Ravi Kamal Meattle And Ors. vs New Delhi Municipal Council
2002 Latest Caselaw 18 Del

JUDGMENT

Manmohan Sarin, J.

1. By this common judgment the above three writ petitions are being disposed, as the parties, the premises and the questions arising, though relating to determination of rateable value for different assessment years, are common.

2. Petitioners are Mr. Ravi Kamal Meattle, his brother, son and nephews. By writ petition No. 3218/98, petitioners sought quashing of the impugned notice dated 17.2.1995 as well as the assessment order bearing No. 589/97 dated 25.2.1997, by which the rateable value of premises No. 1, Aurangzeb Lane, New Delhi was determined at Rs. 12,42,000/- less 10% on the basis of market rent for the years 1994-95 and 1995-96. The petitioners also sought quashing of demand notice dated 11.3.1998 No. 3883 by which a sum of Rs. 6,33,226/- including the arrears of Rs. 4,65,551/- were demanded. The said writ peti- tion had come up for admission on 15.7.1998, when counsel sought time to produce on record the orders passed in LPA. 158/97 titled Ravi Kamal Meattle and Ors. v. N.D.M.C. filed by the petitioners. In the event, on 12.8.1998, noting the submission of the petitioners' counsel that notice had been issued in LPA No. 158/97 and recov- ery had been stayed, notice to show cause was issued in the writ petition as also in the stay application bearing CM No. 7099/98, respondents were directed not to take any steps in pursuance to the impugned notice dated 11.3.1998. Interim orders were continued. The petitioner, also preferred CW No. 3318/98, in which also the im- pugned notice dated 17.2.1995 was assailed as also the assessment order dated 25.2.1997. Prayer was also made for quashing the demand raised on the basis of the impugned assessment order dated 25.2.1997 for the year 1998-99. Quashing of demand notice No. 14631 dated 15.1.1999 was also sought. The demand notice was issued demanding payment of Rs. 1,67,680/- for the year 1.4.1998 to 31.3.1999 after excluding the amount, recovery of which had been stayed. Notice to show cause in this writ petition was also directed to be issued on 6.7.1999. Petitioners were asked to deposit the admitted amount with no coercive steps to be taken by the respondent for recovery of the dis- puted amount.

3. Petitioners also preferred writ petition No. 1782/2000, in which again the notice dated 17.2.1995, assessment order dated 25.2.1997 and the demand raised on the basis of the said assess- ment order as well as quashing of the demand notice bearing No. 9531 dated 19.11.1999 requiring payment of Rs. 3,91,245/- which included the ar- rears up to the year ending 31.3.2000, after ex- cluding the amount of Rs. 6,33,221/- recovery of which had been stayed in the earlier writ epti- tions, were required to be paid. The court issued notice in the writ petition on 10.5.2000, as an interim direction petitioners were required to deposit 30% of the demanded amount as issued vide bill dated 19.11.1999 without prejudice to the rights and contentions of the parties.

4. All the writ petitions were taken up together or hearing.

5. Learned counsel for the parties were heard. Synopsis of submissions has been filed. Case set up by the petitioners is that the proper- ty No. 1, Aurangzeb Lane, New Delhi had been con- structed prior to the year 1939 and had been let out at a rental of Rs. 280/- p.m., which had been fixed under the provisions of the New Delhi House Rent Control Order 1939. The said rent was ac- cepted by the Income Tax authorities for the purposes of assessing income from house property from 1956-57 to 1962-63. The mother of the peti- tioners Smt. Shanti Devi, had rented the property to Japan Embassy at a rent of Rs. 1000/- p.m. Petitioners's case is that thereafter the property had been rented out to one Mr. J. Coffrant at a monthly rent of Rs. 2100/- which was enhanced by the agreement dated 17.12.1993 to Rs. 5000/- p.m. It is also claimed that the said tenant had agreed to vacate the premises. Respondents vide its notice dated 17.2.1995, sought to amend the as- sessment list for the year 1994-95 and 1995-96 with the proposed value fo Rs. 12,42,000/- less 10% as against the previous rateable value of Rs. 24,872/-. The objections filed by the peti- tioners were rejected and vide the impuged as- sessment order the rateable value was determined at Rs. 12,42,000/-. Objections were over-ruled. By the impugned order respondents did not accept the rent declared by the assessed considering that the property was a huge bungalow and the lease submitted was not a registered one. Further com- parable property No. 11A, Prithviraj Road, New Delhi, which is in the vicinity was found to be fetching a monthly rent of Rs. 1,03,500/-. The NDMC found the rent disclosed in the lease deed not tallying with the prevalent rent in the area and taking note of the fact that the tenancy had continued and property had not even been vacated, after June 1995 as claimed by the petitioners, over ruled the objections and confirmed the as- sessment of rateable value at Rs. 12,42,000/-. Learned counsel for the petitioners in the writ petitions has sought to assail the impugned order on the ground that standard rent had been fixed at Rs. 3,360/- p.a. and the respondent had no right or authority to determine the rent higher than the standard rent fixed by the court. Reliance was also sought to be placed on the judgment it. M.N. Soi v. NDMC reported at 2nd 1975(ii) Delhi

765. Notice dated 17.2.1995 was sought to be assailed as nonest on the ground that NDMC was constituted on 10.11.1995 on which date the NDMC Act came into force. Assessment list for the year 1995-96 had been issued under Section 72 for notice could have been issued under Section 72 for the year 1994-95, as the same was governed by Punjab Municipal Act. It is not necessary to delve or go any further into the merits of the submissions of the learned counsel for the peti- tioner, in view of the developments and events as noticed hereinafter.

6. The petitioners had preferred CW No. 2184/97 assailing the impugned assessment order. Said writ petition was dismissed by a learned Single Judge of this court on account of alternate remedy being available to the petition- er. Petitioners as noted earlier had filed LPA No. 157/97 titled Ravi Kamal Meattle and Ors. v. New Delhi Municipal Council. Notice in the said LPA was issued and recovery stayed, based on which, as noted earlier, notice and stay fo the disputed amount was also ordered in CW No.3218/98. Learned counsel for the respondent has raised objections on the maintainability of the present writ peti- tions. It is claimed that for assailing the assessments made for the year 1994-95 and 1995-96, petitioners had filed the writ petition bearing CW No. 2184/97 which was dismissed. Learned counsel for the respondent contends that considering the dismissal of CW No. 2184/97 and the order passed in LPA No. 158/97 the present writ petitions would not be maintainable. The operative part of the order passed in CW No. 158/97 is reproduced for facility of reference:-

"After arguing for a while L/C for appellant Mr. R.P. Sharma prayed for withdrawal of this appeal if appellant was granted liberty to file Appeal before the statutory forum and if time taken in prosecuting his writ petition and Appeal was not taken in account for limitation purposes.

Mr. Arvind Sah L/C for respondent submit- ted that no limitation plea would be pressed into service against appellant provided he satisfied other requirements for filing such Appeal.

This appeal is accordingly dismissed as withdrawn with liberty prayed for granted to appellant who may file an Appeal before appropriate forum within 30 days from today and in that case no plea of limitation be taken against him and recovery sought till Appellate Forum considers his interim stay application if any filed."

7. Learned counsel for the respondent as regards objection as to the validity of notice dated 17.2.1995 urged that the Chairman of the council had been appointed as a special Officer on 7.7.1994 with powers to delegate. The delegation was made on 15.5.1994. The Chairman, it is stated was empowered to exercise all the powers of the council by virtue of Section 418 and it was not of any consequence that the New Delhi Municipal Council was constituted subsequently as there was a specific provision enabling the Special officer to exercise all the powers. Learned counsel for the respondent submits that after hearing the counsels for both the parties, the Division Bench was of the view that the impugned notice was valid and therefore inclined to dismiss the appeal. It is at that stage that the counsel for the peti- tioners sought permission for withdrawal fo the appeal with liberty to file a regular appeal before the Appellate Authority. The petitioners further prayed that the objection as to limitation should not be pressed by the respondents as other- wise the appeal would be barred by limitation. The respondent gave its consent for the said concession and the Division Bench accordingly disposed of the appeal on the terms noticed above.

8. Learned counsel for the respondent therefore relying on the order passed by the Division Bench in LPA No. 158/97 noted above submits that assessments for the subsequent years, which are the subject matter of the aforesaid writ petitions has been done by simply adopting the rateable value as determined by the assessment order dated 9.9.1996. The petitioners having themselves agreed to file appeals after dismissal of their writ petition No. 2184/97 and withdrawal of LPA No. 158/97 cannot now be permitted to invoke the extraordinary writ jurisdiction for the subse- quent years by assailing the same by way fo these writ petitions and not availing of the appellate remedy. Learned counsel argued that it would be only proper if the challenge to the subsequent assessment orders and proceedings are also decided by the Appellant Authority. Learned counsel for the respondent also contended that there was no case made out for infringement of fundamental rights. The assessment has been made on the basis of comparable rent since the rent disclosed by the petitioner was artificially depressed in as much as Rs. 5000/- p.m. was disclosed for property at Aurangzeb Lane, whereas a neighbouring property bearing No. 11A, Prithviraj Road was fetching a rent of Rs. 1,03,500/- p.m. In such circumstances he contended that respondent was justified in assessing the property on comparable rent basis. It was therefore urged that this court should desist from exercising and entertaining the writ petitions in the exercise of writ jurisdiction. The petitioners having withdrawn the challenge to the base assessment year by way of writ petition and the appeal thereto and having agreed to chal- lenge the same before the Appellate Authority cannot be permitted to adopt a different approach in respect of subsequent assessments. Learned counsel for the respondent also relied on Gujrat Agro Industries Company Ltd. v. Municipal Corpo- ration of City of Ahmedabad and Ors. reported at JT 1999 (3) 259, wherein the court rejected the argument that simply because the onerous condi- tion for deposit of tax was there, the right to appeal has become illusory.

9. Learned counsel Mr. R.P. Sharma in re- sponse to the objections of the respondent on maintainability of the petitions urged that each assessment year was a separate and independent one and there would be no bar or estoppel on the peti- tioner assailing the assessment orders for subse- quent years in writ petitions. He submitted that effect of withdrawal of an earlier writ petition cannot operate as estoppel or bar to the maintain- ability of writ petitions challenging the assess- ment for subsequent years so long as the assess- ments were vitiated by lack of jurisdiction and were against settled law. He sought to draw support from M.N. Soi v. NDMC reported at ILR 1975(ii) Delhi 765 para 3. to urge that even if the assessed had omitted to rely on the order of a Rent Controller fixing the standard rent in one assessment year, the same did not preclude from questioning the assessment for subsequent years on the same ground. Learned counsel also sought to justify his plea with regard to invalidity of the notice of February 1995, revising the assessment list as being nonest. Learned counsel for the respondent also sought to place reliance on a decision of the Division Bench of this court in S.P. Aggarwal v. NDMC LPA No. 11/1997. The Division Bench of this court by relying on a larger bench decision of the Supreme Court in Himmat Lal Hari Lal Mehta v. State of Madhya Pradesh reported at 1954 SCR 1122 held that the appellate remedy was onerous. The Division Bench notwithstanding the judgment of the Supreme Court in Shyam Kishore v. M.C.D. reported at . quashed the assessment and remanded the case. Learned counsel for the petitioner therefore submitted that the petitioners' writ petition should be entertained.

10. I have given my thoughtful consideration to the submissions urged. It is true that the exhaustion of the alternate remedy is not an absolute requirement, prior to the entertainment of the writ petition. It is also correct that while a Division Bench of this court relying on Himmat Lal's case (Supra) entertained the writ petition, notwithstanding the existence of an alternate remedy. However in S.P. Aggarwal's case the court had clearly come to the conclusion that the rateable value of the premises had to be determined under Section 6(1)(B)(2B) of the Rent Control Act and not under Chapter V of the said Act which had no application. Thus the court finding it to be a case of lack of jurisdiction and a jurisdictional error has remanded the case for fresh assessment relying on Himmat Lal's case where again the relevant sales tax provision had been declared ultra vires and imposition of tax without authority of law.

11. The present cases are on a different footing altogether. Learned counsel for the respondent rightly contended that the petitioners had challenged the determination of the rateable value for the base years 1994-95, 1995-96 vide writ petition bearing CW No. 2184/97. While the assessment for the subsequent years i.e. 1997-98, subject matter of CW No. 3218/98, 1998-99 subject matter of CW No. 3318/99 and 1999-2000 subject matter of CW No. 1782/2000 has been done on the basis of the previous assessment order subject matter of challenge in CW No. 2184/97.

12. The challenge had been made on all admissible grounds including the ground relating to the validity of the notice of February 1995. The petitioners failed in the writ petition and in LPA as noticed earlier, withdrew the challenge and accepted to take resort to the normal appellate remedy.

13. The question to be considered here is that the petitioners having agreed to invoke the appellate remedy and having obtained a concession also from the respondents of not raising the bar of limitation, should they be permitted for the subsequent years, where the challenge is on the same grounds, to avail of the remedy of extraor- dinary writ jurisdiction, on the ground that there is no estoppel or statutory bar and each assess- ment year can be separately challenged. The answer to this has to be in the negative. In such circumstances, the court would not exercise the extraordinary writ jurisdiction and will require the petitioners to avail of the normal appellate remedy which he is already availing in respect of the base year. There is also merit in the submis- sion of the counsel for the respondent that the appellate authority must be left free to decide the appeal on merits without in any manner being influenced by the entertainment of the challenge to the subsequent year in writ jurisdiction and the possibility of arriving at a different find- ing. Moreover, without expressing any opinion on merits of the matter, the petitioners have also not made out a prima facie case of lack of juris- diction. Besides the petitioners are aggrieved by the respondent authority not accepting the rent declared by the petitioners apart from their legal pleas of respondents not being authorized to determine the annual value on the basis of rent higher than the standard rent earlier determined. The dispute with regard to the rent being fetched by the property would essentially be a disputed question of fact which can more appropriately be taken up and decided before the Appellant Authori- ty. The other legal pleas raised can also be conveniently taken before the Appellant Authority. The writ petitions are held to be not maintainable and are liable to be dismissed and are dismissed. Following the order as passed by the Division Bench in LPA No. 158/97, the petitioners may prefer appeals within 30 days from today. If the appeals are so filed the respondents would not raise limitation as objection. With a view to subserve the ends of justice it is directed that the appeal as preferred by the petitioners against the as- sessment order for the base year if pending be disposed of expeditiously and within a period of 3 months from today.