Sobha Singh & Sons vs N.D.M.C.
1996 Latest Caselaw 273 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) The petitioner seeks quashing of the impugned assessment order fixing the annual rateable value of the Ambassador Hotel at Rs.3,47,11,200.00 less 10% with effect from 1.4.1995.

(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 Section 6 of the Delhi Rent Control Act as directed by the Apex Court in Civil Appeal No-42-44/87 New Delhi Municipal Committee Vs. East India Ltd. It is further stated that the impugned order is without jurisdiction and as such it is null and void. Learned counsel for the respondent raised a preliminary objection to the maintainability of the writ petition by submitting that the N.D.M.C. Act provides an effective forum to resolve the dispute pertaining to the levy and assessment of property tax and the petitioner should exhaust the said alternative statutory remedy before invoking extraordinary jurisdiction of this Court. Learned counsel for the petitioner, on the other hand contends that existence of an alternative remedy does not affect the jurisdiction of this Court under Article 226 of the Constitution of India. It was also contended that this is a case where the taxing authority has committed a patent illegality by determining the rateable value of the property in question in violation of the law laid down by the Apex Court in Ndmc Vs. East India Hotels Ltd. (supra). It was further contended that the impugned assessment order is null and void and it is, therefore, open to a party aggrieved by such illegal assessment order to move this court under Article 226 of the Constitution for issuing appropriate writ for quashing it without his being obliged to pursue an onerous or inefficacious alternative remedy.

(3) At the outset I must make it clear that the New Delhi Municipal Council 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 extraordinary jurisdiction at the initial stage. In Siliguri Municipality Vs. Amlen Dev Dass , it has been held that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. It is also 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 to invoke the special jurisdiction under Article 226 of the Constitution of India. 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 observation 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 by statute. Surety 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 certainty needs to be strongly discouraged.

(4) In Municipal Corporation of Delhi Vs. C.L. Batra , The Supreme 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 bypassed. The liability to pay the house tax under the M.C.D. 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 ought not to be allowed to be used for evading the provisions of the Act.

(5) In the instant case, there is no question here of the misconstruction of any provisions of law leading to a transgression of constitutional limits nor to any error relating to collateral fact. The error which is complained of, assuming it to be an error, is in respect of a matter, i.e. measure for determination of the annual rateable value of the property in question, which the assessing authority has complete jurisdiction to decide; that decision is legally valid unless corrected in an appropriate manner. It has been held in Ujjam Bai Vs. State of U.P. Air 1962 Sc 1621 that "a mere misconstruction of a provision of law does not render the decision of a quasi judicial tribunal void (as being beyond its jurisdiction.). It is a good and valid decision in law until and unless it is corrected in the appropriate manner. So long as that decision stands, despite its being erroneous, it must be regarded as one authorised by law and where, under such a decision a person is held liable to pay a tax that person cannot treat the decision as a nullity and contend that what is demanded of him is something which is not authorised by law. The position would be the same even though upon a proper construction, the law under which the decision was given did not authorise such a levy": The said decision is also an authority for the proposition that where a quasi judicial authority has jurisdiction to decide a matter; it does not loose its jurisdiction by coming to a wrongful conclusion, whether it is wrong in law or in fact.

(6) Learned counsel for the petitioner contended that the remedy of appeal provided by the Act is of an onerous and burdensome character. According to the learned council for the petitioner, before the apellant can avail of it he has to deposit the whole amount of tax and such a provision can hardly be described as an adequate of efficacious alternative remedy. In Shyam Kishore Vs. M.C.D. , similar arguments were rejected by the Apex Court. In Shyam Kishore Vs. M.C.D. , it has been held by that the mere fact that an assessee might have to deposit the amount of tax when filing an appeal could not in every case justify his by passing the remedies provided by the Act. In the instant case, there is no question of constitutional invalidity of any provisions of law. There is nothing before me to conclude that the nature and grounds of challenge of the impugned assessment order are such that alternative remedy of appeal is no remedy of appeal is no remedy in the eye of law to cover the challange to the whole assessment order. there existed no special of exceptional circumstances to justify the petitioner's by passing the alternative remedy provided by the Act. Under these circumstances the petitioner can't 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.

(7) For the foregoing reasons, I am not inclined to interfere in the matter at this stage. The petition is dismissed accordingly.