- (1.) We have heard Sri Jitendra Kumar, learned counsel for the petitioners. Sri M.C. Tripathi appears for the Nagar Nigam, Kanpur Nagar. The petitioner has earlier approached to this Court in Writ Petition No. 1638 of 2010 (Smt. Neelam Bhalla and others v. State of U.P. and others), which was disposed of on 7.12.2010, with the observations that in case the petitioner submits representation, the same may be decided by the Nagar Nigam before realisation of the property tax. The Nagar Nigam decided the objections individually, by order dated 25.3.2011, in detail giving the basis for the assessment of the Annual Value, and the property tax has been imposed.
(2.) Sri Jitendra Kumar submits that the annual value of commercial building falls Under Section 174(1)(a) of the U.P. Municipal Corporation Act, 1959. The expression land appurtenant thereto' does not include the land beneath the building. The land appurtenant thereto only refers to open land attached or annexed with the building and nothing else. As per Section 174(1)(a) of the Act the estimated value of land appurtenant i.e. open land attached with the building is to be taken for the purpose of assessment of annual value and not the market value of the land beneath the building. In support of his decision, Sri Jitendra Kumar relied upon the decision of the Constitution Bench in the case of D.G. Gose and Co. v. State of Kerala, 1980 AIR(SC) 271 The Constitution Bench does not support his argument that for determining the annual value of the building, the value of the land underneath the building, has not to be taken into consideration.
(3.) Sri Jitendra Kumar submits that the reading of the judgment from paras 20 to 30, would demonstrate that when a building is constructed, the appurtenant land has no separate existence on its own, and that is why in the definition clause, the value of the land underneath, the building has not been taken into consideration.;