India Trade Promotion ... vs Dy. Assessor And Collector, Mcd ...
1996 Latest Caselaw 616 Del

ORDER

1. The petitioner through the present writ petition wants quashment of the attachment order/warrant dated March 22, 1996 and the demand notice dated January, 10, 1996.

2. Brief facts which led to the filing of the present writ petition are: that the petitioner is a company registered under Section 25 of the Companies Act. It is owned by the Central Government. It is a non-profit making organisation. It is as such exempt from payment of Income-tax. Respondent No. 1 is an employee of respondent No. 2 which is a statutory body. Respondent No. 3 is a nationalised bank. Respondent No. 1 issued a demand notice dated January 10, 1996 where through a sum of Rs.9, 1, 6, 21,456/- was demanded by way of property tax for the period from April 1, 1988 to March 31, 1996 from the petitioner. The said demand notice does not take into account the payment of Rs. 7,5367 crores already made by the petitioner. The said demand is totally arbitrary and unwarranted. Already two appeals and one revision petition for different periods are pending before the Additional District Judge and the Assessor and Collector of Municipal Corporation of Delhi, respondent No. 3.

3. Recently on March 22, 1996 the petitioner received a letter dated March 22, 1996 from respondent No. 3 whereby it was informed that the respondent No. 1 had attached the bank account of the petitioner on account of the recovery of the aforementioned demand of property tax. The demand notice as well as the attachment warrant are totally illegal and void. The property tax is not payable by the Government under Section 119 of the Delhi Municipal Corporation Act (for short "the Act"), since the petitioner is a Government owned Corporation and it has been carrying on its activities of trade promotion and development on the land situated in Pragati Maidan Complex belonging to the Government of India, Ministry of Urban Development. Thus there can be no attachment to recover the property tax under Section 156 of the Act. The petitioner, however, has been complying with the directions of respondent No. 2. Pursuant to a summit meeting, the petitioner submitted a detailed calculation of the property tax, service charges payable by the petitioner which is pending decision with the respondent No. 1 for reconciliation and no date has so far been fixed for hearing. The respondent is presuming without any basis that the entire property in Pragati Maidan Complex stood transferred to the petitioner on April 10, 1983 whereas the Government Allotment letter and its sanction to transfer of land and building is dated March 30, 1987. The petitioner has given a piece of land on sub-lease basis to the various State Governments who have built their own halls and pavilions for exhibition at Pragati Maidan. The respondents have been claiming property tax from such State Governments and have also been claiming the amount of property tax for the same property from the petitioner as well. Thus there can be no double taxation of the said property. No hearing was granted to the petitioner before issue of the notice dated January 10, 1996. The petitioner and respondents are Public Sector Undertakings and statutory bodies. The Supreme Court has directed that such institutions will not commence litigation and will not take any legal proceedings against each other without prior clearance from the High Power Committee. No clearance has been sought in the instant case from the High Power Committee. No. equally efficacious remedy is available to the petitioner except to approach this Court by way of the present writ petition.

4. Respondent Nos. 1 and 2 put in contest, inter alia, on the following grounds: that the present writ petition is not maintainable as equally efficacious remedy by way of appeal is available to the petitioner. The order dated Sept. 8, 1994 passed by the Assessor and Collector merged in the subsequent order dated Oct. 3, 1994 whereby the Assessor and Collector undertook to examine the matter if there was any increase in the rateable value beyond a sum of Rs. 2,82,41,160/- and, if necessary, the tax payer will be given an opportunity of being heard. Thus the petitioner, in any event, was liable to pay property tax at the rateable value of Rs. 2,82,41,160/-. The petitioner has been paying tax only on the basis of its own calculations and computations which is not acceptable to the respondents. The Government leases are not required to be registered under the Government Grants Act and also under the registration law. In any case, Section 53A of the Transfer of Property Act would be applicable to the facts and circumstances of the present case. The assessment order in the instant case is neither without jurisdiction nor in violation of the principles of natural justice. The petitioner is a juristic person having its separate legal entity and is thus distinct from the Union of India. The case of the petitioner company strictly falls within the domain of Section 120 of the Act. It is wrong and false that the demand notice does not take into account the payment of Rs. 7,5367 crores already paid by the petitioner. The demand has been raised in accordance with law and is based on the assessment order passed by the Assessor and Collector. The assessment order dated March 23, 1994 was passed ex parte as none appeared for and on behalf of the petitioner and the proposed rateable value of Rs. 3,98,20,040/-was maintained. It is wrong and false that the execution of a sale deed is a must for the purposes of liability towards payment of property tax. The petitioner is a purchaser of land as defined in the Act. The petitioner is entitled in law to construct upon the land and also further to let out the land and building. The notice issued by the respondents Nos. 1 and 2 is legal and valid inasmuch as it was mentioned therein that the rateable value was proposed to be increased on account of re-erection, additions/alterations, letting and amendment in the Delhi Rent Control Act. In fact, the petitioner filed objections against the same, Even the demand and the assessment order have been challenged by way of appeal under Section 169 of the Act. The petitioner is precluded in law from re-agitating the same point before this Court under Art. 226 of the Constitution of India. The petitioner c'annot pursue to parallel proceedings at one and the same time. In view of the above, the present petition is not maintainable under law and is liable to be dismissed.

5. The petitioner along with the writ petition moved an application (C.M. No. 2365/96) for an ad interim stay restraining the respondents from enforcing the recovery proceedings initiated by respondent No. 1 as per the attachment warrant dated March 22, 1996. The said application came up for hearing before the learned predecessor of this Court in March 26, 1996 who after issuing notice of the said application to the respondents suspended the operation of the attachment order till the next date fixed i.e. July 23, 1996.

6. Aggrieved and dis-satisfied with the above order respondents Nos. 1 and 2 approached the Hon'ble Supreme Court. Counsel for the petitioner, Ms. Madhu Tewatia contended before the Hon'ble Court that the High Court should not have granted any stay order in a property tax matter. Whereas Mr. B. Dutta, Senior Advocate, urged that the High Court was under an obligation to grant the stay. After having noted the respective contentions of the parties their Lordships of the Supreme Court without expressing any opinion left the matter to be decided by this Court as the matter was coming up for hearing on July 23, 1996.

7. Learned counsel for the petitioner Mr. Dutta has vehemently argued before this Court that the rateable value has so far not been finally determined and is pending revision with the department. Hence there cannot be any demand of the property tax from the side of the respondents. The impugned assessment order dated March 25, 1991 and the subsequent assessment order dated March 23, 1994 have been erroneously made and are thus illegal and invalid and are liable to be set aside. In any case the recovery on the basis of the said assessment orders was stayed by the Assessor and Collector vide order dated Sept. 8, 1994 pursuant to the minutes dated Sept. 10, 1992 ef the High Level Meeting in between the Chief Managing Director of the petitioner and Shri P.V. Jarakrishnan, Municipal Commissioner (vide Annexure 13). The respondents are estopped from demanding the tax from the petitioner.

8. Learned counsel for the respondent, on the other hand, has contended that the impugned assessment orders are perfectly legal and valid. They are passed after having . taken into consideration the provisions of Section 6 of the Delhi Rent Control Act and Section 116 of the Act and the principles of natural justice. Moreover, the said two assessment orders were appealed against. The said appeals, being H.T.A. No 2371/91 and H.T.A. No. 400/94, are sub-judice before the learned District Judge. No stay was granted in favour of the petitioner. The petitioner thus cannot be permitted to pursue the same matter at two different forums. Since the petitioner has already challenged the impugned assessment orders which form the basis of the attachment order dated March 22, 1996, it cannot invoke the jurisdiction of this Court under Art. 26 of the Constitution of India. In the above circumstances it should have either approached the District Judge by way of a fresh appeal or an application for setting aside the attachment. Thus according to the learned counsel, the present petition is not maintainable as equally efficacious remedy was available to the petitioner.

9. It is manifest from above that the most polemical issue which arises for adjudication and which goes to the root of the matter in the instant case is as to whether the present petition under Art. 226 of the Constitution of India is maintainable? It is a well-settled and well recognised principle of law that in cases where equally efficacious remedy is available the petitioner cannot be permitted to approach the Court by way of a writ petition. The underlying idea behind the enactment of Art. 226 of the Constitution of India was to confer extraordinary powers on the High Courts to give relief to the parties where no other remedy was available. Thus a petitioner can knock at the doors of this Court in those discerning few cases where no other adequate legal remedy is available to the petitioner. I am tempted here to cite the observations of their Lordships of the Supreme Court as , Rashid Abroad V. The Municipal Board, Kairana, .....

"There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Art. 32 are much wider and are not confined to issuing prerogative writs only."

10. To the same effect are the observations of the Hon'ble Supreme Court as , Union of India v. T.R. Varma ..... "It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a Writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs....."

11. It would not be out of place to advert to the observations of the Hon'ble Supreme Court as , Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd., ".... Art. 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 Art. 226 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. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions under Art. 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 needs to be strongly discouraged."

12. A similar matter with regard to the stay granted by this Court also against the recovery of taxes levied by the Municipal Corporation of Delhi came up for considerations before the Supreme Court in (1994) 4 JT (SC) 241, Municipal Corporation of Delhi v. C.L. Batra, their Lordships depreciated the tendency on the part of the Courts to grant stay orders even in those cases where the statutory remedy by way of appeal was available to the petitioner. It was observed "In our view, no interim order should have been passed in this case at all....." The Hon'ble Court cited with approval the observations made earlier in the case of Siliquri Municipality v. Amalendu Das, , ..... "This Court has to show awareness of the fact that in the case of a Municipality it cannot function or meet its financial obligations if its source of revenue is blocked by the interim order restraining it from recovering the taxes as per the impugned provision. The Municipality has to maintain essential civic services, run public institutions, purchase supplies and pay the salaries of its employees etc. The grant of an interlocutory order would paralyse the administration and dislocate the entire working. These serious ramifications were lost sight of by the High Court in the instant case while making the impugned order."

13. To the same effect are the observations of a Division Bench of this Court as reported in 1996 (1) AD (Delhi) 533. The Industrial Finance Corporation of India Ltd. v. Municipal Corporation of Delhi, and Hotel Corporation of India v. Municipal Corporation of Delhi, (C.W. No 3849/92 decided on Sept. 14, 1993).

14. It is crystal clear from above that extraordinary jurisdiction of the Court under Art. 226 of the Constitution of India is not a panacea for all the maladies which a litigant may suffer from. If the contention of the learned counsel for the petitioner is to be accepted that a litigant may choose either of the two remedies for the redressal of his grievances i.e. the statutory remedy under the Act or extraordinary remedy under Art. 226 of the Constitution of India in that eventuality the provisions for appeal in a statute would become meanings and non-existent. It would lead to docket explosion in the Court which is already bursting at the seams with the fresh institution of the petitions every day.

15. With the above background let us now try to find out to whether the present petition is maintainable in the facts and circumstances of the present case? The petitioner herein has challenged the legality and the validity of the two orders passed by the respondents on the grounds, alluded to above. The petitioner does not challenge the vires of any of the provisions of the Act. It is aso not the case of the petitioner that the impugned assessment orders were not passed. in accordance with the principles of natural justice. Thus the points which the petitioner has raised over here could have been raised before the appellate authority as envisaged under Section 169 of the Act. The Delhi Municipal Corporation Act is a complete Code in itself. It lays down the entire procedure how the assessment is to be made. Chapter III deals with the levy of taxes. Section 116 deals with the determination of rateable value of the lands and buildings assessable to property taxes. Section 124 of the Act contemplates the preparation of the assessment list. Section 126 relates to the amendment of assessment list. Section 169 provides that an appeal against the assessment and levy under this Act lies to the Court of the District Judge. Section 170 lays down the conditions of right to appeal.

16. It is thus abundantly clear from the different provisions of the Act referred to above, that there is a machinery provided therein for redressal of the grievances of a person who feels aggrieved on account of levy or assessment of any tax under this Act. Hence this Court is of the view that a statutory remedy is available to the petitioner and the petitioner cannot by pass the same simply because it wishes to do so. Thus no interference is required by this Court in the instant case.

17. There is another side of the picture. Admittedly, in the instant case the petitioner preferred two appeals against the above-mentioned orders (vide H.T.A. No. 2371/91 and H.T.A. No. 400/94). The said two appeals are still pending decision. Hence the petitioner cannot be permitted to ventilate one and the same grievance at two different forums. Admittedly, the said two appeals are against the said impugned orders which are in question before this Court. Thus if the petitioner nurses any grievance against the levy of tax it should approach the same court either by way of a fresh appeal or through an interim application. Admittedly this is not the case of the petitioner that the District Judge is not competent enough to set aside the impugned attachment order or to stay operation of the same. In a situation very much akin to the situation in hand when a suit was pending decision in between the parties one of the parties invoked the jurisdiction of the Court under Art. 226 of the Constitution of India. The Supreme Court was of the view that it was not a fit case for interference by the High Court under Art. 226 of the Constitution of ,India. The said observations of the Supreme Court as , Swetambar Jain Samiti v. The Alleged Committee of Management Sri R.J.I. College, Agra, can be adverted to with profit. They are in the following words (at Pp. 1225 and 1226 of AIR SCW) :--

"We are of the view that the High Court not only fell into patent error but also exceeded its jurisdiction under Art. 226 of the Constitution of India. Though the jurisdiction of the High Court under Art. 226 of the Constitution is not confined to issuing the prerogative writs, there is consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a civil Court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial Court -- against which the remedy of appeal or revision is available -- cannot be challenged by way of a writ petition under Art. 226 of the Constitution of India. Where the civil court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional court and interfere with the interim/miscellaneous orders of the civil court. The jurisdiction is meant fordoing justice between the parties where it cannot be done in any other forum."

"To the same effect also are the observations of this Court as reported in 1996 (1) AD (Delhi) 197, Haren P. Chowksey v. Union of India ..... Since the petitioner had already resorted to the statutory remedies available to him by filing an appeal before the Tribunal and getting a decision thereon, we see no reason why he should not exhaust the further statutory remedies available under the provisions of the Act as enumerated above....."

18. In the circumstances stated above, I am of the view that the present petition is not maintainable. Since the matter is sub judice before the Additional District Judge and the present petition is being dismissed on the ground of maintainability it would not be proper for me to dilate upon the rival contentions raised during the course of their lengthy arguments. The petitioner is hereby dismissed at this show cause stage. The stay order granted vide order dated March 26, 1996 is hereby vacated.

19. Petition dismissed.