D.R. Khanna, J.
(1) This civil revision is directed against an order dated 29-9-1980 of ShriK.P.Varma, Senior Sub Judge, Delhi, whereby the appeal of the plaintiff/petitioner, namely, the S.K. Construction Pvt. Ltd. against an order dated 12-3-1980 of Shri D.R.Singh, Sub Judge 1st Glass, Delhi, was dismissed. The learned Sub Judge had dismissed the application of the petitioner under order 39, rule I and 2 read with section 151 of the Code of Civil Procedure for grant of interim injunction during the pendency of the suit.
(2) The brief background is that the petitioner is the perpetual lessee from the Delhi Development Authority of plot No. 5fi, Nehru Place, New Delhi, under a lease deed dated 28-9-1973. The petitioner was to erect a multi-stoyed building thereon, and in fact did so later. However, during the year 1975-76, no construction had been effected. The Municipal Corporation of Delhi, however, proceeded to levy property tax on this plot, and for that purpose had recourse to proceedings under sections 124 and 126 of the Delhi Municipal Corporation Act. The petitioner contested them. However, property tax amounting to Rs. 46,134-50 p. was imposed and a bill to that effect was issued on 8-3-1976. The petitioner paid Rs. 20,000.00 out of the same in the same month. The balance has so far not been cleared. It was against the realisation of the amount that the plaintiff brought a suit for permanent injunction against the Municipal Corporation on 1-3-1978. It was asserted that the open plot was not liable to property or fire tax as it was owned by the Union 'of India, while the petitioner held only lessee rights. It was further stated to be not let out by the petitioner during the year 1975-76.
(3) Along with the suit the plaintiff moved an application under order 39 rule I and 2 and section 151 of the Code of Civil Procedure for interim injunction. The trial court initially restrained the respondent-corporation from recovering the property tax. However, later by a detailed order dated 12-3-1980 it vacated the same. In doing so, reliance was placed upon the decision of Kapur, J. of this Court in Civil Writ No. 17 of 1977 (Vishal Builders Pvt. Ltd. v. Delhi Municipal Corporation & another), in which it was held that the definition of the term 'land' under section 2(24) of the Delhi Municipal Corporation Act included within its ambit lessee rights) and such lessee was liable to pay property tax on the value of the lease hold rights. This was irrespective of the ownership rights vesting in the Union of India and those rights being exempt from the levy of property tax under section 119 of the Act on the ground that the land and the buildings owned by the Union of India could not be subjected to property tax.
(4) In appeal the learned Senior Sub Judge upheld that order, though at the same time observed that the implications of section 120 of the Delhi Municipal Corporation Act perhaps had not been taken into account in the earlier decision of this Court. He also observed that when the Municipal Corporation had resorted to the provisions contained in sections 124 and 126 of the Act, the proper remedy for the petitioner, in case it felt aggrieved, was to have moved an appeal before the District Judge under section 169 of the Act. The pleas sought to be raised in the suit, it was observed, could well be agitated in such appeal.
(5) Feeling aggrieved, the petitioner moved the present petition. It was admitted, and an interim stay in the meanwhile was granted by Luthra, J. Now the revision has been heard on merits. There is little doubt that the definition of the term 'land' as given in section 2(24) of the Act is comprehensive to include benefits to arise out of land, things attached to the earth or fastened to anything attached to the earth and rights created by law over any street. The petitioner had purchased the lessee rights in the plot in dispute from the Delhi Development Authority at a costofRs.l6,01,000.00 . These were valuable rights and the lease conferred long term benefits in petitioner's favor over the land. The lessee rights, thereforee, clearly fell within the meaning of the term 'land' under the said definition. Thus irrespective of the ownership of the land continuing to vest in the Union of India, and such ownership being not assessable to property tax in view of the provisions contained in section 119 of that Act, the lessee rights themselves' could be treated as 'land'. Such land can surely be made subject matter of property tax under section 114 of the Act.
(6) The next question to be considered is whose primary liability it is to pay property tax over such land. Section 120 of the Act in this respect reads as under:
'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 sub-let, upon the superior Lesser ; (c) if the land or building is unlet, upon the person in whom the right to let 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 land 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 tenant, whether the land and building are in the occupation of such tenant or a sub-tenant of such tenant. Explanationn :-The term 'tenant' includes any person deriving title to the land of 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, everally 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.'
So far as clause l(a) is concerned, the same is inapplicable in the present case. The petitioner had not let out this plot during this year, and thus did not hold the status of Lesser. In case the perpetual lease in its favor was considered as the letting, then the Lesser was the Union of India which under Section 119 was exempt from such levy.
(7) Similarly clause l(b) does not come into play as there was no subletting.
(8) SUB-SECTION 2 also is inapplicable as it pre-supposes that the tenant should have built upon the land if his tenancy exceeded one year term. Admittedly the petitioner had not then built upon the land.
(9) Then there remains sub-section (1), clause (c). This on the face of it is attracted to the facts of the present case as the lessee rights of the petitioner which are to be termed as 'land' had been unict. The person who would be primarily liable for the payment of property tax under this clause is 'in whom the right to let the land vests'.
(10) The crucial question thus to be determined is who is the person in whom the right to let the land in the present case vested in the relevant year. The petitioner has in this regard laid a copy of the perpetual lease granted in its favor by the Delhi Development Authority are pointed out that clause 4 in the same reads as under :-
'(4)(a) The lessee shall not be entitled to sell, sub-let, transfer, assign or otherwise part with the possession of the whole or any other part of the commercial plot before or after erection of the building except with the prior consent in writing of the Lesser which he shall be entitled to refuse in his absolute discretion. (b) In the event of permission being granted, 50% of the unearned increase in the value of the land i.e. difference between the premium paid and the market value of the land at the time of the transfer of the plot, would be paid to the D.D.A. However, no uncarned increase in the value of the plot will be charged if the plot is transferred by the lessee to a Co-operative Society that may be formed of all the purchasers of floor space units of the building during the first three years after handing over the possession of the plot. The Lessee may sub-let the whole or part of the building that may be erected from the plot for the purposes specified in the terms and conditions of the original lease. The lessee may also, with prior permission of the D.D.A. in writing, sell or transfer the floor space constructed on the plot. The written permission will be granted on payment of Rs. 100.00 for each 393 case of sale/transfer provided such a transaction does not violate the said terms and conditions. For sale/transfer subsequent to the first sale of the floor space units, the permission of the D.D.A. shall be required which will be given after charging by the Authority @ Rs. 1 .00 per sq. yd. of the floor space to be transferred.'
(11) It has, thereforee, been urged that there is no absolute right available with the petitioner to let the land, and that the same has been made subject to the prior consent in writing of the Lesser which can be refused in Lesser's absolute discretion. Even where such permission is granted, the same has to be on various conditious incorporated in clause (b) as reproduced above.
(12) In my considered opinion this contention raised by the petitioner raises a prima facie case in its favor, and the controversy is rendered worth giving a trial. If the right to let did not without fetters, vest in the petitioner during the relevant year, and the same was entirely dependent upon the absolute discretion of a third body, it may not be possible to term it 'a right'. The existence of right normally should have inherent characteristics of power and discretion depending upon the violation of the person concerned. He should be able to avail and exercise the same of his own and at his discretion. If, however, it is qualified upon the sanction or approval of a third party, then the paramouncy vests in such party, and if it choses to allow that, it is more in the nature of a benefit or favor extended to the person concerned. It may, of course, thereafter acquire the status of right. It is note worthy that the clause in the lease deed referred to above, makes a distinction between sub-lettings of the land and the super-structure thereon. For the latter, perhaps it can be said that the right to sub-let has been left open to the lessee at his discretion. The Bub-letting of the land, however has not been looked at as a sort of normal feature, and has been made dependant upon the consent of the Delhi Development Authority in its absolute discretion.
(13) In these circumstances, I am of the opinion that the controversy involved gives rise to a prima facie case, and when the respondent has not so far realised the balance amount of tax, it would be fair and proper to allow the status quo to continue during the pendency of the suit. The trial court, however, is directed to dispose of the suit within six months. It will be the responsibility of the petitioner to complete its evidence in the trial court within four months. No further adjournment thereafter need be allowed to the petitioner to produce its evidence.
(14) As regards the contention that the suit is not maintainable, and that the proper remedy of the petitioner was to have gone in appeal before the District Judge under section 169 of the Act, it cannot be said that the cotention of the petitioner that when the demand raised is absolutely not sustainable against it under the law, it can file a suit for quashing it, is not worth giving a trial.
(15) I, thereforee, while allowing this revision and subject to the observations above, direct that during the pendency of the suit in the trial court the respondent will not realise property tax due on the land in dispute for the year 1975-76 from the petitioner. Looking at the circumstances, no order as to costs.
(16) Before concluding, it may be mentioned that nothing in this order shall be considered as an expression of opinion on merits which the parties may ultimately establish in the suit.