K.L. Rathee vs Municipal Corporation Of Delhi
1994 Latest Caselaw 700 Del

JUDGMENT

K. Shivashankar Bhat, J.

(1) The petitioner seeks the quashing of a notice dated 30th March, 1992 pertaining to the year 1988-89, 1989-90, 1990-91 and 1991-92, issued under Section 126 of the Delhi Municipal Corporation Act, 1957 (the Act for short). Petitioner also seeks a writ of mandamus directing the respondent to continue to levy the property tax till it is revised.

(2) Petitioner states that he received a letter dated 17th March, 1993 signed by Deputy Assessor and Collector informing the petitioner that the petitioner had not sent any reply to a notice issued to him under Section 126, on 30.3.1992; petitioner replied pointing out that he did not receive any such notice; thereafter, petitioner obtained a certified copy of the notice dated 30.3.1992 issued by the Assistant Assessor and Collector proposing to raise the rateable value from Rs-15,660 to Rs.2,89,070.00 . Petitioner asserts in the writ petition that the statement of the Inspector that he went to the petitioner's house to serve the notice on 30.3.1992 was incorrect and he further submitted that the assertion that the notice was pasted on the house, also is not factually correct. Petitioner comments on the events with his comments, as follows:- II)The Inspector is supposed to have gone to the Petitioner's house for service on 30th March, 1992. iii) The Inspector is supposed to have gone again, not indicating interval of time, for service on 30th March, 1992. iv) The Inspector puts up a note to the Assistant Assessor and Collector seeking orders for affixing notice at site on 30th March, 1992. v) The Assistant Assessor & Collector in a routine manner without applying his mind puts his signature in token of sanction on 30th March, 1992. vi) The Inspector goes to the Notary Public on the 30th March, 1992. One knows not why because the Notary's function is to certify, authenticate, or attest the execution of documents and not to go to sites to evidence affixing of notices. vii) The Inspector is again supposed to have gone for the third time to the petitioner's house in the company of the Notary Public to evidence the affixing of the notice on the 30th March, 1992. Usually the affixing is evidenced by persons of lesser importance and not of the statutory status of a Notary Public.

The seven steps 'operation' said to have been done during the course of a few working hours of the single day of 30th March, 1992, speaks for itself. The Inspector of the M.C.D. (a public body) is said to have engaged the services of a Notary Public without any specific order for the same."

(3) The petitioner suspects that there has been a forgery. Petitioner wrote a letter to the authority on 10th June, 1993 pointing out that his wife who was not well was always at home and that as a fact, on 30.3.1992, the petitioner was also in his house. Therefore, it could not be factually true to say that the Inspector came to the house to serve the notice, but could not find the petitioner to effect the service; at any rate, attempt should have been made to serve it atleast on any adult member of the family. According to the petitioner. Assistant Assessor & Collector had no competence to issue a 'notice, since his jurisdiction to decide assessment cases was up to Rs.20,000.00 . Further, notice of 30 days stipulated in Section 126 of the Act had to be issued before 30 days of the last date.

(4) Another basic infirmity in the alleged notice, pointed out in para 13 of the writ petition is:- "IN the notice (annexure P-IV) issued by the respondent Municipal Corporation, in the space provided for giving "Reason in brief for amendment in the assessment list", an all embracing and omnibus rubber stamp has been affixed in almost illegible ink (deciphered with difficulty after a perusal of other similar notices) leading as follows: Increase in rateable value due to re-erection/addition/alteration and letting of the building or part thereof and after amendment of DRC. Act changing calculation of Sr from 8:25% /8.625% to 10% and excluding properties with rents above Rs.3,500.00 p.m. from the purview of section 3 & 6 of Drc Act and plus section 126(1) (d) and (f) of Dmc Act."

 (5) In the reply filed on behalf of the respondent, above contention is met as follows:-    "CONTENTS of para No.13 are denied. The reasons given in the notice are legal and valid and served by the provisions of law and the Judgment of this Hon'ble Court reported as M/s. Delhi Paints and Chemicals Vs. N.D.M.C. and also upheld by the Apex Court in as much as the Special Leave Petition filed against same has been dismissed."  

 (6) The respondent also rely on the delegation of powers to the concerned authority to issue the notice.   

 (7) The Division Bench had initially issued notice to the respondent to show cause as to why Rule should not be issued. Inspite of a few adjournments, no reply was filed and hence Rule was issued on 11.2.1994. Reply was filed only thereafter on 22.3.1994.   

 (8) As to the service of notice dated 30.3.1992 on the petitioner, the concerned Inspector had not filed any affidavit. The reply filed by the Assistant Law Officer was vague. In the. circumstances, this court gave an opportunity to the respondent to file the relevant affidavit regarding service of notice on 30th March, 1992. Thereafter, affidavits of S.K.Kaushik, who was Area Inspector of the area in question on 30.3.1992 and of Kanta Prasad, Assistant Assessor and Collector were filed on 26.7.1994.   

(9) There is a serious dispute as to the service of notice and the steps taken by the respondent to serve the notice. I do not think it possible nor prudent, while exercising this jurisdiction under Article 226 of the Constitution to resolve this question on the basis of mere affidavits of the petitioner, who is a practicing Advocate and of the officers. The relevant fact shall have to be inferred only after appreciating the evidence and in this case probably the deponents of the affidavits may have to be subjected to cross-examination by the opposite party.

(10) Ms. Madhu Tewatia, the learned counsel for the respondent raised a preliminary objection. The learned counsel pointed out that the Act provides an effective forum to resolve the dispute pertaining to the levy and assessment of property tax and referred to Section 169 of the Act. It was contended that since an effective alternative remedy is available and no question involving constitutionality of any law arises here. the petitioner should exhaust the said statutory remedy, before invoking the extraordinary jurisdiction of this Court.

(11) The petitioner, on the other hand, contends that this is a case where the notice was not at all served and the tax is sought to be levied assessed by an officer who had no jurisdiction at all. It was further contended that, the notice lacked in particulars as to why assessment is to be revised so as to enhance the rateable value exhorbitantly.

(12) In the matter of Municipal taxation, the rate payer should first exhaust the statutory remedy of appeal or revision, unless such a remedy is totally inefficacious. When the Legislature has entrusted the task of resolving the dispute by creating a proper machinery of appeal, this court should not stretch its judicial arm to grab the subject matter, on the assumption that justice can be meted out only by this Court. Constitution has created the writ jurisdiction, to see that statutory bodies, authorities and quasi-judicial Tribunals function according to law. The essence of the writ jurisdiction in matters of this nature lies in the scope of the 'Judicial Review'. The power has to be exercised to examine whether there is any illegality, irrationality or procedural impropriety in an administrative action. The term "administrative action" here, would include quasi- judicial functions of the statutory authorities.

(13) In Tata Cellular Vs. Union of India; , the Supreme Court explained these aspects of the Judicial Review, in the context of a purely administrative action of rejecting a tender. The court pointed out the modern trend of judicial restraint while explaining the validity of administrative actions. I think the ratio would squarely govern the field involving quasi-judicial and fiscal measures, where statutory bodies exercise specified powers. For example, when a municipality levies property tax, it has to act under the particular municipal law which provides for the levy. The levy of tax, computation of the tax and its collection are governed by the relevant law. No doubt, the computation of tax involves quasi-judicial functions. But, when the law itself entrusts the task of the computation to the authorities created under the said law, the constitutional jurisdiction of the High Court should normally await for the outcome of the statutory process, before intervening. The writ court cannot and should not anticipate that the statutory authority would act illegally, irrationally or with procedural impropriety and with such an anticipation (or assumption) proceed to exercise the writ jurisdiction.

(14) The exceptions are, where the very law is unconstitutional (a question which the statutory authority cannot decide), or the initiation of the proceedings is totally without jurisdiction or on the face of it the principles of natural justice are violated in following the statutory procedure. However, in the latter two types of cases, if the question involved requires investigation of disputed facts, the court may wait for these facts to be resolved under the Statute, since, the writ jurisdiction is ill-suited to resolve disputed questions of facts.

(15) The respective jurisdictions and areas of operations of the main three branches of the State are - (1) Legislature, (2) Judiciary & (3) Executive. Each department of the State (the term 'State' connotes the 'State' in its abstract sense comprehending all the three departments) has to respect the functions of the other two. The balance amongst the three shall have to be kept and maintained.

(16) There cannot be a mistrust of one department, by another. The function of the judiciary is to see that the rule of law prevails and the other two departments of the State function strictly according to the Constitution and the law. If so, it necessarily follows that this court cannot ignore the jurisdictions created under any law, such as the Delhi Municipal Corporation Act. When this law has provided the machinery to resolve the disputes pertaining to the levy, assessment or collection of property tax, it is imperative that this Court should not ignore the said provisions by proceeding to exercise its writ jurisdiction, at the initial stage of the levy or assessment of the tax.

(17) This principle flows out of several decisions of the Supreme Court. In Municipal Corporation of Delhi Vs...C.L.Batra; , the Supreme Court reversed an interim order made by a learned Judge of this Court in the matter of property tax. The rate payer filed a suit in this court and obtained an interim order of stay against the recovery of property tax. While reversing the order of the High Court, the Supreme Court pointed out that there was no satisfactory explanation as to why the statutory remedy of appeal was allowed to be by-passed. In this connection, the Supreme Court referred to an earlier decision in Assistant Collector, C.E. Chandan Nagar Vs. Dunlop India Ltd. Air 1985 330. In the said decision the Supreme Court observed, at page 332: "IN Titagarh Paper Mills Co. Ltd. Vs. State of Orissa A.P.Sen, E.S.Venkataramiah & R.B.Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged."

(18) Section 169 of the Delhi Municipal Corporation Act, 1957 provides for an appeal to the Court of the District Judge of Delhi against the levy or assessment of any tax under the said Act. Sub-Section (2) of Section 169 empowers the court of District Judge to draw up a statement of the facts of the case and refer any question arising there from, regarding any law or usage having the force of law or construction of a document, to the High Court for its decision. The Supreme Court has upheld the condition of pre- deposit of tax imposed under Section 170, for invoking the appellate jurisdiction and this has been reiterated in the recent decision in C.L.Batra's case (supra).

(19) Therefore, in the instant case, it is necessary to consider to what extent this court should exercise its writ jurisdiction having regard to the facts of the case.

(20) I have already referred to the ground taken in para 13 of the writ petition. The basis for the proposed revision of rateable value from Rs.15,660.00 to Rs.2,89,070.00 as stated in the notice, also has been quoted in the said para 13. However, details are not forthcoming. Nature of the alleged alterations or the tenancy created is totally absent in the notice. It does not require much imagination to say that it is impossible to show cause against such a notice, except sending a reply denying the allegations. Section 126(1)(d) empowers amendment of the Assessment List by increasing or reducing it "for adequate reasons". Therefore, the proposal should reflect the adequacy of the reasons for amendment. A mere, bald assertion that the building has been altered or tenancy created, without any particulars, cannot be termed as "stating the reasons". It is the conclusion that is stated here, not preceded by any adequate material. Therefore, the notice becomes defective.

(21) Under identical circumstances, a Division Bench of this court quashed the notice in Savitri Devi Vs. M.C.D.; . The relevant words stated in the impugned notice in the said decision is almost similar to the words found in the notice challenged in the present writ petition. The Bench has quoted the said words in para 5 of the order. Thereafter the court held: "THE above are all the details mentioned in the notice as to why the existing rateable value from Rs.34,480.00 increased to Rs.6 lakhs and that too in the face of an exemption order one what except more details to this notice also. In our view, the opportunity given to the owner/occupier of the building must be meaningful and the printed form on the basis of which notice dated 5th March, 1993 and 13th January, 1993 are issued, do not conform to basic principles of natural justice. No details as to the additions or alterations etc. were specified in the above show cause notice. In our view, it is some details of additions or alterations, fixtures and fittings etc. are to be furnished to the occupier/owner and a copy of the inspection report on the basis of which it is proposed to increase the rateable value are also to be given. Unless the show cause notice gives particulars, one cannot expect the owner/occupier to give effective reply."

(22) The learned counsel for the respondent relied on M/s. Delhi Paints & Chemicals Vs. N.D.M.C.; , and contended that wherein a similar notice was upheld by a division bench of this Court and the Special Leave Petition filed by the petitioner was dismissed by the Supreme Court. I do not find any such facts in the said decision. The facts under consideration were totally different.

(23) In view of the decision in Savitri Devi's case (supra), respondent shall have to issue a supplemental notice. However, before proceeding further, a clarification is necessary. The supplemental notice that may be issued by virtue of this order would not by itself save the earlier notice in case it was not served as per the provisions of the Act. Said question shall have to be decided by the appellate authority in case, petitioner files any appeal after a fresh order is made, on the issuance of the supplemental notice.

(24) If for any reason there was no notice served initially on 30.3.1992, the Supplemental notice to be issued cannot be acted as a substitute for the proper notice that should have been served on 30.3.1992 for the purposes of limitation. The distinction between non-service of a notice within the prescribed period and serving an incomplete or defective notice has to be borne in mind. The former defect cannot be cured after the lapse of the period of limitation, while the latter is capable of being rectified by issuance of a proper notice.

(25) In Savitri Devi's case the court directed the respondent to issue a supplemental notice. Following the said decision I consider it proper to direct the respondent to issue a supplemental show cause notice giving all particulars required for enhancement of the rateable value.

(26) As to the delegation of powers, the petitioner contended that Section 126(3) is an independent power of the Commissioner and the same was not delegated to any one. I do not think so. The substantive provision to amend the assessment list is found in Section 126(1). Sub-section (2) is actually procedural providing for the notice. Sub-section (3) is another aspect of the same power touching the procedural element governing the assessment list for the years commencing on 1st April 1988, 1st April 1989 and 1st April 1990. Just because, the notification referred to Section 126(1) & (2) separately while delegating the power, it cannot be inferred that Section 126(3) is a distinct substantive provision. A wrong understanding or reading of the Statutory provision by the Commissioner would not convert a procedural provision into a substantive provision. Therefore, a delegation of the power under Section 126(1) would govern the exercise of the procedural aspects referred in sub-sections (2) & (3) also. Section 126(4) also shall have to be borne in mind. In the circumstances, the delegation notified on 28.5.1963 though refers to several sections including Section 126(1) &: (2) separately, shall have to be read as covering the entire Section 126. The substantive power is the power to amend the assessment list; others are incidental to the said parent power.

(27) The petitioner referred to a few office orders to contend that the Assistant Assessor &: Collector had no competence to issue the notice in cases exceeding Rs.20,000.00 . This contention again, ignores the internal working arrangement of a Government department. These orders do not and cannot enlarge nor restrict the scope of the substantive powers which stood delegated to any authority.

(28) There was an argument based on the proviso to Section 126(1); but, this has no legal validity in so far as the years referred in sub- section (3). Sub-Section (3) opens with a non- obstante clause, and therefore, its provisions over ride the proviso to Section 126(1). There is no scope to give any meaning to the words in Section 126(3) than what the words convey, quite clearly.

(29) There was also an argument that assessment list cannot be amended retrospectively. This contention overlooks the language of Section 126(1) which empowers the Commissioner to amend the assessment list. The very concept of amendment connotes the existence of a document which is to be amended. In the very nature of an amendment, it has to be retrospective. Section 126(1) which is the main provision, empowering the amendment says, the assessment list may be amended "at any time". Sub-Section (3) has, actually imposed a procedural restriction Along with a restriction as to the years in respect of which amendment may be done. Therefore, this contention does not merit further consideration.

(30) In the result the notice dated 30.3.1992 is declared as inoperative and incapable of being acted upon, subject to the issuance of a proper notice giving adequate reasons for the proposal to enhance the rateable value and in such a case, it is open to the petitioner to raise all questions including the question as to the service of notice dated 30.3.1992 before the authorities and the appellate court. In case there was no proper service of notice served on 30.3.1992 as per the Act, the supplemental notice issued would not cure the non-service on 30.3.1992 and consequential orders be made accordingly. Writ petition is disposed of as above. No costs.