Kirpal Singh Surjeet Singh vs Municipal Corporation Of Delhi
1995 Latest Caselaw 350 Del

JUDGMENT

R.C. Lahoti, J.

(1) Arguments were heard on the question of grant or otherwise of temporary injunction. During the course of hearing the parties have also addressed the court on the question of valuation, payment of court fees and maintainability of the suit itself. .P#2

(2) The two suits have been filed by the two plaintiffs seeking a declaration that there exists no assessment list and a permanent injunction restraining the recovery or the attempted recovery of the amount of tax levied. Whatever be the phraseology used in the prayer part of the plaint, but in substance these are the reliefs sought for.

(3) The learned counsel for the Mcd has disputed the correctness of the valuation made and the court fee paid by the plaintiffs as also the entitlement of the plaintiffs to the grant of ad interim injunction, Challenge has also been laid to the maintainability itself of the suits. It is submitted that the Delhi Municipal Corporation Act, 1957 ( hereinafter the Dmc Act, for short) is a self contained piece of legislation incorporating provisions for levy and assessment of tax under the Act also providing remedy of appeal against the levy or assessment to the person feeling aggrieved; the jurisdiction of civil courts to enter into such question is taken away.

(4) Chapter Viii of the Dmc Act, 1957 deals with taxation. Section 113 provides for tax to be imposed by the Corporation under the Act. Section 114 to 135 deal with property tax. Provision is made for incidence of taxation mechanism thereof and mode and manner of levy and assessment. Sections 169 to 171 deal with appeals in such matters. Section 169 and 170 of the Dmc Act provide as under :

"169.Appeal against assessment, etc.-(1) An appeal against the levy or assessment of any tax under this Act lie to the court of the District Judges of Delhi. (2)If, before or on the hearing of an appeal under this section, any question of law or usage having the force of law or construction of a document arises, the court of the District Judge on its own motion, may, or on the application of any party to the appeal, shall draw up a statement with opinion on the question for the decision of the High Court. (3)On a reference being made under sub-section (2) the subsequent proceedings in the case shall be, as nearly as may be in conformity with the rules relating to reference to the High Court contained in Order Xlvi of the First Schedule to the Code of Civil Procedure, 1908 ( 5 of 1908). (4)In every appeal, the costs shall be in the discretion of the court. (5)Costs awarded under this Section to the Corporation shall be recoverable by the Corporation as an arrears of tax due from the appellant. (6)If the Corporation fails to pay any costs awarded to an appellant within ten days after the date of the order for payment thereof, the court may order the Commissioner to pay the amount to the appellant.

"170.Conditions of right to appeal- No appeal shall be heard or determined under Section 169 unless- (a)The appeal is, in the case of property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 (n exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be within thirty days of the date on which an amendment is finally made under Section 126, and in the case of any other tax within thirty days next after the date of receipt of the notice of assessment or of alteration of assessment or, if no notice has been given, within thirty days after the date of presentation of the first bill or, as the case may be, the first notice of demand in respect thereof : Provided that an appeal may be admitted after the expiration of the period prescribed therefore by this section if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within the period: (b)the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation.

(5) It is submitted by the counsel for the plaintiff that exercise of right of appeal is neither available nor is an efficacious alternate remedy excluding the plaintiff's right to file a civil suit, for several reasons. There is no assessment list under Section 124 against which the plaintiffs may file an appeal though the recovery is sought to be made. The plaintiff shall have to deposit the amount of demand which is too onerous a condition virtually denying the right of appeal.

(6) In the opinion of this court, none of the grounds canvassed by the learned counsel for the plaintiffs can prevail.

(7) The assessment list contemplated by Section 170(a) is not only a list authenticated under Section 124 but also includes an assessment list which purports to be so though at the end it may not withstand the test of law for its validity. Right of appeal arises by the exercise of power by the authority whose action is under appeal and also by the outcome of the purported exercise of such power. The right of appeal is not confined to the assessment list merely; the notice of assessment, the notice of alteration of assessment and if there be no such notice given, the first bill or the first notice of demand are also appealable.

(8) In Shyam Kishore vs Mcd, , constitutional validity of Section 170(b) of the Act has been upheld by the Supreme Court. Their Lordships have further held that in the matter of grievance relating to property tax "more satisfactory solution is available on the terms of the statute itself". In Mcd vs. C.L. Batra, , their Lordships of the Supreme Court have seriously discouraged the prayers for the grant of interim orders of stay being entertained by the courts. During the course of judgment the observations made by their Lordships go to show that challenge to levy and assessment of tax in for a other than in appeal to the District Judge may not be entertained where there is no question of constitutional invalidity of any provision of law and non-availing of the statutory remedy of appeal is not explained by the assessee.

(9) In Srikant K. Jituri vs. Corporation of the City of Balgaum, , their Lordships have reiterated the well settled principles relating to entertainability of civil suits in such matters as were laid down in Dhulabhai vs. State of M.P., 1969 Sc 78 as under :

"(1)Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

"(2)Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

"(3)CHALLENGEto the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals."

"(4)When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit."

"(5)Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies."

"(6)Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie. If the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. "

"(7)An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."

(10) Referring to the alleged onerous condition of deposit of the entire property tax their Lordships have observed : "SUCH an onerous provision may be a ground for entertaining a writ petition on the ground that the alternative remedy provided by the statute is not an adequate or efficacious remedy but that can never be a ground for maintaining a civil suit. "

(11) In the cases at hand, briefly stated, the grounds of challenge raised by the plaintiffs are : (I)that there was no proceedings initiated under Section 124; (ii) that the property was owned by more persons then one and each of them was not served with individual notice in terms of Section 120 read with Section 124 and 126 of the Act; (iii) that the construction of the property was made in two stages and each time the cost of land has been included in determining the Rv resulting in inclusion of the cost of land twice over; (iv) that the documents furnished by the plaintiffs were not considered while making ex parte assessment orders; (v) that Section 6(1) of Delhi Rent Control Act 1958 was ignored while making the assessment; (vi) that principles of natural justice were violated and so on.

(12) There is no answer to the simple question- why several grounds of challenge raised by the two plaintiffs cannot be gone into in appeal or entertained by the appellate authority ?

(13) Section 171 of the Act confers a very wide jurisdiction on the appellate authority. i) Any ratable value, (ii) assessment, (ii) liability to assessment, (iv) liability to taxation may be confirmed, set aside or modified in appeal. Question of law, question of usage having the force of law or question of construction of a document may arise which the District Judge may feel can more appropriately be answered by High Court. He may draw up a statement, express his opinion and refer the same for decision by the High Court. The remedy of appeal is efficacious one.Finality is attached with the appellate orders subject to review upon an application or suo moto. In view of the above said provisions, the suits filed by the plaintiff do not satisfy the test of maintainability of civil suit laid down in Dhulabhai's case ( supra).

(14) Suits are held not maintainable. Instead of dismissing the suit, the plaintiffs in the two suits are directed to be rejected under Order 7 Rule 11 (d) of CPC.

(15) In view of the above said finding, no opinion has been expressed on the question of correctness of the valuation made and court fee paid by the plaintiffs in the two suits. The suits and the IAs pending therein shall be treated as disposed of.