SETH POKHARMAL EDUCATIONAL SOCIETY Vs. MCD AND ORS.

JUDGEMENT

(1.) The petitioner is aggrieved by an assessment order issued on 02.05.2011 by the Joint Assessor and Collector of the North Delhi Municipal Corporation (hereafter called "the Corporation") dated 02.05.2011, levying vacant land tax with effect from 01.04.2005 for the use of its land as play field for its school, i.e. Rukmini Devi Public School at Pitampura, Delhi. The diverse claims are mentioned in the writ petition, including the validity of amendments to the Delhi Municipal Corporation Act, 1957 and the levy of vacant land tax under the enactment. However, during the hearing of petition, learned counsel confined the relief to the question of levy of vacant land tax upon the play ground, having regard to the overall circumstances of the lease and the validity of the assessment order to the extent that it was decided on the ground that it was unenforceable as having been decided after an inordinate period of time.

(2.) The facts are that the petitioner is a society, which established a recognized school. The petitioner applied and was allotted a plot of land, being 8271.09 square metres by the Delhi Development Authority (DDA) on perpetual leasehold basis on 25.03.1987. The petitioner was also offered temporary lease of a plot admeasuring 5861.39 metres. This was subject matter of lease deed dated 29.11.1995. This lease was between the petitioner (lessee) and the L&B Department of the Delhi Administration (later succeeded to by the GNCTD). The relevant conditions in this temporary lease deed are extracted below:

(3.) It is submitted that the plot of land which was allotted by the DDA was used to construct a school building and that the vacant land lease executed exclusively by the GNCTD for the purpose of use as play ground was never constructed upon. Learned counsel highlighted that the intrinsic character of the land is that of an open area on which no construction has been made. It is submitted that the petitioner does not possess any property rights and is only the occupier/user. In such event, it cannot be made to pay vacant land tax in the overall circumstances. The petitioner relies upon the judgment of a Full Bench decision of this Court in MCD v. Shashank Steel Industries (P) Ltd . 100 (2002) DLT 66. It was argued that the said judgment was affirmed by the Supreme Court in its ruling reported as MCD v. Shashank Steel Industries Private Limited 2009 (2) SCC 349. It was argued that the definition of "land" in Section 2(24) as well as the provision of Section 120 which deals with Incidence of Property Taxes of the Act remains the same; though the definition of "owner" under Section 2(37) has undergone a change, the amendment does not in any way impact the facts of this case because the contents of the lease in the present case is that of a temporary occupancy by the lessee whose status is in the nature of a monthly tenancy at the pleasure of the lessor or the GNCTD. In these circumstances, the levy of vacant land tax without application of mind to the effect that the lease is temporary and entirely dependent upon discretion of the lessor, and completely restrictive in that its use as a play ground is at all times subject to full control by the lessor takes it out of the purview of the Act. It is thus submitted that the calculation and levy of vacant land tax in the facts of this case are entirely unjustified.