NALIN BHUSHAN CHANDIOK & ANR Petitioners v. NORTH DELHI MUNICIPAL CORPORA nON Respondent

1 There are three petitioners before this Court. They all are aggrieved by the assessment order dated 30.3.2002. A direction has been sought to determine the assessment of the properties of the petitioners under the'0nit ^.^pa-jMethod'^as..has been held by the Division Bench ofthis Court in 169(2010)Di^T^35;2(DB)Municipal Corporation dfE)elhi Vs. Major Genemllnderpah'Sinsh Kakai& Anr. The secohd prayer seeks a quashing of the order dated 27.9.2002 (which w^as an order passpdlbi|He'iearned District Judge in appeal under Section Id^ofThe Delhi Municipal^?^ Act, 1957 (DMC Act)agairisf'the pfderj4aled,J0;3r[2] prayer in the writ petition seeks a'quashingy^o4tKe-order passed by the learned District Judge on 22.7.2013 which was on the application of the petitioner under Section 171 ofthe DMC Act(seeking a review ofthe order dated 27.9.2002).

2 All petitions are premised on the same submissions. WP(C)Nos.5087/2014,5088/2014&5538/2014 Page 2of[9]

3 The averments in the petitions disclose that the petition is bordered largely on the provisions of Section 116(G) of the DMC (Amendment)Act,2003. Submission isthatafterpromulgation ofthe Unit Area Method, the DMC Act stood amended w.e.f. 01.4.2004 making the Unit Area Method applicable for the purpose oftaxation within the municipal limits of Delhi. Section 116(G) was the transitory provision;.^sub-seQtipn has be^p highlighted. Further averments in flie petition disclose that am:a|seisment /rectification 'AV A, order had beentpksed fty the Assessing'Authority^iua,the properties ofthe petitioners for seven yearsT.e. between the yeafs 1989 to the, I.'' I? Vi ti year 1999';the rateable value'sliavefeenfixedtherein;tliis wasunder ''' ' * 1 // the provisions ofthe/old-Act'i.e. before/fheyJJnit Area Method had been introduced^f'%e DMQ Act..^.,^^^ were aggrieved. They filed an appeai'undefSecfton-^ Old DMC Act which was listed before the District Judge. This appeal was dismissed on 27.9.2002. In November, 2002 the petitioners filed an application under Section 171 ofthe DMC Act(Old)seeking a recall ofthe order dated 27.9.2002. Attention has been drawn to the proviso to Section 171 of the DMC Act. Counsel for the petitioner submits that a WP(C)Nos.5087/2014,5088/2014&5538/2014 Page3of[9] provision for review is adequately contained in the said Act. This application remained pending for 11 years and wasfinally disposed of on 22.7.2013.

4 The present petition (as noted supra) is premised on the provisions of Section 116(G)of the DMC Act. Submission of the petitioner is thatthe review petition would amountto a continuation of the appeal and since therefisjr'stdtutp^.;^^^^ Section 171 of the DMC Acfto'permit a.reviewiiahd'recall antearlidr order passed in appeal, the assessment had hot yet_become final iixfetos of Section 116(G)(2). Since the assessmenti,q|these properties Jwere not yet f r V ^.i finalized petitioner is entitlehho the benefit of Ssection/l16(G)(2)of i titlddstt lUrf, the Amended /^t under the Unit Area Metltdd."-'^-;"

5 Counter affidavit had been filed to these averments. It is a short affidavit countering the stand taken by the petitioner. Para 4 of the affidavit states that under Section 116(G)(2) of the DMC (Amendment) Act, 2003 the petitioner cannot ask for an assessment under the Unit Area Method as the appeal stood dismissed on 27.9.2002 and a review cannot be placed on an equal footing asthat of WP(C)Nos.5087/2014,5088/2014&5538/2014 Page4of[9] an appeal; the benefit ofSection 116(G)(2) would not be available to the petitioners.

6 Rejoinder has also been filed. This Court notes that in the rejoinder, the petitioners appear to have set up a new case. In the rejoinder it has been stated that the Corporation could not have passed a common assessment order(dated 30.3.2002), a separate notice had to be given for eiacK^ye^,|ri®tiiis!i^;clearTrpm the provisions of Sections 124;^'to'\T27 of,the DMC Act. These hverments in the.7' 'A rejoinder,show:that this rejoinder is"'not in chnsonhnce with the ' I j ''-f Is averments in the writ petition; petitioners appear to bei setting up a ( !- i • I I new case.',-!, ^\ // 6 Argurhenfshavdibeeh heard and recofd:hiA;bech perused.

8 What this Court^^Has^to^ef^^ is whether the review petition which had been filed by the petitioner in November, 2002 (under Section 171 of the DMC Act against the order (dated 27.9.2002)ofthe dismissal ofhis appeal and was pending at the time when the Unit Area Method was introduced by the DMC Act,1957 as amended in 2003)and thus whetherthe transitory provision ofSection 116(G)(2)can workto the benefitofthe petitioners. WP(C)Nos.5087/2014,5088/2014&5538/2014 Page5of[9]

9 Admittedly,in view ofthe variousjudgments laid down by the courts oflaw an appeal is deemed to be a continuation ofthe original proceedings and where an appeal is pending against an assessment order, the assessment is deemed to be not "finalized" within the meaning of Section 116(G)(2) of the DMC Act. This has been reiterated by the Division Bench ofthis Court in 169(2010)DLT 253 (DB) MCD Vs. Maibr ' Genemlrlndermh-S^ Kahai and Anr. Relevant extractreadsmerem as:un'der: ^^ -V "9.Itis clear-fwm the thirdproviso to'Section 1^9^)6^theDMCAct that even.;where an assessment iffinalized, hut an appeal is pending, H hi, Ii iji j'l !l an assessee is entitled to askforafiedsion in the appeallbn the annual value basis. In other words, even at M; appellate stagefan assessee is empowered p askfor0deci^iajfMfM value of theproperty..ffff

10 The question whicli)^lias=b^^ before this Court is whether a review petition filed against the dismissal ofthe appeal and admittedly pending at the time when the Amendment Act, 2003 (w.e.f.01.4.2004)was introduced; whether the pendency ofthatreview petition would also tantamount to a non-fmalization ofthe assessment in terms ofSection 116(G)(2)ofthe said Act. WP(C)Nos.5087/2014,5088/2014& 5538/2014 Page6of[9]

11 Relevant would it be to extract Section 171 ofthe DMC Act. It reads as follows:

171. Finality ofappellate orders.- The order ofthe Municipal Taxation Tribunal confirming setting aside or modifying an order in respect ofany rateable value or assessment or liability to assessment or taxation shall befinal. Provided that it shall be lawful for the Municipal Taxation Tribunal upon application br gn Ms own'motion, to review any order 'l< '——s 'S ""'A'v, passed by itin appeafwitMh-three monthsfrgni the date ofthe order".

12 Relay,ant;;Would it|be to also extract the provisions of Section 116(G)(2)of-the^DMC Act;itreads as under: ?,/!_• 1 3. "(2)Notwithstanding anyfhmg contained in sub-section(l), where assessment has refp^fyof ayvacant land or coveredspace ofafuildihgor botfygnthefygfyofthe commencement of the Delhi MunicipgklCorporfyfyfyffyiTiehdment) Act, 2003 the assessee may have such land ofbuilding or both, as the case may be, assessed on the basis ofthe annual value."

13 The proviso to Section 171 clearly states that an order passed in appeal is subject to a statutory review,the rider being that the review petition has to be filed within three months. In this case the appeal under Section 169 ofthe DMC Act has been dismissed on 27.9.2002. WP(C)Nos.5087/2014,5088/2014&5538/2014 Page 7of[9] n/ The review petition was filed within the statutory period of three months i.e. in November,2002. It is an admitted fact that the review petition was pending at the time when Unit Area Method was introduced in 2004 under the DMC Act(Amendment) Act 2003. It was finally decided on 13.4.2013.

14 The intention of the Legislature as carried out in the proviso Section 171 ofthe'UMg^^i^^ cleatjl||)rdvides that the Appellate Court may i;econsider its,decisionM-fa,,petiti6m-s^eking review of its Jc v-'—■ "''U A. order is pfefen:ed within threeiirionths. This reconsideration was yet ■' ' ^ pending at the time when(the■'amendment of 2003 was introduced. U 'J ^ ^ i j ' "'r ''M-; fl' i'; ^ h ''Review 'literally and ev^^i/udii^al^ means re-examination or a reconsideration./Rds^-phid^cii^^ is the universal acceptanceofhuman'jalUjSili^^ 595S.Nagraj& Ors. Vs. State ofKarnatdka andfim.f.'^ 15 A combined reading of the proviso to Section 171 of the DMC Act with section 116(G)(2) of the said Act persuades this Court to hold that this transitory provision of Section 116 (G)(2) of the DMC Act would come to the aid of the petitioner. WP(C)Nos.5087/2014, 5088/2014 & 5538/2014 16 Since the review petition was pending before the learned DistrictJudge itcanin no manner be saidthatthe assessmenthad been "finalized" qua the properties ofthe petitioners; the Amendment Act of 2003 has come into force during the pendency of these review petitions. The petitioners were thus entitled to take benefit of assessment on the basis of annual value i.e. under the Unit Area Method". ft S3If ■

17 The ? inftlfelis of the DMC 'vi W petitioner^ow^Be considf 1/ 1^1^.. Act(Amendment)Act, 20()3iri%l1|fetitioners are directed to appear i) 3! IP f U i MHlfl U beforetheCompetentAuthbiipdM^B.2017. // S i wif-A \P4ji A \\