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Municipal Corporation of Delhi Vs. Kundan Lal - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 37D of 1959
Judge
Reported inILR1973Delhi35
ActsPunjab Municipal Act, 1911 - Sections 67
AppellantMunicipal Corporation of Delhi
RespondentKundan Lal
Advocates: S.S. Chadha and; Harbans Singh, Advs
Cases ReferredMunicipal Corporation of Delhi vs. Capt. Bhawani Dass and
Excerpt:
.....where, as in the instant case, the buildings in dispute were constructed during the relevant assessment years and the municipal committee sought to levy tax for a part of the period of the assessment year during which the buildings were in existence :;that the tax on these buildings could only be levied from the 1st of january or the first of april next ensuing as the case may be. according to the scheme of the act, the tax imposed is an yearly tax and not a tax for any broken period. no tax could be levied for the part of the period the buildings were in existence during the relevant assessment years. - - 93 of 1967. the statute here is not like the statute in force in madras under which quarterly levy could be made, nor is the tax levied for the first time so as to attract levy..........in person or by authorised agent and then finalise the assessment list, which becomes the final list of assessment under which tax is to be realised for the year commencing on the first day of january or the first day of april next ensuing as the committee may determine, but in the case of a tax imposed for the first time, also for the period between the date on which the tax came into force and such first day of january or april, as the case may be. this final list is deposited in the committee's office and is open for inspection. under section 68, the committee is given the discretion to either prepare a new list for each assessment year as contemplated by section 62 to 66 a or to adopt the assessment list of any previous year with such alterations as may be necessary in particular.....
Judgment:

Prakash Narain, J.

(1) This judgment will dispose of R.S.A. 37-D of 1959 and R.S.A. 79-D of 1959 as common questions of law arise in both the second appeals. The facts giving rise to both the appeal may, however, be noticed.

(2) In R.S.A. 37-D of 1959, the property involved is house no. 85 in Sundar Nagar, New Delhi, the construction of which was completed in October, 1956. The New Delhi Municipal Committee, in whose area this property fell at the relevant time, sent a notice under section 67 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act), on January 7, 1957 to the plaintiff/respondent proposing assessment of the new building to house tax and after hearing the objections, the said (committee finalised the assessment on 25th February, 1957 (Ex. P. 2). Thereafter, a demand for Rs. 951-2 As. (Ex. P.3) for house tax from 5th October, 1956 to 31st March, 1957, was sent to the plaintiff. This led the plaintiff to file a suit for injunction restraining the defendant. New Delhi Municipal Committee (now succeeded by the Municipal Corporation of Delhi), its servants and agents from Realizing from the plaintiff or his property the said house-tax or taking or continuing any step or measure for realisation of the house-tax for the period 5-10-56 to 31-3-57 assessed and levied on the plaintiff's house as aforesaid. The case of the plaintiff was that the assessment of the house tax on the said property could be made only w.e. from 1st April, 1957 and no house tax was livable on this property for a part of the period of the assessment year 1-4-56 to 31 -3-57 inasmuch as the construction of the property was completed only in October 1956. The plaintiff's suit was resisted on the ground that the assessment list for the year 1-4-56 to 31-3-57 could be amended under Section 67 of the Act including the name of the plaintiff and his property in the assessment list and the tax as demanded could be levied and realised. The trial Court dismissed the suit but on appeal the Additional Senior Sub-Judge. Delhi, reversed the Judgment and decree of the trial Court and decreed the suit. This led the Municipal'Corporation of Delhi to file a second appeal in this Court.

(3) In R.S.A. 79-D of 1959, the property involved is a building bearing No. 6562/6 in Ward No. 14, Plot No. 6, Chambelian Road, Bara Hindu Rao, Delhi. The construction of this building was completed in May 1956 while the notice for assessment of house tax was given to the plaintiff/respondent on 20th February, 1956. After hearing the objections filed by the plaintiff, the property was assessed to house tax for the assessment year 1st January, 1956 to 31st December, 1956. The plaintiff's contention was that the construction of the building was completed in May 1956 but the defendant's contention was that the property was in existence in January 1956 and so the assessment list for the year 1956 was rectified under Section 67 of the Act and the name of the plaintiff and the description of his property was included in the assessment list for the year 1956 making the house tax realisable for the year 1956. The demand raised towards house tax was Rs. 583-3 As. This led the plaintiff to file a suit for injunction restraining the defendant from Realizing the house tax as claimed on the ground that the assessment could only be made effective from 1st January, 1957, and not for the year 1956. The trial Court dismissed the suit of the plaintiff but in appeal, the Additional Senior Sub-Judge, Delhi reversed the judgment and decree of the trial Court and held that the house was completed in May 1956 and no tax could be assessed under Section 67 for the assessment year 1956. Aggrieved by this decision, the Municipal Corporation of Delhi preferred a second appeal.

(4) When these two appeals came up for hearing before one of us sitting singly, it was represented that the retrospective levy of house-tax under Section 67 of the Act was a matter which was before a Division Bench of this Court and so these two matters may also be heard along with the matter that was before the Bench. Accordingly it was ordered on January 25, 1968, that these cases be also listed before the Bench hearing the other matters, namely, R.S.A. 65-D of 1959 and R.S.A. 1 19 of 1959. It was in these circumstances that all these matters came up before us. On hearing the counsel, however, we felt that the questions involved in these two appeals were.somewhat different than in the other appeals and so, these two appeals were taken up separately.

(5) The common points on which there can be no dispute of facts are that in both these matters the buildings sought to be assessed are such the construction of which were completed during the course of the assessment year. In both the cases the appellant has purported to act under Section 67 of the Act and house tax is sought to be realised for a portion of the assessment year.

(6) The power to levy a tax payble by the owners of buildings and lands is conferred by section 61 of the Act. It is not in dispute that this power did exist. The procedure for levying this tax is to be found in Section. 62 to Section 66 of the Act. Under Section 62, a Committee may at a special meeting pass a resolution to propose the imposition of a tax. payable by the owner of buildings and lands to the extent permitted by sub-section (1) of Section 61. On such a resolution being passed, the Committee shall publish a notice defining the class of persons or descriptioii of property proposed to be taxed, the amount or rate of the tax to be imposed and the system of assessment to be adopted. On such notice being published, any inhabitant objecting to the propsed tax may, within thirty days of the publication of the said notice, submit his objections in writing which have to be considered at a special meeting. of the Committee. Thereafter, the Committee shall consider the proposal for taxation and pass a resolution adopting the proposal if necessary in an amended form. This has to be again published and objections to the amended proposals, if any, have to be considered. Finally, the proposal is settled and the committee directs that the tax be imposed. It has then to forward its order to this effect to the State Government through the Commissioner. After the State Government has sanctioned the proposal the State Government has to notify the imposition of the tax. On such notification being published, the tax becomes livable by the year and comes into force on the 1st January or on the 1st day of April or on the 1st day of July or on the 1st day of October in that year when the proposal comes into force. But the tax is livable from the first day of the quarter next commencing. This is when tax is imposed for the first time. The tax having come into force, thereafter the tax is livable on yearly basis. For this purpose the Committee is enjoined to prepare an assessment list of all buildings and lands on which any tax is imposed but it is to be prepared prior to the commencement of the year in which tax is to be assessed. In this list all the particulars as set out in Section 63 must be given. After the list contemplated under Section 62 is prepared, the Committee is bound to give public notice thereof specifying the places where the list or a copy thereof may be . inspected and every person claiming to be either the owner or occupier of a property included in the assessment list is at liberty to examine the assessment list and take extracts there from. The Committee is also enjoined by Section 63 of the Act to give public notice of a time, not less than one month after the publication of notice, when it will proceed to revise the valuation and assessment as given in the list prepared under Section 63 and in all cases in which any property is for the first time assessed or the assessment thereof is increased, it shall also give individual notice thereof to the owner or occupier of the property. These persons can file objections in writing, before the time fixed for revision of the valuation and assessment proposed under Section 65(1). Under the provisions of Section 66, the Committee must then hear the objections filed and afford the persons making the objections an opportunity of being heard either in person or by authorised agent and then finalise the assessment list, which becomes the final list of assessment under which tax is to be realised for the year commencing on the first day of January or the first day of April next ensuing as the Committee may determine, but in the case of a tax imposed for the first time, also for the period between the date on which the tax came into force and such first day of January or April, as the case may be. This final list is deposited in the Committee's office and is open for inspection. Under Section 68, the Committee is given the discretion to either prepare a new list for each assessment year as contemplated by Section 62 to 66 A or to adopt the assessment list of any previous year with such alterations as may be necessary in particular cases, following the procedure laid down in the earlier Sections for alterations that may be made. Section 67 of the Act provides for amendment of the assessment lists prepared either under Section 66 of the Act or as adopted under Section 68 of the Act. This section reads as under :-

'67(1).The committee may at any time amend the list by inserting the name of any person whose name ought to have been or ought to be inserted, or by inserting any property which ought to have been or ought to be inserted, or by altering the assessment on any property which has been erroneously valued or assessed through fraud, accident or mistake, whether on the part of the committee or of the assessed, or in the case of a tax payable by the occupier by a change in the tenancy, after giving notice to any person affected by the amendment, of a time, not less than one month from the date of service, at which the amendment is to be made. (2) Any person interested in any such amendment may tender his objection to the committee in writing before the time fixed in the notice, or orally or in writing at that time, and shall be allowed an opportunity of being heard in support of the same in person, or by authorized agent, as he may think fit.'

(7) It is common case of the parties that action in respect of the properties in both the cases was taken under section 67, during the course of the year when the tax was in force and for a part of the year inasmuch as the buildings in both the cases were completed during the assessment years.

(8) On behalf of the appellant in both the cases reliance has first been placed on a Full Bench decision of this Court in L.P.A. No. 93 of 1967, New Delhi Municipal Committee vs. The Punjab National Bank Ltd. (i) decided on 28th October, 1969. According to the learned Counsel, the controversy has been settled by this F.B. decision and the tax as demanded was validly demanded and legally imposed. Support is also sought from from the decision of a single Judge of this Court in R.S.A. 147 of 1965, Mfs Bhola Nath Bros. vs. New Delhi Municipal Committee (2) decided by B.C. Misra, J. on 21st December, 1971. We shall presently deal with both these decisions and examine how far the same are applicable to the facts of the present cases.

(9) In L.P.A. No. 93 of 1967, the building to be taxed belonged to the Punjab National Bank Ltd., the construction of which was completed in the year 1958 and it was first occupied by its owner on 1st July, 1958. The building was not entered in the assessment list prepared for the period 1-4-58 to 31-7-59. On September 4, 1959, the New Delhi Municipal Committee purporting to act under Section 67 of the Act issued a notice to the Punjab National Bank Ltd. that inasmuch as the building was completed and was occupied from 1st July, 1958, it had to be assessed to house tax by amending the list for the year 1-4-59 to 31-3-1960. It was proposed to amend the list for the year 1959-60 by inserting the said property on an annual value as given at the back of that notice. It was also mentioned that the proposed tax will take effect from 1-4-1959 and notice under Section 67 was given to enable the Bank to file its objections. After the objections of the Bank had been considered and rejected, the annual letting value of the property was fixed at Rs. 7,09,224.00 less 10 per cent and a bill for Rs. 63,830.00 was sent to the Bank on account of house tax for the period 1-4-59 to 31-3-60. This bill was followed by a notice of demand dated 8-1-60. The Bank resisted the demand and filed a suit of permanent injunction against the Committee and urged that inasmuch as the assessment was made on 20th November, 1959, it could take effect from 1st April, 1960 and not from 1st April, 1959, and that the assessment was excessive. We are not concerned here with the second aspect at all. It was held that the contention of the Bank was untenable and that the building which was completed and occupied on 1st July, 1958, should have been included in the assessment list for the year 1959-60, and was rightly included in the list under Section 67 of the Act. The demand for tax for the period 1-4-59 to 31-3-60 was, thereforee, held to be a valid demand. In the course of the majority judgment delivered by Hardy J. (as the learned Chief Justice then was), it was observed that 'the house-tax being a tax livable by the year if a property is in existence during the year when the assessment list is being prepared and settled and is for some reason not included in the list, it is self-evident that it ought to have been or ought to be inserted in the said list.' The contention on behalf of the Bank that in order to fasten liability to tax on such property during a financial year the amendment in the list should be made before the commencement of that year and if such amendment is made during the currency of that year the liability for tax will only arise in the year following that year was repelled. It was also observed in this very judgment that :

'IT is apparent that the property which was not in existence when the assessment list was prepared, namely, in the period 1-4-52 to 31-3-53, could not have been inserted in that list.' This observation was made while construing the judgment of D.K. Mahajan, J. in Municipal Corporation of Delhi vs. Capt. Bhawani Dass and others I.L.R. 1963(1) Punjab 541 Thus what was decided by the Full Bench was that if a property comes into existence at a particular point of time prior to the assessment list being finalised under Section 66 of the Act after following the procedure laid down in Section 63 to 65, then the property can be included in the list so finalised under Section 67 of the Act. But if the property comes into existence during the year for which the list has been finalised, the provisions of Section 67 of the Act would not be attracted and such property cannot be included in the list for the current year. Our brother B.C. Misra, J. in the case of Bhela Nath Bros. (2). was concerned with the property which had come into existence prior to the finalisation of the list but incidentally also dealt with the question of properties coming into existence during the year of the currency of the list. The learned Judge d''d remark that the question was only academic and so his observations are really in the nature of an obiter. In any case, we are of the view that the obiter dictum does not lay down the correct law. It was observed by the learned Judge : 'An argument strongly urged at the bar against the construction I am placing on section 67 is that the assessment list settled under section 66 of the Act even after incorporating the amendments becomes effective for the purpose of assessment to tax from the 1 st of January or the 1st of April next following, and if that is so, a property erected say on the 1st of October, 1967 will be subject to payment of tax from the 1st of April preceding the erection. This argument is attractive, but I find that it is open to the Committee to determine the date from which the tax would be payable. .......'

(10) It was also held by the learned Judge that some meaning has to be given to the two phrases 'ought to have been' and 'or ought to be inserted' in section 67 of the Act. According to him the word 'ought to be inserted' has reference to the present tense when the list is sought to be amended while the word 'ought to have been' has reference to properties which were constructed in the previous year but somehow were left out of the assessment list when it was prepared.' In our view there is no warrant for this distinction brought out by the learned Judge. Indeed this view which sanctions the levy of house-tax on a building constructed during the currency of the assessment year by invoking section 67 of the Act, runs counter to the Full Bench decision of this Court in L.P.A. No. 93 of 1967.

(11) Applying the above principles to the facts of the present case, it is apparent that section 67 of the Act could not be invoked by the appellants to raise the impugned demands or to make the impugned house- tax assessments. The buildings in both the cases were completed during the course of the year and tax on these buildings could be levied only from the 1st January or the 1st of April next ensuing, as the case may be. There is no justification, as is held by B.C. Misra, J. in Mfs Bhola Nath Bros. . case, to levy tax for the part of the period the building is in existence because, as is apparent by the scheme of the Act, the tax imposed is an yearly tax and not a tax for any broken period of the year. Indeed this has been clarified in the Full Bench decision of this Court in L.P.A. No. 93 of 1967. The statute here is not like the statute in force in Madras under which quarterly levy could be made, nor is the tax levied for the first time so as to attract levy for a period of the year as contemplated by sub-section (II) of section 62 of the Act. To our mind the scheme of the Act is absolutely clear : the properties construeted during the course of the year would attract levy from the first day of January or the first day of April next ensuing, as the Committee may determine, while properties which were in existence in the previous year but were not included in the settled list may be included in the list under the provisions of Section 67 of the Act, if the requirements of that Section are satisfied.

(12) The result is that both these appeals are dismissed with costs. Counsel's fee in each case Rs. 300.00.


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