Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 7 July, 2016
+ W.P.(C) No.5474/2012
NEW DELHI MUNICIPAL COUNCIL ..... Petitioner
Through: Mr. Arjun Mitra, Adv.
versus
JASWINDER RAI ..... Respondent
Through: Mr. Subhash C. Jindal, Adv.
CORAM:-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 226 of the Constitution of India impugns
th
the order / judgment dated 26 May, 2011 [of the Additional District Judge-I
(ADJ), Patiala House Courts, New Delhi acting as an Appellate Authority
under Section 115 of the New Delhi Municipal Council Act, 1994 (NDMC
Act)] in House Tax Appeals (HTAs) No.72A/2010 and 73/2010 to 79/2010
preferred by the respondent with respect to assessment by the petitioner New
Delhi Municipal Council (NDMC) of Rateable Value for the year 2001-02
and for successive years in respect of Flat No.A-102, 6 Aurangzeb Road,
New Delhi.
rd
2. Though the petition came up first before this Court on 3 September,
2012 but was repeatedly adjourned and notice thereof finally issued only on
W.P.(C) No.5474/2012 Page 1 of 12
th
19 December, 2014. A counter affidavit has been filed by the respondent
and to which a rejoinder has been filed by the petitioner NDMC. The
th th
counsels were heard on 16 May, 2016 and 30 May, 2016 and order
reserved.
3. The facts are not in dispute. The respondent purchased the subject flat
th nd
on 20 March, 1993 and was put into possession thereof on 2 April, 1993.
st
The respondent, who was serving in the Indian Army retired on 31 August,
th
1994 and on 30 March, 1998 gave the flat on rent at a monthly rent of
Rs.1,80,000/- and shifted his own residence to Som Vihar, Delhi. The
rateable value of the flat while on rent was finalised at Rs.19,44,000/- with
st
effect from 1 April, 2000 on the basis of the rent being fetched of the flat.
st
The tenant vacated the flat on 31 March, 2003 and the flat was thereafter,
for the relevant period, again in self-occupation of the respondent. The
petitioner NDMC however continued the rateable value of the said flat for
the period after the vacation by the tenant also at Rs.19,44,000/- and
impugning which the HTAs, against the order wherein this petition arises,
were filed.
W.P.(C) No.5474/2012 Page 2 of 12
4. The contention of the respondent in the said appeals was that he was
st
entitled to benefit of Resolution No.12(Q-5) dated 21 January, 2004 of the
petitioner NDMC and as per which, according to him, the flat even though
earlier let out, once self-occupied had to be assessed for the purpose of
house tax as if it had never been let out and not on the same rateable value
on which it was assessed when let out.
5. The learned ADJ agreed with the said contention of the respondent
and resultantly allowed the HTAs preferred by the respondent by setting
aside the impugned assessment and the demand for property tax in
pursuance thereto and by directing the petitioner NDMC to assess the flat
aforesaid of the respondent for the subject years in accordance with the
Resolution aforesaid.
6. Needless to state that it is the contention of the petitioner NDMC that
the respondent is not entitled to the benefit of the Resolution. The
controversy in this petition is confined to the said aspect.
7. The relevant part of the subject Resolution (as also set out in the
impugned order of the learned ADJ) is as under:
W.P.(C) No.5474/2012 Page 3 of 12
“ Resolved further that in respect of the residential premises,
which were constructed by the owner for his residence and
were let out on rent and have been taken in self occupation,
after being earlier on rent, the rateble value of such premises
shall be determined on such re-occupation as self occupied
residential property, as if it was never on rent, and in
determination of rateable value of such property, cost of
additions, alterations and renovations in the premises shall be
included.
Provided that this resolution shall be confined to only
residential self occupied property and would not extend to
self occupied non-residential property.”
8. It is the contention of the counsel for the petitioner NDMC that the
benefit of the aforesaid Resolution is available only to those owners /
landlords who have let out their premises while in employment and who
have self-occupied the premises post their retirement. It is contended that
since the letting by the respondent was post his retirement, he would not be
entitled to the benefit of the Resolution.
9. The learned ADJ has negatived the said contention holding that there
is nothing in the Resolution from which one can construe that it is applicable
only upon occupying the property immediately on superannuation or that the
relief in property tax intended to be given by the said Resolution would not
W.P.(C) No.5474/2012 Page 4 of 12
be given to an assessee who used it for self-occupancy at a later stage and
that the Resolution permits no scope for any other interpretation.
10. The contention of the petitioner NDMC is based on the Agenda Items
5.8 and 5.9 leading to the said Resolution and which are as under:
“5.8 There is also a demand for relief from the owners of the self
occupied residential properties which were taken in self occupation
after earlier being on rent. In Diwan Daulat Rai Kapoor V/s NDMC,
the Delhi High Court held that where the premises are earlier on rent
and were un-let in the year of assessment, these have to be assessed on
last rent. In NDMC V/s Nand Lal Bassi, the Delhi High court held
that „ when a rented properties is taken in self occupation, there cannot
be any change in rateable value.’ Supreme court in Diwan Daulat Rai
Kapoor also held that ‘when a property is on rent, its rateable value
will not change when taken in self occupation.’ These decision are
creating real hardship to the category of residential properties which
were earlier self occupied or constructed for self occupation but had to
be let out by the owner as he was unable to occupy the premises as he
was outside Delhi or if in Delhi due to service or professional
consideration, having accommodation from the employer or could not
/ did not occupy the premises and had let the premises and on return to
Delhi or after superannuation or some such contingency is taking the
premises in self occupation. This will also cover cases where due to
family needs, the owner occupying a portion of the building also
occupies another portion which was earlier on rent. There are also
case in which there is change in occupancy of floor. The person was
st
occupying 1 floor and the ground floor was on rent and now ground
W.P.(C) No.5474/2012 Page 5 of 12
st
floor is taken in self and the 1 floor is being given on rent. These self
occupied residential properties need a consideration.
5.9 The Supreme Court in the case of Dr. Balbir Singh V/s MCD had
observed that in assessing the self occupied residential properties,
there is a vital distinction from the point of view of the owner between
self occupied premises and tenanted premises and right to shelter
under the roof being a basic necessity of every human being,
residential premises which are self occupied must be treated on a more
favourable basis than the tenanted premises so far as the assessibility
to property tax is concerned. The Council is therefore, giving a 25%
rebate from the payment of property tax to the self occupied
residential premises owned and occupied by an individual. The
category of properties referred to in para-5.8 above are not getting the
same treatment as the self occupied residential property which never
let out. The Council may resolve grant of relief U/s-124 to such
category of properties and once it is self occupied, it may be permitted
to be assessed in the year it is taken in self as if it was not let earlier
and rateable value decided on the same basis as a residential property
which was never let out. No such relief to non-residential properties.
This relief shall be available to only individual original owners and
not to purchasers of the property or to Companies, Firms or other
Institutions, where premises are occupied by the Directors, Partners or
Employees. This will cover pending cases as well.”
11. The learned ADJ, in the impugned order / judgment, of course neither
noticed the aforesaid Agenda Items nor axiomatically dealt with the same.
W.P.(C) No.5474/2012 Page 6 of 12
th
12. I had during the hearing on 16 May, 2016 enquired from the
counsels as to what difference in the assessment of rateable value would the
Resolution aforesaid make even if the respondent was to be entitled to the
benefit of the Resolution aforesaid. A reading of the Agenda Items shows
that the only benefit would be of a rebate of 25% from the payment of
property tax and there would be no difference in the assessment of rateable
value; the Resolution does not even mention the rebate. The counsels
however appeared to be proceeding on the premise that if the property had
never been let out, the rateable value thereof would be as per the standard
rent within the meaning of the Delhi Rent Control Act, 1958 (DRCA) and
would be lower than the rateable value assessed on the basis of actual rent
fetched earlier. It was further brought to the notice of the counsels that the
provision in the Rent Act as to standard rent had also been struck down in
Raghunandan Saran Ashok Saran (HUF) Vs. Union of India 95 (2002)
th
DLT 508 (DB). However no clarity emerged during the hearing on 30
May, 2016 also on the said aspect.
13. Moreover, Supreme Court in State Trading Corporation India Ltd.
Vs. New Delhi Municipal Council AIR 2016 SC 1269 has held (i) that since
the provision of standard rent under the DRCA had been struck down in
W.P.(C) No.5474/2012 Page 7 of 12
Raghunandan Saran Ashok Saran (HUF) supra, no reliance could be
placed on the proviso under Section 63(1) of the NDMC Act; (ii) that in any
case since the standard rent of the premises of the State Trading Corporation
India Ltd. had never been fixed under the DRCA, the State Trading
Corporation India Ltd. was not entitled to invoke the same; (iii) that since
the NDMC Act contains a provision and procedure under Section 63 for
calculating the annual rent, one need not refer at all to New Delhi Municipal
Counsel Bye-laws, 1962 (which were framed when the area now governed
by the NDMC Act was governed by the Punjab Municipal Act, 1911) and
that the bye-law 12 of the said bye-laws was apparently inconsistent with the
provisions of the NDMC Act and it is impermissible to refer to the bye-laws
framed under the Punjab Act in view of specific provisions made under the
NDMC Act providing for the levy, assessment and collection of property
tax; (iv) that under Section 63 of the NDMC Act the only basis for fixation
of rateable value is annual rent at which the land or building might
reasonably be expected to be let from year to year, subject to deductions
provided under the Act; (v) if the property is let out, the actual rent payable
by the tenant to the landlord is available for verification by the Assessing
Officer; (vi) where the property is self occupied, the annual rent will have to
W.P.(C) No.5474/2012 Page 8 of 12
be fixed on the basis of what the landlord might reasonably expect to get
from a hypothetical tenant; (vii) such fixation has to be made only as per the
NDMC Act; and, (viii) it is for the Assessing Officer to make the fixation in
accordance with law.
14. I have on the basis of the judgment aforesaid of the Supreme Court, in
NDMC Vs. M/s Om Prakash 2016 SCC OnLine Del 2504 held that for self
occupied properties and about which there can be no possibility of doubt are
capable of fetching rent in excess of Rs.3,500/- per month, and above which
st
rent the provisions of DRCA w.e.f. 1 December, 1988 do not apply, the
question of the landlord reasonably expecting to fetch only the standard rent
does not arise; rather Supreme Court has expressly negatived the same by
holding that since the provision of standard rent in the DRCA itself has been
struck down and since no standard rent referred to in the proviso to Section
63(1) of the NDMC Act was fixed qua the property, no reliance could be
placed thereon.
15. It thus appears that irrespective of the applicability of the said
Resolution to the property of the respondent, the rateable value of the
respondent‟s property has to be fixed as per the rent which it is reasonably
W.P.(C) No.5474/2012 Page 9 of 12
capable of fetching and not as per its standard rent, under which impression
the counsels appear to be litigating and the only difference which the
applicability of the Resolution would make would be of rebate, if being
given though there is no mention thereof in the Resolution.
16. For the sake of completeness, it is also deemed appropriate to deal
with the applicability of the Resolution.
17. No error can be found with the reasoning of the learned ADJ of the
Resolution, as per its reading, not carving out any distinction whether the
letting out was pre-retirement from service or post-retirement. There is also
nothing at all in the Resolution from which it can be said that the intent of
the Council of the petitioner NDMC was for the same to be read in the
context of Agenda Item. In fact, the Resolution does not even refer to the
Agenda Items at all. It has thus to be read as saying what it says and so read
it applies to all cases of self occupation post letting of residential
accommodation, whatsoever may be the reason for not self occupying earlier
and instead letting out the property. Though a Resolution may take its
colour / interpretation from the context in which it was passed, including the
Agenda Item, but for that there has to be something in the Resolution to link
W.P.(C) No.5474/2012 Page 10 of 12
it to the Agenda Item. There is none in the subject Resolution. However so
read, the Resolution does not even mention rebate, which finds mention in
the Agenda item. Even otherwise, I am of the view that even if the Agenda
Item were to be read, the same do not limit the applicability of the
Resolution to only those cases where the letting was pre-retirement or
excludes those where the letting out was post-retirement. The Agenda Item
talks of „hardship to landlord in self-occupation who had let out his property
earlier‟, either i) because he was unable to occupy the property as he was
outside Delhi and had occupied the property on return to Delhi; or ii)
because he was unable to occupy the property, though in Delhi, due to
service or professional consideration, having accommodation from the
employer and had occupied the property on superannuation; or iii) because
of some such contingency is taking the premises in self-occupation; or iv)
where due to family needs, the owner occupying a portion of the building
also occupies another portion which was earlier on rent or where there is
change in occupancy of floor. The Resolution thus cannot be said to cover
only those cases where the letting out was on account of employment
outside Delhi or if in Delhi owing to accommodation having been provided
W.P.(C) No.5474/2012 Page 11 of 12
by the employer. The Resolution also covers cases of “some such
contingency” and of “expanding family need”.
18. No merit is thus found in the petition which is dismissed.
19. There was no interim stay of the order of the learned ADJ but I was
told that no assessment in pursuance thereto has taken place till now. The
same be done now at the earliest.
20. The respondent to appear before the Assessing Authority of the
th
petitioner NDMC with all the relevant documents on 8 August, 2016 at
1500 hours.
No costs.
RAJIV SAHAI ENDLAW, J
JULY 07, 2016
„gsr‟..
W.P.(C) No.5474/2012 Page 12 of 12
th
% Date of decision: 7 July, 2016
+ W.P.(C) No.5474/2012
NEW DELHI MUNICIPAL COUNCIL ..... Petitioner
Through: Mr. Arjun Mitra, Adv.
versus
JASWINDER RAI ..... Respondent
Through: Mr. Subhash C. Jindal, Adv.
CORAM:-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 226 of the Constitution of India impugns
th
the order / judgment dated 26 May, 2011 [of the Additional District Judge-I
(ADJ), Patiala House Courts, New Delhi acting as an Appellate Authority
under Section 115 of the New Delhi Municipal Council Act, 1994 (NDMC
Act)] in House Tax Appeals (HTAs) No.72A/2010 and 73/2010 to 79/2010
preferred by the respondent with respect to assessment by the petitioner New
Delhi Municipal Council (NDMC) of Rateable Value for the year 2001-02
and for successive years in respect of Flat No.A-102, 6 Aurangzeb Road,
New Delhi.
rd
2. Though the petition came up first before this Court on 3 September,
2012 but was repeatedly adjourned and notice thereof finally issued only on
W.P.(C) No.5474/2012 Page 1 of 12
th
19 December, 2014. A counter affidavit has been filed by the respondent
and to which a rejoinder has been filed by the petitioner NDMC. The
th th
counsels were heard on 16 May, 2016 and 30 May, 2016 and order
reserved.
3. The facts are not in dispute. The respondent purchased the subject flat
th nd
on 20 March, 1993 and was put into possession thereof on 2 April, 1993.
st
The respondent, who was serving in the Indian Army retired on 31 August,
th
1994 and on 30 March, 1998 gave the flat on rent at a monthly rent of
Rs.1,80,000/- and shifted his own residence to Som Vihar, Delhi. The
rateable value of the flat while on rent was finalised at Rs.19,44,000/- with
st
effect from 1 April, 2000 on the basis of the rent being fetched of the flat.
st
The tenant vacated the flat on 31 March, 2003 and the flat was thereafter,
for the relevant period, again in self-occupation of the respondent. The
petitioner NDMC however continued the rateable value of the said flat for
the period after the vacation by the tenant also at Rs.19,44,000/- and
impugning which the HTAs, against the order wherein this petition arises,
were filed.
W.P.(C) No.5474/2012 Page 2 of 12
4. The contention of the respondent in the said appeals was that he was
st
entitled to benefit of Resolution No.12(Q-5) dated 21 January, 2004 of the
petitioner NDMC and as per which, according to him, the flat even though
earlier let out, once self-occupied had to be assessed for the purpose of
house tax as if it had never been let out and not on the same rateable value
on which it was assessed when let out.
5. The learned ADJ agreed with the said contention of the respondent
and resultantly allowed the HTAs preferred by the respondent by setting
aside the impugned assessment and the demand for property tax in
pursuance thereto and by directing the petitioner NDMC to assess the flat
aforesaid of the respondent for the subject years in accordance with the
Resolution aforesaid.
6. Needless to state that it is the contention of the petitioner NDMC that
the respondent is not entitled to the benefit of the Resolution. The
controversy in this petition is confined to the said aspect.
7. The relevant part of the subject Resolution (as also set out in the
impugned order of the learned ADJ) is as under:
W.P.(C) No.5474/2012 Page 3 of 12
“ Resolved further that in respect of the residential premises,
which were constructed by the owner for his residence and
were let out on rent and have been taken in self occupation,
after being earlier on rent, the rateble value of such premises
shall be determined on such re-occupation as self occupied
residential property, as if it was never on rent, and in
determination of rateable value of such property, cost of
additions, alterations and renovations in the premises shall be
included.
Provided that this resolution shall be confined to only
residential self occupied property and would not extend to
self occupied non-residential property.”
8. It is the contention of the counsel for the petitioner NDMC that the
benefit of the aforesaid Resolution is available only to those owners /
landlords who have let out their premises while in employment and who
have self-occupied the premises post their retirement. It is contended that
since the letting by the respondent was post his retirement, he would not be
entitled to the benefit of the Resolution.
9. The learned ADJ has negatived the said contention holding that there
is nothing in the Resolution from which one can construe that it is applicable
only upon occupying the property immediately on superannuation or that the
relief in property tax intended to be given by the said Resolution would not
W.P.(C) No.5474/2012 Page 4 of 12
be given to an assessee who used it for self-occupancy at a later stage and
that the Resolution permits no scope for any other interpretation.
10. The contention of the petitioner NDMC is based on the Agenda Items
5.8 and 5.9 leading to the said Resolution and which are as under:
“5.8 There is also a demand for relief from the owners of the self
occupied residential properties which were taken in self occupation
after earlier being on rent. In Diwan Daulat Rai Kapoor V/s NDMC,
the Delhi High Court held that where the premises are earlier on rent
and were un-let in the year of assessment, these have to be assessed on
last rent. In NDMC V/s Nand Lal Bassi, the Delhi High court held
that „ when a rented properties is taken in self occupation, there cannot
be any change in rateable value.’ Supreme court in Diwan Daulat Rai
Kapoor also held that ‘when a property is on rent, its rateable value
will not change when taken in self occupation.’ These decision are
creating real hardship to the category of residential properties which
were earlier self occupied or constructed for self occupation but had to
be let out by the owner as he was unable to occupy the premises as he
was outside Delhi or if in Delhi due to service or professional
consideration, having accommodation from the employer or could not
/ did not occupy the premises and had let the premises and on return to
Delhi or after superannuation or some such contingency is taking the
premises in self occupation. This will also cover cases where due to
family needs, the owner occupying a portion of the building also
occupies another portion which was earlier on rent. There are also
case in which there is change in occupancy of floor. The person was
st
occupying 1 floor and the ground floor was on rent and now ground
W.P.(C) No.5474/2012 Page 5 of 12
st
floor is taken in self and the 1 floor is being given on rent. These self
occupied residential properties need a consideration.
5.9 The Supreme Court in the case of Dr. Balbir Singh V/s MCD had
observed that in assessing the self occupied residential properties,
there is a vital distinction from the point of view of the owner between
self occupied premises and tenanted premises and right to shelter
under the roof being a basic necessity of every human being,
residential premises which are self occupied must be treated on a more
favourable basis than the tenanted premises so far as the assessibility
to property tax is concerned. The Council is therefore, giving a 25%
rebate from the payment of property tax to the self occupied
residential premises owned and occupied by an individual. The
category of properties referred to in para-5.8 above are not getting the
same treatment as the self occupied residential property which never
let out. The Council may resolve grant of relief U/s-124 to such
category of properties and once it is self occupied, it may be permitted
to be assessed in the year it is taken in self as if it was not let earlier
and rateable value decided on the same basis as a residential property
which was never let out. No such relief to non-residential properties.
This relief shall be available to only individual original owners and
not to purchasers of the property or to Companies, Firms or other
Institutions, where premises are occupied by the Directors, Partners or
Employees. This will cover pending cases as well.”
11. The learned ADJ, in the impugned order / judgment, of course neither
noticed the aforesaid Agenda Items nor axiomatically dealt with the same.
W.P.(C) No.5474/2012 Page 6 of 12
th
12. I had during the hearing on 16 May, 2016 enquired from the
counsels as to what difference in the assessment of rateable value would the
Resolution aforesaid make even if the respondent was to be entitled to the
benefit of the Resolution aforesaid. A reading of the Agenda Items shows
that the only benefit would be of a rebate of 25% from the payment of
property tax and there would be no difference in the assessment of rateable
value; the Resolution does not even mention the rebate. The counsels
however appeared to be proceeding on the premise that if the property had
never been let out, the rateable value thereof would be as per the standard
rent within the meaning of the Delhi Rent Control Act, 1958 (DRCA) and
would be lower than the rateable value assessed on the basis of actual rent
fetched earlier. It was further brought to the notice of the counsels that the
provision in the Rent Act as to standard rent had also been struck down in
Raghunandan Saran Ashok Saran (HUF) Vs. Union of India 95 (2002)
th
DLT 508 (DB). However no clarity emerged during the hearing on 30
May, 2016 also on the said aspect.
13. Moreover, Supreme Court in State Trading Corporation India Ltd.
Vs. New Delhi Municipal Council AIR 2016 SC 1269 has held (i) that since
the provision of standard rent under the DRCA had been struck down in
W.P.(C) No.5474/2012 Page 7 of 12
Raghunandan Saran Ashok Saran (HUF) supra, no reliance could be
placed on the proviso under Section 63(1) of the NDMC Act; (ii) that in any
case since the standard rent of the premises of the State Trading Corporation
India Ltd. had never been fixed under the DRCA, the State Trading
Corporation India Ltd. was not entitled to invoke the same; (iii) that since
the NDMC Act contains a provision and procedure under Section 63 for
calculating the annual rent, one need not refer at all to New Delhi Municipal
Counsel Bye-laws, 1962 (which were framed when the area now governed
by the NDMC Act was governed by the Punjab Municipal Act, 1911) and
that the bye-law 12 of the said bye-laws was apparently inconsistent with the
provisions of the NDMC Act and it is impermissible to refer to the bye-laws
framed under the Punjab Act in view of specific provisions made under the
NDMC Act providing for the levy, assessment and collection of property
tax; (iv) that under Section 63 of the NDMC Act the only basis for fixation
of rateable value is annual rent at which the land or building might
reasonably be expected to be let from year to year, subject to deductions
provided under the Act; (v) if the property is let out, the actual rent payable
by the tenant to the landlord is available for verification by the Assessing
Officer; (vi) where the property is self occupied, the annual rent will have to
W.P.(C) No.5474/2012 Page 8 of 12
be fixed on the basis of what the landlord might reasonably expect to get
from a hypothetical tenant; (vii) such fixation has to be made only as per the
NDMC Act; and, (viii) it is for the Assessing Officer to make the fixation in
accordance with law.
14. I have on the basis of the judgment aforesaid of the Supreme Court, in
NDMC Vs. M/s Om Prakash 2016 SCC OnLine Del 2504 held that for self
occupied properties and about which there can be no possibility of doubt are
capable of fetching rent in excess of Rs.3,500/- per month, and above which
st
rent the provisions of DRCA w.e.f. 1 December, 1988 do not apply, the
question of the landlord reasonably expecting to fetch only the standard rent
does not arise; rather Supreme Court has expressly negatived the same by
holding that since the provision of standard rent in the DRCA itself has been
struck down and since no standard rent referred to in the proviso to Section
63(1) of the NDMC Act was fixed qua the property, no reliance could be
placed thereon.
15. It thus appears that irrespective of the applicability of the said
Resolution to the property of the respondent, the rateable value of the
respondent‟s property has to be fixed as per the rent which it is reasonably
W.P.(C) No.5474/2012 Page 9 of 12
capable of fetching and not as per its standard rent, under which impression
the counsels appear to be litigating and the only difference which the
applicability of the Resolution would make would be of rebate, if being
given though there is no mention thereof in the Resolution.
16. For the sake of completeness, it is also deemed appropriate to deal
with the applicability of the Resolution.
17. No error can be found with the reasoning of the learned ADJ of the
Resolution, as per its reading, not carving out any distinction whether the
letting out was pre-retirement from service or post-retirement. There is also
nothing at all in the Resolution from which it can be said that the intent of
the Council of the petitioner NDMC was for the same to be read in the
context of Agenda Item. In fact, the Resolution does not even refer to the
Agenda Items at all. It has thus to be read as saying what it says and so read
it applies to all cases of self occupation post letting of residential
accommodation, whatsoever may be the reason for not self occupying earlier
and instead letting out the property. Though a Resolution may take its
colour / interpretation from the context in which it was passed, including the
Agenda Item, but for that there has to be something in the Resolution to link
W.P.(C) No.5474/2012 Page 10 of 12
it to the Agenda Item. There is none in the subject Resolution. However so
read, the Resolution does not even mention rebate, which finds mention in
the Agenda item. Even otherwise, I am of the view that even if the Agenda
Item were to be read, the same do not limit the applicability of the
Resolution to only those cases where the letting was pre-retirement or
excludes those where the letting out was post-retirement. The Agenda Item
talks of „hardship to landlord in self-occupation who had let out his property
earlier‟, either i) because he was unable to occupy the property as he was
outside Delhi and had occupied the property on return to Delhi; or ii)
because he was unable to occupy the property, though in Delhi, due to
service or professional consideration, having accommodation from the
employer and had occupied the property on superannuation; or iii) because
of some such contingency is taking the premises in self-occupation; or iv)
where due to family needs, the owner occupying a portion of the building
also occupies another portion which was earlier on rent or where there is
change in occupancy of floor. The Resolution thus cannot be said to cover
only those cases where the letting out was on account of employment
outside Delhi or if in Delhi owing to accommodation having been provided
W.P.(C) No.5474/2012 Page 11 of 12
by the employer. The Resolution also covers cases of “some such
contingency” and of “expanding family need”.
18. No merit is thus found in the petition which is dismissed.
19. There was no interim stay of the order of the learned ADJ but I was
told that no assessment in pursuance thereto has taken place till now. The
same be done now at the earliest.
20. The respondent to appear before the Assessing Authority of the
th
petitioner NDMC with all the relevant documents on 8 August, 2016 at
1500 hours.
No costs.
RAJIV SAHAI ENDLAW, J
JULY 07, 2016
„gsr‟..
W.P.(C) No.5474/2012 Page 12 of 12