ANIL DEV SINGH, J.

(1) FOR the decision of this application, seeking stay of the impugned property tax bill for the year, 1994-95 in respect of the petitioner's lease-hold property,61 Nehru Place, New Delhi, brief narration of the facts is necessary.

(2) ON January 8,1990 the petitioner's Industrial Finance Corporations of India was allotted Plot No. 61 Nehru Place on leasehold basis by the Delhi Development Act (for short "dda"). For acquisition of lease- hold rights the petitioner paid a sum of Rs. 42. 00 Cores to the D. D. A. It also paid a sum of Rs. 10. 84 laks to the D. D. A. towards the cost of 85% of the excavation work carried out by the later on the land. On February 7,1990 possession of the plot was handed over to the petitioner and the same day the petitioner applied for a no objection certificate from the D. D. A. for getting the building plans sanctioned and for obtaining temporary water connection Pursuant to the application no objection certificate was granted by the D. D. A. on February 15, 1990. Thereafter, on May 3,1991 the petitioner submitted building plans to the D. D. A. for its approval. On December 7, 1992 perpetual lease deed was executed in favour of the petitioner by the lease Administration Officer on behalf of the president of India. The lease was for a period of 90 years commencing from the Government Grants Act, 1895 It was one of the term and the conditions of the lease that the petitioner was to pay and discharge all rates, taxes charge and assessed, charge and imposed upon the land or the building erected thereon.

(3) ON March 25, 1991 the first respondent , Municipal Corporation of Delhi (for short "mcd")issued a notice to the petitioner under Sec. 126 of the Delhi Municipal Corporation Act, 195 7 (for short" DMC Act")proposing to amend the assessment list for the years 88-89,89-90 and 1990- 91. Pursuant thereto the petitioner filed its objection on May 2,1991/june 3,1991. These objection were considered by the Assistant Assessor and Collector who passed a detailed order on October 28,1993 fixing the R. V. of the land U/s. 166 (2) of the D. M. C. Act at Rs. 2,23,200. 00 effective from February 7,1990. There after a bill dtd. November 1,1993 for a sum of Rs. 3,36,51. 624. 00 on the basis of R. V. of Rs. 2,23,200. 00 was received by the petitioner from respondent No. 1, which was followed by receipt of a demand notice dtd November 30,1993 emanating from the office of the same Respondent. The petitioner thereupon challenged the assessment order and the demand notice and bill before this Court by means of a Writ Petition being C. W. P. N0. 4372 of 1993, and also filed application for stay of recovery of the demand. But no order was granted, subsequently the Writ Petition but not before the impugned assessment order and the demand was challenged by means of a suit 2845 of 1993 instituted on December 2 7,1993. In the suit, on January 4, 1994. a learned Single Judge stayed the attachment which w as lived by the M. C. D. in the pursuance of the demand. But on May 9,1994 the Supreme Court on being moved by the respondent Corporation by means of a S. L. P. , vacated the attachment and at the same time permitted to pay the arrears of tax to the tune of Rupees three Cores thirty six lakh in three equated installments, the final to be paid by August. 31,1994. The present Writ Petition how ever, pertains to demand bill in the sum of Rs. 66. 94. 860. 00 for the assessment years 1994-1995. Alongwith the writ petition has moved an application for interim stay of the demand. It is application. being C. M. No. 7633 of 1994. which has been argued before us. After considering the submission of the learned Counsel for the parties wax are prima facie of the view that the demand is not liable to be stayed. The main contention of the Learned Counsel for the petitioner in support of the prayer for grant of an interim stay is that the long as the construction is taking place on the land, the petitioner is not liable to pay any property tax. In other words, the petitioner is invoking the doctrine of sterility.

(4) ON the other hand it is pointed out by the Learned Counsel for the respondent that under the D. M. C. Act, the property tax is also leviable on vacant land with regard to which a person holds leasehold rights of the land, he would be liable for the payment of property tax on the land urged the learned Counsel for the respondents. Faced with this arguments Learned Counsel for the petitioner however, contented that the petitioner will not be liable for the property tax on the lands as the liability to make the payment is of the lessor viz. D. D. A.

(5) IN order to appreciate the respective submission of the learned Counsel for the parties, it will be necessary to examine Sec. 120 of the M. C. D. Act. This section is so far as it is relevant for the purpose of the case in hand as follows:-

"120. Incidence of property taxes - (1) The property taxes shall be primarily leviable as follows: a) if the land or building is let, upon the lessor; b)if the land or building is sub-let, upon the superior lessor; c) if the land or building is unlet upon the person in whom the right to let the same vests; Provided that the property taxes in respect of land or building, being property of the Union Possession of which has been delivered in pursuance of sec. 20 of the Displaced Person (Compensation and Rehabilitation)Act 19564 (44 of 1954) shall be primarily leviable upon the transferee. 2) X X X X X XX X X XXX X X X X X X XX"

(6) IT is rightly not disputed by both the sides that clauses (a) and (b) of sub-sec. (1) of sec. 120 would not be attracted to the facts of the present case. We are, therefore, left with clauses (c) of sub-section (i) of sec. 120. It seems to us that this clause would be attracted as the property is not let. However the contention of the petitioner is that the right to let the land does not vest in it and this being so the liability to pay tax is not of the company. This argument of the Learned Counsel for the petitioner overlooks the true scope and ambit of sec. 120 (1) (c). This section specifically makes a person liable for payment of tax, when land or building is not let and right to let either of them vest in him. The word 'or' occurring between the words "land" and "building" in significant. In ordinary usage "or" is disjunctive and there is no reason why it must not be so read in the said provision. Therefore. even when a person is vested only with the right to let either the land or the building, that is to say he is vested merely with a right to let one of the two, clause (c) of sub-sec. (i) of sec. 120 would be attracted provided property is unlet. In other words, when the person has a right to let either land or building which for the time being is not tenanted,the case would be covered under sec. l20 (i) (c).

(7) AT this stage it will be appropriate to examine clauses6 (a) and (7) of the Lease deed in order to ascertain whether the petitioner has a right to let the land or the building on completion. These clauses read as under:

"6 (a) The lessee shall not sell. transfer, assign or otherwise part with the possession of whole or any part of the commercial plot except with the previous consent in writing of the lessor which he shall be entitled to refuse in his absolute discretion. PROVIDED that in the event of the consent being given. the lessor may impose such terms and conditions as he think fit and the lessor shall be entitled to claim and recover a portion of the unearned increase in the value (i. e. the difference between the premium paid and the market value) of the commercial plot at the time of sales. transfer assignment, or parting with the possession , the amount to be recovered being fifty percent of the Lessor in respect of the market value shall be final and binding. PROVIDED FURTHER that the Lessor shall the Pre-emptive right to purchase the whole property or any part thereof that may be subject of sale. transfer, assignment or otherwise parting w ith the possession as the case may be, after deducting fifty percent of the nearned as aforesaid.

"7. Notwithstanding the restrictions, limitations and conditions as mentioned in subclause 6 (a) above, the Lessee/sub-lessee/ floor space buyer shall be entitled to sublet the whole or any part of the building that may be erected upon the commercial plot for the said commercial purpose only on a tenancy as per prevalent law"

(8) FROM a perusal of clause 6a it is a apparent that the petitioner would require permission in written of the lessor to exercise his right it sell. transfer, assign or part with the possession of the plot But the right including the right to let the land are not barred and can be exercised with the consent of the permission to let the land was applied for but the same was refused. In any case vesting of a right can be conditional and limited subject to certain restrictions. In so far as the building is concerned the right of the petitioner to sub let the same is governed by clause 7. Clause 7 starts with a non-obstance clause and permits the lessee to sublet whole or any part of the building that may be erected on the plot. A reading of these two clauses leaves no manner of doubt that while the lessor can sublet the plot with the previous consent of the lessor, no such permissions required for the sub-letting of the whole or any part of the building which is constructed on the plot. The right to let the building is unfettered. Therefore, the position is that the petitioner can undoubtedly rent the building when completed. As seen earlier if a person has a right to let either the land or the building which has so far not been let, the incidence if tax fell on him under sec. 120 (1) (c). As the petitioner has undisputed right to sub-let the building, the incidence of property tax. whether in regard to land or building on its completion, will fall on it. However we hasten to add that we should not be understood as being of the view that the petitioner has no right to let the vacant land. It is obvious from the reading of clause 6a of the lease deed that the right to let the land vest in the petitioner though it may in not be unrestricted one. Therefore in any case sec. 120 (i) (c) will be attracted.

(9) THE true nature and character of sec, 120 of the Act must also be constructed in the light of the other provisions of the Act dealing with the assessment and levy of property tax.

(10) SEC 114 of the Act deals with component and rates of property taxes. It. intervals, provides for levy of property tax on lands and building at the rates specified therein. Sec. 115 of the Act envisages levy of general tax in respect of all lands and building in Delhi except the following lands and building:-

1)Lands and building used for a charitable purpose: 2)Lands and building vested in the Municipal corporation and 3) Agricultural lands and building other than dwelling houses.

(11) SECTION 116 talks of determination of rateable valve of lands or buildings assessable to tax and it also provides for fixation of Rateable Value of vacant land which is capable of being built upon and land on which building is in process of erection. In this regard sub-sec. (2) of sec. 116 requires special reference and is extracted below:

"116. Determination of Rateable Value of lands and building assessable to property taxes: (1) XXXXXXXXXXXXXXXXXXXXXXX (2) The rateable value of any land w hich is not built upon but is capable of being built upon and of any land on w hich a building is in process of erection shall be fixed at five per cent of estimated capital value of such land'' All the aforesaid provision unequivocally point out that general tax is leviathan on: 1)all lands : and 2)buildings except those in the case of which an express exclusion is made by statute itself

(12) IT also needs to be pointed out that the land in question is not exempted from property tax under sec. 115 of the Act. The statuory provisions for fixation of rateable values of the vacant land at five per cent of its estimated capital value of land which is capable of being built upon. Since all land is liable to tax under the various provisions. Section 120 cannot be construed in isolation in a manner which will defeat the spirit of the Act.

(13) EVEN according to clause 10 of the Lease deed the petitioner is liable to the payment of property tax on the land in question. Clause 10 of the lease deed reads as follows:-

"10. The lease shall from time to time and are at all times pay and discharge all rates taxes charge and assessments of very description which are now or many at any time hereafter during the continuance of this lease be assessed charged or imposed upon the commercial plot/apartment hereby demised or any building to be erected thereupon or on the landlord or tenant in respect thereof."

(14) IN so far as the argument of the Learned Counsel for the petitioner based on doctrine of sterility is concerned, it is evident from the aforesaid provisions that this doctrine has no application, as vacant land, even though not yielding any profits, does not cease to be a Rateable land. The value of the vacant land can enter into computation for the purpose of fixation of Rateable value. The doctrine of sterility, therefore cannot come to rescue of the petitioner as vacant land has not been treated under the D. M. C. Act outside the scope of ratability merely because the building has not erected thereon

(15) IN matter pertaining to Municipal demands and taxes. a person is not entitled to an interim order of stay of realization of tax as a matter of course. Even when the petitioner makes out a prime facie case in his favour it would not be a reason enough for granting an interim order for restraining the recovery of tax. In a case involving public revenue regards must be had to be balance of convince and likely prejudice to the publlis interest while considering. the prayer of the Assessee for the stay of the demand or attachment arising there form. The petitioner has even by passed the statutpry remedy of appeal available to it under sec. 169 of the D. M. C Act. It has become a practice to file writ petitions or suits against levies or assessments of tax instead of filing appeals in order to defeat the condition of deposits of disputed amount of tax under sec. 170 (b) of the D. M. C. Act. The constitutional validity of this provision is not in dispute as the same was upheld by the Supreme Court in Shyam Kishore and Ors. Vs. M. C. D. JT 1992 (5) SC 335.

(16) HOWEVER ,a case where proper and adequate opportunity of hearing is not given to the Assessee by the Assessee Authority before saddling him with heavy demand or where the constitutional validity of the taxing provisional is challenged and a prima facie case is made out or if the Assessee Authority prima facie acts beyond the bounds of its jurisdiction one can certainly invoke Art. 226 of the constitution of the file a suit to seek his remedy instead of filing an appeal. But the present case does not fall in any of these categories. In this regard the supreme court in Municipal Corporation of Delhi Vs. C. L. Batra JT 1994 (5)S. C. 241 has held as follows: -. "8. In the case of Assistant Collector of Central Excise ,chandan Nagar, west Bengal VS. Dunlop of India Ltd. and other (1985)2 SCR 191, it was held that interim orders were not to be granted in revenue matters merely because a prima facie case had been shown. It was also emphasised in that case that even assuming that the prima facie case, it was not a sufficient jurification for granting the interim order. It was observed: -

"it is only where statutory remides are entirely ill-suited to meet the demands of extraordinary situations ,as for instance where the very varies of the statute is in question or where private or publics wrong are so inextricably mixed up and the presentations of public justice injury and the vindication of public justice require it, that recourse may be had to Art-226. The Court must also have good and sufficient reason to by-pass the alternative remedy where statutory remedies are available are not such matters."

(17) IN the instant case, there is no question of constitutional invalidity of any provision of law. In fact, if the case of Sh. Shyam Kidhore and other Vs. Municipal Corporation of Delhi and another ,jt 1992 (5) SC 335, this Court held section 170 (b) of the Delhi Municipal Corporation Act was intravaries, and the District Judge had no jurisdiction to waive the condition of deposit or stay the collection of tax, pending disposal of the appeal in the Court. It was, however, pointed out the District Judge Had the power to adjourn the hearing of the appeal or pass up the taxes before the appeal was actually heard determined. But, this power had to be exercised judicially bearing in mind the interest of revenue and the position of the case before him.

". . . . . . . . No ground was indicated for passing the interim order staying recovery of tax. The order was passed even without deciding the question of maintainability of the Civil Suit. This interim Order has been extended from time to time."

(18) HAVING regard to the above discussion, we are not inclined to stay the demand. Accordingly the application is dismissed. It is , however, clarified that any observation made above ,will not be construed as an expression of opinion on the merits of the case and the same will not come in the way of the disposal of the writ petition on merits.