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Municipal Corporation of Delhi Vs. Madan Mohan Khanna and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petn. No. 158-D of 1966
Judge
Reported inAIR1976Delhi43
ActsDelhi Municipal Corporation Act, 1957 - Sections 120, 122 and 169; Code of Civil Procedure (CPC), 1908 - Sections 11 - Order 22, Rule 11
AppellantMunicipal Corporation of Delhi
RespondentMadan Mohan Khanna and ors.
Appellant Advocate D.D. Chawla and; C.L. Chaudury, Advs
Respondent Advocate Mahindar Narain, Adv.
Cases ReferredKantilal Manilal & Co. v. Belgaum Municipal Borough
Excerpt:
..... the standard or fair rent had admittedly not been fixed by the rent controller for the premises,.shri udham singh found that there was nothing to show that the rent bad been fixed, at a low figure as a result of collusion in order to, deprive the corporation and, the government of the taxes due to them this view of shri udham. 122 (1) on the failure to recover any sum due on account of property taxes in respect of any land or building from the person primarily liable thereforee under section 120, the commissioner shall recover from every occupier of such land or building by attachment, in accordance with section 162 of the rent payable by such occupier, a portion of the total sum due which bears, as nearly as may be, the same proportion to that sum as the rent annually payable by such..........point out what was the correct basis on which the annual rental value had to be fixed shri udham. singh's decision happens to be in accordance with what was laid down by a full bench of this court in dewan da ilat rein kapur which again was referred to and explained by the still later full bench in soi. shri d. d. chawla does not dispute the fact that if there was no rest judicata arising in the case the decision of s, udham singh could not be assailed, subject, however, to the further question of abatemeat raised by him. he only contends, on this aspect, that by reason of finality attaching to earlier decision of shri pritarn singh and the principle of rest judicata oiderating shri udham singh could not have decided in the manner he did. this contention also, seems to be without any.....
Judgment:
ORDER

1. The Municipal Corporation of Delhi, which has been recently superseded under Section 490 of the Delhi Municipal Corporation Act, 1957 filed this petition under Articles 226/227 of the Constitution of

India as early as on 11-2-1966 for quashing the order passed by Shri Udham Singh, Additional District Judge on 15-9-1965 in the appeal which was preferred to him by (1) Madan Mohan Khanna (2) Seth Jagat Narain and, (3) Shri C. V. Desai against the order of the Assessor and Collector fixing the annual rental value which is the rateable value of the premises in question at Rupees 2156.25 P. per month (Rs. 25,875 annually) for the year 1963-64, the same having been previously fixed, at Rs. 41,305 Per annuin by Slhri Pritam Singh on 4-5-1961 w.e.f.1-4-1960 in an earlier appeal. Appellants Nos. 1 and 2 had described themselves as the Managing Landlords of the premises in question, known as Banarsi Krishna Theatre Buildings: appellant No. 3 was the managing partner of Moti Talkies, the lessee of the premises. When the appeal was pending appellants Nos. 1 and 2 died on 29-12-1963 and 12-2-1965, respectively. There were a number of other owners who were not eo nominee parties to the said appeal, which was filed in a representative character. This fact of the death of the two appellants was not brought to the notice of Shri Udham Singh when he decided the appeal; even this writ petition was filed against those two persons despite their having died earlier. An application (C. M. 372-J/69) was, made by the present petitioner to implead, not the heirs of those two deceased persons, but two other owners, namely, Jai Shankar and Vijay Narain,, obviously by way of substitution. This was allowed, to be done by this court's order dated 25-3-1969.

2. It is also necessary to notice, at this stage, that after the annual rental value had been fixed by the Assessor and Collector, an appeal against which was dismissed by Shri Pritain Singh on 4-5-1961, the tax as, fixed by him, was paid by the owners for the period 1960-61, 1961-62 and 1962-63. It is also, necessary to notice that Shri Pritam. Singh had fixed the annual rental value on the basis of 7 1/2 % gross receipt of the cinema following a decision of Kania, J. (as he then was) in Globe Theatres Ltd. v. Chief Judge of Small Cause Court, : AIR1947Bom108 . It may be noticed straightway that in that case the owner himself was running the cinema theatre. It would not, thereforee, afford a true analogy to the present case where the premises had been leased out. It is needless in this case to go into the correctness of the Bombay view.

3. There was a notice issued by the Municipal Corporation for enhancing the annual rental value from the Previous figure (Rs. 41,305) to a sum of Rs. 47,371 for the year 19,63-64 on the ground that the gross receipts had gone up. 0,4iections were, however, filed by the above said two appellants, as representatives of the owners, but the assessment was made at the increased figure mentioned in the notice, namely, Rs. 47,370. Against this order, which was passed on 8-11-1963 by the Assessor and Collector, an appeal was preferred and it was reduced by Shri Udham Singh to a sum of Rs. 25,875 on the footing that, what was relevant for this purpose was the rent for which the property has been leased, the amount of the lease being Rs. 1,875 p. m. The standard or fair rent had admittedly not been fixed by the Rent Controller for the premises,. Shri Udham Singh found that there was nothing to show that the rent bad been fixed, at a low figure as a result of collusion in order to, deprive the Corporation and, the Government of the taxes due to them this view of Shri Udham. Singh happens to be in, accord with the later decision of a Full Bench of this Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee . S. N. Andley, C. J., speaking for the Full Bench, held that in the absence of anything to show that the rent was collusively fixed at a lower figure the annual rental value had to be fixed on the basis of the agreed rent between the parties; if the standard rent had been fixed by the Rent Controller it would be that rent.

4. Shri D. D. Chawla, learned counsel for the petitioner, has contended as follows:

(1) the appeal preferred against the order of the Assessor and Collector abated on the death of the two landlords who had preferred the appeal (along with the lessee) and that it was not legally competent for the lessee to have gone on with the appeal despite the death of the other two appellants;

(2) that Shri Pritam. Singh had decided a question of principle; that the basis on which the annual rental value had to be fixed was a certain percentage of gross profits but not the rent realised. from the property and that this decision, even if erroneous, operated as rest iudicata.

5. Among other contentions Shri M. N. Andley, learned counsel for the respondents, resisted this writ Petition also on the ground that by virtue of the supersession of Delhi Municipal Corporation the Corporation and its affairs vested iii the Central Government and that the present writ petition could not be continued, as it has been laid after the said suppression.

Petitioner's first contention:

6. Before discussing the question whether the appeal which has been decided by Shri Udham Singh abated it is necessary to notice a few relevant provisions of the Delhi Municipal Corporation Act to which reference was made by both sides before me:

'120 (1) The property taxes shall be primarily livable as follows:-

(a) if the land or building is let, upon the Lesser;

(b) if the land or building is sublet, upon the superior Lesser:

(c) if the land or building is unlet, upon the person in whom the right to left the same vests

Provided that the Property taxes in respect of land or building, being property of the Union, possession of which has been delivered in pursuance of Section 20 of the Displaced Persons (Compensation and, Rehabilitation) Act, 1954, shall be primarily livable upon the transferee.

(2) If any lend has been let for a term exceeding one year to a tenant and such tenant has built upon the land, the property taxes assessed in respect of that land and the building erected thereon shall be Primarily livable upon the said. tenant, whether the land and buildings are in the occupation of such tenant or -a subtenant of such tenant.

Explanationn:- Me term tenant' includes any person deriving title to the land or the building erected upon such land from the tenant whether by operation of law or by transfer inter vivos.

(3) The liability of the several owners of any building which is, or Purports to be, severally owned in parts or flats or rooms, for payment of property taxes or any Installment thereof payable during the period of such ownership shall be joint .and several.

'122 (1) On the failure to recover any sum due on account of property taxes in respect of any land or building from the Person primarily liable thereforee under Section 120, the Commissioner shall recover from every occupier of such land or building by attachment, in accordance with Section 162 of the rent Payable by such occupier, a portion of the total sum due which bears, as nearly as may be, the same Proportion to that sum as the rent annually payable by such occupier bears to the total amount of rent annually payable in respect of the whole of the land or building.

not indivisible It seems to me the lessee has an independent right to attack the assessment order which he could not loose even m the eventuality of owners not challenging the assessment and the assessment becoming final for this reason so far as the owners are concerned. It is in this View that I have mentioned, at the forefront, the aspects bearing upon the lessee's competence to file an appeal against the assessment; once t1ne is established there could riot be any further question arising by reason of the lesseision, even if correct, would be totally applicable to the sent case for the ready indicated by me, that there was no question in that case of there be any lessee. B. C. Mism J. also discussed the relevant provisions pertaining to an appeal by a lessee against the order of the Assessor and Collector. and held such an appeal by the lessee to the competent. Despite his strenuous efforts Shri D. D. Chawla has really not been able to show how the appeal by the lessee was not competent.

9. It seems to me that the argument, for the petitioner, that the appeal which was decided by Shri Udharn Singh had abated, proceeds on a misapprehension. The lessee's appeal. if it was competent (as I have held) could not abate, even though both the owners and, the lessee were attacking the same assessment order; though a joint right it was not indivisible It seems to me the lessee has an independent right to attack the assessment order which he could not loose even m the eventuality of owners not challenging the assessment and the assessment becoming final for this reason so far as the owners are concerned. It is in this View that I have mentioned, at the forefront, the aspects bearing upon the lessee's competence to file an appeal against the assessment; once t1ne is established there could riot be any further question arising by reason of the lesse-align:none;punctuation-wrap:simple;text-autospace:none'>

11. We may now revert to the situation when certain persons jointly file one appeal but the right is not indivisible, Reference to this aspect also was ma& by the Supreme Court in State of Punlab v. Nathu Ram, : [1962]2SCR636 . Raghubar Dayal. J., who spoke for the Court, explained of the difficulties which axe likely to arise in a case where an. appeal is jointly filed by some Persons and referred to some of the tests adopted by the courts m this regard. The courts would not proceed with an. appeal: (a) when the success of the appeal may lead, to the court coming to a decision which would be in conflict with the decision between the appellant and the deceased respondent and, thereforee lead to the court Passing of a decree which will be contradictory to one which has become regarding the same subject matter the same parties, (b) when the appellant could not have brought the, action for the necessary relief against those respondents alone who are still before the court: (c) when the decree against the surviving respondents, if the appeal succeeds, be me effective that is to say it could not be successfully executed. He then proceeded, to explain that there was a consensus of opinion in the case of a decree which in Joint and divisible, the being that the appeal again A the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased, respondent It would follow from these observations that if the decree was divisible, though joint, then there could be no scope for application of the principle of abatement. Where I despite the landlords not having preferred an appeal against the assessment the tenant on whom the burden of additional (impugned) assessment would lie would be entitled to prefer an appeal and in su.ch a situation there will be no scope appeal for the application of the principle of abatement.

12. It is also settled law that appeal filed, in a representative capacity will not abate merely on the death of one or more of the appellants (vide Charan Shigh v. Darshan Singh, : [1975]3SCR48 ). But it is contended by Shri D. D. Chawla that both those persons (Madan Mohan Khanna and Tagat Narain), who had filed the appeal on behalf of the entire body of owners, had, both of them died. If the true principle is that a representative action cannot abate by the mere death of the representative(s) I am unable to see how the death of the sole or more than one representative (if that be the case) who brings the action or files the appeal could make any difference. It would obviously not be a case of adding the merely representatives of the one or these who said but substituting other owners, who were not economic parties to the said a meal or action. In such a context describing it as the addition of legal representatives would just not be appropriate. Similar observations had been made by the Judicial Committee of the Privy Council in V. Venkatanarayana Pillai v. Subbamal AIR 1015 Pc 124. Miat was a case 4d a suit by a presumptive petitioner to challenge an adoption made by a widow. When the sole plaintiff died the next presumptive reversioner was held entitled, to continue the suit Speaking for the Judicial Committee of the Privy Counsell Mr. Ameer Ali pointed out that the extension legal representative, which, had been introduced for the first time in sub-sec section (11) of Section 2 of Act V with the object of Putting in the statutory language the results of the decisions on the meaning of the words 'legal representative' was itself not clearly worded and had been the subject of criticism by at least one of the High Courts in India . the statutory language was as follows:

Legal representative means a person who, in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. 'Mr. Ameer Ali pointed out that the right of the next presumptive reversioner to continue the action of the presumptive one to be 'substituted' in p ace of the deceased, appellants 'on a broader ground' than adding of legal representatives. In this view there seems to be no scope for the contention that the appeal in this case had abated by reason of the death of the first two appellants.

13. The same result could be reached in this case even on the principle already referred to, namely, that the appeal by the lessee (third appellant) was competent and that he had an independent right of appeal, despite the first two appellants as, the representatives of the owners and the third appellant, as a lessee of the premises, joining in challenging the order of assessment, passed by the Assessor and Collector. The Supreme Court had occasion to consider, in Indian Oxygen Ltd. v. Sri Raan Abdar Singh (Civil Appeal No. 1444 of 1966 decided on 24-2-1968) (SC) that a claim by each of the five workmen for quarter allowance, which had been agitated jointly, was not a joint claim in respect of a joint right. Shelat, J., speaking for the Supreme Court, pointed out that it was a claim for a separate allowance for each of them. This decision was followed in Works Manager, Central Rly, Workshop v. Vishwanath AIR 1970 Sc 438. In that case there was a joint petition under the Payment of Wages Act by the respondents before the Supreme Court and there had been an order in their favor by a single judgment. In appeal to the Supreme Court all the respondents were parties but one of them died during the pendency of the appeal and his legal representative was not brought on record. Dua, J., speaking for the Supreme Court, observed that when the question of abatement was raised it was not pressed by counsel when his attention was drawn to Indian Oxygen Ltd. It could not be contended, thereforee, that the right of the owners and of the lessee to challenge the said assessment was an 'indivisible right'.

14. In no view of the matter thereforee, could it be contended that the said appeal which was decided by Shri Udham Singh had abated. It is needless to be detained by the further argument of Shri Mahindar Narain Andley which is attractive at first blush, that the difficult of having two inconsistent decrees in operation at the same the can have no applicability to an assessment order by the rating authority which is not a decree.

15. Petitioner's second contention The contention that this petition is barred ;by the principle of rest Judicata from attacking the decision of Shri Pritam Singh, namely, that the assessment had to be made on a percentage of the gross earnings of the Theatre, has even less force. The true principle in matters of taxation has been explained by B. P. Sinha, C. J. in Installment Supply (P.) Ltd. v. Union of India, : [1962]2SCR644 . The following observations were made at page 658:

'It is well settled that in matters of taxation there is no question of rest fudicata because each year's assessment is final only for that year and does not govern later years, because it determines only the tax for a particular -period (see the decision in the House of Lords in Society of Medical Officers v. Hope, 1960 Ac 551 Approving and following the decision of the Privy Council in Broken Hill Proprietary Co. Ltd. v, Municipal Council of Broken Hill, 1925 Ac 94.

In Installment Supply (P.) Ltd., the sales Tax Department had issued certain instructions in conformity with the earlier judgment of the Punjab High Court but the law was laid down more explicitly in a later decision of the Supreme Court. 11 was pointed out that the Department was bound, to take note of what the Supreme Court had laid down and had not stopped itself from issuing those instructions based on the earlier Puniab High Court decision.

16. A similar question came up for consideration before a Full Bench of this Court in M. N. Soi v, New Delhi Municipal Committee (C. W. No. 374-ID of 1966 decided on 30-5-1975 : AIR1975Delhi236 ) (FBA My Lord the Chief Justice T. V. R. Tatachari, speaking for the Full Bench, pointed out that the omission on the part of an assessed to rely upon the order of the Rent Controller and take the benefit of it during some years does not and could not estop him from relying upon the same in the subsequent veers.

17. Shri D. D. Chawla, however, contended that when an assessment is made any question of principle which was decided in the course of the assessment attracted finality and the finality of the said decision would be confined not merely to the period of assessment in question but would extend to a later period. In support of this contention, which I may at once state I find difficult to accept even on principle (even apart from the above decision of the Supreme Court), he relied upon two decisions. The first was the decision of the Andhra Pradesh High Court (Chandra Reddy, J. as he then was) in Appalacharyulu v. Rangacharvulu, AIR 1957 AP 1002. The relevant head note therein reads as follows:

'In judging whether the decision in a previous litigation operates as rest judicata or not in a later suit covering the subsequent years, the test is whether it decided a general principle that is applicable to the later years also. or whether it was particular or special to that particular year: in other words, whether the considerations vary from year to year or are such as would govern the subsequent years also. in the decision of that question, it is also irrelevant whether the previous judgment was erroneous either in law or on fact.'

The principle decided therein has no application to a tax case. That was a totally different where rights of' certain hereditary archakas of a temple were asserted, involving a prior decision pertaining to a claim for samprokshana expenses by one archaka against another. There had been a previous litigation in connection with such expenses incurred during a previous period and that decision was held to have finality. I am afraid the said decision has no application at all to a case like the present.

18. The second decision which was relied upon was of the Mysore High Court (Somnath Iyer, J. as he then was) in Kantilal Manilal & Co. v. Belgaum Municipal Borough AIR 1968 Kar 323. That was a claim concerning octroi duty collected of course during a certain period. In that connection it was observed that if the earlier litigation, concerning it, was based upon a principle which had application not only to the period to which the earlier suit related but also in respect of future liability the assessed cannot, in respect of the period subsequent to which the demand relates, raise the same allegations which had failed in an earlier litigation. It was also observed, by Somnath Iyer, J. that if the facts and circumstances were peculiar to the period to which the litigation related and did not involve the determination of the principle guiding the quantification of the octroi payable in respect of the future , there would be no bar of the rest judicata.

19. Without even being detained further by the above two decisions it may be noticed that the decision of the Andhra Pradesh High Court, even if it should bear on the present question, was prior to the decision of the Supreme Court in Installment Supply (P.) Ltd. : [1962]2SCR644 and the decision of Somnath Iver, J. though later, does not refer to the decision of the Supreme Court or even advert to the principle I aid down in the aforesaid decision of the Supreme Court. On the question of the applicability of the doctrine of rest judicata in matters of taxation, generally speaking, the Mysore decision is clearly contrary to that of the Supreme Court.

20. It is worth recalling that the assessment period with which Shri Udhain Singh concerned himself was for the assessment year 19-63-64 whereas Shri Pritani Singh lied concerned himself with the period up to 1960 and the tax had been paid at a rate fixed by him for the later years. It may also be recalled that the matter was taken before Shri Udharn Singh again on account of the notice which was given for enhancement (from the figure fixed by Shri Pritam Singh) resulting in Shri Udham Singh fixing the rental value at & figure even lower than what had been fixed by Shri Pritam Singh. The petitioner cannot complain that Shri, Udharn Singh had only to concern himself with the question of enhancement when the entire issue of the validity and correctness of assessment, as made by the Assessor and Collector, was open before him. in a sense he had to say what the correct rateable value was according to law. He was then concerned to point out what was the correct basis on which the annual rental value had to be fixed Shri Udham. Singh's decision happens to be in accordance with what was laid down by a Full Bench of this court in Dewan Da ilat Rein Kapur which again was referred to and explained by the still later Full Bench in Soi. Shri D. D. Chawla does not dispute the fact that if there was no rest judicata arising in the case the decision of S, Udham Singh could not be assailed, subject, however, to the further question of abatemeat raised by him. He only contends, on this aspect, that by reason of finality attaching to earlier decision of Shri Pritarn Singh and the principle of rest judicata oiDerating Shri Udham Singh could not have decided in the manner he did. This contention also, seems to be without any force whatever.

Respondent's contention:

21. In the above view of the merits of this petition it is needless to go into this aspect.

22. In the result this writ petition fails and is dismissed with costs. Counsel fee Rs. 250.

23. Petition dismissed.


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