DIWAN CHAND Vs. M.C.D. AND OTHERS

JUDGEMENT

(1.) The present second appeal arises out of the judgment dated 9th Dec., 1976 of Shri U.K.S. Malik, Additional District Judge, Delhi. The learned judgment affirmed the findings of the trial court on issues with regard to the assessment of the properties accruing to the share of the appellant. The brief facts which are relevant for the present appeal are that father of the appellant, Banwari Lal, was owner of the buildings bearing old Nos. 1823, 1825 and 1827; new Nos. 3613-36, 3619-3620 and 3623-3625 respectively. The father of the appellant died in the year 1942 and vide registered partition deed 22nd June, 1943 the above said three properties fell in the share of the appellant and his two brothers Murari Lal and Amar Nath. The three brothers as a consequence were entitled to have 1/3rd share each in the said three properties, that in the year 1957 one of the brothers Murari Lal relinquished his share in the three properties to his sons Sultan Singh and Shivraj Singh and necessary mutation in this regard was entered in favour of the said sons in respect of their 1/3rd share in the properties. Sultan Singh and Shivraj Singh later on sold their share to one Shri Godar Shah and the share of Amar Nath was sold by auction on 25-3-68 in execution of a decree and the same was purchased by respondent No. 4.

(2.) The appellant, it is contended, gave notice to the respondent corporation praying that separate bills be issued in respect of the properties which accrued to his share. The appellant has further stated that the issuance of one bid in respect of 1/3rd share of all the three properties by the respondent corporation was illegal and, in fact the bills should be separately issued in respect of each property to every co-sharer. The appellant accordingly prayed for a declaration that he is entitled to get bill in respect of his only 1 /3rd share in the properties and has also prayed for a mandatory injunction to respondent to issue three bills in respect of three properties and these bills should relate for the 1/3rd share of the appellant. The respondent contested the suit mainly on the ground that it was not maintainable in view of the provisions of S. 169-170, 477-478 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act). It was also alleged that the corporation was not bound to assess the property separately which were being assessed as a complete property previously in view of S. 132 of the Act and the Commissioner was not bound to accept the suggestion contained in the alleged communication which was sent in this regard by the appellant/plaintiff. The following issues were framed on the basis of the pleadings of the parties :

(3.) The learned trial Judge disposed of issue Nos. 1 and 2 by referring to the provisions of S. 128 of the Act wherein it is stated that every transferee of the property shall within three months of the transfer give notice of such transfer in writing to the Commissioner. The notice shall be in such form as may be determined by the by-laws made under the Act. In the present case as no such notice as contemplated under S. 128 of the Act had been given by the appellant to the respondent corporation, therefore, the corporation was not bound to issue separate bills in respect of the share of the appellant. All the joint owners are jointly liable for the entire property tax due in respect of the property and the co-owners cannot insist that separate bills should be issued to them in respect of each share. The corporation was further held entitled to protection under s. 477 and as a result suit was also held barred by that section of the Act. Issues were decided accordingly. The appellant felt aggrieved by the judgment of the trial Court and preferred an appeal before the Court of Additional District Judge, Delhi. The learned Judge affirmed the findings on issues No. 1 and 2 and held that the corporation was entitled to realise property tax in respect of three buildings owned by the appellant and his brothers and it was for the corporation to decide whether to hold the appellant and his brothers jointly responsible for payment of property taxes or to hold them liable to the extent of their separate shares. Sec. 132 of the Act left it open to the Commissioner to treat a property as one whole even if it is owned by or let to two or more persons separately. The finding of the trial Court was affirmed with this modification. The learned Judge further held that the appellant can merely insist on separate bills in respect of the three buildings but he cannot insist separate bills for his one-third share in the various buildings. The appellant was, therefore, only entitled to a declaration that separate bills should be sent in respect of the three buildings. It has also been referred to in the judgment that appellant sent a notice to the respondent corporation in this connection on 4th Feb., 1969, The appeal of the appellant as a consequence was dismissed. The appellant felt aggrieved by the orders of the trial Court as well as of the first appellate Court and has filed this second appeal in this Court. The appeal was admitted by order dated 1st. Sept., 1977 and the following substantial questions of law were framed by the learned single Judge: