Judgment:
Sanjay Kishan Kaul, J.
1.The petitioners have impugned the assessment order dated 27.04.2000 in respect of Tower Restaurant at AGVC Complex, Siri Fort, New Delhi and the land of surrounding area.
2.The matter was earlier adjourned from time to time to await judgments of the Full Bench of this Court stated to be pending in the matters in issue. The Full Bench judgments have now been rendered in the cases of M.C.D. v. Pradeep Oil Corporation & Anr., 100 (2002) DLT 440 and M.C.D. v. Shashank Steel Industries (P) Ltd., : AIR2003Delhi110 .
3.There are, in fact, two contentions which are raised by the learned counsel for the petitioners in this behalf - the first contention is relating to the Tower Restaurant and the second contention is relating to the surrounding area. The contention relating to the retable value determined for the Tower Restaurant is that though the structure is existing, it is entitled to remission and refund under Section 163 of the Delhi Municipal Corporation Act, 1957 (hereinafter to be referred to as, `the said Act' ), which is as under :-
'163. Demolition, etc., of buildings.- If any building is wholly or partly demolished or destroyed or otherwise deprived of value, the Commissioner may, on the application in writing of the owner or occupier, remit or refund such portion of any tax assessed on the ratable value thereof as he thinks fit.'
4.The aforesaid provision occurs under the hearing of `Remission and Refund' and applies in a case where any building is wholly or partly demolished or destroyed or otherwise deprived of value. Admittedly, no demolition has taken place in respect of the premises in question. The dispute between the petitioner and the DDA relating to the water tank cannot be stated to be of a nature which would imply that the premises is deprived of the value. If the petitioner has any claim against the DDA, it is for the petitioner to prefer the same but that would not result in depriving the respondent Corporation of the property tax.
5.Insofar as the issue of surrounding area is concerned, learned counsel for the petitioner contends that the land is not capable of being built upon. Learned counsel has relied on the draft license deed in this behalf which in fact has been considered in the assessment order. The assessing authority has dealt with this issue and had even gone to the DDA to verify the actual license deed since only a proforma license deed had been filed by the petitioners. Learned counsel for the petitioners specially contends with reference to the terms and conditions published in a newspaper inviting tenders for disposal of Tower Restaurant that the same provides that only temporary tents, etc. for parties, marriages, etc. shall be permissible and no permanent structure shall be allowed. Temporary construction maximum to the extent of 10% of the Tower Restaurant plot area of 1673 sq. mtrs. for catering shall be permissible. These structures are to be in the form of wooden steel skelton with covering of waterproof shamans and garden umbrellas to be allowed to be put up in the green areas. The contention, thus, is that there is no structure which can be constructed on the land in question and since the land is not capable of being built upon, the judgment of Shashank Steel Industries (P) Ltd.'s case (supra) would apply.
6.Learned counsel for the respondent disputes the aforesaid position on the ground that permanent structures, in fact, were constructed by the petitioners. Reliance is placed in this behalf on the document filed by the petitioners themselves itself which is a survey report carried out by the DDA dated 10.05.2000 on complaints being received of unauthorised construction raised by the petitioner. The committee noted the extent of construction permissible as mentioned aforesaid and the nature of such temporary construction. However after inspection, the Committee found the following constructions :-
'(i) That the licensee has erected one Pandal measuring 573 sq. mtrs. with stone flooring and G.I. Sheet roofing. Further it noted that there was a brick wall up to the window sill level on three sides of the Pandal.
(ii) That the licensee has built permanent service counter covering 25 sq. mtrs.
(iii) That the licensee has made a puce stage covering 165 sq. mtrs.
(iv) That the licensee has built a decorative wall of 150 running mtrs. length in the complex.
(v) That the licensee has erected a sound proof glass room covering 45 sq. mtrs.
(vi) That the licensee has built toilets covering 50 sq. mtrs.
The Committee noted that all the above construction cannot be termed temporary.
In addition to the above, the licensee has erected two Pandals covering total area of 676 sq. mtrs. which the Committee felt can be termed temporary which is without flooring but with G.I. Sheet roofing supported over with steel and wooden skelton.
The Committee noted that all the above constructions were not in terms of the tender terms and conditions under which the licensee was permitted to use the plot area of 1349.16 sq. mtrs. for purposes of marriages etc. and could only use temporary tents etc. for this purpose.
4. Extent of construction with regard to catering facilities :- From the report of the Assistant Engineer (CE), the Committee noted that the licensee has covered the area of 317 sq. mtrs. for the purpose of catering (i.e. Kitchen & store) while as per terms & conditions which has been restricted to 167.30 sq. meter. The Committee also noted that nature of construction with regard to the Store of 53 sq. meter is puce while the kitchen area of 264 sq. meter is made out of the puce flooring and GI sheet roofing while as per tender conditions, temporary construction was to be provided by way of wooden, steel skeleton with covering of water proof shaman that too only up to 167.30 sq. meters.
The Committee, thereforee, felt that even this portion both with regard to the extent and nature of construction is not as per terms and conditions.'
7.This construction has to be examined taking into consideration the definition of `building' under the said Act, more particularly, sub-section (3) of Section 2, which is as under :-
'2. Definitions.-
... ... ... ... (3) 'building' means a house, outhouse, 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 shelter.'
8.A reading of the aforesaid definition of `building' and the construction carried out by the petitioners would show that what has been carried out is not really temporary construction. The definition itself in fact is quite wide and only excludes portable shelters. Permanent service counter, brick walls up to window with structure overall being covered, puce stage, soundproof glass room, toilets can certainly not be called such cabins which can be dismantled. In fact, the Committee itself found that the construction cannot be termed as temporary construction. The petitioners having constructed upon the land, though the same may be unauthorised, are thus consequently liable for the property tax and it is not open to the petitioners to contend that the land is not capable of being built upon.
9.Learned counsel for the petitioner, however, contends that subsequently these items were removed and has sought to refer to the documents of the DDA in this behalf. If that be the position, it is always open to the petitioners to approach the respondent authorities in this behalf, but the same would apply for determination of ratable value for the relevant assessment years after the structures have been removed. In the present case, the assessment of the ratable value is for the period 1997 onwards and the assessment order is dated 27.04.2000. The structures, even as per the inspection report, were existing till then.
10.The last issue to be considered is the plea of the learned counsel for the petitioners that in view of the license deed and the lease deed read with the judgment in Pradeep Oil Corporation's case (supra), the liability is of the perpetual Lesser to make the payment.
11.I am unable to accept the aforesaid contention in view of the clauses contained in the license deed and the lease deed. It is not a case where reimbursement in the eventuality of paying tax has to take place. The relevant clauses, i.e., clause 10 of the license deed and clause 11 of the lease deed respectively are as under :-
'10. That the Licensee shall also pay all license or other fee or taxes payable to the Government/Municipal or other local bodies as may be assessed or found due.'
11. The lessee shall from time to time and at all times pay and discharge all rates, taxes, charges and assessments of a very description which are now or may at any hereinafter during the continuance of this land hereby demised or on the Tower Restaurant as mentioned in the Schedule-I.'
12.The terms and conditions of the lease deed and the license deed are, thus, clear that it is the liability of the petitioners to pay these amounts directly to the respondent Corporation. No doubt if there is no liability, then the same would not arise even in the case of the petitioners. However, that is not the position in the present case.
13.In view of the aforesaid, I find no merit in the writ petition.
14.Dismissed.
CM 9784/2000
Dismissed.
Interim orders stand vacated.