proceedings under Article 226 of the Constitution of India.
15. The petitioner also challenged the resolution dated 26.12.2020 passed by the NDMC. The said challenge would be considered on the next date of hearing. In addition, the petitioner also seeks that directions be issued for constituting an inquiry committee to inquire into the fraud being played by the assessors in fixing rateable values of the properties under the NDMC's jurisdiction on UAM instead of under Section 63(1) of the NDMC Act. The petitioner has flagged an issue as to assessments being made contrary to law. The said question that any further directions are required to be issued in this regard will be considered on the next date of hearing.
16. The interim stay granted on 02.05.2022 is vacated. The present petition is now confined to prayer (a), (e) and (f) as set out in the petition.
17. List on 05.09.2024.
W.P.(C) 8101/2022 and CM No.24595/2022 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/05/2024 at 21:47:35 W.P.(C) 8306/2022 and CM Nos.25036/2022 & 37176/2022 W.P.(C) 8892/2022 and CM No. 26733/2022
18. The present petitions are also confined to the prayers similar to prayers (a), (e) and (f) of W.P.(C) 6815/2022.
19. The interim orders, if any, stand vacated.
20. List on 05.09.2024.
VIBHU BAKHRU, J TARA VITASTA GANJU, J MAY 16, 2024 RK This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/05/2024 at 21:47:36