Municipal Corporation Of Delhi vs Rajeev Trivedi
1987 Latest Caselaw 346 Del

JUDGMENT

B.N. Kirpal, J.

(1) The challenge in this writ petition is to the order dated 1st October, 1985, passed by Mr. B.S. Chaudhry, Additional District Judge, who had allowed the appeal, filed against the levy of house tax and has quashed the demand which had been raised against respondents 1 and 2.

(2) The said respondents 1, and 2, obtained perpetual sub-lease dated 6th April, 1978 from the Ishwar Nagar Cooperative House Building Society Limited. The Society had in turn obtained the lease from the Delhi Development Authority.

(3) The case of the petitioner/corporation is that vide a notice dated 18th March 1980,the rateable value of the vacant plot was sought to be fixed at Rs. l,600.00 with effect from 1st April, 1979. It is alleged that no objections were filed and the rateable value was confirmed as proposed by the Assistant Assessor and Collector.

(4) According to the petitioner, public notice was issued under Section 124 of the Act, in respect of the subsequent assessment years, namely 1981-82 to 1984-85 but no objections were received. The rateable value was accordingly confirmed at Rs. 1,600.00 .

(5) It is an admitted case that a bill dated 10th November, 1982, was served on respondents I and 2, demanding house tax with effect from 1st April, 1979 till 31st March, 1983. This demand was not paid. Thereafter, another demand was raised vide a bill dated 22nd October, 1984. This was a notice, in respect of the year 1984-85, and after including therein, the arrears for the earlier years, the total demand sought to be raised was Rs. 1, 263.00 . This amount was deposited by respondents 1 and 2 but at the same time, an appeal was filed before the Addl. District Judge, Delhi.

 (6) The Addl. District Judge, vide his order dated 1st October, 1985 allowed the said appeal. The reason for allowing this appeal is contained in the following observations of the impugned order :-    "Even during the course of arguments no satisfactory reply was put forward as to how the demand raised by respondents in respect of the aforesaid plot in the absence of the mandatory procedure as laid down having been followed can be justified."  

 The Addl. District Judge, while allowing the appeal, directed that the amount of Rs. 1. 263.00 , which had been deposited, should be refunded.   

(7) The perusal of the aforesaid observations of the Addl. District Judge shows that he was of the opinion that the grounds taken in the memorandum of appeal of the non-following of the mandatory provisions of sections 124 and 126 had not been rebutted by the Corporation. There is no provision of law which requires, on an appeal being filed, the respondents being expected to file a reply to the memorandum of an appeal. If the intention of the Addl. District Judge was that the Corporation ought to have filed a reply to the memorandum of appeal, then, I am afraid, this conclusion to this effect is not correct. When such a ground is raised in the grounds of an appeal, the Corporation can meet the same at the time of arguments. Of course, if the Court so desires, it would be at liberty to ask for a written explanation or a reply or an affidavit from the Corporation. This, however, had not been done in the present case. The Addl. District Judge, therefore, cannot find fault with the Corporation in not filing a written reply to the grounds of appeal.

(8) The Addl. District Judge has then come to the conclusion that the petitioner herein had not put forth a satisfactory explanation with regard to the following of the mandatory provisions laid down by Sections 124 and 126 of the Corporation Act. This part of the order is sought to be challenged by placing before this Court a notice dated 18th March, 1980/20th March, 1980, stated to have been sent under Section 126 of the Corporation Act. To my mind, this notice can be of no assistance to the Corporation. The notice is addressed to respondent No. 2, not at the residential address but at the address of the plot in question. It is known to the Corporation that the plot is unbuilt and nobody is residing therein. Knowingly, the Corporation has issued notice to one of the owners at an address where she does not reside. There was, therefore, no valid service of notice on the owner of the plot in question. The Addl District Judge was, therefore, justified in coming to the conclusion that the entire demand was un-justified and illegal.

(9) Mr. Nandrajog learned counsel for the petitioner, has however contended that in the present case, the appeal was filed by respondents I and 2 against the demand which was raised for the year 1984-85 by notice dated 22nd October, 1984. The learned counsel, submits that the demand, even if it was illegal, for the earlier years had become final and as such, the Addl. District Judge, was not justified in setting aside the demand even for the years prior to 1984-85. As a proposition of law, the contention of the learned counsel for the petitioner is correct. In such cases of taxation, each assessment year stands by itself. The assessment of each year has to be made separately. It is no doubt true that in the notice dated 22nd October, 1984, the arrears of the earlier years had also included but the appeal which was filed, in law, was only against the assessment for the year 1984-85. The assessments which had been made earlier, even if they were irregularly made, had become final and could not be a subject matter of the appeal which was filed. In the memorandum of appeal, it has been stated that notice had been received by the owners informing them about the rateable value which had been fixed and objection had been filed thereto. Receipt of the bill dated 10th November, 1982, for the year 1982-83 is also admitted. This being so, it was open to the respondents-owners to file an appeal atleast against the bill dated 10th November, 1982 which pertains to the assessment years 1982-83 and including therein the arrears of the earlier years 1979-80 to 1981-82. No appeal having been filed against this bill dated 10th November, 1982, it was not open to the respondents-owners to challenge the said demand when it filed an appeal in respect of the years 1984-85.

(10) Even though the extent of the relief, which had been granted by the Addl. District Judge, was not proper because there could not be a valid challenge to the assessment for the years 1979-80 to 1983-84, nevertheless, this Court, in exercise of its jurisdiction under Article 226 of the Constitution, is required to do the substantial Justice. Relief under Article 226 of the Constitution cannot be asked for as a matter of right as the remedy is a discretionary one. Now, in the present case, it is obvious that there has been no valid assessment or levy of tax as far as respondents I and 2 are concerned. If this is so, then the petitioner/corporation cannot be allowed to retain the tax wrongly collected by it. The respondents/owners have succeeded before the Addl. District Judge, who has directed the refund of the amount of tax paid to the petitioner. If the respondents had challenged the levy for the years 1979-80 to 1983-84, by filing an appeal earlier, they would have got the relief which has now been given to them, Looking at the paltry amount involved in this case, and the fact that the provisions of Sections 124 and 125 of the Corporation Act have not been properly followed, this is not a fit case where any interference is called for by this Court in exercise of its jurisdiction under Article 226 of the Consititution. The writ petition is accordingly dismissed but with with no order as to costs.