Deepak Kumar Gupta and Another vs Municipal Corporation

T.P. Sharma, J.—The applicants have challenged legality & propriety of the order dated 6-2-2002 passed by the 3rd Additional District Judge, Raipur, in Miscellaneous Civil Appeal No. 8/2001, whereby learned Additional District Judge by affirming the order dated 14-8-2001 passed by Municipal Corporation, Raipur relating to imposition of property tax had dismissed the miscellaneous appeal.

Legality & propriety of the order impugned is challenged on the ground that learned Additional District Judge has failed to exercise the jurisdiction vested on it.

I have heard learned Counsel for the parties, perused the order impugned and record of the Court below.

Brief facts leading to filing of this revision are that Lakhanlal - father of the applicants, husband of Saraswati Bai and father of Kishorilal was owner of the disputed property bearing House Nos. 737 & 737/1 situated within the territory of Municipal Corporation, Raipur. After the death of Lakhanlal, under family arrangement the property was partitioned between Kishorilal, son of first wife and the present applicants, sons of second wife. Arrangement letter was reduced into writing. On the basis of such document, Municipal Corporation, Raipur, has assessed property tax and imposed property tax upon the property owned by the present applicants, same was challenged in appeal which was dismissed by the order impugned.

Learned Counsel for the applicants submits that Municipal Corporation, Raipur has not followed the procedure prescribed and has not considered mother of the applicants and also owner of the property, after separating her share, the Municipal Corporation was required to assess property tax, but they have not considered the same and committed illegality, and thereby caused prejudice to the present applicants. Learned Counsel placed reliance in the matter Indore Municipal Corporation v. Chhaganlal 1986 (II) MPWN 8, in which it has been held by the M.P. High Court that in absence of division of property by metes and bounds, property tax separately payable by each share-holder is entitled for benefit u/s 135 of the Chhattisgarh Municipal Corporation Act, 1956 (for short ''the Act''). Learned Counsel further placed reliance in the matter of Municipal Corporation, Indore and Ors. v. Smt. Ratnaprabha Dhanda, Indore and Anr. 1989 MPLJ 20 in which it has been held by Division Bench of the M.P. High Court that annual letting value of a building cannot exceed the upper limit of standard rent, where the standard rent is not fixed, the Assessing Authority has to arrive at the annual letting value in accordance with Sections 7 and 10 of the Rent Act. Learned Counsel also placed reliance in the matter of Dewan Daulat Rai Kapoor and Others Vs. New Delhi Municipal Committee and Others, , in which the Apex Court has held that if the building is governed by Rent Control Legislation, annual value cannot exceed standard rent.

On the other hand, the order impugned is supported on behalf of the non-applicant and it is submitted that the Court below has rightly rejected the appeal, the Municipal Corporation has acted in accordance with the procedure prescribed and has not committed any illegality in assessment.

Order of Municipal Corporation, Raipur reveals that the property given to Kishorilal in partition was separately assessed and the property tax upon such partition in relation to the present applicants was assessed jointly in the name of both the applicants. It is not disputed that the present applicants had succeeded the property on the death of their father in succession and at the time of death of Lakhanlal, father of the applicants, three brothers namely, Kishorilal, Deepak Kumar Gupta & Santosh Kumar Gupta and wife of Lakhanlal namely Saraswati Bai were alive who were entitled for equal share. Order of the Municipal Corporation further reveals that on the basis of some family arrangement, the property was partitioned between Kishorilal, son from first wife of Lakhanlal and the present applicants, sons from second wife of Lakhanlal, and no share was allotted to Saraswati Bai, alleged mother of the applicants. House Nos. 737 & 737/1 were given in partition to the present applicants.

Admittedly, the building was occupied by the applicants for their residence, therefore, each of the applicants are separately entitled for exemption in accordance with Section 136 of the Act especially under Clause (i) of Section 136 of the Act. However, it reveals from the order of the Municipal Corporation that no such exemption has been granted to these applicants separately and property tax was assessed jointly which is not permissible u/s 136 of the Act. But learned Additional District Judge has not considered the aforesaid ground and has committed illegality. On this ground alone, the order impugned and the order assessing property tax are not sustainable. Learned Additional District Judge has failed to exercise the jurisdiction vested on it.

Consequently, the revision is allowed. Order impugned and the order assessing property tax are hereby set aside. Municipal Corporation, Raipur is directed to assess property tax on the basis of separate share/entitlement of the applicants, in accordance with law. No order as to costs.