TaxTMI 
TaxTMI 
1997 (7) TMI 706
X X X X Extracts X X X X
X X X X Extracts X X X X
....itions as contained in the letter dated 23-4-1968 (Annexure P-4). Term of initial allotment was up to 1980 only which term has been extended from lime to lime. Presently the term of the lease stand extended for a period of 20 years commencing 1-1-1991 and expiring with 31-12-2010 on the terms and conditions set out in the lessor's letter dated 20-7-1994 (page 144 of the paper book), Both the above said letters provide for a formal lease deed being executed between the parties but no such deed has been executed. The gram is governed by the Government grants Act, 1895. 3. The petitioner has laid challenge to the authority of the respondent to recover the property tax on two grounds firstly, that the tax is livable only on an 'owner' which the petitioner is not being a lessee merely; secondly; the issue as to the liability of the petitioner to pay the property tax having been decided in favor of the petitioner exonerating it from such liability in two civil suits filed earlier, the respondent cannot raise the demand as the two judgments constitute res judicata and bind the parties. 4. The first question is whether the petitioner is at all liable to payment of tax? ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....from the letter dated 20-4-1994 (page 144 of the paper book) as under:--"The Delhi Golf Club be allowed to use the land measuring 179 acres on Dr. Zakir Hussain Marg, New Delhi beyond 31-12-1990 on the following terms and conditions:-- I. The period of temporary lease will be for a period of 20 years i.e. from 1-1-1991 to 31-12-2010. II. (i) The Delhi Golf Club shall be required to pay annual ground rent for 2.08 acres or area required as per building bye laws for the covered areas @ 5% of Rs. 39 lakhs per acre. (ii) The Club shall pay the license Fee @ Rs. 1000/- per acre for the green area measuring 176.92 acres. (iii) There will be complete ban of construction on green areas and prior permission of the Government would be necessary for any construction on 2.08 acres. (iv) The Delhi Golf Club shall pay the property tax/service charges or any other lexes demanded by local bodies or pay the Government the equivalent amount (in case Government is billed by local bodies) for the entire land under their occupation. Though the properly tax for the period prior to 1-1-1991 does not form part of the Current lease Agreement. the Club shall howe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owing statement showing the extensive nature of the constructions by the petitioner has been filed by the respondent as Annexure R-xiii which is on the affidavit of Mrs. Madhu Mahajan, Director (Tax) and we have no reason to decide I have the same. It may be stated that during the course of hearing no challenge was laid to the correctness of the factual data contained in the statement which is as under : Annexure R_XIII A list of application and other letters filed by the Secretary. Delhi Golf Club under S. 189(3) and other relevant provisions of the P. M. Act. 1911 and the sanctions issued by the NDMC thereto. S. No. Date of application of the Club Seeking NDMC's permission for Decision of N.D.M.C. 1. 7-9-64 Erection of the building of the Delhi Golf Club Plans approved vide Resolution No. 26 dated 13-1 1-64. 2. 10-01-66 Grant of occupation certificate to the Bldg. of Golf Club. Occupation certificate granted vide Reso. No. 23Adl. 28-01-66 3. 21-02-1967 Addition/Alteration to the building of Approved vide resolution No. 85 dated 24-7-67. 4. 23-10-1967 Undertaking for adequate sanitary & drainage arrangements and application for c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the term also includes one having a possessory right to land or the person occupying or cultivating it. The term "owner" is used to indicate a person in whom one or more interests are vested for his own benefit." (Underlining by us) 12.2 In the same dictionary, the term 'ownership has been defined to mean inter alia, as -- 'collection of rights to use and enjoy property, including right to transmit it to others the right of one or more persons to possess or use a thing to the exclusion of others. A right by which a thing belongs to someone in particular, to the exclusion of all other persons. (Underlining by us) 12.3 In State of U.P. v. Renusagar Power Company. AIR 1988 SC 1737, it was held that the word "owned" is a generic term embracing within itself several gradiations of title, dependent on the circumstances, and it does not necessarily mean ownership in fee simple; it means, "to possess to have or hold as property. 12.4 Looking at the context in which the word "owner" has been used in Section 61(1) (a) and the incl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9; came to be examined. The petitioner was in possession of a piece of land under a proposed lease and formal execution of deed of lease was yet to take place. It was held :-- The fact that there has been a sale shows that there is an interest in the property belonging to the petitioner which has been further transferred to others. It is that interest which falls within the definition of 'land' as given in Section 2(24) already reproduced. Let it not be forgotten that kind means not only land considered from the dictionary point of view, hut also any benefit in land and anything attached to the earth or permanently fixed to it. In that sense, whatever the petitioner has got by paying Rs. 16,00,000/-after a public auction is an interest or a benefit in land which is 'land' within the meaning of the Section and is Therefore, subject to property tax. This is one aspect of the matter. Another aspect is that the true legal position is not to be judged in the light of or in the absence of a formal document. The auction of the land was intended to transfer leasehold rights to the petitioner. It fructified into such a contract as a result of the auction. It may he ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eal with the second contention. Two suits registered as S. No. and 387/90 were filed by me petitioner as implicating the respondent-NDMC as defendant. Both the suits were for permanent injunction with a prayer to restrain the defendant from Realizing house tax from the plaintiff. The two suits related to property fax assessed respectively for the year 1969-70 and 1970-71. Two issues framed in the suits were :-- (i) Whether the plaintiffs have only temporary lease of the disputed premises of the Golf Club ? (ii) Whether the assessment of annual value of the disputed property is illegal and ultra virus as alleged in para 3 of the plaint? 17.1 Both the suits were disposed of by a common judgment (Annexure PS). A perusal of the judgment shows that the leaned trial Judge has by his judgment dated 27-4-1973 concluded that the petitioner was holding only a temporary lease. No formal deed of lease was executed. As the tax was livable only on an 'owner', the petitioner was not liable to pay the property tax. 17.2 The NDMC preferred an appeal to the Court of Additional Distl. Judge. Delhi. By judgment dated 5-3-1977( Annexure P6). the learned Addl. Distl. Judg....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Lordships of the Supreme Court when an order of assessment was sought to be relied un as res judicata in assessment proceedings for the subsequent year. What happens if the civil court renders a decision having a bearing on assessment proceedings or demand arising out of assessment for a particular year? 23. We may refer to Turner on res judicata (Second Edition). where the subject has been succinctly dealt with and stated with precision. 23.1 Question of assessment from one year to another in taxation and rating cases form an interesting exception to the principles of issue estoppel, by which they are not governed. They are sui generis in this regard and issues involved in the determination of a question inter panes as to liability for tax or rates in one year, or on the fixing of one assessment list, even though the question determined he fundamental to liability. will not form the basis of an estoppel inter parties in other and subsequent proceedings in which the assessment format year or that list is not involved. (Turner, para 219 at p. 193). 23.2 It is now settled law that decisions on questions of land tax. income lax and rating assessments constitute an important ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is a limited one. It is limited in the sense that its function begins and ends with that of deciding what is to be the assessment or liability of a person for a defined and terminable period. "The assessment seems inherently to be of a passing nature". For the purpose of arriving at its decision the tribunal may well have to take account of, and form its own opinion on, questions of general law it may even have necessarily to consider one or more of such questions but in either case the view adopted with regard to them is incidental to its only direct function, that of fixing the assessment. For that limited purpose it i s a court with a jurisdiction competent to produce a final decision between the parties before it : but it is not a court of competent jurisdiction to decide general questions of law with that finality which is needed to set up the estoppel per rem judicator that arises in certain contexts from legal judgments." 24.3.2 The other consideration was the special position of the valuation officer/surveyor or equivalent official or comminute to whom he said the term "party" to Ms can he applied only with some reservations. 24.3.3 Lord Kith of Avonholm though concu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ator, and are not easily derived from or transferred to Other branches of litigation in which such estoppels have to be considered; but in their Lordships opinion they are well established in their own field, and it is not by any means to he assumed that the result is one that should be regretted in the public interest." (See Paras 311 to 314 al pp 261-265, res judicata, Turner, ibid) 25. The doctrine of res judicata as embodied in Section 11 of the CPC corresponds to what is known as estoppel by judgment in English law. It is one of convenience and rest and not of absolute justice. The section does not strike at the jurisdiction of the court. The very basis of rule of estoppel, is public interest. For two reasons, we are not inclined to concur with the petitioner's contention on doctrine of res judicata. Firstly, there is no estoppel statute. If a properly is liable to be taxed under a statute which is law of the land it must be so taxed without regard to the fact that for an earlier year it has successfully escaped taxation on an erroneous view of facts and/or law. Secondly, public interest would be better served by-passing the rule of resjudicata and taxing the properl....