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CASE NO.: Appeal (civil)  4125 of 2006

PETITIONER: Municipal Corporation of Delhi                                   

RESPONDENT: Rishi Raj Jain & Anr.                                            

DATE OF JUDGMENT: 14/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (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, 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 \026 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

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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

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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

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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. [(1977) 1 SCC 155],  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

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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 \027 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. [(1999) 1 SCC 586] 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 \026         (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

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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. [JT (1997) 3  SC 436 : (1997) (4) SCC 766], wherein this Court opined :

"The next question is \027 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.