{"id":129895,"date":"1997-12-02T00:00:00","date_gmt":"1997-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-delhi-vs-a-p-attri-another-on-2-december-1997"},"modified":"2018-10-10T10:57:02","modified_gmt":"2018-10-10T05:27:02","slug":"municipal-corporation-of-delhi-vs-a-p-attri-another-on-2-december-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-delhi-vs-a-p-attri-another-on-2-december-1997","title":{"rendered":"Municipal Corporation Of Delhi vs A.P. Attri & Another on 2 December, 1997"},"content":{"rendered":"
Delhi High Court<\/div>\n
Municipal Corporation Of Delhi vs A.P. Attri & Another on 2 December, 1997<\/div>\n
Equivalent citations: 71 (1998) DLT 280, 1998 (44) DRJ 280<\/div>\n
Author: M Siddiqui<\/div>\n
Bench: M Siddiqui<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
M.S.A. Siddiqui, J.<\/p>\n
1.      The  challenge in this writ petition is to the order dated  15.11.1989
\npassed  by the learned Additional District Judge in H.T.A. No. 15\/1989  and
\nHTA  No. 16\/1989, who, while accepting the appeals filed by the  respondent
\nhas  determined the rateable value of the premises bearing No. A-105  Satya
\nVihar, New Delhi.\n<\/p>\n
2.   It appears that construction of the premises in question was commenced in  February,  1980 and it was completed in 1982. The ground floor  of  the property  was occupied in November, 1980 and after completion of the  first floor, the same was let out to Sh. M.S. Sharma for 2-1\/2 months at a monthly rent of Rs. 1000\/- w.e.f.\n<\/p>\n
3.   1.8.1982 and thereafter it was let out to Mr. Ashok Raj for 3 years at
\na monthly rent of Rs. 2001\/- w.e.f. 14.10.82. A notice U\/S 126 of the Delhi
\nMunicipal  Corporation Act (hereinafter called the Act) was issued  to  the respondent proposing enhancement of rateable value from Rs. 15,660\/- to Rs. 33,490\/-.  In  response to the said notice, the  respondent  submitted  the objections  against the proposed enhancement of rateable value, which  were rejected by the Assessing Authority vide order dated 8.12.1988. By the said order, the Assessing Authority revised the rateable value to Rs.  33,490\/-, as  proposed. In appeal by the respondent, the learned Additional  District
\nJudge  set aside the assessment order and fixed the rateable value  of  the property  at  Rs.  23,140\/-  w.e.f. 1.7.1982 and  at  Rs.  23,900\/-  w.e.f. 1.8.1982 and at Rs. 23140\/- w.e.f. 1.8.1987.\n<\/p>\n
4.   The  learned  counsel  for the petitioner has  assailed  the  impugned judgment of the learned Additional District Judge on the following grounds:\n<\/p>\n
     a)  that  the learned Additional District Judge has  committed  a patent  illegality by determing the cost of land on the basis  of land  rates  notified  by the Delhi  Administration  for  Jhilmil Colony.\n<\/p>\n
     b)  that  the learned Additional District Judge has  committed  a grave error by assessing the annual letting value of the  portion let  out by the respondent at a figure which does  not  represent the correct annual letting value of the said portion.\n<\/p>\n
5.   As  regards the first point, it is significant that the learned  Addl. District  Judge  has observed that the Assessing Authority  had  taken  the value  of the land at Rs. 550\/- per square meter but the  assessment  order dated  8.12.1988 is conspicuous by absence of the said finding  noticed  by the  learned Addl. District Judge. On the contrary, the learned  Additional District Judge has determined the value of the land at Rs. 212\/- per square meter  on  the basis of land rates notified by the Government  for  Jhilmil Colony. The Apex Court has observed in Diwan Daulat Rai Kapoor Vs. NDMC  and Dr. Balbir Singh Vs. MCD   that  rateable value  of  a  property should be determined on the cost of  the  land  plus construction i.e. on the basis of standard rent determinable on the principles  set out in Section 6 of the Delhi Rent Control Act.  Their  Lordships have  also observed that if for any reason the standard rent cannot  be  so determined,  then the Assessing Authority can have recourse to  the  provisions  of  Section 9(4) of the Delhi Rent Control Act. In my  opinion,  the learned  Additional  District Judge has committed a  patent  illegality  in determining the value of the land on the basis of the rates notified by the Government  for Jhilmil colony. In MCD Vs. C.P. Gosain CWP 4122\/90  decided on  24th October, 1991 and MCD Vs. Jasvinder Singh and Another  CWP-4096\/91
\ndecided  on  17th May, 1993 and MCD Vs. N.C. Jain and  Another  CW  1312\/90 decided  on 24.7.1991 and K.P. Gupta CW 438\/88 decided on 26th April,  1990 it  was observed that neither the scheduled rates of the L & D.O. nor  auction  rates alone can form the basis for determing the market price of  the land although both are relevant pieces of evidence which can be taken  into consideration by the Assessing Authority alongwith other evidence which the parties  may  produce before the Assessing Authority. In MCD  Vs.  NC  Jain (supra); it was observed by the Division Bench that ;\n<\/p>\n
      “…the  assessing authority should try and ascertain the  market
\n     rate of land on the basis of sale deed, auction prices etc.  near about  the time when the construction taken in the  immediate  or near vicity of the land where it is situate…”\n<\/p>\n
6.   The  same view has also been reiterated by another Division  Bench  of
\nthis Court in Sita Nanda Vs. NDMC & Anr. 1996 (v) AD Delhi 34. It is pertinent  to mention that while fixing cost of the land of the said portion  of the  building the Assessing Authority did not refer to any evidence on  the basis of which the same was determined by it. Consequently, the  assessment order determining rateable value of the portion of the building under self-occupation  of the respondent cannot be sustained in law. In  the  instant case, the learned Additional District of Judge instead of himself determining  the rate of the land ought to have set aside the order  of  assessment
\nand  remanded  the case to the Assessing Authority with  the  direction  to
\ndetermine the market price of the land in accordance with law.\n<\/p>\n
7.   This  takes me to the next point urged by the learned counsel for  the
\npetitioner. It is undisputed that the first floor of the property in  question  was  first let out to Sh. M.S. Sharma for 2-1\/2 months at  a  monthly rent of Rs. 1000\/- per month w.e.f. 1.8.1982 and thereafter it was let  out to Sh. Ashok Raj for 3 years at a monthly rent of Rs. 2100\/-. The Assessing Authority  had determined the annual letting value of the said  portion  of the  building  on the basis of monthly rent of Rs. 2100\/- and  the  learned Additional District Judge has disagreed with it and had preferred to assess
\nthe  annual  letting  value on the basis of rent of Rs.  1000\/-  per  month
\nreceived by the respondent from his tenant for two and a half months  only.\n<\/p>\n
The question is: How to determine the annual letting value of the  property
\nin such a situation?\n<\/p>\n
8.   In  Dr. Balbir Singh Vs. MCD (supra), their Lordships of  the  Supreme
\nCourt have observed:-\n<\/p>\n
     “Now, what is reasonable is a question of fact and it depends  on
\n     the facts and circumstances of a given situation. Ordinarily,  “a bargain  between a willing lessor and a willing  lessee  uninfluenced  by extraneous circumstances, the actual rent payable by  a tenant to the landlord would afford reliable evidence of what the landlord  may  reasonably expect to get  from  the  hypothetical  tenant,  unless  the rent is inflated or depressed by  reason  of extraneous  considerations such as relationship,  expectation  of some  as  relationship, expectation of some  other  benefit  etc. There would ordinarily be close approximation between the  actual rent received by the landlord and the rent which he might reasonably expect to receive from a hypothetical tenant.”\n<\/p>\n
9.   In Govt. Servants Cooperative House Building Society Ltd. Vs. Union of
\nIndia,  a Division Bench of this Court has held that;\n<\/p>\n
      “In  respect of a building not subject to any such  rent  control
\nlegislation  the actual rent payable by a tenant to the  landlord would  afford reliable evidence of what the  landlord  reasonably expect  to  get from a hypothetical tenant, unless  the  rent  is inflated  or  depressed by reason of  extraneous  considerations,
\nsuch as, relationship, expectation of some other benefit and  the like. There would ordinarily be, in a free market, close approximation  between the actual rent received by the landlord and  the rent which he might reasonably expect to receive from  hypothetical tenant.”\n<\/p>\n
10.  The  Apex  Court  has observed in Dewan Daulat Rai vs.  NDMC  and  Dr. Balbir  Singh Vs. MCD (supra) that the rateable value can only be the  rent which  a owner can legally receive. The rent which can be legally  received is controlled by the provisions of the Delhi Rent Control Act and it is not permisSible  for  an owner\/landlord to receive more than the  standard  rent determinable under the said Act. It has further been held that the standard rent  has to be determined by applying the provisions of Section 6  of  the
\nDelhi  Rent  Control Act. Section 116 of the Act  provides  that  ‘rateable value’ is to be the rent at which the building might reasonably be expected to let.’ Thus, the rateable value would be the actual rent received subject
\nto the maximum of the standard rent. In the case of first letting, however, the actual rent received by the landlord from his tenant itself becomes the standard rent under sub-section (2) of Section 6 of the Delhi Rent  Control Act  for five years. After five years’ period of the first letting is  completed, then the standard rent will have to be fixed by applying the provisions  of  Section 6(1)(b). The deeming provisions in  sub-section  (2)  of Section 6 has to be given its full effect. This full effect can be given if after  the first letting the standard rent is to be taken to be that  which is determined under sub-section (2) of Section 6 and not what is determined u\/s 6(1)(b) of the Delhi Rent Control Act. In this view of the matter, I am fortified by the decision rendered by the Apex Court in Mrs. Shiela Kaushik vs.  the Commissioner of Income-tax, Delhi, . Thus,  it  is apparent that sub-section (2) of Section 6 of Delhi Rent Control Act  seeks to  lay down mode of working out the annual letting value of the  property. According  to  the said provisions, it is to be worked out  by  taking  the
\nactual  rent realised as the basis. The Act does not define the  expression ‘annual letting value’. But Section 2(1) of Gujarat municipalities act 1964 defines the expression ‘annual letting value’ as follows;\n<\/p>\n
      “Annual  letting value means the annual rent for any building  or land,  exclusive of furniture or machinery contained  or  situate therein  might reasonably be expected to let from year  to  year, and  shall  include all payments made or agreed to be made  by  a tenant to the owner of the building or land on account of occupation, takes under any law for the time being in force,  insurance or other charges incidental to his tenancy.”\n<\/p>\n
11.  Thus, the expression ‘annual letting value’ unmistakably indicates the annual  rent received annually by the landlord from his tenant. It  is  the annual  standard  rent hich, alone, therefore, can form the basis  of  the assessment of the property tax by the Assessing Authority. For purposes  of sub-section  (2)  of Section 6 of the Delhi Rent Control  Act,  the  annual letting  value should always be based upon the actual annual rent  received by the landlord from his tenant and not on the standard or fair rent  fixed
\nunder  Section 6(1)(b) Delhi Rent Control Act. In other words,  the  annual rent  received  by the landlord from his tenant shall be deemed to  be  the annual  rent for which such building etc. might reasonably be  expected  to let  from year to year. So far as the Act is concerned, the annual rent  is
\nthe actual rent received by the landlord from his tenant and it  determines the  basis  for determining the annual letting value,  rateable  value  and property  tax.  That is the plain effect and meaning of  sub-section(2)  of Section 6 of Delhi Rent Control Act. In my opinion, the rent of Rs.  1000\/- per month does not represent the correct annual letting value of the  first floor  of the property in question. As stated earlier, the said portion  of the  building  was first let out to Sh. M.S. Sharma for 2-1\/2 months  at  a monthly  rent of Rs. 1000\/- and thereafter it was let out to Mr. Ashok  Raj
\nfor  3 years at a monthly rent of Rs. 2100\/-. The difference between  duration  and  the amount of rent between the two tenancies gives  rise  to  an inference  that  the said portion of the building was let out to  Mr.  M.S. Sharma  to  have the benefit of sub-section (2) of Section 6 of  the  Delhi
\nRent Control Act. In Sir Shobha Singh & Sons (Pvt.) Ltd. Vs. NDMC 1996 (iv)
\nAD (Delhi) 56 a Division Bench of this Court has quoted few instances which
\nmay contribute for depression of the rent. The same are as under;\n<\/p>\n
     (1)  The  landlord has collected huge amount as  “Pagri”  and  is
\n     charging  nominal rent.\n<\/p>\n
 (2) The premises are shown to  have  been
\n     let out for a month or so on nominal rent to have the benefit  of
\n     Section 6(2)(b) of the DRC Act and after expiry of the period of alleged tenance, the real tenant pays much more than the  alleged tenant. Say the premises were agreed to be let out to one of  the sister  concern at Rs. 20,000\/-, per month for a period of  three years. However, after the expirty of just three months the  premises  were let out at Rs. 75,000\/- per month to a  Public  Sector Undertaking.  Or to say the premises were shown to have been  let out at Rs. 9,000\/- p.m. for a period of two years, but the tenancy was terminated within a period of less than two months and the premises were let out at Rs. 36,000\/- per monthly. On  enquiries, it was found that even the completion certificate was not applied for when the alleged rent of Rs. 9,000\/- per month was shown.\n<\/p>\n
     (3) The landlord collects huge amounts as interest-free  security
\n     and lets out thepremises at nominal rent with permission to  sublet.  The  tenant,  after taking over possession,  lets  out  the premises at exorbitant rent.\n<\/p>\n
     (4) The premises are let out to a sister concern at low rent with permission to sublet, and the sister concern lets out the  premises for huge amounts.\n<\/p>\n
     (5) The owner with his family members is staying in the  premises and  the  same have been let out to either his  employer  or  the employer  of his son, to have benefit of rent. However, the  rent is depressed as it cannot be more than the House Rent entitled of
\n     himself or his son.\n<\/p>\n
12.  In  my opinion, the learned Additional District Judge has committed  a patent  illegality  in  determining the annual letting value  of  the  said portion of the property in question on the basis of rent of Rs. 1000\/-  per month  which  does not represent the correct annual letting  value  of  the property.\n<\/p>\n
13.  For the foregoing reasons, the writ petition is allowed. The  impugned
\njudgment  of  the learned Additional District Judge is set  aside  and  the assessment  order fixing the rateable value of the portion of the  building let out by the respondent is restored. However, the assessment order of the Assessing  Authority is set aside to the extent at determines the  rateable value of the portion of the property under self-occupation of the  respondent. The case is remanded to the Assessing Authority with the direction  to redetermine  the  rateable  value of the said portion of  the  property  in accordance with law, keeping in view the observations in this behalf.\n<\/p>\n
     No order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Municipal Corporation Of Delhi vs A.P. Attri & Another on 2 December, 1997 Equivalent citations: 71 (1998) DLT 280, 1998 (44) DRJ 280 Author: M Siddiqui Bench: M Siddiqui ORDER M.S.A. Siddiqui, J. 1. The challenge in this writ petition is to the order dated 15.11.1989 passed by the learned Additional District […]<\/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-129895","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMunicipal Corporation Of Delhi vs A.P. 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