1. The petitioners are aggrieved by the order of the Municipal Corporation of Delhi fixing the rateable value of the premises bearing Municipal numbers 1928 to 1934 at Rs. 15.747/- per annum with effect from 1st April 1960 and ordering amendment of the assessment list accordingly, which order was confirmed by the Additional District Judge in appeal. The properties bearing the above said numbers along with three other numbers. 196, 1927 and 1935 were assessed compositely, the value per annum then being stated to be Rs. 13,620/-. The revised assessment was based on the amount of rent stated to be paid by the sub-tenable to the tenants of the petitioners. This fact is not in dispute. The amount of rent payable by the respective tenants and the paid by the sub-tenants to those tenants have been mentioned in Annexure R. 1 to the return filed on behalf of the Municipal corporation.
It is further seen from the order of the learned Additional District Judge (copy of which is Annexure D to the petition) that all the subtenants had come to occupy the concerned properties before 1952. The only further question which arises for consideration in this writ petition is whether owing to the tenancies in this case being prior to 1952 despite the absence of the fixation of standard rent by the concerned authority the rates at which the properties were let have themselves to be regarded as the standard rent having regard to the provisions of the Delhi and Ajmer Rent Control Act (38 of 1952) which applies to the present case. Section 2(i) of the said Act defined 'standard rent' as follows :-
" Standard rent" in relation to any premises means -
(i) Where the standard rent has been fixed by the Court under Section 8. The rent so fixed; or
(ii) Where the standard rent has not been fixed under section 8 the standard rent of the premises as determined in accordance with the provisions of the Second Schedule".
2. The Second Schedule to the said Act Part A (2) provides as follows :-
"Where the premises in respect of which rent is payable were let, for whatever purpose, on or after the 2nd day of June 1944 the standard rent of the premises shall be -
(a) where the standard rent of the premises has been fixed by the Rent Controller under the provisions of the Fourth Schedule to the Delhi and Ajmer-Merwara Rent Control Act. 1947 (XIX of 1947) such standard rent : or
(b) where the standard rent has been fixed by the court under clause (b) of sub-section (1) of Section 8 such standard rent : or
(c) in any other case so long as the standard rent is not fixed by the Court the rent at which the premises were first let."
2-A. It is thus clear that where the Court has not fixed the standard rent the rent at which the premises were first let would be the standard rent. Section 44 of the said Act, providing penalties for contravention of certain provisions of the Act, reads as follows :-
"If any person receives any payment in contravention of the provisions of Section 5 he shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to an amount exceeding one thousand rupees by the amount of unlawful charges so received by him, or with both."
3. Turning to Section 5. contravention of which has been provided by Section 44(1) it is seen that there is a bar against claiming any rent in excess of the standard rent. A similar question under the provisions of Act 38 of 1952 came up for decision before a Division Bench of this Court in the Municipal Corporation of Delhi v. Lachhmi Narain Singh in S.A. No. 103-D of 1960. D/- 19.12.1969 (Delhi) to which I was a party. The view taken in the said case was that in assessing property tax the Municipal corporation could not adopt any basis for fixing the annual assessment value higher than what is legally permissible under the provision of the above said Rent Control Act.
4. The Supreme Court had occasion to consider a similar question in Guntur Municipal Council v. Guntur Rate Payers Association Grover J. speaking for the Supreme Court referred to Section 82(2) of the Madras District Municipalities Act. 1920 and observed that no distinction can be made between buildings the fair rent of which has been actually fixed by the Controller and those in respect of which no such rent has been fixed. The landlord cannot lawfully expect of get more rent than the fair rent which is payable in accordance with the principles laid down in the Andhra Pra-Control Act. 1960. The assessment of valuation must take into account the measure of fair rent as determinable under that Act.
The previous decision in Corporation of Calcutta v. Smt. Padma Debi (1962-3 with the provisions of the Calcutta Municipal Act 1923 and holding that the annual rent could not be fixed higher than the standard rent under the Rent Control Act, was also referred to. It was contended by Shri Chadha on behalf of the Municipal Corporation, that under the second proviso to Section 116(1) of the Delhi Municipal Corporation Act only in respect of any land or building the standard rent or which has been "fixed" under the Delhi and Ajmer Rent Control Act. 1952 the rateable value thereof shall not exceed the annual amount of the standard rent so fixed. Stress was laid upon the expression 'fixed' in the said proviso and the further contention was that in the absence of any fixation under the provisions of the said Act there was no bar to the Municipal Corporation taking into account the actual rent paid by the sub-tenants to the respective tenants of the petitioners. This arguments fails to have regard to the above provisions of the Delhi and Ajmer Rent Control Act (38 of 1952) according to which the original amount for which the property was originally let in this case prior to 1952, should be the standard rent as per the above Second Schedule of the said Act. Section 120 of the Delhi Municipal Corporation Act provides that the property taxes shall be primarily leviable as follows :-
(a) if the land or building is let, upon the Lesser :
(b) if the land or building is sub-let upon the superior Lesser ............... etc.
Section 121 clause (2) provides for apportionment of liability for property taxes when the premises assessed are let or sub-let. This obviously applies to a case where the amount of rent does not exceed the standard rent as per the professions of the Delhi and Ajmer Rent Control Act. It is also necessary to notice that Section 14(1) proviso (b) to the Rent Control Act which is now in force, namely, the Act of 1958, reads as follows :-
"(1) Notwithstanding anything to the contrary contained in any other law or contract no order decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant:
Provided that the Controller may on an application made to him in the prescribed manner make an order for the recovery of the premises on one or more of the following grounds only, namely - of the following grounds only namely -
(b) that the tenant has, on or after the 9th day of June. 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord."
5. It is thus clear that the land-lord can evict the sub-tenants only if the sub-tenancies are subsequent to 9th June 1952 in view of the concession in this case (vide the order of the learned Additional District judge) that the subtenancies in this case were prior to 1952, the landlord cannot even evict the subtenants.
6. It therefore follows that if any different view were to be taken concerning the impugned assessment in this case despite the landlord not being able to recover anything more than the standard rent as per the provisions of Delhi and Ajmer Rent Control Act. 1952 and his not being able to even evict the sub-tenants because of Section 14(1)(b) of the Delhi Rent Control Act of 1958 he would still be liable to pay municipal tax on the basis of rents which he does not actually himself receive and could not in law receive. This would plainly be contrary to S. 116 second proviso which in the context has to be understood as not merely covering cases where there is any order of fixation by the concerned authority under the provisions of the Delhi and Ajmer Rent Control Act 1952 but also cases where the standard rent has been provided for (fixed) by the provisions of the statute itself - and this is what applies to the present case.
7. A further argument was raised stating that the amendment of the assessment list which is provided by Section 126 could not be itself done without adopting the specific procedure laid down in Section 126(2) of the Delhi Municipal Corporation Act. 1957. This argument need not detain us in the vies that the order of assessment even apart from any procedure that may have to be followed under the said Act is seen to be one which offends Section 116(1) second proviso of the Delhi Municipal Corporation Act. 1957.
8. In the result the writ petition is accepted and the order of the Delhi Municipal Corporation fixing the assessment on the basis of the annual assessment value exceeding Rs.6804/- and the order of the learned Additional District Judge (appellate authority) dated 8th August 1961 confirming the order of the assessing authority are quashed. The petitioner will be entitled to the costs of this writ petition. Counsel fee Rs.150/-.
9. Petition allowed.