ORDER
Dr. M.K. Sharma, J.
1. The present writ petition has been preferred by the petitioner seeking for issuance of a writ of mandamus quashing and setting aside the recovery notice issued for a sum of Rs.1,10,820/- dated 9.1.1997 and also to set aside and quash the entire proceedings conducted by the respondent/NDMC for the levy and assessment of property tax on the car parking space in building known as Tolstoy House, 15-17, Tolstoy Marg, New Delhi.
2. The petitioner company is undertaking the job of maintenance, upkeep and preservation of the building, operation of common services and management of the common areas including that of the building known as Tolstoy House, 15-17, Tolstoy Marg. For the aforesaid services rendered by the petitioner it charges and recovers a fixed amount from each of the occupants on account of car parking services. On 4.1.1993, assessment notices were issued by the respondent/NDMC to the petitioner. The said notices were for the years 1989-90 to 1993-94 and issued under the provisions of Sections 67-A and 65 of the Punjab Municipal Act. On receipt of the aforesaid notices, the petitioner filed objections on 30.1.1993, which were received by the respondent/NDMC. It was alleged in the said objections that the petitioner is not the person primarily liable to be assessed to house tax in respect of the open car parking spaces on any account whatsoever and
that open car parking space is not a building within the meaning of Section 3 of Punjab Municipal Act and that the said open space is included in the value of the land and cost of construction on the basis of which the rest of the entire building including the number of flats already stood assessed to house tax. It is alleged that the petitioner was not served with any order of assessment and the recovery notice dated 9.1.1997 was received by the petitioner for recovery of house tax amounting to Rs. 1,10,820/-.
3. Being aggrieved by the issuance of the aforesaid recovery notice, the present petition has been perferred, on which I have heard the learned counsel appearing for the parties. It was submitted by the counsel appearing for the petitioner that the open space was already assessed when the building was assessed by the respondent/NDMC, for while assessing the building the open space and the amenities provided to the occupants were already taken notice of and therefore, the second assessment in respect of the open space would amount to double taxation which is not permissible
under the law. He further submitted that in terms of the provisions of Punjab Municipal Act the open space cannot be assessed to property tax. It was also submitted that the petitioner could not be said to be the owner of the premises making him liable under the charging section, for he was only a licensee and, therefore, the order of assessment, if any, and the recovery notice issued in the name of the petitioner is liable to be set aside and quahsed.
4. Counsel appearing for the respondent, on the other hand, submitted that the provisions of the Punjab Municipal Act contemplate assessment of both land or building and since the petitiner is admittedly collecting rent/fee for the services rendered by them in open space and the same could be assessed under the Punjab Municipal Act and that assessment is to be made on the basis of the actual rent/licence fee which is being received by the petitioner and, therefore, it is covered within the definition of ‘owner’ defined in the Act and is liable to be assessed in the manner as
done by the respondents. It was also submitted that the petitioner is admittedly collecting the rent/licence fee from the various persons in the building using the open space for car parking and, therefore, it is liable to pay house tax on the basis of rent/licence fee received and in support of his contention he relied upon the provisions of Pujab Municipal Act which are being noticed hereafter.
5. Section 3 is the definitions section of the Punjab Municipal Act. Section 3(1) defines Annual Value to mean in the case of land or building which is in the occupation of the tenant the gross annual rent on which land or building has actually been let out and (b) in the case of land or building which is occupied by the owner, the annual value shall be 5% of the sum obtained by adding the estimated present market value of the land and estimated cost or erecting the building less 10% depreciation.
6. Section 3 (2) defines ‘building’ to mean any shop, hut, outhouse, shed or stable, whether used for the purpose of human habitation or otherwise and whether or masonry, bricks, wood, mud thatch, metal or any other material what ever; and includes a wall and a well.
7. The word ‘occupier’ defined under Section 3 (10) means to include an owner in actual occupation of his own land or building, and also any person for the time being paying or liable to pay to the owner the rent or any portion or the rent of the land or building in respect of which the word is used. Whereas the word ‘owner’ is defined to include the person for the time being receiving rent or land and buildings, or either of them, whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose or who would so receive the same if the
land or building were let to a tenant.
8. Section 61 of the Punjab Municipal Act lays down the procedure in accordance with which taxes could be imposed. The relevant provisions of the said Section for the purpose of deciding the present case are extracted below:-
1(a) “a tax payable by the owner, on buildings and lands:
Provided that in the case of lands and buildings occupied by the tenants in perpetuity, the tax shall be payable by such tenants.
……….(b) to (b)…………………..
Explanation: In this section ‘tax’ includes any duty, cess or fee.
9. In terms of the aforesaid provisions the respondent No.1 herein could levy, assess and recover the tax in accordance with the procedure laid down in the said Act payable by th owner of the building and land not exceeding
50% of the annual value.
10. In the light of the aforesaid submissions and the provisions under the relevant act, let me scrutinise the submissions of the counsel appearing for the parties.
11. The assessment of tax is to be made by respondent No.1 on the basis of the annual value to be determined in accordance with the provisions of Section 3 (1) read with Section 61 (a) of the Punjab Municipal Act. The
aforesaid property tax is payable by the owner of the building or land under Section 61 (a) and the tax is based on the anual value of the land or building. The annual value has been defined under Section 3(1) of the Act and means in the case of land gross annual rent at which it may be reasonably be expected to be let from year to year. A Division Bench of this court in Delhi Paints & Chemicals Vs. N.D.M.C. reported in AIR 1993 (2) Delhi 18 has held that the reteable value of such lands or buildings (to which applicability of Delhi Rent Control Act is not attracted) have to be deter-
mined by finding out the annual rent at which such land or building might reasonably be expected to let from year to year by having recourse to the principles de hors the provisions of the Delhi Rent Control Act. It was further held that if any property forms subject matter of contractual rent then the rate agreed upon between the parties and which was being actually paid by the tenant and received by the landlord can safely be accepted as determining factor of rateable value.
The term “rent” although has not been defined in the Punjab Municipal Act but the word “tax” under Section 61(1) would also include duty assessed or fee in terms of explanation thereto. The rent/licence fee collected by
the petitioner towards providing car parking facilities and services would, in my considered opinion, come within the ambit of the aforesaid expression `rent’. This interpretation of the word ‘rent’ for the purpose of deciding
the presnt case is also in consonance with the decision of the Division Bench of this Court in Sir Sobha Singh & Sons P. Ltd. Vs. NDMC reported in 1996 Vol.IV A.D. 56 wherein it was held that the term rent must be assigned a wider meaning under the NDMC Act. 1994 since the same has not been defined. In coming to the aforesaid conclusion the Division Bench had referred to a decision of the Supreme court in State of Punjab & Anr. Vs. British Indian Cooperation Ltd. wherein
their lordships of the Supreme Court in paragraphs 15 to 17 have held that in its wider sense ‘rent’ means any payment made for the use of land or building and thus includes the payment by a licensee in respect of the use and occupation of any land or building. The amount received by the petitioner from the occupiers of the building for providing the car parking facilities and services whether it is called by the nomenclature of rent or licence fee or service would definitely come within the ambit of the word rent and, therefore, tax is payable on such receipt for providing the facilities and as fetched by the premises.
12. Tax is payable by the owner of buildings and lands to the Municipal Corporation of Delhi under the provisions of Section 61 of the Punjab Municipal Act. It would thus be relevant to consider whether the petitioner could also be included within the ambit of the expression owner to make him liable to pay the tax in terms of Section 61(1) of the Punjab Municipal Act. The expression ‘owner’ as has been stated above is defined under the provisions of Section 8 (11) of the Punjab Municipal Act which includes the person for the time being receiving rent of land and buildings, or either of them, whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose. The petitioner is admittedly receiving the fee, which is in the nature of rent as has been held above from the open space i.e. land and, therefore, he would definitely be included within the ambit of the expression of word ‘owner’. In my considered opinion, the word ‘owner’ as defined in the Act, must be given and assigned a wider meaning so as to include a person like the petitioner, who has been collecting rent for providing car parking facilities in the open space and in return, collecting fee/rent therefrom.
13. The aforesaid contention of the counsel for the petitioner that he is neither the owner nor collecting rent is found to be devoid of merit.
This leaves me to decide the other question as to whether the aforesaid taxation of the open space by the respondent as sought to be done through issuance of the recovery notice, would amount to double taxation. Nothing is placed on record to show and indicate that while making assessment of the building and levying tax on the occupiers of the flats, the area of the open space was also considered and the same was assessed. The petitioner, it was aggrieved by the order of assessment and the recovery notice could have filed an appeal as provide under the Punjab Municipal Act, which he did not choose to do. This is a matter relating to questions of facts, which were to be investigated upon by the Appellate Authority. Without placing relevant records in support of the aforesaid contention, the said issue cannot be answered in the writ petition particularly in absence of any specific pleading and evidence in support or the aforesaid
plea. The petitioner should have taken resort to the efficacious remedy by filing an appeal to receive the findings of fact from the Appellate Authority as to whether while making the assessmet order in respect of the flat or building the aforesaid open space was taken notice of and considered and added to in the order of assessment. Even otherwise, the petitioner is earning revenue by collecting rent from the persons using the aforesaid open space wherein he is providing car parking facilities and, therefore, on the said income of rent he is liable to pay tax in accordance with the
provisions of the Punjab Municipal Act. This submission, therefore, is also
without any merit and is dismissed.
14. In the light of the aforesaid discussion, I find no merit in the petition. The petition stands dismissed.