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2007 DIGILAW 612 (DEL)

M. S. KOLD HOLD INDUSTRIES v. MCD

2007-03-19

S.MURALIDHAR

body2007
JUDGMENT Dr. S. Muralidhar, J. (Open Court)- The challenge in this writ petition is to the judgment dated 12.8.2005 passed by the learned Additional District Judge (ADJ) in the petitioners appeal HTA No. 402/02 challenging an assessment order dated 7.8.2000 whereby the rateable value of the property at C-34 Okhla Industrial Area, Phase I New Delhi was fixed at Rs. 7.06,500/- per annum with effect from 29.9.1997. 2. The case of the appellant is that the property in question was purchased by it from the Delhi Development Authority (‘DDA) for a slim of Rs. 6,56,000/- at a public auction held on 30.4. I 985. Possession was given only on 6.5.1986. The lease deed was executed on 23.9.1994 and building plans were sanctioned on 25.9.1996. According to the petitioner, in computing the rateable value, the cost of the land has to be taken to be that which was paid by the appellant at the time of purchase through auction. Reliance is placed by the petitioner on Bye-law 2(b)(i) of the Delhi Municipal Corporation (Determination of Rateable Value) Bye-laws 1994 which reads as under: "2. ............. (a) ………. (b) Cost of the premises means- (i) where the premises have been acquired by purchase or through any transaction (whether by way of becoming a member of, or acquiring shares in a co-operative society, company or other association Of persons or by way of an agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring or enabling the enjoyment of the premises. the cost paid. or where the cost if partly paid or where the cost is partly paid or partly payable, the aggregate of the cost paid or payable for the premises and the cost of additions and improvements, whether made by the owner or by the occupier. Rule 2(b)(iii) of the said bye-laws reads as under: "(iii) where the premises are used for non-residential purposes. and are not covered by Clauses (i) and (ii) above, the cost of the premises . shall be the aggregate of the market price of the land comprised in the premises on the date of the commencement of the construction and the cost of construction of the premises and the cost of additions and improvements iri the premises whether made by the owner or occupier." 3. shall be the aggregate of the market price of the land comprised in the premises on the date of the commencement of the construction and the cost of construction of the premises and the cost of additions and improvements iri the premises whether made by the owner or occupier." 3. However, the text of the above bye-law asextracted by the learned ADJ in the impugned order read as under: , Vol. CXXXIX M.S. KOLD HOLD INDUSTRIES v. MCD & ORS. 153 "Where the premises are used or to be used for non-residential purposes. cost of the premises shall be aggregate of the market price of land comprised in the premises on the date of the commencement of the construction and the cost of construction of the premises and the cost of additions and improvem£:ots in the premises wbethei made by the owner or occupier." 4. The contention of Mr. Tulsi, learned senior Counsel. appearing for the petitioner is that a plain comparison of the original text of Bye-laws 2(b)(iii) with the one extracted by the ADJ would show that the crucial words "and are not covered by Clauses (i) and (ii) above" following the words "where the premises are used for non-residential purposes" are missing. The specific case of the petitioner here being that it is covered by Bye-laws 2(b)(i), the impugned order of the ADJ has to be set aside on the ground alone and matter may be remanded to the Additional District Judge for fresh determination. 5. In reply, Ms. Geeta Mehrotra, learned Counsel appearing for the MCD submits that notwithstanding the fact that the learned ADJ may not have correctly extracted the said bye-law, the matter is fully covered by the judgment of learned Single Judge of this Court in Tata Engilleering & Locomotive Company Ltd. v. Municipal Corporation o/Delhi, 1 08 (2003) DL T 217. Although she adds that this judgment has been set aside by the Division Bench accepting the plea of the MCD that the petitioner there should have availed the statutory remedy available before invoking the writ jurisdiction, she nevertheless relies on this judgment in support of her contention that Bye-law 2(b)(i) applies only when the premises are residential. Further she submits that the bye-law will apply only when the property purchased comprises land and building and not when it comprises only land, as in the present case. 6. Further she submits that the bye-law will apply only when the property purchased comprises land and building and not when it comprises only land, as in the present case. 6. It is plain that the learned ADJ, by not extracting correctly the full text of the Bye-laws 2(b)(iii), erred in not examining the principal contention of the petitioner herein that it"is covered by Bye-law 2(b)(i). This ground by itself is sufficient for the impugned order to be set aside and the matter remanded to the learned ADJ for a fresh determination. The AD] will consider all the submissions made before this Court by the parties on the merits of the matter which would include an examination whether the judgment of the learned Single Judge in Tata Engineering (supra) would be applicable. 7. Accordingly, the impugned judgment dated 12.1.2005 is set aside. The matter is remanded to the learned ADJ for a fresh determination on merits. It is expected t~at the learned ADJ will conclude the redetermination within a period not later than 6 months from today. 8. With the above directions, the writ petition is allowed with no order as to costs. Writ Petiti(Jn fJ/lOIvell.