N.D.M.C v. M/S Om Parkash & Co

RAJIV SAHAI ENDLAW, J.

APRIL 27, 2016 'pp' ..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 27th April, 2016 + N.D.M.C. ..... Petitioner Through: Mr. Arjun Mitra and Mr. Abhishek Misra, Adv. Versus M/S OM PARKASH & CO. ..... Respondent Through: Mr. B.B. Jain and Mr. Sunil Magon, Advs. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition under Article 226 of the Constitution of India impugns the order dated 30th January, 2004 of the learned Additional District Judge (ADJ), Delhi allowing H.T. Appeal No.06/2004 preferred by the respondent with respect to the demand of Rs.5,73,000/- towards Property Tax for the year 2003-04 of property no.186, Jor Bagh, New Delhi. 2. Notice of the petition was issued and the petition has been languishing in this Court awaiting the judgment of the Supreme Court in appeal against the judgment of the Division Bench of this Court in NDMC Vs. State Trading Corporation India Ltd. (2006) 126 DLT 191. Supreme Court having vide judgment dated 3rd February, 2016 in Civil Appeal No.2772/2009 titled State Trading Corporation India Ltd. Vs. New Delhi Municipal Council (AIR 2016 SC 1269) pronounced on the matter, the counsels have been heard. 3. The petitioner New Delhi Municipal Council (NDMC) claims to have issued notice dated 26th March, 2001 under Section 72 of the New Delhi Municipal Council Act, 1994 (NDMC Act) to the respondent proposing to enhance the rateable value (RV) of the property aforesaid of the respondent from that then existing of Rs.20,250/- less 10% to Rs.24 lacs less 10% with effect from (w.e.f.) the year 2000-2001, on market rent basis and citing the instance of the rent being fetched by property no.208, Jor Bagh, New Delhi. 4. According to the respondent, no such notice was received and hence the respondent did not have an opportunity to object thereto and the petitioner NDMC did not become entitled to enhance the RV w.e.f. the year 2000-2001 for which the notice under Section 72 of enhancement had to be necessarily served before expiry of the year on 31st March, 2001. 5. The Assessor & Collector of the petitioner NDMC vide Assessment Order dated 19th May, 2003 confirmed the increase in rateable value w.e.f. the year 2000-01 to Rs.24 lacs less 10% and raised the demand for additional tax on the respondent and upon receipt of which demand the respondent filed the appeal aforesaid under Section 115 of the NDMC Act before the learned ADJ and which appeal was allowed vide the impugned order by setting aside and quashing the order of assessment of the petitioner NDMC and the demand impugned in the appeal. 6. It is the contention of the counsel for the petitioner NDMC that three points arise for consideration in this petition. Firstly, the effect of the learned ADJ having heard and decided the appeal without the respondent complying with the provisions of Section 116(b) of the NDMC Act i.e. of pre-deposit; secondly whether notice aforesaid under Section 72 was served on the respondent and lastly whether the learned ADJ was correct in setting aside the assessment. 7. I may in this regard notice that the learned ADJ has held that (i) since it was the case of the respondent that the notice under Section 72 was not served, the respondent was not liable to comply with Section 116(b) and to deposit the demanded amount before the appeal could be heard; and, (ii) that it was not necessary to decide the question of service of the notice because even if the notice was presumed to be served, the assessment on market rent basis when there was no change in the property was in any case bad. 8. The counsel for the respondent has at the outset stated that in the light of the judgment of the Supreme Court in State Trading Corporation India Ltd. supra which is in favour of the respondent, this petition is in any case liable to be dismissed. 9. On enquiry the counsel for the respondent states that the property has always been self occupied and in the year 2000-01 was also self occupied. 10. The NDMC Act, in Section 63 thereof prov