MCD Vs. RAJ BIRBAL

JUDGEMENT

(1.) THE present writ petition is directed against the order dated 05.09.2003 passed by the learned ADJ in HTA No. 160/2002 entitled Raj Birbal v. MCD'. By the impugned order, the learned ADJ allowed the appeal of the respondent/assessee, filed under Section 169 of the Delhi Municipal Corporation Act, 1957, (hereinafter referred to as the Act') against the demand dated 29.11.2001 raised by the petitioner, pursuant to an assessment order dated 09.05.2001 passed by the Assistant Assessor & Collector, MCD, in respect of property No. A-110, Swasthya Vihar, Vikas Marg, Delhi. By the aforesaid assessment order, which was passed on the basis of a notice issued by the petitioner/MCD under Section 126 of the Act, proposing to fix the rateable value of the property at Rs. 1,25,080/- w.e.f. 01.04.2000 on account of additions at the first floor and second floor, rateable value of the property was fixed at Rs. 86,980/- w.e.f. 01.04.2000. In the assessment order, the valuation report of the assessee for the second phase of construction, carried out on the first floor and the second floor of the property shown as Rs. 1,73,238/- was accepted and the total capital cost was fixed at Rs. 8,50,000/- (purchase price of the property) + Rs. 1,73,238/=Rs. 10,23,238/-.

(2.) AGGRIEVED by the aforesaid assessment order, the respondent/assessee filed an appeal under Section 169 of the Act, on the ground that the aforesaid order was contrary to the principles of parity as enunciated by the Supreme Court in the case of Dr. Balbir Singh v. MCD reported as AIR 1985 SC 339 and reiterated in the case of Lt. Col. P.R. Chaudhary etc. v. MCD & Ors. reported as 85 (2000) DLT 223. Upholding the aforesaid contention of the respondent/assessee, the learned ADJ passed the impugned order dated 05.09.2003, by holding that merely on the ground that both the portions of the same property stood in the name of the same person, non-comparison of the newly constructed portion of the premises with the old constructed portion of the same property was highly illogical. While rejecting the report of the Assistant Assessor & Collector, MCD, dated 28.05.2003, the learned ADJ held that the said report did not indicate that the construction of the newly constructed portion is not similar to that of the old constructed portion of the same property. Therefore, the rateable value fixed at Rs. 86,980/- w.e.f. 01.04.2000, vide order dated 09.06.2001, was set aside and the rateable value of the property was fixed at Rs. 40,000/- w.e.f. 01.04.2000.

(3.) IN the present case, it would be relevant to consider the observations of the Supreme Court in the case of Dr. Balbir Singh (supra), which are reproduced herein below : -