{"id":126386,"date":"2000-03-01T00:00:00","date_gmt":"2000-02-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-star-estate-management-pvt-vs-new-delhi-municipal-council-anr-on-1-march-2000"},"modified":"2016-10-12T18:37:53","modified_gmt":"2016-10-12T13:07:53","slug":"ms-star-estate-management-pvt-vs-new-delhi-municipal-council-anr-on-1-march-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-star-estate-management-pvt-vs-new-delhi-municipal-council-anr-on-1-march-2000","title":{"rendered":"M\/S. Star Estate Management Pvt. … vs New Delhi Municipal Council & Anr. on 1 March, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
M\/S. Star Estate Management Pvt. … vs New Delhi Municipal Council & Anr. on 1 March, 2000<\/div>\n
Equivalent citations: 2000 VAD Delhi 619, AIR 2000 Delhi 391, 2000 (54) DRJ 304<\/div>\n
Author: . M Sharma<\/div>\n
Bench: . M Sharma<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 Dr. M.K. Sharma, J. <\/p>\n
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.\n<\/p>\n
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
\nthat 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\/-.\n<\/p>\n
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
\nunder  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.\n<\/p>\n
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
\ndone  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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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
\nland or building were let to a tenant.\n<\/p>\n
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:-\n<\/p>\n
     1(a) “a tax payable by the owner, on buildings and lands:\n<\/p><\/blockquote>\n
\n     Provided that in the case of lands and buildings occupied by  the tenants in perpetuity, the tax shall be payable by such tenants. <\/p>\n
      ……….(b) to (b)…………………..\n<\/p><\/blockquote>\n
\n     Explanation:  In  this section ‘tax’ includes any duty,  cess  or  fee. <\/p>\n<\/blockquote>\n
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
\n50% of the annual value.\n<\/p>\n
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.\n<\/p>\n
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
\naforesaid  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-\n<\/p>\n
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.\n<\/p>\n
     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
\nthe 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
\nthe  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
\ntheir 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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
     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
\nplea. 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
\nprovisions of the Punjab Municipal Act. This submission, therefore, is also
\nwithout any merit and is dismissed.\n<\/p>\n
14.  In  the  light  of the aforesaid discussion, I find no  merit  in  the petition. The petition stands dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court M\/S. Star Estate Management Pvt. … vs New Delhi Municipal Council & Anr. on 1 March, 2000 Equivalent citations: 2000 VAD Delhi 619, AIR 2000 Delhi 391, 2000 (54) DRJ 304 Author: . M Sharma Bench: . M Sharma ORDER Dr. M.K. Sharma, J. 1. The present writ petition has been preferred […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-126386","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nM\/S. 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