IMPORTANT POINT
Where a dwelling house is constructed on agricultural land only the extent of land on which dwelling house has been constructed together with the land appurtenant thereto in terms of building bye-laws would be exigible to General Tax u/s 115 of Delhi Municipal Corporation Act.

Headnote:Delhi Municipal Corporation Act, 1957—Section 115 Sub-Section (4)(c) —General tax—Exemption of agricultural lands and buildings but Dwelling houses were not saved—Respondent owned a farm house of 2.5 acres within the agricultural green belt and constructed dwelling house therein—Appellant levied general tax on respondent on a plea that once a dwelling house was built on agricultural land, entire area became exigible for levy of tax in the event if it was found that it was not being used for agricultural purposes—Appellate Authority set aside the order —High Court dismissed writ petition with certain directions—Appeal—Tax was imposable keeping in view nature of land—If nature of land was agricultural, appellant could not levy tax only because no agricultural operation were carried out therein—Extent of land exigible to tax would be the extent of land upon which dwelling house had been constructed and land appurtenant thereto.
       Held : 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.(Paras 11 and 12)
       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.(Para 16)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. 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.

3. 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 – 2 hect

(iii)The minimum coverage and height of DUs, shall be as under :-

Sr. Size of FarmMax coverageMax ht of No.of DUDU

(a)1 hect & 100 sq. mtrs.Single above but (including storeyed less than 2mezzanine maximum hectfloor)ht. 6 mtrs.

(b)2 hect &150 sq. mtrs.Single above(including storeyed mezzaninemaximumfloor)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."

4. 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.

5. 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 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."

6. 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 gre

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2006 Supreme(SC) 856

IMPORTANT POINTWhere a dwelling house is constructed on agricultural land only the extent of land on which dwelling house has been constructed together with the land appurtenant thereto in terms of building bye-laws would be exigible to General Tax u/s 115 of Delhi Municipal Corporation Act.

Cases Referred (3)

IMPORTANT POINT
Where a dwelling house is constructed on agricultural land only the extent of land on which dwelling house has been constructed together with the land appurtenant thereto in terms of building bye-laws would be exigible to General Tax u/s 115 of Delhi Municipal Corporation Act.