Ajay Enterprises Ltd. vs Municipal Corporation Of Delhi
1998 Latest Caselaw 328 Del

ORDER

S.N. Kapoor, J.

1. The plaintiff company is challenging the assessment order dated 23rd March, 1991 and threatened recovery of the bills dated 7th May, 1991 and 10th September, 1991 amounting to Rs.21,38,231/- issued in respect of a property known as Vishal Cinema, Rajouri Gardan, New Delhi. Action of the defendant/MCD is challenged on the ground that it includes water tax amounting to Rs.1,01,252/- and refusal to give credit of Rs.5,39,274/- on account of vacancy remission. The rateable value is erroneous for it includes the cost of air-conditioning, furniture and fixtures, specially when the rectification is pending before Shri Anand Kishore, Dy. Assessor and Collector. The suit for permanent injunction is mandatory as there exist no other equally efficacious remedy than to file the present suit.

2. This suit is being contested by the defendant on the ground the suit is not maintainable for the suit is barred under following provisions: (i) Under Section 169 of the Delhi Municipal Corporation Act, 1957 (hereinafter called "the DMC Act" for short) read with Section 41(h) of the Specific Relief Act, 1963; and (ii) under Section 478 of the DMC Act for want of requisite notice and being barred by the period of prescribed limit under Section 478(2) of the DMC Act. The suit has been filed with the sole aim and intention to evade payment of legal and valid dues. This Court has no jurisdiction and competence to adjudicate upon mode of assessment and quantum of assessment. In so far as the question of water tax is concerned that has been deleted from the bill and revised demand bill had been sent to the plaintiff on 23rd December, 1991. The claim of vacancy remission has been rejected as the plaintiff has not complied with the relevant provisions of the DMC Act. No rectification proceeding is pending and the assessment order dated 23rd March, 1991 is absolutely legal and final. The cost of fittings and fixtures and air-conditioning has been rightly taken into account for arriving at a rateable value of the property in question.

3. Having heard learned counsel for the parties and after going through the records, it appears that the present dispute relates to the following points:

(i) Inclusion of cost of electric fittings, furniture and fixtures and air-conditioning in the cost of building; and

(ii) Question of vacancy remission;

 


     and
 


     (iii)     Maintainability of the suit. 
 


4.   So far as the question of giving notice is concerned, the present suit being an injunction suit falls in the exceptional category and in terms  of sub-section  (3) of Section 478 of the DMC Act, nothing in sub-section  (1) 

shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice of postponement of the institution of the suit. In so far as the prescribed limit of six months is concerned, under Section 478(2) of the DMC Act, if nothing is to be deemed to apply to a suit in which relief claimed is injunction would mean that the suit is beyond the scope of sub-section (1) of Section 478 of the DMC Act. It cannot be said to be suit such as described in sub-section (1) nor it can be said that it cannot be instituted after expiry of six months from the date on which the cause of action arises. There are two bills in the present case recovery of which is sought to be stayed; one is dated 7th May, 1991 and another is dated 10th September, 1991. For the two bills fall within six months, therefore the objection raised in this regard cannot be sustained.

5. As regards inclusion of certain items for the purpose of rateable value is concerned, one has to refer to the definition of the words "land and building" and "plant and machinery" as used in Sections 2(3), 2(24) and 116(3) of the DMC Act. They read as under:

"2(3) "building" means a house, ut-house, stable, latrine, urinal, shed, but, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood,mud, metal or other material but does not include any portable shelter.

2(24) "land" includes benefits to arise out of land, things attached to earth or permanently fastened to anything attached to earth and rights created by law over any street."

"116.(1) ...

(2) ...

(3) All plant and machinery contained or situated in or upon any land or building and belonging to any of the classes specified from time to time by public notice by the Commissioner with the approval of the Standing Committee, shall be deemed to form part of such land or building for the purpose of determining the rateable value thereof under sub-section (I) but safe as aforesaid no account shall be taken of the value of any plant or machinery contained or situated in or upon any such land or building."

7. Here it is required to be seen that what is included in land and building will obviously not fall within the definition of plant and machinery. So, cost of anything attached to earth or permanently fastened to anything attached to earth (including lift) shall automatically be included in the cost of land and building {See Municipal Corporation of Delhi Vs. M/s. Pragati Builders and N.R.D.C. of India and Anr., }.

8. However, submission of learned counsel for the plaintiff is that in the light of Hindustan Lever Ltd. Vs. Municipal Corporation of Greater Bombay and Ors., , cost of air-conditioning machinery and false ceiling could not be included for the assessment of rateable value. Learned counsel for the plaintiff refers to Section 154(2) of the Bombay Municipal Corporation Act (hereinafter called "the BMC Act for short), which reads as under:

"154(1) ...

(2) The value of any machinery contained or situate in or upon any building or land shall not be included in the rateable value of such building or land.

9. On the basis of the language of this Section, before proceeding further, it is desirable to note that there is a difference in Section 154(2) of the BMC Act and Section 116(3) of the DMC Act, for in the BMC Act only the terms 'machinery' has been used while in the DMC Act it is 'plant and machinery' and not only 'machinery'. The distinction between plant and machinery was brought to the notice of the Court in Hindustan Lever Ltd. Vs. Municipal Corporation of Greater Bombay (supra). By referring to the decision rendered in CIT Vs. Mir Mohd., and after noting the difference between plant and machinery, the Supreme Court observed in para 11 of the judgment that

"According to us, this dichotomy may not be applied to Section 154(2), as it could not have been intended by the legislature that, say, only unimpeded air-conditioners used for cooling a building would get the exemption, but not if the apparatus gets embedded and central air-conditioning is provided in the building. In any case, as we are concerned with a taxing provision, an interpretation beneficial to the assessee, in case two interpretations be reasonably possible, has to be given. This is a wellsettled position in law."

10. On this basis the cost incurred by the appellant on the air-conditioning machinery was ordered to be excluded for considering the rateable value.

11. As is apparent, the language of DMC Act is different not only in regard to 'machinery' and 'plant and machinery' but also in other respect while the BMC Act altogether excludes machinery for consideration of the rateable value. It is not so in DMC Act for any class of plant and machinery specified from time to time by public notice by the Commissioner with the approval of the Standing Committee shall be deemed to be part of such land and building for the purpose of determining rateable value. Therefore, so long no public notice was or has been issued, decision in Hindustan Lever Ltd. v. Municipal Corporation of Greater Bombay (supra) may be relevant and binding (M/s. Punj Sons Pvt. Ltd. Vs. MCD, .

But the moment such public notice is issued, decision in Hindustan Lever Ltd. v. Municipal Corporation of Greater Bombay (supra) would not have relevance i.e. with effect from 24th October, 1994, the day on which the Delhi Municipal Corporation (Determination of Rateable Value) Bye-Laws, 1994 (hereinafter called "the R.V. Bye-Laws) have been notified.

12. It is to be noticed that the constitutionality of the R.V. Bye-Laws have been upheld in Delhi Urban House owner's Welfare Association Vs. Union of India, . Since the case in hand relates to a period prior to 24th October, 1994, Hindustan Lever Ltd. Vs. Municipal Corporation of Greater Bombay (supra) as well as ratio in Punj Sons Pvt. Ltd. Vs. MCD (supra) is attracted and till 24th October, 1994 the rateable value would not include the cost of air-conditioning.

13. In so far as the furniture and fittings are concerned, observations of the Supreme Court in para 13 of Hindustan Lever Ltd. Vs. Municipal Corporation of Greater Bombay (supra) are complete answer to the arguments advanced by learned counsel for the plaintiff. Para 13 of the judgment reads as under:

"13. The wooden partitions in question do not apparently attract the provision of Section 154(2) of the Act. They having been used to divide each of the floors into parts and even ceiling columns having been designed with such partition in mind, we entertain no doubt that the value of these partitions did constitute and were rightly regarded as part of construction cost. The fact that the partitions are fixed on sockets and are easily removable does not make any difference as the building was from the inception conceived as an office building and it being spacious, division into separate blocks and cabins was conceived from the beginning for which purpose the partitions were used. We, therefore, hold that the value of wooden partitions was rightly included in calculating rateable value."

14. Consequently, cost of electric fittings and fixtures cannot be excluded for consideration of rateable value in the light of Hindustan Lever Ltd. Vs. Municipal Corpn. of Greater Bombay (supra) as well as Pragati Builders and N.R.D.C. of India and Anr. and Haji Dawood v. Municipal Commissioner, AIR 1922 Bom. 386.

15. The question of vacancy remission is a question of fact. In a civil suit of this nature, this Court is not supposed to go into minute questions, specially relating to facts which have been considered by the assessing authority and are required to be considered in appeal.

16. However, there is one very serious objection relating to very maintainability of the suit.

17.1 Section 41(h) of the Specific Relief Act provides that "an injunction cannot be granted "when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."

17.2 It is contended that filing an appeal under Section 169 of the DMC Act does not provide equally efficacious remedy, for the tax is required to be paid immediately and it is apparent that the assessing authority is acting beyond its jurisdiction. Sections 169 and 170 of the DMC Act, if taken together, certainly provide that the tax is required to be deposited before appeal is heard.

17.3 But it is not as harsh as it has been sought to be made out, for in Shyam Kishore Vs. Municipal Corporation of Delhi, , Section 170B of the DMC Act has been interpreted to mean that in appropriate cases where the appellate Judge feels that there is some great hardship or injustice involved he may be inclined to adjourn the appeal. "There is nothing wrong in interpreting the provision as permitting the appellate authority to adjourn the hearing of the appeal thus giving time to the assessee to pay the tax or even specifically granting time or instalments to enable the assessee to deposit the disputed tax where the case merits it, so long as it does not unduly interfere with the appellate Court's calendar of hearings. His powers, however, should stop short of staying the recovery of the tax till the disposal of the appeal. It is one thing for the judge to adjourn the hearing leaving it to the assessee to pay up the tax before the adjourned date or permitting the assessee to pay up the tax, if he can, in accordance with his directions before the appeal is heard. In doing so, he does not and cannot injunct the department from recovering the tax, if they wish to do so. He is only giving a chance to the assessee to pay up the tax if he wants the appeal to be heard." Therefore, read clause (b) of Section 170 only as a bar to the hearing of the appeal and its disposal on merits and not as a bar to the entertainment of the appeal itself. However, the appellate Judge cannot take recourse to Order 41 Rule 5 CPC in view of Section 457 of the DMC Act, for Section 457 states that the procedure provided in the Code of Civil Procedure in regard to suit which is to be followed "as far it can be made applicable".

17.4 Even in Shyam Kishore Vs. Municipal Corporation of Delhi's case (supra), in order to reduce further hardship the Supreme Court suggested amendment in the DMC Act to authorise the appellate authority to exercise his discretion in such a way as to safeguard the interest of both the revenue and the assessee. But so long as the amendment is not incorporated in the statute, this Court is bound by the judgment in Shyam Kishore v. Municipal Corporation of Delhi (supra) and the remedy in appeal is efficacious one and finality is attached with the appellate order. Question of correctness of assessment apart from its constitutionality are for the decision of the assessing and appellate authorities.

17.5 Jurisdiction of a civil court arises from the provisions under Section 9 of the CPC while power of judicial review is provided under Article 226 as a constitutional remedy, and there is a distinction between the two remedies. Whatever is good for Article 226 is not always good for suit as well. Where jurisdiction is barred by special statute, it cannot be invoked merely on account of non-availability of adequate or efficacious remedy under the special statute though such ground may be available for maintaining writ petition under Article 226. Difference lies in nature of jurisdiction; one conferred by statute i.e. under Section 9 of the CPC and one conferred by Article 226. (See also Srikant Kashi Nath Vs. Corporation of City of Belgam, and Munshi Ram and Ors. Vs. Municipal Committee, Chheharta, ).

17.6 In Municipal Corpn. of Delhi Vs. C.L. Batra, , in similar circumstances, the Supreme Court took the view that where nonavailing of statutory remedy of appeal had not been explained by the assessee, the order was passed without deciding the question of maintainability, grant of interim stay was an abuse of the process of law. Besides it would paralyse the entire working of the municipal committee and render it unable to meet its financial obligation. The interim order was accordingly set aside.

18. When it is evident that efficacious relief of filing an appeal though slightly harsh is available, no suit for permanent injunction would lie in view of the provisions of Section 41(h) of the Specific Relief Act. A suit being barred by Section 41(h) of the Specific Relief Act would fall within clause (d) of Order 7 Rule 11 CPC and there is no other option left for the Court but to reject the plaint. I am dealing with these aspects since the matter has been argued on the point of maintainability of the suit at length. Though I have dealt with objections raised by the plaintiff in detail but all these objections were also open for correction by the appellate authority. Consequently, the suit for permanent injunction is barred by the provisions of Section 41(h) Specific Relief Act and the plaint has to be rejected under clause (d) of Order 7 Rule 11 CPC.

19. Consequently, IA No.11352/91 under Order 39 Rules 1 and 2 read with Section 151 CPC has to be rejected. Accordingly, IA No.11352/91 is dismissed and plaint is rejected. In the peculiar circumstances of the case, parties are left to bear their own costs.