Corporation of Delhi Vs. Rishi Raj Jain & Anr  Insc
594 (14 September 2006)
Sinha & Dalveer Bhandari
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.
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.
said land is within the agricultural green belt.
tax is levied by the Appellant-Corporation in terms of Section 115 of the Delhi
Municipal Corporation Act, 1957 ('the Act', for short).
(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.
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
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:-
The minimum size
of a farm shall be as under:-
Vegetable Farm - 1 hect
Dairy & other live stock farms 2 hect
coverage and height of DUs, shall be as under :- Sr. No. Size of Farm Max
coverage of DU Max ht of DU
1 hect &
above but less than 2 hect 100 sq. mtrs. (including mezzanine floor) Single storeyed
maximum ht. 6 mtrs.
2 hect &
above 150 sq. mtrs. (including mezzanine floor) Single storeyed maximum ht. 6 mtrs.
Set back for
dwelling house should be 50 feet from any boundary line of the property.
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
No dwelling unit
should be built within two furlongs of the right of way of any National Highway.
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."
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.
Tax was levied accordingly upon the Respondent. He preferred an appeal before
the Appellate Authority. The Appellate Authority opined:
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 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:
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.
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.
the remaining land the concerned authorities have the powers to take action
under various laws viz.
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.
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 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.
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.
Nandrajog, learned counsel appearing on behalf of the Respondents, on the other
hand, supported the impugned judgment.
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
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.
indisputably, is imposable keeping in view the nature of the land.
nature of the land is agricultural, the Corporation cannot levy tax only
because no agricultural operations are carried out therein.
(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.
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
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 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.
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 Butterworths, 2nd edn.):
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).
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 :
which may be imposed.-
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
a tax on the
annual value of buildings or lands or of both;" Interpreting the said
provision, it was held :
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 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 :
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 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.
fact, the judgments of this Court support the same.
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.
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.
appeals are disposed of in terms of observations and directions incorporated in
the preceding paragraphs. Parties shall, however, pay and bear their own costs.