Delhi High Court
Jamia Millia Islamia vs South Delhi Municipal ... on 13 August, 2015
Author: Rajiv Sahai Endlaw
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13th August, 2015
+ W.P.(C) 3694/2013 & CM No.6921/2013 (for stay)
JAMIA MILLIA ISLAMIA ..... Petitioner
Through: Mr. B.B. Sawhney, Sr. Adv. with Mr.
Amit George, Ms. Zeba Khair, Mr.
Swaroop George & Mr. Aditya
Shandliya, Advs.
Versus
SOUTH DELHI MUNICIPAL
CORPORATION & ANR. ..... Respondents
Through: Mr. Gaurang Kanth with Ms. Biji
Rajesh & Ms. Eshita Baurah, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW,J
1. The petition impugns; i) the order dated 15th April, 2013 of
assessment of property tax of the property of the petitioner University for
the years 2010-11, 2011-12 and 2012-13 pursuant to a notice dated 2nd
February, 2013 under Section 123D of the Delhi Municipal Corporation
(DMC) Act, 1957; and, ii) demand raised in pursuance thereto.
2. Notice of the petition was issued and vide order dated 29 th May, 2013,
which continues to be in force, the respondent South Delhi Municipal
WP(C) No.3694/2013 Page 1 of 7
Corporation (SDMC) was restrained from taking coercive action against the
petitioner. Counter affidavit has been filed by the respondent SDMC. The
counsels have been heard.
3. The counsel for the respondent SDMC has at the outset contended
that the writ petition is not maintainable owing to the alternative remedy
available of statutory appeal to the Municipal Taxation Tribunal (MTT).
4. The senior counsel for the petitioner University, to meet the said
objection, has contended that since a jurisdictional issue arises, the writ
petition would be maintainable. It is argued that the powers under Section
123D of the DMC Act can be invoked only on the grounds specified in
Clauses (a) to (d) thereof and not otherwise.
5. Section 123D of the DMC Act was invoked by the respondent SDMC
stating that the petitioner University in the self-assessment for the said three
years had paid the tax at the rate of 10% for commercial and at the rate of
7% for residential portion of the property, while the rate of tax applicable as
per Notification dated 13th April, 2010 was 15% for commercial and 11%
for residential portion of the property.
6. Attention of the senior counsel for the petitioner University has been
invited to Clauses (b) and (c) of Section 123D of the DMC Act which
WP(C) No.3694/2013 Page 2 of 7
empower the Commissioner of the Municipality, to at any time, revise any
assessment where the information furnished in the return of self-assessment
is found to be incorrect and to reopen any assessment where it has been
detected that there is a wilful suppression of information; similarly Clause
(d) empowers imposition of penalty not exceeding 30% for giving wrong
information or upon wilful suppression of facts being indulged in. It has
been enquired from the senior counsel for the petitioner University, whether
not the aforesaid stand of the respondent SDMC, if correct, amounts to self-
assessment by the petitioner University being incorrect and / or the
petitioner University indulging in wilful suppression.
7. The senior counsel for the petitioner University contends that since
the website of the respondent SDMC admittedly was prescribing the same
rates of taxation as prevalent in earlier years, till the self-assessment of
2012-13, the petitioner University cannot be found fault with.
8. The counsel for the respondent SDMC on the other hand has invited
attention to a public notice issued on 13th April, 2010 published in the
prominent newspapers of the city, giving the revised rates of tax.
9. In my view, error in assumption of jurisdiction should not be confused
with mistake, legal or factual, in exercise of jurisdiction, as held in Smt.
WP(C) No.3694/2013 Page 3 of 7
Shrisht Dhawan Vs. M/s Shaw Brothers (1992) 1 SCC 534 followed by
Division Bench of this Court in Dr. Yashwant Singh Vs. Indian Bank
MANU/DE/1628/2015. Following the same, the error, even if any of the
SDMC, in invoking Section 123D, cannot be said to be suffering from
jurisdictional aspect for the remedy of writ to be available.
10. The senior counsel for the petitioner University has then drawn
attention to the last order dated 7th April, 2015 in this petition and contended
that the notification recording the revised rates has not been placed on
record.
11. Section 109 read with Section 114D of the DMC Act only require the
Municipality to specify the rate of taxes from time to time and nowhere
require the same to be notified. It thus cannot be said that without
notification, the new rate cannot come into force.
12. Else, the effect if any of the website of the respondent SDMC
continuing to show the old rates and the petitioner University having made
the self-assessment on the basis thereof and it thus being not open to the
respondent SDMC to contend that the petitioner is guilty of suppression or
has furnished any incorrect information is to be adjudged in the fora
statutorily prescribed therefor and is no ground for holding a writ petition to
WP(C) No.3694/2013 Page 4 of 7
be maintainable.
13. The senior counsel for the petitioner University has then contended
that since the petitioner is a University, it should not be compelled to go in
appeal and which would entail compliance with Section 170(b) of the DMC
Act. The writ petition is sought to be maintained on the said basis.
14. I am afraid, the same cannot be a ground for entertaining a writ
petition. If the same were to be permitted, then all concerned, instead of
preferring the appeals and complying with Section 170(b) of the DMC Act,
would be preferring the writ petition making the MTT constituted to hear the
said appeals, redundant. If the petitioner University has any difficulty in
complying with Section 170(b) of the DMC Act, a case therefor can be
made out and pleaded before the MTT.
15. The senior counsel for the petitioner has next sought to peg his case
on the order dated 13th April, 2015 of this Court in W.P.(C) No.187/2014
titled National Law University, Delhi Vs. South Delhi Municipal
Corporation and contended that vis-a-vis another university, the writ
petition was entertained and the matter remanded.
16. However a perusal of the said order shows that the controversy there,
was of the property being of the Government and being exempt from
WP(C) No.3694/2013 Page 5 of 7
taxation under Section 119 of the DMC Act. That is not the case pleaded, at
least in this petition, though the senior counsel for the petitioner states that
the matter should be examined from the said aspect also.
17. The counsel for the respondent SDMC has per contra relied on
Municipal Corporation of Delhi Vs. Tata Engineering & Locomotive
Company Ltd. 128 (2006) DLT 300 where the Division Bench of this Court
held the writ remedy, in the matter of property tax, to be not available owing
to the alternative remedy available of appeal.
18. The senior counsel for the petitioner University next contended that
even as per the 2010 rates, the petitioner University would fall under the
residential and non-residential category and not under the Government
Company and Statutory Corporation category, on which basis the order has
been passed.
19. This is a matter for determination in appeal and a writ cannot be said
to be maintainable for this reason as well.
20. The petition is therefore held to be not maintainable.
21. However since notice was issued and the petition has remained
pending in this Court for nearly two years, it is ordered that subject to the
petitioner preferring an appeal/s, on or before 15th September, 2015, the
WP(C) No.3694/2013 Page 6 of 7
same shall be entertained on its/their merits, without considering the bar of
limitation.
22. The interim order in this writ petition shall continue till 15 th
September, 2015.
Dasti under signature of Court Master.
RAJIV SAHAI ENDLAW, J.
AUGUST 13, 2015
'gsr'..
