MAN MOHAN TULI v. MUNICIPAL CORPORATION OF DELHI — 1982 DIGILAW 158 (DEL)

S. B. WAD ( 1 ) WHETHER properties lying on the border line of the Union Territory of Delhi and the adjoining State are liable to municipal property tax of Delhi is an important question of law arising in this petition. To put it in a different form, the question is which municipal authority is entitled to collect property tax (general tax) Delhi Municipal Corporation or the municipal authorities in the adjoining States ? The difficulty has arisen in the present case because two municipal authorities have levied and collected property tax from the petitioner in regard to same property for the same year. Property bearing Municipal No. 483/49-B at G. T. Road Shahdara-Delhi-cum-U. P. border touches Union Territory of Delhi from north and east while from South and West side the property touches Uttar Pradesh (particularly territory comprising of Nagar Palika, Ghaziabad ). The property in question is used as a godown. It has no access from Delhi side. Admittedly, the access is only from U. P. side. Admittedly, because although it was asserted in the affidavit in reply by the Delhi Municipal Corporation that there is an access from the eastern side opening in Union Territory of Delhi, on examination of the relevant maps at the time of the argument, it was admitted by the counsel for Delhi Municipal Corporation that it was not so. This petition was heard number of times but as there was some dispute regarding the exact situation of the property, parties were directed to file their affidavits with plans. Petitioner has filed the affidavit and the plan. An affidavit in reply has also been filed on behalf of the Delhi Municipal Corporation. They also agreed to the plan filed by the petitioner. No other plan was produced or submitted by the Delhi Municipal Corporation. ( 2 ) FOR proper appreciation of the factual position it is necessary to quote the said affidavits: "2. I say that I am the owner of a piece of land measuring 10,000 sq. yards with buildings thereon, situate on the G. T. Road from Delhi to Ghaziabad near the 6th Milestone beyond Shahdara, Delhi. A portion of the aforesaid land and buildings falls within the territory of Uttar Pradesh inasmuch as the superstructures and some vacant land are within the Union Territory of Delhi. yards with buildings thereon, situate on the G. T. Road from Delhi to Ghaziabad near the 6th Milestone beyond Shahdara, Delhi. A portion of the aforesaid land and buildings falls within the territory of Uttar Pradesh inasmuch as the superstructures and some vacant land are within the Union Territory of Delhi. The entrance to the same which is an integral part of the aforesaid land and buildings falls within the territory of Uttar Pradesh under the jurisdiction of Nagar Palika, Ghaziabad, a local body constituted under the Act I say that the point on the G. T. Road in which the entrance to the aforesaid land and buildings merges is beyond the Delhi border and falls within Uttar Pradesh. The said land can be accessible only through the entrance which fall within the limit of U. P. A copy of the layout plan of the area is attached herewith and marked as Annexure a . 3. I say that the aforesaid land is surrounded on two sides i. e. south and west by the territory of Uttar Pradesh and on the other two sides by the Union Territory of Delhi. The north of the aforesaid land is underdeveloped, low-lying and water-logged area and is incapable of being used by the respondent for providing any facilities or services to the aforesaid land. I say that the west of the said land with superstructures thereon is owned by Smt. Maya Devi and others the petitioner in CW 263/72. 4. I say that all the possible services in the aforesaid land including drainage, sewerage, water supply, scavanging, maintenance and sweeping of internal roads, street lighting are being provided by me exclusively at my cost and expense. Even the electric mains have been laid by at my own expense. I have laid, at my own expense, 8 electric poles in order to obtain supply from the electric mains on the G. T. Road. The said amenities are the obligatory functions of the respondent-Corporation which are at present being carried out and performed by me as the property is not accessible to the Corporation. 5. I have laid, at my own expense, 8 electric poles in order to obtain supply from the electric mains on the G. T. Road. The said amenities are the obligatory functions of the respondent-Corporation which are at present being carried out and performed by me as the property is not accessible to the Corporation. 5. I say that the land and buildings are so situated that it is not possible for the respondent to perform any of its functions or provide any services or facilities which they are required by law to do as the entrance to the said land and building is beyond the Delhi limits and falls within the limits of U. P. 6. I say that on the north of my godown there is a wall which is 10 high, beyond the wall is marshy land about 500 wide and beyond the marshy land there is a 10 wide drain. Along the drain, there is an embankment which is 8 high. This embankment is enclosed by barbed wire. The only entrance into or exit from the godown is, therefore, the only passage which I have stated above and which is my private property. 7. I say that the entire area bordering the U. P. border in which the aforesaid land and buildings are situated, the respondent las from its very inception till today not performed any of the aforesaid functions, nor is in a position to render any services as incumbent upon it under the law. 8. I say that Nagar Palika, Ghaziabad, has laid the water mains, electric supply installations, drainage and sewerage pipes, but are refusing to make available these services to me unless I pay the property taxes, water taxes and scavanging taxes up to date to the Nagar Palika, Ghaziabad. 9. I say that the Nagar Palika, Ghaziabad, has recovered from me a sum of Rs. 10,700. 00 by distress warrant as arrears of property taxes and water taxes w. e. f. 1-4-1976 and the balance till to date is being claimed by them. I say that property tax have been paid by me to the Municipal Corporation, Delhi till 31-3-1971 as demanded by them. I say that the property tax has been paid to both Municipal Corporation and the Nagar Palika, which in terms amount to double action. 10. I say that property tax have been paid by me to the Municipal Corporation, Delhi till 31-3-1971 as demanded by them. I say that the property tax has been paid to both Municipal Corporation and the Nagar Palika, which in terms amount to double action. 10. I say that the land use of the premises falls within the Dilshad District Centre. 11. I say that about 14 acres of land of Dilshad District Centre falls within the Union Territory of Delhi and a major portion of the same falls within the territorial jurisdiction of Nagar Palika, Ghaziabad. 12. I say that the District Centres are defined in the Master Plan as composite centres for decentralization of commercial activities of the surrounding areas. " ( 3 ) IN the reply affidavit filed on behalf of the Delhi Municipal Corporation it is dated: "i say the petitioner s property bearing Municipal No. 483/49-B at G. T. Road Shahdara-Delhi-cum-U. P. boarder fully and squarely falls within the Union Territory of Delhi, and the same has been given the Municipal No. 483/49-B by the respondents. Apart from this municipal number, if there is any other land and building, the same is not being assessed, to property taxes under the Delhi Municipal Corporation Act, 1957. However, it may be correct that the approach road to the said land and buildings as is being used by the petitioner may be falling within the territory of Uttar Pradesh, but there is also an alternative approach road available to the petitioner within the territory of Delhi from Seemapuri Colony. . . . . . . . . It is further wrong and denied to allege that the respondents are incapable of providing any facilities or services to the land and properties of the petitioner. The petitioner has been given the electric connection and also has been given telephone connection. Rest of the facilities will be given as and when the area is developed according to the Master Plan of Delhi and zonal plan of the area. . . . . . . . . . . . The petitioner has been given the electric connection and also has been given telephone connection. Rest of the facilities will be given as and when the area is developed according to the Master Plan of Delhi and zonal plan of the area. . . . . . . . . . . . I say that the existence of wall on the north of the petitioner s property and that of drain and embankment do not render the petitioner s premises being out of the reach of levy of property taxes u/s. 113 of the Delhi Municipal Corporation Act, 1957, as the property taxes are leviable on all lands and buildings within the jurisdiction of the respondent-Corporation and as such, the property of the petitioner is not exempt from levy of property taxes. I, however, say that the levy of taxes has no quid pro quo with the provision of services as held by this Hon ble Court as well as by other High Court and the Hon ble Supreme Court of India. . . . . . . . . . . . . The Nagar Palika, Ghaziabad has no authority to provide water mains, electric supply and other provisions Within the territory of Delhi and accordingly, the said Nagar Palika of Ghaziabad knows its jurisdiction, and as such it is rightly refusing to render any such services to the property of the petitioner which falls within the territorial jurisdiction of the respondents. The respondents will provide the regular services only when the area in which the premises of the petitioner falls is fully developed according to the Master Plan and Zonal Plan of Delhi and the area respectively. As and when the zonal plan of the area is prepared and implemented, it may also be possible that the premises of the petitioner may be acquired on payment of compensation as per rules according to the land use of the area as prescribed in the Master Plan of Delhi and the Zonal Plan of the area in particular. Therefore, unless and until the planned development of the area in which the disputed premises is situated takes place, all services cannot be rendered to each and every individual as claimed by the petitioner. " ( 4 ) THE Nagar Palika, Ghaziabad, was joined as a party respondent under the orders of the Court. Therefore, unless and until the planned development of the area in which the disputed premises is situated takes place, all services cannot be rendered to each and every individual as claimed by the petitioner. " ( 4 ) THE Nagar Palika, Ghaziabad, was joined as a party respondent under the orders of the Court. The counsel for the said Nagar Palika has asserted that the affidavit of the petitioner in regard to making available several municipal services by Nagar Palika, Ghaziabad, are correct. It is also stated by the counsel that they had recovered property tax from the petitioner from the years 1967 to 1971. ( 5 ) THE counsel for the petitioner submitted that the assertion of the Delhi Municipal Corporation that the electricity was being supplied to the petitioner as a municipal amenity is not correct. He further submits that there are no mains of electricity or electric poles for the laying of the supply line from northern or eastern side at all. He further states that the petitioner has erected his own poles and laid down his own wiring for taking electricity from the G. T. road main. He also submits that the said supply of electricity by Delhi authorities is a purely private commercial transaction and is not by way of the municipal amenity. ( 6 ) FROM the two affidavits the following facts stand established : (A) Although the property is physically situate in Delhi, it has no access from Delhi side. The access is only from the U. P. side. (b) None of the civic amenities, such as water, sewage connection, connecting roads, fire protection and police protection are available to the property from Delhi authorities. There is no electric main, nor poles nor electric wiring done by the Municipal Authorities of Delhi. All the civic amenities are available only from the U. P. side. (c) No development of the area is at present undertaken under the Master Plan and Zonal Plan of Delhi by the D. D. A. or any other Delhi Authority and the civic amenities can be extended only after the development according to the said plans is completed. ( 7 ) THE vexed question in the light of these facts is whether the petitioners property is liable to property tax under Delhi Municipal Corporation Act. ( 7 ) THE vexed question in the light of these facts is whether the petitioners property is liable to property tax under Delhi Municipal Corporation Act. Section 114 of the Act states that the property tax shall be levied on all lands and buildings in Delhi. The tax is a property tax and lands and buildings are assumed to be properties for that purpose. A building is defined under Section 2 to mean: "a house, out-house, stable, latrine, urinal, shed, hut wall (other than a boundary wall) or any other structure whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shed". What is property is not defined in the Act. ( 8 ) THE basic juridical concept of property is that it s a Res with full rights of ownership in Res. The full rights of an owner are : (a) power of enjoyment, (b) possession which includes the right to exclude others, (c) power to alienate and (d) power to leave the res at Will. It is also commonly accepted in modern systems of jurisprudence that the said rights are not absolute and they arc subject to social regulation and control Taxation is one of such social controls. However, exclusiveness of control is the hall mark of property . ( 9 ) RES by itself is not property and ownership right cannot be understood except in relation to res. Although the petitioners property as a corporal entity is in Delhi, in a strict legal sense it is not the property that is in Delhi but only the res. Rights of ownership including the most important right of beneficial enjoyment cannot be exercised in Delhi. It can be exercised only in U. P. Lord Porter describes property with typical English realism : "in truth the word property is not a term of art but takes its meaning from its context and from its collocation in the document or act of Parliament in which it is found and from the mischief with which that act or document is intended to deal". Nokes v. Doncaster Amalgamated Collieries, Ltd. (1940 AC 1014 at P. 1051 ). English jurisprudence did not have any mature or logical concept of "dominium". The nearest English equivalent is "seisim". Nokes v. Doncaster Amalgamated Collieries, Ltd. (1940 AC 1014 at P. 1051 ). English jurisprudence did not have any mature or logical concept of "dominium". The nearest English equivalent is "seisim". But even if Lord Porter s description is to be applied in the present case, it does not help the respondent-Municipal Corporation because, the incidence of property tax under the Delhi Municipal Corporation Act falls on rights of possession and enjoyment of the property and not merely on the corporeal or physical entity. ( 10 ) SECTION 120 and Sec. 122 of the Act clarifies this position. The relevant portions of the said sections read as follows : "120. (1) The property taxes shall be primarily leviable as follows : (a) if the land or building is let, upon the lessor; (b) if the land or building is sublet, upon the superior lessor; (c) if the land or building is unlet, upon the person in whom the right to let the same vests; XX XX XX XX (3) The liability of the several owners of any building which is, or purports to be, severally owned in parts or flats or rooms, for payment of property taxes or any instalment thereof payable during the period of such ownership shall be joint and several. " "122. (1) On the failure to recover any sum due on account of property taxes in respect of any land or building from the person primarily liable therefor under Sec. 120, the Commissioner shall recover from every occupier of such land or building by attachment, in accordance with S. 162 of the rent payable by such occupier, a portion of the total sum due which bears, as nearly as may be, the same proportion to that sum as the rent annually payable by such occupier bears to the total amount of rent annually payable in respect of the whole of the land or building. (2) An occupier from whom any sum is recovered under sub-section (1) shall be entitled to be reimbursed by the person primarily liable for the payment, and may in addition to having recourse to other remedies, that may be open to him, deduct the amount so recovered from the amount of any rent from time to time becoming due from him to such person. " ( 11 ) READING of the two sections together makes it apparent that the primary liability for payment of property tax (incidenceof property tax) is on the owner. However, the property tax can be recovered from the occupier if he is not the owner with the right of reimbursement from the owner of the property. The property tax is measured in terms of the rent received or receivable from the property. The Supreme Court has now held that standard rent as fixed under the Delhi Rent Control Act is the only basis for levying the property tax. Thus it is the beneficial enjoyment of the property which is subjected to taxation under the Act and not merely the physical presence of a corporeal thing. To put it differently it can be said that for the purposes of property tax the nexus is functional and not physical or merely territorial. ( 12 ) BUT even assuming that the nexus is territorial the difficulty for the Corporation is not over. The territorial jurisdiction and taxation jurisdiction need not always be conterminous. It may be that in a given case it is not possible for the municipal authorities to extend its functions/administration to the fartherest end of its territory. In such a case the property cannot be taxed by a Municipal Authority. ( 13 ) THE preamble to Municipal Corporation Act states that the Act consolidates and amends the law relating to the municipal Government of Delhi, Section 41 of the Act vests the Municipal Government of Delhi in the respondent-Corporation. Section 42 provides that it shall be incumbent on the Corporation to make adequate provision by any means or measures inter alia for: (A) construction, maintenance and cleansing of drains and drainage works. (b) Scavenging. (c) Providing sufficient supply of pure and wholesome water. (d) Construction and maintenance of public streets, bridges etc. (e) The lighting, watering and cleansing of public streets. It is also obligatory for the Corporation to provide electricity to properties. Section 43 defines discretionary functions of the Corporation. One of the functions is improvement of Delhi in accordance with improvement schemes approved by the Corporation. ( 14 ) MUNICIPAL Corporation has been authorised to levy taxes including property tax for discharging the said mandatory and discretionary functions. It is also obligatory for the Corporation to provide electricity to properties. Section 43 defines discretionary functions of the Corporation. One of the functions is improvement of Delhi in accordance with improvement schemes approved by the Corporation. ( 14 ) MUNICIPAL Corporation has been authorised to levy taxes including property tax for discharging the said mandatory and discretionary functions. Section 113 states: (1) The Corporation shall, for the purposes of this Act, levy the following taxes, namely: (a) property taxes. . . . . . . . . Therefore, if there are physical impediments like embankment and wall on the northern side and if as is admitted by the Corporation, the D. D. A. has not still undertaken the development of the said area, it is impossible for the Corporation to perform its mandatory and discretionary functions in the area in which the petitioner s property is situate. If the said functions cannot be performed, the purposes of the Act are not fulfilled. Property tax can be levied only for the fulfilment of the mandatory and discretionary functions and for no other. The Corporation enjoys only a delegated power of taxation and the terms of delegations must be adhered to. ( 15 ) COUNSEL for the Corporation, however, submits that property tax is not a cess but a tax. The liability cannot, therefore, be ousted if no quid pro is afforded. Refugees Co-operative Society Ltd. v. Municipal Corpn. of Delhi, ILR (1972) 1 Delhi 725 is relied upon. He also relies on the decision of the Supreme Court in Manmohan Tuli v. Delhi Municipality, AIR 1981 SC 991 , wherein the same property of the petitioner was involved in the context of liability to pay terminal tax. The judgment of this Court in Refugees Co-operative Housing Society is a Division Bench judgment. If the facts and the contentions raised in the present petition were the same as the facts and contentions in the said case, I would have been bound to follow the said Division Bench decision. But they are not so. The petitioner-Society is popularly called Punjabi Bagh Colony. Punjabi Bagh area was before 1959 a rural area near Delhi. There after, it was included in the urban area of Delhi. The Delhi Municipal Corporation started levying the property tax to the said colony with effect from 1-4-1982. But they are not so. The petitioner-Society is popularly called Punjabi Bagh Colony. Punjabi Bagh area was before 1959 a rural area near Delhi. There after, it was included in the urban area of Delhi. The Delhi Municipal Corporation started levying the property tax to the said colony with effect from 1-4-1982. The main dispute raised in the petition was that the Delhi Municipal Corporation was refusing to take over the colony and to discharge its obligatory functions under S. 42 of the Delhi Municipal Corporation Act. The Corporation s contention was that certain preconditions regarding development of the colony Were not fulfilled by the colony and, therefore, the Corporation was entitled not to take over the colony. Detailed objections were taken by the Corporation for making available services such as sewage, roads etc. The writ petitioners had prayed for a mandamus directing the Municipal Corporation to perform the said obligatory functions under Section 42 and to provide them with municipal services detailed in the petition. The Division Bench found that the contention of the Corporation that the petitioners had failed to develop the colony to the satisfaction of the Corporation, was not established. On facts the Court found that nothing further was required to be done by the colony as required in law. The Division Bench held that the Corporation is bound to discharge the obligatory functions under Section 42 in regard to the petitioner s colony. The Division Bench then issued mandamus to the Municipal Corporation to declare streets in the Punjabi Bagh colony as public streets and to take over the services of (i) street lighting, (ii) sewerage, (iii) storm water drains, (iv) drinking water, (v) roads, services, lanes etc. (vi) road side plantations and parks and (vii) scavanging in respect of the Punjabi Bagh colony and maintain the fame at the cost of the Corporation. ( 16 ) ANOTHER contention raised by the petitioner was that as the Corporation was not ready to take over the colony and render municipal services, it had no authority in law to collect the property tax, fire tax etc. The petitioner contended that property tax was not a tax at all but was a fee charged by the Municipal Corporation. After examining various decisions of the Supreme Court the Division Bench came to the conclusion that the property tax was not a fee but a tax proper. The petitioner contended that property tax was not a tax at all but was a fee charged by the Municipal Corporation. After examining various decisions of the Supreme Court the Division Bench came to the conclusion that the property tax was not a fee but a tax proper. It further held: "the Corporation is entitled to levy and collect taxes as provided in S. 113 and other sections irrespective of the performance of the functions mentioned in S. 42, and it cannot be contended that unless the said functions are performed by the Corporation, no taxes can be levied and collected by it. So far as the obligatory functions mentioned in S. 42 are concerned, the Corporation is entitled to perform them in accordance with the provisions in the section and if it fails to do so, the remedy is to get the performance of the obligatory functions enforced by a Court of law. " ( 17 ) IT may be noted that the submission of the petitioners that in absence of quid pro quo the Corporation had no authority to levy property tax was really in the nature of an alternative submission, the primary prayer being mandamus for directing the Corporation to render the services mentioned above. It is thus clear that the petitioners had accepted the fact that the colony was wholly within the urban area and within the Master Plan and development plan of Delhi, that there was no physicalimpediment or impossibility of rendering the services and that once the services are rendered the property tax was payable by the colony. Indeed, after issuing mandamus for providing the said services the question as to whether a property tax can be levied without a quid pro quo had hardly any relevance left. ( 18 ) IN the present case it is admitted by the Corporation that the area in which the petitioner s colony is situate is not developed according to the Master Plan, the Zonal Plan or the development plans of the D. D. A. It is also admitted that only after the planned development takes place the said Municipal services can be made available to the petitioner. It is also admitted that there are physical impediments from northern and eastern side (the only two sides from which the property touches Delhi) in rendering the municipal services. It is also admitted that there are physical impediments from northern and eastern side (the only two sides from which the property touches Delhi) in rendering the municipal services. Punjabi Bagh colony was from all sides surrounded by Delhi territory and was wholly within Delhi. On the other hand the petitioner s property is not wholly within Delhi and from south and west side it touches U. P. Border. ( 19 ) THE contentions and reliefs sought are also quite different in the present case. The petitioner in our case is not seeking any mandamus against the Corporation for rendering municipal services. In fact his case is that with the present position of the development and the physical impediments on the northern and eastern side, no such services can be rendered. Unlike the petitioner in the Punjabi Bahg case the present petitioner challenges the interpretation of the words "lands and buildings" occurring in S. 113 of the Delhi Municipal Corporation Act. His strong submission is that his property is not in Delhi within the meaning of the said section. In other words, his submission is in the nature of disputing the jurisdictional fact. ( 20 ) THE holding of the Division Bench in Punjabi Bagh colony decision, namely, "the Corporation is entitled to levy and collect taxes as provided in S. 113 and other sections irrespective of the performance of the functions mentioned in S. 42 and it cannot be contended that unless the said functions are performed by the Corporation, no taxes can be levied and collected by it "has to be understood in the light of the facts. and contentions raised in that case. The D. B. was not called upon to decide the facts and contentions as raised in the present petition which are far different from Punjabi Bagh case. The words "irrespective of performance of functions" and "unless the said functions are performed" patently assume that the property is in Delhi without any dispute. They also assume that the area is developed; according to the Master Plan and further that there are no physical impediments in making the municipal services available. I, therefore, hold that the said D. B. judgment is not helpful to decide the present petition, and of no assistance to the Corporation. They also assume that the area is developed; according to the Master Plan and further that there are no physical impediments in making the municipal services available. I, therefore, hold that the said D. B. judgment is not helpful to decide the present petition, and of no assistance to the Corporation. ( 21 ) THE Supreme Court decision in Man Mohan Tuli v. Delhi Municipality, AIR 1981 SC 991 rendered in relation to terminal tax is also of no avail to the respondent Corporation. The decision merely proceeded on the assumption that the property falls in Delhi. It was, in fact, unnecessary to decide that question because the ratio is that the goods in transit (i. e. where the journey does not end in Delhi) are not exigible under S. 178 of the M. C. A. although they enter Delhi territory. The situation of a property has different significance for terminal tax as against house tax. Taxation events in case of terminal tax are two sale of imported goods in a territory (say Delhi) and the other sale of the same goods thereafter, for export out of the said territory. On the other hand. the physical fact of property being present in the territory decides property tax liability. ( 22 ) THE principle of public law that the territorial jurisdiction and taxation jurisdiction need not coincide is recognised in American jurisprudence. One of the earliest cases decided by the V. S. Supreme Court is Henderson Bridge Co. v. City of Henderson, (1898) 173 US 823 : 43 Law Ed 592. Henderson Bridge Company owned a rail-road bridge (with its approaches, piers, etc.) extending from a point within the city of Henderson on the Kentucky shore across Ohio river to low-water mark on the Indiana shore. The said bridge was under the management and control of L and N Railroad Company. The city of Henderson levied the property tax on the bridge. The Circuit House of Henderson Country decided in favour of the City and also permitted, lien on the said bridge if the property tax remained unpaid. This judgment was affirmed by the Court of Appeals of the State of Kentucky. Henderson Bridge Co. moved the U. S. Supreme Court by way of writ in error for the review of the said judgment of the Court of Appeals. This judgment was affirmed by the Court of Appeals of the State of Kentucky. Henderson Bridge Co. moved the U. S. Supreme Court by way of writ in error for the review of the said judgment of the Court of Appeals. The said levy of property tax for the bridge was challenged on the ground that the bridge property did not enjoy any benefits from the city of Henderson. It was also challenged on the ground of the violation of the Federal Constitution inasmuch as that the private property was being taken over for public use without just compensation. The third ground of challenge was that the ordinance under which the bridge was being taxed impaired the subsistence of the contract between Bridge Company and Railroad Company. ( 23 ) BY reference to various decisions the Court held that the boundary of Kentucky extends to low water mark on the Indiana shore of the Ohio river. The court also held that the taxation ordinance would prevail over the contract between the two private parties. The court then held that the boundary of Kentucky is conclusively established by judicial decisions and taxation by Henderson City in Kentucky did not amount to taking of private property for public use without just compensation. On behalf of Henderson Bridge Company number of decisions of the Court of Appeal of Kentucky were cited in support of the contention that where the property does not receive any benefit from the Government of a Corporation the property is not liable to local taxation. Reviewing the said authorities the Sup. reme Court held : "in those cases the court wisely refrained from laying down any general rule that would control every controversy that might arise touching the application of the constitutional provision prohibiting as did the Constitution of Kentucky as well as that of the United States the taking of private property for public use without just compensation. So far as those adjudications are concerned, it is competent for the court to inquire in every case as it arises whether particular property taxed for local purposes is so situated that it cannot receive any benefit, actual or presumed, from the government of the municipal corporation imposing such taxation. The argument of the learned counsel assumes it to be incontrovertible that the bridge property here taxed cannot receive any such benefit from the government of the city of Henderson. The argument of the learned counsel assumes it to be incontrovertible that the bridge property here taxed cannot receive any such benefit from the government of the city of Henderson. As already indicated, this court does not accept that view, and is of opinion that the bridge property within the statutory limits of that city, and looked at in its entirety, may be regarded as so situated with reference to the city that it enjoys and must continue to enjoy as long as the bridge exists such benefits from the government of the city that, consistently with the Constitution of the United States, and consistently with the rule here to before adverted to for determining the validity of legislative enactments, it may be subjected to municipal taxes under any system established by the State for the assessment of property for taxation. " (Henderson Bridge Company and Anr. v. City of Henderson, (1898) 173 US 823 : 43 Law Ed p. p. 592, 619) ( 24 ) THIS decision was followed not only in Kentucky State but also in Iowa State. In and, County Treasurer v. Union PAC. R. Co. (Circuit Court of Appeals, Eighth Circuit, February 16, 1903): (1903) 120 Federal Reporter 912 the question was whether the City of Council Bluffs could tax the railroad bridge. The said bridge spans Missouri river between the cities of Council Bluffs, Iowa and Omaha, Nebraska. The Eastern terminus of the rail-road is within the limits of the city of Council Bluffs. The rail-road freight house and valuable buildings and many acres of lands are within the city limits. The agreed statement of facts presented to the Court of Appeals was as under: "that the corporate authorities of the city of Council Bluffs have never laid down of improved the streets and alleys for a distance of three-fourths of a mile north from the eastern end of said bridge, and a mile and one-half east from the eastern end of said bridge, and a mile and one-half south from the eastern end of said bridge, except Thirty-Fifth street and Ninth avenue, and there never has been extended to said platted portions of said lands, as above referred to, the regular police protection, fire protection, and lighting usually incident to incorporated towns, and established for and enjoyed by the citiens and residents thereof. That said bridge has been and is used solely and only for railroad purposes, and that the lands immediately east, north and south, and extending to the distance hereinbefore stated, have been at all times, and are now used for agricultural purposes. That the defendant has at all times for which these taxes have been assessed, and for which suit is now brought, policed said bridge and protected it by its own servants, agents and employees. "on the facts stated above, the Court of Appeal held as follows: "prima facie, all property within the corporate limits of a city is subject to municipal taxation but it is settled principle of law in that State that the corporate limits of a city may exceed its taxable limits, and that real property to which the public ways of the city do not extend, and which is beyond the reach of police protection, and receives none and beyond the reach of fire protection, and receives none, and beyond the reach of the city lights, and receives no benefit from them, and that is, in a word, denied the enjoyment of any of the benefits and protection which commonly flow from a municipal government, cannot lawfully be taxed by that municipality for its municipal purposes. This principle, undoubtedly, does not meet with universal assent. Judge Cooley (Cooley on Taxation (2nd Ed.) 157, 159) refers to and criticises unfavourably the Iowa and Kentucky cases on this subject, but the principle is, recognised in guarded language by the Supreme Court of the United States in the ease of Henderson Bridge Co. v. Henderson City, (1898-173 US 823) (supra) where exemption from a municipal taxation for a bridge across the Ohio river was sought on this ground under the Fourteenth amendment to the constitution of the United States. The Supreme Court, affirming the decision of the Court of Appeal of Kentucky in the same ease, held the bridge was liable to municipal taxation because it was "within the statutory boundary of the city of Henderson, and within reach of the police protection afforded by that city for the benefit and safety of all persons and property within its limits. Accepting the rule prescribed by the Supreme Court of the United States in the case cited, which is, in substance, that adopted by the Supreme Court of Iowa that, in order to bring municipal taxation within the scope of the constitutional provision that private property shall not be taken for public use without just compensation, "the case should be so clearly and palpably an illegal encroachment upon private rights as to leave no doubt that such taxation, by its necessary operation, is really spoliation under the guise of exerting the power to tax we proceed to inquire whether, upon the agreed statement of facts, the municipal tax imposed upon this bridge falls within this rule. From the agreed statement of facts and the annexed plaint, it is apparent that the city of Council Bluffs has corporate limits of a great city, with the population and municipal improvements and agencies of a comparatively small one. Its boundaries seem to have been established in anticipation of a future growth in population whichhas not yet come about. The result is that there is a large scope of territory within its corporate limits, devoted to agricultural pursuits or lying vacant, which differs in no respect from ordinary farm and pasture lands in country. Large bodies of these lands, which, under the decision of the Supreme Court of the State, are exempted from municipal taxation the railroad bridge and the populated district of the city, and it is very clear that land lying where this bridge is situated would not be subject to municipal taxation. The bridge is used exclusively for railroad purposes. No wagon or foot bridge is connected with it, and no street leads to or from the city to it. It is not within reach of the police protection of the city, and is patrolled and guarded by the servants of the railroad company. It is not within reach of any of the means provided by the city for extinguishing fires, and is far beyond the limits of the lighted portion of the city. In a word, it does not receive for or enjoy and benefit or protection whatever from these or other like municipal agencies and appliances provided by the city for the benefit and safety of persons and property in the populated portion of the city. In a word, it does not receive for or enjoy and benefit or protection whatever from these or other like municipal agencies and appliances provided by the city for the benefit and safety of persons and property in the populated portion of the city. The case would not be different in these respects if the bridge was situated miles outside of the city limits. Upon this state of facts, and under the decisions of the Supreme Court of the State, the bridge is not liable for the municipal taxes assessed in favour of the city. The present decision applies to existing conditions, which may be so changed in the future that the bridge will become liable to taxation for municipal purposes. The judgment of the Circuit Court is affirmed. " ( 25 ) IN absence of any Indian decision on this question, I would, with respect, follow the decisions of the U. S. Courts. Due to non-development of the area according to Master Plan and due to physical impediments, the services of the Municipal Government of Delhi, cannot and in fact are not rendered to the petitioner s property. Municipal Corporation cannot levy property tax so long as the said circumstances exist. The petitioner here is not contending that the property tax cannot be levied by either of the municipal authorities (because the property is so situate that it cannot be said to be falling within the territory of one State ). He does not want to avoid the liability to taxation. His complaint is that the two municipal authorities in two different States cannot simultaneously charge his property to property tax. Although in protest and under the orders of this court he has paid the tax to Delhi Municipal Corporation as well as Nagar Palika, Ghaziabad, for the same year. he submits that he is liable to taxation only by one municipal authority. According to him the Nagar Palika of Ghaziabad and not Delhi Municipal Corporation can levy tax. ( 26 ) FOR the reasons stated above, I hold that the Delhi Municipal Corporation cannot levy property tax against the petitioner s property and such levy is without jurisdiction and without legal competence under the Delhi Municipal Corporation Act. The levies made, therefore, are unauthorised and should be refunded to the petitioner. ( 26 ) FOR the reasons stated above, I hold that the Delhi Municipal Corporation cannot levy property tax against the petitioner s property and such levy is without jurisdiction and without legal competence under the Delhi Municipal Corporation Act. The levies made, therefore, are unauthorised and should be refunded to the petitioner. However, I must make it clear that if in future the Delhi Municipal Corporation develops the area according to the Master Plan, and removes the present physical impediments and extends the civic amenities to the property of the petitioner by discharging its functions under the Act, and provides access from Delhi side the question of liability to property tax can be agitated again. This decision is rendered only in relation to a typical situation of the petitioner s property, the present state of development (non-development) of the area and the nature of taxation in question. ( 27 ) THE writ petition is allowed with costs. Rule is made absolute.