ORDER
S.N. Kapoor, J.
1. This CM (M) has been filed against an order of remand in House Tax Appeal No. 221/94 for the reason that the valuation report and the objections filed by the respondent had not been considered. Moreover, the most disputed point relates to “inclusion of cost price of unexploited portion of plot”. In this background, the learned District Judge passed an order of remand to “re-assess afresh after considering the objection of the appellant and in the light of the aforesaid judgment”.
2. Learned counsel for MCD Ms. Madhu Tewatia submitted that this judgment of Naresh Kumar Vs. UOI, relied upon by the learned District Judge has been set aside in MCD & Ors. Vs. Naresh Kumar & Ors., . From the perusal of the judgment of MCD & Ors. Vs. Naresh Kumar & Ors., (supra), in SLP arising out of the judgment and order of this High Court in CWP 937/94, it is seen that in that case it has been held that though clause (c) exempts “agricultural lands and buildings from the levy imposed by Section 115(4). Clause (c), however, contains an exception within itself. The dwelling houses are excluded from the purview of agricultural lands and buildings.” In paras 4, 6 and 7 land appurtenant to dwelling house was considered. In para 6 following observations were made:
“6. The next question is – if a “dwelling house” is exigible to levy of general tax, how much of the adjacent land should be treated as an integral part of the dwelling house. In other words, the question is whether the entire land surrounding or abutting a farm house is subject to general tax along with the dwelling house. The answer to this question is: a dwelling house includes within its ambit such appurtenant land as is necessary for a proper and convenient enjoyment of the dwelling house. The extent of such appurtenant land is naturally a question of fact to be decided in each case. We have only stated the test. It is for the appropriate assessing authority to determine the extent of land which can be called appurtenant land to a given dwelling house.”
3. The order of remand is not at all affected by the above observations any manner for no observation has been made indicating to exclude all land excepting the dwelling house.
4. Learned counsel for the petitioner has further referred to following observations of learned Additional District Judge:
“Moreover, my attention has been drawn to case Naresh Kumar Vs.
UOI, , wherein it has been held that it is not permissible for the Assessing Authority to take entire agriculture land for the purpose of levying property tax and only such land around dwelling house which can be said to be reasonable required for the purpose of beneficial enjoyment of the dwelling of farm house can be subjected to tax. The Ld. Counsel for the respondent has not been able to distinguish the aforesaid judgment rates of which squarely applies to the instant case as on perusal of the impugned order, I find that market value of 550 sq. mtr. has been taken into consideration and an amount of Rs.75,000/- has been added on account of unexploited portion of the plot added to the market value of land which is contrary to the of the aforesaid judgment.”
On this basis, it is submitted that it would adversely affect MCD.
5. The above observation, especially the last four lines of the above order are in tune with the observations of the Supreme Court. The assessment order itself does not indicate “whether this unexploited portion of the plot is land appurtenant to the dwelling house which can be said to be reasonably required for the purpose of beneficial enjoyment of the dwelling of farm house”. The extent of “appurtenant land” is naturally a question of fact to be decided in each case. When the learned Additional Judge passed an order to decide the matter in the light of the aforesaid judgment, he would have never intended to say that this judgment is to be followed even if it is modified or reversed by the Supreme Court. The intention is to follow the ratio of the court of record and in case there is a judgment of the apex court, then to follow the ratio of the apex Court. Consequently, a proper reading of the order would mean that ratio in Naresh Kumar Vs. MCD’ case (supra), so long as it is not modified by the apex Court, should be followed and in case it is modified or reversed then the ratio of the judgment of apex Court has to be followed. It is a question of just proper reading. This judgment cannot be read otherwise.
For the foregoing reasons, I do not find any force in the petition and with the above observations, the appeal is dismissed.