JUDGMENT
Sanjay Kishan Kaul, J.
1. The petitioner has impugned the order dated 19th August 1996 disposing of four appeals against the order dated 15th February 1991 passed by the Assessor and Collector in respect of property known as Khasra No. 13/23/5/6/II at 1-G, Bharat Nagar, New Friends Colony, New Delhi, of which the petitioner is a co-owner.
2. The petitioner claims to have purchased the property in question along with his real brother/respondent No. 2 as per an Agreement of Sell dated 8th July 1986. The property in question was sealed under Section 345 of the DMC Act, 1957 in pursuance to a notice issued in November 1987 but the said sealing order was revoked in June 1989. The sealing order was passed in view of the fact that despite the Show Cause Notice issued to the petitioner, further construction had been carried out without any authority. The property was de-sealed in view of the fact that the specific area in question had not been transferred to the MCD by the DDA.
3. The assessment order was passed after issuing a notice under Section 126 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as “the said Act”). It is noted in the assessment order that the property had been put to commercial use having been rented out to M/s Tropicana Exports of which the mother of the assessed was the proprietor. Since the proprietorship concerns were either of the mother or the assessed, the property was treated as in self-use of the assessed and the assessment was made under Section 6(I) of the Delhi Rent Control Act, 1958 by taking the market value of the land on the date of commencement of construction and the reasonable cost of construction.
4. The petitioner had contended that the land in question was situated in Lal Dora but no proof was submitted of the market price of land. The Assessing Officer took into consideration the market value of the land in New Friends Colony in 1986 since that was the period for commencement of construction. It was noticed that the value of the land was Rs. 5000/- per sq. mtr. for residential use of land in New Friends Colony in 1986 and normally the commercial value is twice the market value for residential purpose. However, taking into a consideration the fact that the property was situated in Lal Dora, the same land rates were applied of Rs. 5,000/- per sq. mtr. In so far as the reasonable cost of construction is concerned, the petitioner filed a valuation report from an approved valuer but the same was found to be too low and the computation of construction was thereafter carried out by the assessing authority by taking into account the CPWD plinth area rates. The property was also inspected by the Zonal Engineer and on the basis of the cost index, the cost of construction was worked out at Rs. 20,23,129 instead of the valuation report of Rs. 16,87,300.
5. The petitioner aggrieved by the said order filed the appeals which were partly allowed in terms of the impugned order dated 19th August 1986. There were only three pleas raised before the appellate authority:
i) The valuation report was overlooked and the cost of construction was unnecessarily increased;
ii) There was no reason to add an amount of Rs. 2,93,762.25 being 20% as the construction was of better type and towards miscellaneous expenses; and
iii) The market value of land had been assessed at very exorbitant rates.
6. The appellate authority took note of the fact that the land of the petitioner was situated between Kalkaji and Friends Colony and while the residential rates at Friends Colony were Rs. 5,000/- per sq. mtr., the commercial rates in Kalkaji were Rs. 2,400/- per sq. mtr. It was also noticed that no land rate had been given in Nabhi’s Book though the colony in question had been mentioned. Taking all these factors into consideration, the land value was reduced to Rs. 3,000/- per sq. mtr.
7. In so far as the cost of construction was concerned, the plea of the petitioner was accepted to the extent that the same should be taken as Rs. 17,04,366/- without taking the addition of 20% of better type of construction and Rs. 25,000/- for maintenance expenses. Thus, the difference between the valuation report and what was taken as cost of construction was marginal being about Rs. 17,500/- higher.
8. The plea raised in the these petitions is that since the property is lying sealed, the house tax should not be levied. The said contention is to be rejected on two courts:
i) Firstly, this plea was never raised before the appellate tribunal; and
(ii) Secondly, such a plea can hardly be accepted that a person who carried out unauthorised construction and as a consequence of which the property is sealed, is not entitled to pay house tax for the period of the property being sealed. It may be noted that the de-sealing was not or account of the fact that there was no unauthorized construction but that the land had not been handed over to the MCD.
9. The second contention advanced by learned counsel for the petitioner is that since the property is situated in residential area, the commercial rates cannot be applied. In these cases, the appellate authority has, in fact, accepted the plea of the petitioner that a balance has to be made between the residential rates of Friends Colony and the commercial rates of Kalkaji and thus reduced the land value from Rs. 5000/- per sq. mtr. to Rs. 3,000/- per sq. mtr. Even otherwise, this issue is no more res integra in view of the judgment of this court in CW No. 716/2002, MCD v. Manohar Lal and Anr. decided on 22nd November 2002 where it has been held that if a property is put to commercial use and the property is meant for residential use, then it is the commercial land rate which has to be taken into consideration for the relevant period of time.
10. In view of the aforesaid, I find no merit in these writ petitions and the same are dismissed leaving the parties to bear their own costs.