W.P.(C) No.5195/2008 Page 1 of 5 *IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 20th July, 2010. + W.P.(C) No.5195/2008 % SH. K.R. MANJANI ..... Petitioner Through: Advocate Petitioner in person. Versus THE COMMISSIONER, MCD & ANR. ..... Respondents Through: Mr. Anshum Jain & Ms. Suparna Srivastava, Advocates for R-1. Mr. M.K. Barnwall, Assistant Assessor & Collector, Central Zone, New Delhi for R-2. CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported No in the Digest? RAJIV SAHAI ENDLAW, J. 1. The petitioner, claiming to be the owner of Flat No.98/1401 & 1415, Nehru Place, New Delhi, preferred this petition impugning the action dated 18th February, 2008 of the respondent no.1 MCD of attaching the rent of the said flat on account of non payment of property tax arrears of Rs.3,89,990/- for the period ending 31st March, 2004. It is the case of the petitioner that the property tax for the year upto 31st March, 2004 had been paid; that there W.P.(C) No.5195/2008 Page 2 of 5 are no arrears and as such the rent could not have been attached. Upon the representations of the petitioner to the Deputy Assessor & Collector (respondent no.2) of the respondent no.1 MCD meeting with no success, this petition was filed for quashing of the attachment order. Notice of the petition was issued. The respondent no.1 MCD in its counter affidavit stated that the rateable value of the flat was fixed at Rs.3,75,620/- with effect from 1st April, 2000 vide ex parte Assessment Order dated 30th January, 2003 upon the failure of the petitioner to respond to the notice under Section 126 of the Delhi Municipal Corporation Act, 1957. It is contended that the additional tax in terms of the said revised rateable value having not been paid, attachment was effected. It was further stated in the counter affidavit dated 2nd December, 2008 that after adjusting the payments by the petitioner, a sum of Rs.2,11,951/- was still outstanding for the period ending 31st March, 2004. 2. This Court vide order dated 22nd April, 2009 directed the respondent no.1 MCD to inter alia file an affidavit indicating as to whether the notice under Section 126 of the DMC Act of revision of the rateable value was served on the petitioner or not and if served, to place the proof of dispatch before this Court. On 12th January, 2010, the counsel for the respondent no.1 MCD conceded that there was no proof on record of dipatch of notice under Section 126 of the DMC Act of enhancement of rateable value. The counsel for the respondent no.1 MCD however pointed out that there exists W.P.(C) No.5195/2008 Page 3 of 5 on the record of the MCD a letter dated 9th April, 2001 of the petitioner agreeing to the enhancement of the rateable value. In view of the said letter, both respondent no.1 MCD and the petitioner were directed to file affidavit. The MCD along with its affidavit has placed a copy of the said letter on record. The petitioner has however denied the said letter to have been sent and has also denied the signatures thereon. 3. Mr. K.R. Manjani, Advocate who has filed this petition as attorney of the petitioner Smt. Sarojini Choudhary and the counsel for the respondent no.1 MCD have been heard. 4. In the exercise of writ jurisdiction this Court cannot decide as to whether the letter dated 9th April, 2001 on the record of the respondent no.1 MCD was sent by the petitioner or not. The admitted position is that the petitioner Smt. Sarojini Choudhary has been residing abroad. She is being represented here by others. Mr. K.R. Manjani, Advocate has filed a copy of the General Power of Attorney given by Smt. Sarojini Choudhary to him as far back as in the year 1985. Ordinarily, there is a presumption of the official acts having been done in the normal course of duty. However, the fact remains that no mention of the said letter was made in the counter affidavit filed by the respondent MCD; it has also not been able to produce proof of dispatch of the notice under Section 126. The letter dated 9th April, 2001 also does not admit the increase in rateable value from the earlier W.P.(C) No.5195/2008 Page 4 of 5 rateable value of Rs.2,61,300/- to Rs.3,75,620/- in toto. Rather it is stated therein that there was only 15% increase in rent with effect from 7th July, 2000 and the increase in rateable value could correspond to the increase in the rent only and not more than that. The petitioner also does not controvert such increase in rent. 5. In the aforesaid circumstances, without entering into the controversy as to whether the notice under Section 126 of the DMC Act for increase in rateable value was served or not and without requiring the same to be resolved, the writ petition is disposed of with the following directions: (i) The Joint / Deputy Assessor & Collector of the respondent no.1 MCD shall rectify the ex parte Assessment Order (on the basis whereof attachment of rent was effected) after hearing the petitioner / her Attorney / her representative. The petitioner / her Attorney / her representative shall be entitled to satisfy the Joint / Deputy Assessor & Collector of the respondent no.1 MCD as to what should be the revision in rateable value with effect from 1st April, 2000, whether to Rs.3,75,620/- or of any lesser value. The petitioner in this regard shall produce before the Joint / Deputy Assessor & Collector all documents with respect to the rate of rent with effect from 1st April, 2000 onwards W.P.(C) No.5195/2008 Page 5 of 5 (ii) The petitioner / her Attorney / her representative to appear for this purpose before the Joint / Deputy Assessor & Collector of the petitioner at 1100 hours on 28th July, 2010. The Joint / Deputy Assessor & Collector to decide on the said rectification application within 45 days thereof by passing a reasoned order. (iii) The petitioner, if aggrieved, by the said order shall have her remedies in law. (iv) The order of attachment shall be dealt with in accordance with the said rectified order. The writ petition is disposed of leaving the parties to bear their own costs. RAJIV SAHAI ENDLAW (JUDGE) 20th JULY, 2010 gsr