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Shiv Lal Vs. Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 43 of 1968
Judge
Reported inILR1971Delhi758
ActsMunicipal Corporation Act, 1957 - Sections 113 and 119; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 22
AppellantShiv Lal
RespondentMunicipal Corporation
Advocates: D.N. Nijhawan and; K.K. Raizada, Advs
Excerpt:
.....in 1961, then it becomes obvious that if the lands or buildings, being the properties of the union of india, remain in possession of the union of india and are not such lands or buildings which may be covered by section 22 of act 44 of 1954, then the exemption will operate.; (ii) municipal corporation act (act 66 of 1957) - section 119--imposition of property taxes--allottee of a government property--allotment held covered by section 20 of act 44 of 1954--recovery of taxes--whether can be made from occupier.; that he who receives the rent must first be the person to pay the property tax. it is only on failure to recover the sum due as property tax from the person receiving the rent that it becomes recoverable from the occupier and that too in the manner provided for by the act...........for the period ending 31st march, 1966. the respondent admitted that the property belonged to the union of india as government built property but that it was under the occupation of shiv lal since the 11th of november, 1953, as stated by him. it was pleaded that the property was assessed for the first time for the year 1960-61. it was emphatically urged in the written statement that the imposition was legal. (3) the court of first appeal attended to the amendment introduced in section 109 of the municipal corporation act (act 66 of 1957). that provision is :- '119.(2) where the possession of any land or building being property of the union, has been delivered in pursuance of section 20 of the displaced persons (compensation and rehabilitation) act, 1954, (44 of 1954) to a displaced.....
Judgment:

Pritam Singh Safeer, J.

(1) The short question arising in this appeal for determination is whether the imposition souhght to be recovered was illegally made or not and as to from whom the recovery can be made. The present appellant pleaded in the course of the plaint that he was a displaced person and the concerned property was allotted to him on rental basis on 11th of November, 1953. It is nowhere disclosed as to who was the officer who made the allotment. In paragraph 3 of the plaint it was asserted that the property in suit was allottable property within the meaning of the Act. The reference was to the Act mentioned in paragraph I of the plaint and there Act 44 of 1954 was referred to (Displaced Persons Compensation and Rehabilitation Act.). After making those assertions in the plaint the plaintiff assailed the notice dated the 3rd of December, 1966, contending that the imposition was illegal because the property belonged to the Government.

(2) I have seen Exhibit P. 2, the original notice issued to the plaintiff-appellant under the date 3rd December, 1966. It called upon the present appellant to pay a sum of Rs. 1161.53 towards the property tax for the period ending 31st March, 1966. The respondent admitted that the property belonged to the Union of India as Government built property but that it was under the occupation of Shiv Lal since the 11th of November, 1953, as stated by him. It was pleaded that the property was assessed for the first time for the year 1960-61. It was emphatically urged in the written statement that the imposition was legal.

(3) The court of first appeal attended to the amendment introduced in section 109 of the Municipal Corporation Act (Act 66 of 1957). That provision is :-

'119.(2) Where the possession of any land or building being property of the Union, has been delivered in pursuance of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (44 of 1954) to a displaced person any association of displaced persons, whether incorporated or not, or to any other person (hereafter in this sub-section and the proviso to sub-section (1) of section 120 referred to as the transferee) the property taxes specified in section 114 shall be livable and shall be deemed to have been livable in respect of such land or building with effect from the 7th day of April, 1958, or the date on which possession thereof has been delivered to the transferee, whichever is later, and such property taxes shall, notwithstanding anything contained in the proviso to sub-section (2) of section 26 or any other provision of this Act be recoverable with effect from that day or date as the case may be.'

It is submitted on behalf of the respondent that the property having been transferred to the occupation of the present plaintiff-appellant the imposition have been legally made within the meaning of section 192. Amplifying the submission Mr. Rai- Zada contends that even though the allotment was made in Nov- ember, 1953, the provisions of section 39 of Act 44 of 1954 brought the allotment within the orbit of section 20 of the Act. A Sections 20 and 39 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954 are:-

'20.Power to transfer property out of the compensation pool.-(1) Subject to any rules that may be made under this Act, the managing officer, or managing corporation may transfer any property out of the compensation pool- (a) by sale of such property to a displaced person or any association of displaced persons, whether incorporated or not, or to any other person whether the property is sold by public auction or otherwise; (b) by lease of any such property to a displaced person or an association of displaced persons, whether incorpo- rated or not, or to any person; (e) by allotment of any such property to a displaced person or an association of displaced, persons whether incorporated or not, or to any other person on such valuation as the Settlement Commissioner may determine ; (d) in the case of a share of an evacuee in a company, by transfer of such share to a displaced person or any association of displaced persons whether incorporated or not, or to any other person. '(1A) For the purpose of transferring any property out of the compensation pool under sub-section (1), it shall be lawful for the managing officer or the managing corporation to transfer the same to a displaced person jointly with any other person or an association of displaced persons or otherwise. (2) Every managing officer or managing corporation selling any immovable property by public auction under sub section (1) shall be deemed to be a Revenue Officer within the meaning of sub-section (4) of section 89 of the Indian Registration Act, 1908 (XVI of 1908). (3) Where the ownership of any property has passed to the buyer before the payment of the whole of the purchase money, the amount of the purchase money or any part thereof remaining unpaid and any interest on such amount or part shall, notwithstanding anything to the contrary contained in any other law, be a first charge upon the property in the hands of the buyer or any transferee from such buyer and may, on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue.'

'39.Validation of certain action taken before the commencement of the Act.-Anything done or any action taken (including any order made) by the Chief Settlement Commissioner, Settlement Commissioners, Additional Settlement Commissioners or Settlement Officers for the purposes of payment of compensation or rehabilitation grants or other grants to displaced persons shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the date on which such thing was done or action was taken.'

(4) Before proceeding to consider the provisions contained in Act 44 of 1954 I may observe that the taxes to be imposed by the Municipal Corporation of Delhi are described in section 113. Section 114 deals with components and rates of property taxes. Then comes section 119, sub-section (2) whereof has been reproduced earlier. The first part of the section contains the exemption. That part is:

'119.Notwithstanding anything contained in the foregoing provisions of this Chapter, lands and buildings being properties of the Union shall be exempt from the property taxes specified in section 114.'

As indicated earlier, sections 113 and 114 of Act 66 of 1957 are of necessity to be read as composite provisions. If a true interpretation is given to sub-section (2) of section 119 introduced by way of an amendment in 1961, then it becomes obvious that if the lands or buildings being the properties of the Union of India remain in possession of the Union of India and are not such lands or buildings which may be covered by section 22 of Act 44 of 1954, then the exemption will operate. In this case the property, according to the plaint itself which belonged to the Union of India, had been allotted to the plaintiff-appellant in November, 1953. It is contended by Mr. Nijhawan, appearing for the appellant, that it cannot be concluded that the allotment was covered by section 20 of Act 44 of 1954 and, thereforee, the imposition would not be legal within the meaning of sub-section (2) of section 119 of Act 66 of 1957, noticed in an earlier part of this judgment. Clause (c) of section 20, expressly provides that an allotment would be a transfer within its meaning. Mr. Nijhawan contends that the allotment intended to be covered would be an allotment to which the rules framed later on under the Act were of necessity to be applicable and the allotment would be an allotment for purposes of transferring the property ultimately to the allottee who would then become the owner. The argument is that the allotment covered by clause (c) would be in the nature of allotment for purposes of transferring ownership. The learned counsel has referred to Chapter V of the Rules framed under Act 44 of 1955. The Rules begin with rule 22. A careful consideration of these rules discloses that the property is to be valued. If its evaluation is settled at a particular figure i.e. Rs. 10,000 then the property will be transferable to the allottee in occupation of the property provided he complies with the requirements of law. If the property is of a value of more than Rs. 10,000 then although the allottee may be in occupation of the property, the property will be determined as the one liable to be put to sale through auction. In this case Mr. Nijhawan submits that at one stage the property was determined as the property being transferable to the plaintiff-appellant as its value was calculated as being below Rs. 10,000. Later on, according to the learned counsel, it was determined that the value of the property was Rs. 13,000 and an auction was held and the property was put to sale and was purchased by one Raghbir Singh. Mr. Nijhawan further submits that there is a writ petition pending in this court impugning that auction. Apart from what is being submitted by Mr. Nijhawan, there are clear averments in the plaint which lead me to the finding that till today the plaintiff-appellant is not the owner of the property. He remains an allottee and according to the plaint he is paying rent for the property which he is holding as an allottee. The nature of relationship is such that it can be safely held within the meaning of section 39 of Act 44 of 1954 that the property was originally granted to him for purposes of rehabilitation and that the allotment still remains a grant. If a reference is made to Stroud's Judicial Dictionary then the meaning given to word 'grant' is:

'THISword is taken largely, where any thing is granted or passed from one to another. And in this sense it doth comprehend feoffments, bargains and sales, gifts, leases, charges, and the like; for he that doth give, or sell, doth grant also.'

It is not the plaintiff-appellant's case that he is the owner of the property. His case is that he was a refugee and had no place to live. The property allotted to him was residential property. Who gave the property to him It is his own case that it was the Union of India who gave the property to him. The nature of allotment was such that it can be safely held that it was and remains a grant. The 'grant' would include an occupation of residential property allotted on fixation of agreed rent payable every month.

(5) The plaintiff-appellant's case was best described in his own deposition when he appeared at the trial as a witness. The first sentence in the deposition of Shiv Lal is:

'Iam the tenant of the disputed property under the State Ministry of Rehabilitation.'

He then proceeded to state that he was paying Rs. 65 per month, as rent. The property with which this litigation is concerned is certainly one which is covered by section 20 of Act 44 of 1954 when the said provision is read along with section 39 of the said Act. The allotment in November, 1963, was an 'action taken' before the commencement of the said Act by which the right to reside in the property was granted on payment of fixed rent.

(6) The question then is can the recovery be made from the plaintiff-appellant? Sub-section (2) of section 119 of Act 66 of 1957 would only make the imposition legal. It is section 120 of that Act which in clause (a) says :

'120.(1) The property taxes shall be primarily livable as follows: (a) if the land or building is let, upon the Lesser;'

(7) The imposition although legal the tax mentioned as property tax in Exhibit P.2 (the notice issued by the respondent's official) was recoverable in the first instance from the Lesser. It was the Union of India, who had made the allotment of the property and was receiving the rent from the plaintiff-appellant. In the first instance the recovery was to be made from the Union of India. Section 122 of Act 66 of 1957 makes the position clear. It opens by providing :

'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.'

(8) The legislative intent disclosed by sub-section (1) of section 122 of Act 66 of 1957 is that he who receives the rent must first be the person to pay the property tax. It is only on failure to recover the sum due as property tax from the person receiving the rent that it becomes recoverable from the occupier and that too in the manner provided for by the provision, quoted above. That being so, I hold that no recovery could be made from the plaintiff-appellant till such time that the Municipal Corporation of Delhi established that it had failed to recover the property tax from the owner, the Union of India.

(9) It seems that the notice Exhibit P.2 was erroneously issued to the plaintiff-appellant. The respondent will be within its rights to take such legal steps which may be open to it for recovering the concerned tax. The plaintiff-appellant is not responsible to pay the same in the first instance. The appeal is allowed to the extent indicated by the observations made above. There will be no order as to costs.


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