Vikramajit Sen, J.
1. In these Petitions the challenge has been laid by the Petitioners to the remand Order passed by the Additional District Judge, Delhi without deciding the question of whether the Petitioners were at all liable for payment of property tax.
2. The Petitioners are members of the East End Apartments Cooperative Group Housing Society Ltd., Mayur Vihar, Phase-I, Delhi. The Respondent/MCD had issued a letter dated 27.3.2000, which is Annexure R1, under Section 126 of the DMC Act, 1957 for fixing the consolidated Ratable Value at Rs. 13,01,03,550/- with effect from 1.4.1999. This document appears to have been filed for the first time in these proceedings. Annexure R2 is a letter dated 18.12.2002 addressed to the Petitioner stating therein that ''the proposed consolidated Rateable Value of Rs. 10,50,00,000/- of the entire Society was confirmed ex-parte vide Assessment Order dated ... due to non-furnishing of requisite information/documents''. The Additional District Judge has noted that these documents have not been filed in the Appeal proceedings before him. In the course of hearing a photocopy of an Order dated 14.3.2002 has been handed over. Receipt of Annexure R1 and R2 as well as this Order has been denied by the Petitioner. The Order dated 14.3.2002 devoid of any Reference No. or proof of dispatch/receipt is not addressed to the Petitioner but to the Honorary Secretary, East End Apartments, Patpar Ganj, Delhi, in whose name the Order has been passed. It is of great significance and importance that in Annexure R2 dated 18.12.2002 the date of the Assessment Order has been left blank. If the Order dated 14.3.2002 had in fact been passed there would scarcely have been any difficulty in mentioning the date of this Order. The allegation of learned counsel for the Petitioner that the Order dated 14.3.2002 has been ante-dated and has been subsequently placed on the files of the MCD, thereforee, commends acceptance.
3. A perusal of Annexure R1 and R2 leads to the conclusion that the Respondents had initially intended to assess the property in question on an individual basis rather than on the consolidated Rateable Value. It was for these reason that the proposed Ratable Value had been mentioned against each type of Flats, with effect from 1.4.1999.
4. These steps are founded on Section 126(4)(b) of the Delhi Municipal Corporation Act, 1957. It prohibits any amendment to the Assessment List under sub-Section (1) unless it prescribes that an amendment under sub-Section (1) can be made to the Assessment List, provided it is within three years or the end of the year in which the notice is given under the foregoing sub-Sections. In other words, if the individual Rateable Value was to be fixed as proposed in the notice dated 27.3.2000, it had to be finalized on or before 31.3.2003. The Respondents must, thereforee, successfully show that the Amendment Orders had been passed prior to this date. Reliance by the Respondents on Annexure R2 dated 18.12.2002 is obviously not of any avail as that Order confirms the finalization of the consolidated Rateable Value at Rs. 10,50,00,000/- of the entire Society, in contradistinction to the individual flats. This Order, thereforee, cannot pertain to the notice under Section 126 dated 27.3.2000, being Annexure R1.
5. Annexure R3 dated 4.2.2004, which has also seen the light of the day for the first time along with the MCD Counter Affidavit and response purports to be an Assessment Order (containing a reference number as well as a date unlike the Order dated 14.3.2002), is ostensibly issued to the Petitioners. However, it bears reference to the consolidated Rateable Value at Rs. 10,50,00,000/-. It speaks of a distribution of a consolidated ex parte Rateable Value. Counsel for the Respondent state that this methodology is envisaged under the Act but they are, however, unable to show any provision empowering the MCD to do so. It was permissible for MCD to arrive at a consolidated Rateable Value, provided the provisions of the Act had been complied with. In the event of non-payment of property tax, proceedings against the property in question as a whole would have to be initiated. This conclusion must be read subject to the context of the decision of the Supreme Court in Municipal Corporation of Delhi v. Trigon Investment and Trading Pvt. Ltd., : [1996]3SCR1158 . The Court observed that ''if an assessment of property taxes was made upon the builder, the said property taxes constitute a first charge upon the building irrespective of the fact whether the assessment was made on the building treating it as one unit (as a compendium of several flats) or upon each flat or groups of flats separately. Such property taxes, being a first charge upon such buildings/flats, can be recovered either from the builder/promoter or from the transferee thereof. Their liability is joint and several subject to the rider that the liability of the builder/promoter ceases once he gives a notice contemplated by Section 128(1). In other words, if the tax had been assessed pursuant to the notices served upon the builder/promoted in the year 1985 or 1986, as the case may be, or at any time earlier to the assessment order dated 30.8.1990, such tax has to be paid by one or the other among the transferor and transferee.'' From the documents available at the present moment, it is obvious that the Respondents have proceeded only on the basis of the confirmed consolidated Rateable Value of Rs. 10,50,00,000/-
6. The question as to the liability of individuals/Petitioners for payment of property tax still remains to be answered. Trigon Investment enunciates that the property can be assessed by issuing notices the builder concerned provided details of individual flat owners has not been intimated to the MCD. Once those details have been furnished, there is no alternative available to the MCD but to deal directly with the individual owners themselves, as mandated by Section 126(2) itself which enjoins that before making any amendment the Commissioner shall give to any person affected by the amendment, notice of not less than one month. Learned counsel for the Respondents now state that there are decisions of the Court which recognize service of a Statutory Notice which may have been merely 'left' at the site. In other words, should a notice without an endorsement as to its receipt be accepted in law? It has already been seen that these Annexures R1 to R3 have seen the light of the day for the first time only in these proceedings. If the Respondents intended to rely on these documents it ought to have placed them before the Additional District Judge so that he could return a finding thereon. There is considerable weight in the argument of learned Counsel for the Petitioners that these documents have been prepared subsequently and thereforee not served on the addresses. Suspicion and doubt prevails on the issue of whether there was any service at all. In point of fact, however, the finding of the Additional District Judge is to the contrary. Furthermore, the fact that in the letter dated 18.12.2002, the date of the Assessment Order has been left blank, and the further fact that the Order purporting to be dated 14.3.2002 is addressed to the Honorary Secretary even though previous communications were addressed to the Petitioners, leaves little room but to arrive at any conclusion other than that the Respondents self-serving statements that notices have been issued cannot be believed. The only reasonable conclusion possible is that these letters/notices were prepared by the Respondents subsequent to the challenge to the Rateable Value being laid by the Petitioners.
7. In connected matters this Court had struck down the Orders of the Additional District Judge in Writ Petition No. 5686/2004 by Judgment date September 13, 2005. It had been observed therein that those Petitions were on all fours covered with WP(C) No. 5222/1999 titled MCD v. Sunil Kumar Jain decided by me on 4.3.2004, in which Trigon Investement had been applied. This was also the view taken by my learned Brother, R.S. Sodhi, J. in Orders dated 11.12.2003. In Letter Patent Appeals No. 516/2004, 510/2004 and 540/2004, which were dismissed on 1.2.2005, the lament of the Hon'ble Division Bench in the opening paragraph of the Judgment deserves reproduction:-
1. How recklessly and negligently the officers of the Corporation are dealing with tax matters This is a case where the officers of the Corporation are vigilant about their rights to take salary and to raise other demands but are not aware of their duties. They should know that salary comes by way of tax from the people at large and it is their duty to act strictly in accordance with law.
8. My learned Brother, Sanjay Kishan Kaul, J. who had author the Judgment in Municipal Corporation of Delhi v. L.P. Naithani and Anr. 102 (2003) DLT 61 made the following observations, and nevertheless, had dismissed aforementioned Letters Patent Appeals:
5. It is relevant to note that Section 124 of the said Act provides for an assessment list to be prepared while Section 126 provides for amendment of the assessment list. Section 128 provides for notice of transfers. It is not disputed that the society in question did not intimate the list of occupants of each flat and neither did the flat owners approach the petitioner corporation intimating about the flat allotted to them. Thus in my considered view the observations of the Supreme Court in MCD v. Trigon Investment and Trading Private Limited 62(1996) DLT 222, would apply to the facts of the case. The ratio of the said judgment is that the corporation should not be running after the assesses and enquiring from the owner about the transfer of any property. It was the duty of the society and the individual member to have intimated the corporation about the same. This has been the basis of the judgment rendered in CR 1237/97 and CR 5872/99.
It was obvious from a reading of this passage that Justice Kaul was of the view that the MCD cannot be expected to run after assesses and, thereforee, the opinion which he subscribed to in the Division Bench gains further importance.
9. In consonance with the decision of the Hon'ble Supreme Court in Trigon Investment case, the Order of the Additional District Judge remanding the Appeal for consideration cannot be sustained. Learned counsel for the Respondents have vehemently contended that these Writ Petitions ought not to be entertained because the decision of the Additional District Judge is totally in favor of the Petitioners. The argument is entirely misconceived since the contention of the Petitioners in these cases has always been that they were not at all liable for payment of property tax since the provisions of the DMC Act had not been complied with. By remanding the cases to the Assistant Assessor and Collector, the Appellate Court of the Additional District Judge had obliquely and impliedly decided this issue against the Petitioners. There being no other avenue of challenge open to the Petitioners, these Writ Petitions are maintainable. Learned counsel for the Respondents have also contended that since the Petitioners have elected to file an Appeal against the Assessment Order by the Additional District Judge, the Writ jurisdiction should be held to be unavailable to them. I find no force in this contention also.
10. A `Rectification Order' dated 11.3.2004 has been passed fixing the Rateable Value. In the first place it has already been seen that no individual Assessment Orders have been passed. thereforee, the question of rectification of those Order can logically not arise. MCD could, if empowered to do so, `rectify the consolidated RV', but this is manifestly not what it has attempted or intended to do. Furthermore, in order to exercise the power of rectification or review, the Authority attempting to do so must be able to show the source of power for entering upon this exercise. There is a plethora of precedents on this issue; suffice it to mention only Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, : AIR1970SC1273 in which it has been opined that the proposition ''is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision of the Act was brought to our notice from which it could be discovered that the Government had power to review its own Order.''
11. Learned counsel for the Respondent had relied on the following opinion of the Hon'ble Supreme Court in Calcutta Gujarati Education Society v. Calcutta Municipal Corporation : AIR2003SC4278 .
25. Taking into consideration, however, the practical difficulties, particularly concerning multi-storeyed buildings occupied by several tenants, sub-tenants and occupants, a mere non-issuance and/or service of public and written notices to all individuals concerned who are ''persons primarily liable or liable'', would not be treated by the authorities concerned and courts as invalidating the consolidated rate determined and apportioned on various persons regarding such building/buildings unless a serious prejudice is found to have been caused to the persons aggrieved.
However, the provisions of the Calcutta Act are not in para materia to Section 126 of the DMC Act. Under the Calcutta Act a Public Notice is given and thereforee, any one desirous of challenging exigibility to tax, or to a particular Rateable Value fixed must approach the Municipal Authority. In cases where the Municipality is fully aware of the name and particulars of the individual owner of a property there ought to be no difficulty in issuing notice to them so that dealings directly for such owners come about. In a matter of taxation it is essential that reasonable efforts should be undertaken to ensure that the assessed is heard, unless this proves to be impossible. It is the assessed who is likely to face serious prejudice and not a Representative of the Society or the Builder if an unsustainable assessment of tax liability is determined.
12. To briefly recapitulate the facts of the case, it has been seen that the first attempt of the Respondents was to make an assessment on the Petitioners on an individual basis. In R.K. Khandelwal v. Municipal Corporation of Delhi, LPA No. 938/2002 decided on 25th August, 2004, the Division Bench had allowed the Petitions of assessed whose assessment had not been completed within three years, and this event must mandatorily include the dispatch of the Order by registered post. Since the Respondents have failed to prove the Assessment Order passed on an individual basis, leave alone an Order passed in the period of three years prescribed under Section 126(4)(b), the Respondents have changed their stand and reverted back to the original consolidated Ratable Value of Rs. 10,50,00,000/-. A letter dated 4.12.1998 authored by the Deputy Assessor and Collector, C-XIV to Shri Tilak Raj, owner of flat No. 9/501, East End Apptt., Chilla , New Delhi-96 is on record. It contains an admission to the effect that the Administrator of the above Society vide his letter dated 17.3.1998 had forwarded a list of 1313 flats containing the names and addresses of the flat owners to enable the Respondent to assess the flats which had been allotted to various members individually, such as the Petitioners in these four petitions. That Rateable Value cannot be sustained in view of the decision of the Supreme Court in Trigon Investment case. The Additional District Judge fell into error while remanding without addressing the question of whether the Petitioners were at all liable to pay property taxes. There can be no gainsaying that every citizen of India can be taxed only by authority of law, see Hindustan Lever Ltd. v. Municipal Corporation of Greater Bombay, : [1995]3SCR807 . It has also been held that wherever fiscal provisions are to be interpreted, this exercise must be carried out granting benefit of the doubt to the persons sought to be assessed. On the absolute necessity of passing an Order within a period of three years reference must be made to the decision of the Division Bench in LPA No. 137/2003 entitled Harbans Lal Gupta v. Municipal Corporation of Delhi. The Court should not be influenced by the fact that a citizen may have escaped liability for payment of taxes, and in order to avoid this situation the Court should not misconstrue legal provisions especially of a fiscal nature.
13. In these circumstances, the Petitioners succeed in their prayers for quashing the proceedings pertaining demands of property tax for the period commencing 1.4.1999 till 31.3.2004 This is because from April, 2004 onwards the assessment for property tax is to be made on the voluntary basis.
14. Since it has been held that the Petitioners are not liable to property tax at all, if any deposit made towards property tax for the period 1.4.1999 to 31.3.2004 remains unadjusted against current liability, the remainder should be refunded to the Petitioner within three months from today.
15. The Writ Petition stands disposed of accordingly. Parties to bear their respective costs.