Vijay Mendiratta vs N.D.M.C.
1996 Latest Caselaw 251 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) The petitioner seeks quashing of the impugned assessment order fixing the annual rateable value of the plot No.l & 2, Opposite Block No.7, Old Double Storey, Lajpat Nagar -IV, New Delhi-110024, at Rs.l4,00,000.00 with effect from 1.4.1988.

(2) The validity of the impugned assessment order has been challenged on various grounds enumerated in the writ petition. The grounds of challenge are inter-connected and substantially relate to one matter i.e" measure for determination of the annual rateable value of the property in question. However, main grievance of the petitioner is that the taxing authority did not observe the law and failed in its duty to determine the annual rateable value of the property in question in accordance with the principles laid down by the Apex Court in Dr. Balbir Singh's case .

(3) It is relevant to note here that the Delhi Municipal Corporation Act is a complete code in itself. It lays down the procedure for assessing the property tax. It further provides for right to appeal in case the assessee is not satisfied with the assessment order. Now would it be legitimate for this court to ignore the provisions of the said Act providing the machinery to resolve the dispute pertaining to the levy assessment or collection of property tax and proceed to exercise its extra ordinary jurisdiction at the initial stage. Learned counsel for the petitioner has placed reliance on the holding in Mahendra Arora and another Vs. The Transport Commissioner M.P. Gwalior & ors. , that the rule of exhaustion of alternative remedy is a rule of convenience and discretion rather than a rule of law and a person is not debarred from approaching the High Court under Article 226 of the Constitution against an illegal or invalid order which adversely affected him. He further submitted that inasmuch as the right to appeal to the prescribed authority is coupled with an onerous condition, viz, deposit of entire property tax, the said remedy of appeal can't be called an adequate or efficacious remedy. Reliance has been placed on the decision in Srikant K. Jituri Vs Corporation of the City of Belgaum . Srikant's case (supra) is an authority for the proposition that if the remedy of appeal provided by an Act is of an onerous and burdensome character, it can hardly be described as an adequate alternate remedy and in such a situation a writ under Article 226 can be entertained on the ground that the alternate remedy provided by the statute is not an adequate or efficacious remedy. It may be remarked here that in Shyam Kishore Vs. M.C.D. , the Apex Court had rejected similar arguments that the condition imposed on right of appeal was onerous because no discretion has been given to the appellate authority to relax or waive the said condition. In my opinion the condition of deposit of entire property tax at the time of filing the appeal under the Act does not make the appeal provisions nugatory or illusory but by his own default to comply with the condition of deposit the appellant may fail to avail of the remedy by way of appeal. It is true that the existence of statutory remedy does not affect the jurisdiction of this court under Article 226 of the Constitution of India, but as observed by the Supreme Court in Rashid Ahmad Vs. Municipal Board , "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs." Thus the existence of an alternative remedy is a very material circumstance to be taken into account when the court is called upon to issue a prerogative writ under Article 226 of the Constitution of India. In Union of India Vs. T.R. Verma , it was held that when such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Costitution) unless there are special or exceptional circumstances therefor. In this connection, emphasis is laid on the following observations made by the Supreme Court in Assistant Collector of Central Excise, Chandan Nagar Vs. Dunlop India Ltd. ; "It has become necessary, even now for us to repeat this admonition indeed is 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. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided bystatute. 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 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 certainly needs to be strongly discouraged

(4) In Municipal Corporation of Delhi Vs. C.L. Batra , The Apex Court had occasion to consider an interim order made by this court in the matter of property tax. The assessee filed a suit in this court and obtained an interim order of stay against the recovery of property tax. While reversing the interim order of this court, their Lordships of 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. It has to be borne in mind that the liability to pay the property tax under the Municipal Corporation Act is a special liability created by the Act itself which at the same time provides a special and particular remedy which ought to be resorted to, and, therefore the remedy by a writ under Article 226 of the Constitution is not to be allowed to be used for evading the provisions of the Act. The mere fact that an assessee might have to deposit the amount of tax when filing an appeal under the Act could not in any case justify his by passing the remedy provided by the Act.

(5) In the instant case, there is no question of constitutional invalidity of any provisions of law. There existed no special or exceptional circumstances to justify the petitioner's by passing the alternative remedy which is available to him by way of appeal. Under these circumstances, the petitioner cannot be permitted to abandon resort to the said alternative remedy and to invoke the extra-ordinary jurisdiction of this court under Article 226 of the Constitution.

(6) For the foregoing reasons, lam not inclined to interfere in the matter at this stage. Accordingly, the petition is dismissed.