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PETITIONER: MUNICIPAL CORPORATION OF DELHI & ANOTHER

       Vs.

RESPONDENT: SHRI NARESH KUMAR AND OTHERS

DATE OF JUDGMENT:       10/03/1997

BENCH: B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P. JEEVAN REDDY, J.      Leave granted.      This appeal  involves the  interpretation of clause (c) of sub-section  (4) of  Section 115  of the  Delhi Municipal Corporation Act,  1957.  Sub-Section  (4)  levies,  what  is called, a  "General Tax"  on "all  lands and  buildings’  in Delhi except  "(C) agricultural  lands and  buildings (other than dwelling  houses)". The  question is  whether the  farm houses within  in the  Delhi Municipal  Corporation area are exigible to general tax as "dwelling houses".      The respondent owns an extent of about 13 bighas in the Revenue estate  of village  Bijwasan, Tehsil  Mehrauli,  New Delhi.  According   to  him,   he  carries  on  agricultural operations thereon.  He constricted  building  on  the  said land, which,  according to  him, is  occupied  for  purposes connected with  agricultural operations on the said land and wherein the  respondent and his family members stay whenever they visit  the   farm. According to the respondent, further the building  is not occupied on a permanent basis farm. The contention of  the respondent before the High Court was that since the  said building  is  connected with the agriculture being carried  on over  the said  extent of 13 bighas, it is exempt from tax under Section 115 (4)(c) notwithstanding the fact that  it  is a "dwelling house". On the other hand, the case of  the Corporation was that since the said building is a "dwelling house" within the  meaning of Section 115(4)(c), it is  subject to general tax. According to the corporation, it is immaterial whether the dwelling house is occupied on a permanent  basis   or  only   occasionally.  It  is  equally immaterial says  the corporation, whether the dwelling house is occupied  for the purpose of agriculture being carried on over the  adjacent lands  or otherwise. it is enough that it is a dwelling unit, says the corporation. It is taxable. The High Court  has not  accepted the  contention urged  by  the corporation. The  High Court has opined that a dwelling unit is exempted  from general  tax  if  it  is  mainly  or  pre- dominantly occupied  or use  for agricultural purposes. This is what the High Court said:      "We are  therefore of the view that

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    so   far as the exemption provision      in Section  115(4)(c) is concerned,      the test  is not  whether buildings      or Farm houses are used ’solely’ in      connection    with     agricultural      operations. In  Our view,  the said      exemption, In  our view,  the  said      exemption applies to ’buildings’ or      farm houses  used  "substantially",      if  not  solely,  for  agricultural      purposes.   If    this   test    is      satisfied,  the  building  or  farm      house falls outside the tax-net. So      far  as   the  exclusionary   words      ’other than  dwelling houses  ’ are      concerned, we are again of the view      that the  buildings or  farm houses      must  be  solely  or  substantially      used for  ’dwelling purposes,  that      is  to   say,  with   a  degree  to      continuity and  permanency, and not      solely   or    substantially    for      agricultural  purpose,   then  such      buildings will  fall inside the tax      net. We  do not visualise any third      category  of  ’buildings’  or  farm      houses which  do not  fall into one      or other  categories above  stated.      Assuming  however   that  any  such      intermediate  category  arises,  we      are of  the view  that  the  person      claiming the  exemption will not be      entitled to exemption from property      tax  unless   he  proves  that  the      building is solely or substantially      used  for  ’agricultural  purpose’.      Whether a  given building  is  used      substantially   for    agricultural      purpose, is  a  question  depending      upon the facts and circumstances of      each case and on what, according to      general principles  of law could be      said to be the meaning of the words      ’agricultural purpose’."      With respect  we are  unable to  agree  with  the  High Court. Clause (c) exempts "agricultural lands and buildings" form  the  levy  imposed  by  Section  115(4).  Clause  (c), however, contains  an exception within itself. The "dwelling houses" are  excluded from the purview of agricultural lands and buildings. In other words, once it is a "dwelling house" it is  outside the  purview of  exempted category.  The very context in  which the  expression "dwelling  houses"  occurs shows that  even the dwelling houses situated on, over or in the midst  of agricultural  lands were sought to be excluded from  the  exempted  category  of  "agricultural  lands  and buildings". An  agricultural building  may be a godown where the agricultural produce is stored, it ay be warehouse or it may be  a building housing the machinery used for purpose of agriculture. A  dwelling  house  can  also  be  occupied  by persons carrying  on the  agriculture i.e.,  to carry  on or supervise  the  agricultural  operation.  But  according  to Section 115(4)  (c),  the  "dwelling  houses"  as  such  are excluded from  the category  of agricultural  buildings.  In other words,  even if  it possible  to say  that a  dwelling house is  an "agricultural  building", yet  it  is  excluded

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specifically by  the statute  from the  fold of agricultural buildings. Applying the test evolved by the High Court would remove the  distinction between "agricultural buildings" and "dwelling houses"  which are  mentioned together  in  clause (c). an  agricultural building  is a building used mainly or pre-dominantly for  the purpose of agricultural. If the same test is applied to dwelling houses than the very purpose and object behind  excluding dwelling houses from the purview of agricultural buildings would disappear. We, therefore, agree with the  Corporation that  once a  building is  a  dwelling house, no  further enquiry  need be  made whether it is used mainly or  pre-dominantly for  agricultural purpose  or not. It is  enough that  it  is  a  dwelling  house.  It  becomes exigible to  general tax.  This would  be  so  even  if  the dwelling house  is situated  in the  midst of a farm or is a part of  the farm  or it  may be,  what is  called, a  "farm house".      So far  as the  argument of  occasional (as  contrasted with regular)  occupation is  concerned, we may refer to the decision  of   this  court   in  the  Tata  engineering  And Locomotive Company Limited v. The Gram Panchayat, Pimpri Waghere  [ 1976  (4) S.C.C.  177]. In  Para  18,  the following statement  occurs: It may be stated generally that the wood "house" is a structure of a permanent character. It is  structurally   severed  from   other  tenements.  It  is structurally  severed   from  other  tenements.  It  is  not necessary that  a house  if adapted for residential purposes should be  actually dwelt  in (see  Daniel  v.  Coulsting  - (1845) 14  LJ CP 70: 135 ER 53). A building in Covent Garden had formerly  been a dwelling house but was converted into a fruitstore warehouse  and office  in which  no one slept and was held  to be  a ’house’  as  regards  assessment  to  the rector’s rate within the provisions of the relevant statue."      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 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 third question urged before us is as to the meaning of the expression "agricultural land". This question has not been really  gone into by the High Court. When can a land be called an  agricultural land  has been the subject matter of good amount of debate under various enactments including the Income Tax  Act and the Wealth Tax Act. Whether a land is an agricultural land  or not  is a  mixed question of  fact and law, which  has to be decided in the facts and circumstances of the each case. We are not prepared to go into details, to determine whether  the  land  involved  in  this  appeal  is "agricultural land",  since that  question has not been gone into by the High Court. The three issues set out by the High Court do  not take  in this  issue. It is  enough to say for the purpose of this appeal that a dwelling house situated on an agricultural land is not exempt from general tax and that a dwelling house exempt from general tax and that a dwelling house includes  within its ambit such appurtenant land as is necessary for  a proper  and convenient land as is necessary for a proper and convenient enjoyment of the dwelling house.

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No more can be said,  or need be said, in this appeal.      The appeal  is allowed  in the  manner indicated above. The matter  should go  back to  the Assessing  Authority for appropriate orders in the light of the law laid down herein. No order as to costs.