Municipal Corporation of Delhi Vs. Banwari Lal and Sons - Court Judgment

Excerpt:
delhi municipal corporation act - sections 126 and 128--the requirement of section 126(2) of the act is that before making any amendment under sub-section (1) of section 126 the commissioner shall give notice of not less than one month that he proposes to make the amendment and consider any objections which may be made by such person. the requirement of the provisions of section 128 of the dmc act is that in the case of any transfer or devolution of property, all that is required is that the person affected should give notice of transfer. once that is done, then it is for the mcd thereafter to make appropriate order. - - the first appellate court reappraised the entire evidence and came to the conclusion that the trial court was perfectly justified in deciding issue no. provisions bye-law 59 and particularly bye-laws 3 and 4 which require that the notice regarding transfer of title required to be given under section 128 shall be either in form 'a' of form 'b',as the case may be, and shall state clearly and correctly all the particulars required by the said form.s.s. chadha, j.(1) this regular second appeal seeks the reversal of the judgments and decrees of the two courts below decreeing the suit of the plaintiff and restraining the defendant who is appellant before me, from recovering the amount of rs. 13564.50 towards property taxies from the plaintiff.(2) one of the issues framed by the trial court is whether the defendant fixed the rateable value of the property in question at rs. 23.500.00 after giving notice inviting objections from the proper person. according to the plaintiff, he was the person primarily liable for the payment of property taxes in respect of the property in dispute and the defendant was duly informed regarding the purchase of the right in the property by the plaintiff. the plea is that the plaintiff was not served with any notice for enhancement of the rateable value and, thereforee, the impugned demand of the defendant is illegal and unenforceable. the trial court came to the conclusion that the rateable value of the property in dispute was fixed without service of the notice and inviting objections from the proper person and for this reason it held that the impugned demand was illegal and unenforceable. the first appellate court reappraised the entire evidence and came to the conclusion that the trial court was perfectly justified in deciding issue no. i in favor of the plaintiff and the finding on that issue wa(r) confirmed. the first appellant court also found that the service of notice on the person from whom the tax is recoverable is a condition precedent under sections 124 and 126 of the delhi municipal corporation act, 1957 as the rateable value was enhanced without service of the notice on the plaintiff, it is illegal and unenforceable.(3) the first submission made by the learned counsel for the appellant is that the courts below erred in its finding that there was no arrears at the time when the letter of request for mutation was sent and, thereforee, the mutation was not recorded in the records of the municipal corporation of delhi. it is for that reason that the notice was sent by the corporation to the recorded owner. reference is made to the taxation miscellaneous. provisions bye-law 59 and particularly bye-laws 3 and 4 which require that the notice regarding transfer of title required to be given under section 128 shall be either in form 'a' of form 'b', as the case may be, and shall state clearly and correctly all the particulars required by the said form. bye-law provides that no such notice would be deemed to be validly given unless all the property taxes due at the date of the notice in respect of the premises to which it relates have been paid in full.(4) this submission does not raise any question of law. para 3 of the plaint does aver that the plaintiffs duly informed the defendant regarding the purchase of the rights of the property in dispute and also requested them to transfer the said properly in the names of the plaintiffs and that the plaintiffs have been paying property taxes to the defendant in respect of the said property. in the corresponding paragraph of the written statement, there is an admission that the plaintiffs duly informed the defendant regarding the purchase of the rights of the said property. it is, however, pleaded that 'since the arrears were not paid mutation in the permanent record was not done'. no plea is taken in the written statement that the application for transfer/mutation was not in accordance with bye- law 3 of the taxation miscellaneous provisions bye-laws, 1959. no amount of evidence can be looked into the plea not raised in the defense. the provisions of bye-law no 3 is only a technical requirement of the bye-law. if any formality was lacking, it was the duty of the municipal corporation to have sent back the intimation for compliance of the technical requirements. all that is required is the information relating to the particulars of the property, the date of the transfer the name of the transferee and. transferor. this admittedly was given in the notice dated july 30, 1959, ex. pw-2/3. in fact a copy of the sale-deed was enclosed with the letter. ex. pw-2/3. (5) the courts below have found as a fact that it is not established at all on the record that in the year 1959 when the transfer was effected and the corporation was informed of the transfer, any taxes were due. i find that there is no evidence on the record as to any arrears of the property taxes being due in the year 1959. d.w. i in the cross-examination states that he does not know of any arrears of the property in dispute being due in the years 1959, 1960 and 1961. it was thus the obligation of the appellant to effect the transfer of the property. the requirement of the provisions of section 128 of the delhi municipal corporation is that in the ease of any transfer or devolution of property, all that is required is that the person affected should given notice of the transfer once that is done, it is for the municipal corporation thereafter to make appropriate order. if the municipal corporation of delhi chooses to sit quite and does not make any order, the person concerned cannot be penalished and their liability is not enhanced or saddled (see '0m parkash v. municipal corporation of delhi', a.i.r 1985 delhi 67).(6) the requirement of section 126(2) of the said act is that before making any amendment under sub-section (1) of section 126, the commissioner shall give to any person affected by the amendment, notice of not less than one month that he proposes to make the amendment and consider any objections which may be made by such person. admittedly, no notice was served on the plaintiffs. the corporation did not record the transfer and continue to send the notices to the previous owner. the assessor and collector of the corporation was fully aware of the transfer of property in favor of the plaintiffs as is apparent from the notice dated january 22, l963 necking vacancy allowance in the years 1962 and 1963,ex. pw-2/6 and the original letter of the municipal corporation dated march 21, 1963' ex. pw-2/11 acknowledging the claim for remission of the property taxes in respect of the plot. despite the information being in possession of the corporation, no notice under section 126 was served on the plaintiffs who findings would have been affected by the enhancement of the rateable value. the of the courts below that the demand of the corporation for enhanced tax from the plaintiffs was illegal and unjustified, are fully justified. no question of law arises.(7) for the above reasons, the appeal is dismissed with costs.