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1. The appellants of the above captioned two appeals : M/s.GPS Properties Pvt.Ltd. and M/s.Today Homes and Infrastructure Pvt.Ltd. are the co-plaintiffs of CS(OS) 814/2014. In the two appeals filed by them, they have impleaded the other as respondent No.3. The South Delhi Municipal Corporation and its Assessor & Collector, impleaded as defendants No.1 and 2 in the suit, are the respondent No.1 and 2 respectively in the two appeals. The two appeals lay a challenge to the order dated November 17, 2014 passed by the learned Single Judge holding that the suit filed by the two appellants, as co-plaintiffs, was not maintainable.

4. It would be useful to note the assessment order determining the annual value for the reason it was under challenge in the suit, and the demand of house tax raised was pursuant thereto. The order notes the dispute and gives reasons why contention advanced by the assessee, which we note is M/s.GPS Properties (P) Ltd. were not tenable and why in law the assessment was being made. The order reads as under:-

"This order of assessment is of the Annual Value under the Unit Area Method of the basement of the above mentioned property which is under the ownership of M/s.GPS Properties (P) Ltd. Statesman House, 8th floor, Barakhamba Road, New Delhi. In this case, notice U/s 123D of the DMC (Amendment) Act, 2003 dated 2.11.2012 on a/c of non-payment of tax in r/o basement and hoardings was issued against the property. A representation dated 30.11.2012 has been filed by Sh. Lokesh Patodia, DGM of M/s.GPS Properties Pvt.Ltd. enclosing therewith documents which has been taken on record. The basic contention is that there are agreements executed between the owner and the space buyers of the floor area. The property tax for the common area of the mall is the responsibility of the space buyers of the floor areas in proportionate to the common area falling under their share and the same may be recovered from the space buyers.
I have gone through the documents/information filed by the taxpayers. A commercial plot No.4, 5, 6 Shivaji Place, Dist. Centre, Raja Garden, New Delhi meas. 10728 sq.mtr. was allotted by Slum & JJ dept. in favour of M/s.GPS Properties Pvt.Ltd., possession of which was taken over on 24.9.2004. M/s.GPS Properties Pvt.Ltd. paid vacant land tax under unit area method from 2004-05 onwards. Building plan for construction of mall was issued on 8.2.2005, completion certificate applied on 25.3.2008, which was issued on 25.7.2008. As per documents i.e. sanctioned plan of building, there are two basements (lower & upper) and total area of basement is 18134.92 sq.mtr. The contention of the taxpayer in the representation dated 30.11.2012 that since all units have been sold out to different buyers, the taxpayer is not liable to pay property tax in r/o basement is not tenable as entire ownership rights of the basement remains with M/s.GPS Properties Pvt.Ltd. as per perpetual lease executed with DDA. Though there is no legal definition of Super area/common area of Mall but in case it includes the car parking then the parking area cannot be sold as per the Perpetual Lease agreement executed. I have gone through the lease agreement dated 15/5/2006 executed between Slum & JJ Dept. of MCD and M/s.GPS Properties Pvt.Ltd.

6. M/s.GPS Properties Pvt. Ltd. filed an appeal challenging the assessment since Section 169 of the DMC Act, 1957 confers a right upon a person aggrieved by an assessment of any tax under the Act to file an appeal before the Municipal Taxation Tribunal, but abandoned the appeal in view of the fact that Section 170 of the DMC Act, 1957 prohibits the Municipal Taxation Tribunal to hear any appeal if it relates to the levy and assessment of property tax unless the amount which is disputed in the appeal is deposited by the appellant in the office of the Corporation.