SUPREME COURT OF INDIA
Municipal Corporation of Delhi
Vs
Rishi Raj Jain and Another
Appeal (Civil) 4125 of 2006 (Arising Out of Slp (C) No.17116 of 2004) With Civil Appeal No. 4143/2006 (Arising Out of Slp (C) No.17463/2004)
(S. B. Sinha and Dalveer Bhandari, JJ)
14.09.2006
S. B. SINHA, J.
Leave granted.
The Respondent is owner of a farm house. He had constructed a dwelling house
therein. The area of the farm house is said to be 2.5 acres. The said land is
within the agricultural green belt.
General tax is levied by the Appellant-Corporation in terms of Section 115 of
the Delhi Municipal Corporation Act, 1957 ('the
Act', for short). Clause (c) of Sub-Section (4) of Section 115 of the said Act
exempts agricultural lands and buildings from the purview of levy of General
Tax. Dwelling houses, however, are not saved. In terms of the building rules
contained in Item II of Appendix 'J' of the Delhi Building Bye-Laws, 1983,
construction of dwelling house on agricultural land is permitted with certain
restrictions providing :
"II. "Agricultural Green Belt" and "Rural" Use Zones
In order to preserve these Zones in agricultural use certain restrictions on
the size of the dwelling units should be imposed. They are as under:-
(i) The minimum size of a farm shall be as under:- (a) Orchard & Vegetable
Farm - 1 hect
(ii) Poultry, Stud, Dairy & other live stock farms 2 hect
(iii)The minimum coverage and height of DUs, shall be as under:-
Sr. No. Size of Farm Max coverage of DU Max ht of DU
(a) 1 hect & above but less than 2 hect 100 sq. mtrs. (Including mezzanine floor) Single storeyed maximum ht. 6 mtrs.
(b) 2 hect & above 150 sq. mtrs. (Including mezzanine floor) Single storeyed maximum ht. 6 mtrs.
N.B. (1) Set back for dwelling house should be 50 feet from any boundary line
of the property.
(2) Where the property abuts an urban road, the dwelling house building should
be set back from the center line of that road by 200 ft. where the property
abuts a village road, the building set back from the center line of that road
should be 100 feet.
(3) No dwelling unit should be built within two furlongs of the right of way of
any National Highway.
(4) In the case of special farms, for example, horse breeding farms covering a
large area, Government may allow a larger coverage as may be considered necessary
for farm houses to be built on these farms."
The Appellant-Corporation contends that once a dwelling house is built on an
agricultural land, the entire area becomes exigible for levy of tax in the
event it is found that it is not being used for agricultural purposes.
General Tax was levied accordingly upon the Respondent. He preferred an appeal
before the Appellate Authority. The Appellate Authority opined:
".....In the instant case although the covered area of the dwelling
unit admittedly does not exceed 196.44 sq. yards yet the assessing authority
has taken market price of land measuring 2.5 acres into consideration solely on
the grounds that no farm house can be approved if the area of the farm house is
less than 2.5 acres. In the eyes of this court, the Assessment Authority is not
justified in taking into consideration market price of land measuring 2.5 acres
on the aforesaid ground especially when there is nothing such in the impugned
Assessment Order itself and that for want of evidence, the Assessment Authority
presumed that entire land of 2.5 acres is necessary and is being used for
enjoyment of the dwelling house. When the Respondent is having sufficient field
staff for inspection of the appeal farm house, I see no reason why the
Assessment Authority should go by presumption against appellant showing an
arbitrary attitude of the Assessment Authority."
A writ petition was filed thereagainst. By reason of the impugned judgment, the
High Court held:
"While deciding the size of the appurtenant land necessary for a proper
and convenient enjoyment of the dwelling unit in a farm house the Court cannot
be oblivious of the fact that the dwelling unit on a farm house is not at par
with a dwelling unit on a residential plot. Whenever, a person decides to live
in a farm house his object and purpose is to live in wide open area with a vast
lawn than in the crowded residential area as he wants to enjoy the fruits of
unpolluted green expansive area and therefore appurtenant land necessary for a
proper and convenient enjoyment of the dwelling unit has to be higher than
permissible in plotted residential zone.
After having discussed the matter with the counsel for the MCD as well as the
counsel for the respondent and also on the premise of reasonableness and
rationality this Court feels as there is consensus that size of the appurtenant
land necessary for appropriate and convenient enjoyment of the dwelling unit in
a farm house of the minimum size of 2.5 acre and above should be half an acre
for appropriate and convenient enjoyment of the dwelling unit. Any area either
lower or higher would not be in consonance with the concept of living in a farm
house. In the view of this court, this norm should be adopted by every
Assessing Authority for the purpose of levying general tax as contemplated
under Section 115 of the DMC Act.
For the remaining land the concerned authorities have the powers to take action
under various laws viz. Delhi Land Reforms Act and Income Tax Act if it is
found being used for non-agricultural/commercial purposes. For instance section
81 of Delhi Land Reforms Act empowers the revenue authority to direct the owner
to put the land back into agricultural use of face consequences if agricultural
land is found being used for non-agricultural or commercial purposes.
Similarly, if any commercial or non-agricultural activity on an agricultural
land is carried out such a land looses its character of being agricultural land
as the very object of preserving and maintaining the green zone in the farm house
as contemplated in Appendix 'J' stands frustrated and any income from such a
user ceases to be exempted from tax. Similarly concerned authority, for
instance, MCD can levy tax or penalty or take any action permissible under law
for using the agricultural land for non-agricultural or commercial purposes.
Upshot of the aforesaid discussion is that size of the land appurtenant to a
dwelling unit of maximum permissible limit constructed on a farm house having
the minimum size of 2.5 acre and above for proper and convenient enjoyment of
the dwelling house shall be 'half an acre' including the land over which the
dwelling unit is made for the purpose of levying property/general tax and the
remaining land shall be preserved as an agricultural land. In case the non-agricultural
or commercial activities are found to be carried on the said remaining land
which has to be necessary preserved as a green zone it shall be subjected to
appropriate legal actions as these activities shall take away the agricultural
character of the land as contemplated under Section 115 of the MCD Act. This
norm shall be applicable with retrospective effect so as to avoid
discrimination."
The Appellant is, thus, before us.
Ms. Amita Gupta, learned counsel appearing on behalf of the Appellant submitted
that if the land in question is not used for agricultural purposes, the entire
land becomes exigible to levy of General Tax.
Mr. Sudhir Nandrajog, learned counsel appearing on behalf of the Respondents,
on the other hand, supported the impugned judgment.
Indisputably, building bye-laws framed by the Appellant-Corporation operate
having regard to the areas and locations as well as the nature of the
lands/premises. Farm houses, although, are primarily meant to be used for
agricultural or horticultural purposes; construction of a dwelling house
therein is permissible in law.
We have noticed hereinbefore that in terms of the building bye-laws, the
permissible limit for construction of a dwelling house would be about 100 sq.
mtrs. out of total 11, 000 sq. mtrs. of land, i.e., about 4.5% of the total
land.
Tax, indisputably, is imposable keeping in view the nature of the land. If the
nature of the land is agricultural, the Corporation cannot levy tax only
because no agricultural operations are carried out therein.
Sub-Section (4) of Section 115 of the Act provides for an exception as regards
payment of tax providing that no tax shall be levied on agricultural lands and
buildings. Dwelling house, however, is not within the purview of the exempted
category. Buildings on an agricultural land may be constructed for different
purposes. They may be built for agricultural purposes. A dwelling house
constructed by the owner thereof, however, has a different connotation. Whereas
buildings/houses built for agricultural purposes are specifically excluded from
levy of tax, dwelling houses are not. What would be the extent of the land,
which, however, would be exigible to tax would, in our opinion, be the extent
of land upon which it has been constructed and the land appurtenant
thereto. What would be the meaning of the land appurtenant thereto came
up for consideration before this Court in Maharaj Singh vs. State of Uttar
Pradesh & Ors. , wherein it was opined:
"The heated debate at the bar on this and allied aspects need not
detain us further also because of our concurrence with the second contention of
the Solicitor General that the large open spaces cannot be regarded as
appurtenant to the terraces, stands and structures. What is integral is not
necessarily appurtenant. A position of subordination, something incidental or
ancillary or dependant is implied in appurtenance. Can we say that the large
spaces are subsidiary or ancillary to or inevitably implied in the enjoyment of
the buildings qua buildings? That much of space required for the use of the
structures as such has been excluded by the High Court itself. Beyond that may
or may not be necessary for the hat or mela but not for the enjoyment of the
chabutras as such. A hundred acres may spread out in front of a clubhouse for
various games like golf. But all these abundant acres are unnecessary for nor
incidental to the enjoyment of the house in any reasonable manner. It is
confusion to miss the distinction, fine but real. "Appurtenance", in
relation to a dwelling, or to a school, college ... includes all land occupied
therewith and used for the purposes thereof (Words and Phrases Legally Defined
Butterworths, 2nd edn.):
"The word 'appurtenances' has a distinct and definite meaning ... Prima
facie it imports nothing more than what is strictly appertaining to the subject
matter of the devise or grant, and which would, in truth, pass without being
specially mentioned. Ordinarily, what is necessary for the enjoyment and has
been used for the purpose of the building, such as easements, alone will be
appurtenant. Therefore, what is necessary for the enjoyment of the building is
alone covered by the expression 'appurtenance'. If some other purpose was being
fulfilled by the building and the lands, it is not possible to contend that
these lands are covered by the expression 'appurtenances'. Indeed 'it is
settled by the earliest authority, repeated without contradiction to the
latest, that land cannot be appurtenant to land. The word 'appurtenances'
includes all the incorporal hereditaments attached to the land granted or
demised, such as rights of way, of common ... but it does not include lands in
addition to that granted'" (Words and Phrases, supra). In short, the
touchstone of 'appurtenance' is dependence of the building on what appertains
to it for its use as a building. Obviously, the hat, bazar or mela is not an
appurtenance to the building. The law thus leads to the clear conclusion that
even if the buildings were used and enjoyed in the past with the whole stretch
of vacant space for a hat or mela, the land is not appurtenant to the principal
subject granted by Section 9 viz. buildings."
Yet again, in Municipal Board, Saharanpur vs. Shahdara (Delhi) Saharanpur Light
Rail Co. Ltd. 5 the question which arose for
consideration was:
'As to whether for imposition of house tax, all the buildings of the Respondent
situated in the "common compound" and forming part of one complex
could be treated as one unit for imposing house tax?' Section 128(1)(i) of U.P.
Municipalities Act, 1916 reads as under :
"128. Taxes which may be imposed.- (1) Subject to any general rules or
special orders of the State Government in this behalf, the taxes which a
municipality may impose in the whole or any part of a municipality are
(i) a tax on the annual value of buildings or lands or of both;"
Interpreting the said provision, it was held:
"......For imposing house tax on buildings under Section 140(1)(a), it
has to be shown that the buildings with their common appurtenant land or the
land in common appurtenance to several buildings situated nearby are available
for imposing such a tax thereon. It is only such appurtenant land which can
form part of the buildings for attracting house tax assessment proceedings. But
if the "common compound" in which such buildings with appurtenant
lands are situated also includes land which cannot be said to be a common
appurtenance to several buildings situated therein or separately appurtenant to
any given building, such land would be outside the sweep of the term
"building". Such land, however, on its own could be legitimately made
the subject-matter of separate levy of house tax as an independent unit being
open land, as seen from Section 140(1)(b) itself as the Board can impose the
tax on annual value of lands which may not be covered by the sweep of the
definition of the term "building". Once that conclusion is reached,
it becomes obvious that all the buildings situated along with their appurtenant
lands in one "common compound" belonging to the same owner cannot be
treated as one unit for the purpose of imposing house tax under Section
128(1)(i). The reasoning of the High Court in this connection cannot be found
fault with on the scheme of the Act. It is pertinent to note that "common
compound" which is relevant for the water tax as per Section 129 of the
Act to which we have made a detailed reference while deciding the companion
Appeal No. 1218 of 1976 is conspicuously absent in connection with imposition
of house tax on the annual value of buildings or lands or both as found in
Section 128(1)(i)."
Our attention has been drawn to a decision of this Court in Municipal
Corporation of Delhi & Anr. vs. Shri Naresh Kumar & Ors. 3 : 3, wherein this
Court opined:
"The next question is if a "dwelling house" is exigible to
levy of general tax, how much of the adjacent land should be treated as an
integral part of the dwelling house. In other words, the question is whether
the entire land surrounding or abutting a farm house is subject to general tax
along with the dwelling house. The answer to this question is: a dwelling house
includes within its ambit such appurtenant land as is necessary for a proper
and convenient enjoyment of the dwelling house. The extent of such appurtenant
land is naturally a question of fact to be decided in each case. We have only
stated the test. It is for the appropriate assessing authority to determine the
extent of land which can be called appurtenant land to a given dwelling
house."
The findings we have arrived at do not militate against the said dicta. In
fact, the judgments of this Court support the same.
It was, thus, not for the High Court to issue any directions in this behalf, as
has been sought to be done by reason of the impugned judgment. Each case has to
be considered on its own facts. The superior courts, although, can interpret a
statute, cannot issue a guideline which would be contrary to the provisions of
the statute or the rules framed thereunder. The directions issued by the High
Court, therefore, are set aside. We direct that only the extent of land, on
which the dwelling house has been constructed, together with the land
appurtenant thereto in terms of the building bye-laws, would be exigible to
General Tax under Section 115 of the Delhi Municipal Corporation Act.
The appeals are disposed of in terms of observations and directions
incorporated in the preceding paragraphs. Parties shall, however, pay and bear
their own costs.