Delhi High Court
M/S Roots Corporation Limited vs North Delhi Municipal ... on 23 May, 2017
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 23rd May, 2017
+ W.P.(C) 11352/2016 & CM Nos.44519/2016, 44521/2016,
4225/2017, 19133/2017
M/S ROOTS CORPORATION LIMITED ..... Petitioner
Through: Mr.Vikas Dhawan,
Mr.Satyabrata Panda &
Mr.Sambit Nanda, Advocates
Versus
NORTH DELHI MUNICIPAL CORORATION
& ORS. ..... Respondents
Through: Ms.Madhu Tewatia,
Mr. Adhirath Singh & Mr.Sachin
Saini, Advocates for Respondent
No.1
Mr.Jitendra Kumar Singh,
Advocate for Respondent No.2
Mr.Rajat Malhotra, Advocate for
Respondent No.3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% ORAL
Impugned order of 23rd November, 2016 in proceedings under the
Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the
W.P.(C) 11352/2016 Page 1
DMC Act, 1957) is an assessment order against which statutory appeal
lies to Municipal Taxation Tribunal by virtue of Section 169 of the DMC
Act, 1957.
The first respondent-North Delhi Municipal Corporation
(hereinafter referred to as the North DMC) raises plea of alternate remedy
to dissuade this Court from entertaining this petition. Although vide
order of 13th April 2017 respondents were given liberty to file the counter
affidavit to this petition and this case to come up for 6 th July, 2017, but
learned counsel for the parties on petitioner's application for interim
relief, have chosen to address this Court on the question of
maintainability of this petition. So the date fixed i.e. 6 th July, 2016 stands
cancelled and both the sides have been heard on the question of
maintainability of this writ petition.
At the outset, learned counsel for petitioner draws the attention of
this Court to impugned order to point out that ownership of subject
property remains with Indian Railways who had licensed it to Indian
Railway Catering and Tourism Corporation (IRCTC), who in turn, had
sub-licensed it to petitioner in relation to essential services like food etc.
Petitioner's counsel submits that Memorandum of Understanding of the
year 2009-10 between IRCTC and petitioner has been misconstrued by
the authorities concerned to hold that the subject property i.e. Yatri Niwas
is excluded from the definition of Union Properties under Section 119 of
DMC Act, 1957. Learned counsel for petitioner places reliance upon
Supreme Court's decision in Harbanslal Sahnia & Anr. Vs. Indian Oil
Corporation Ltd. & Anr. (2003) 2 SCC 107 to submit that despite
W.P.(C) 11352/2016 Page 2
availability of alternate remedy, discretion under the writ jurisdiction is to
be exercised where enforcement of fundamental rights is sought or where
there is violation of principle of natural justice or where the orders
impugned are without jurisdiction. Reliance is also placed upon a
decision of Supreme Court in Municipal Corporation of Delhi vs.
Shashnak Steel Industries Private Ltd. (2009) 2 SCC 349 and upon a
decision of Division Bench of this Court in Techspan India P.Ltd. & Anr.
Vs. Income-Tax Officer, 2006 SCC OnLine Del 1754 to submit that the
clause in sub-lease to pay taxes etc. is a matter of indemnification and
would not justify imposition of tax. So, it is submitted by petitioner's
counsel that impugned order is wholly without jurisdiction and hence this
writ petition against the impugned order ought to be entertained.
On the other hand, learned counsel for the first respondent supports
the impugned order and maintains that petitioner ought to be relegated to
avail the alternate remedy as the Memorandum of Understanding of the
year 2009-10 has rightly been relied upon by the authorities concerned. It
is pointed out that Supreme Court in Commissioner of Income Tax & Ors.
Vs. Chhabil Dass Agarwal (2014) 1 SCC 603 has categorically dealt with
this aspect of alternate remedy and has concluded that when complete
machinery for assessment or re-assessment of tax is provided then
jurisdiction under Article 226 of the Constitution of India ought not to be
invoked. Attention of this Court is drawn by counsel for first respondent
to decisions in Assistant Collector of Central Excise, Chandan Nagar,
West Bengal vs. Dunlop India Ltd.& Ors. (1985) 1 SCC 260, Municipal
Corporation of Delhi vs. C.L.Batra (1994) 5 SCC 355, Municipal
W.P.(C) 11352/2016 Page 3
Corporation of Delhi & Anr. Vs. TATA Engineering & Locomotive Co.
Ltd. 128 (2006) DLT 300 (DB) and Pradeep Oil Corporation vs.
Municipal Corporation of Delhi & Anr. 2011 VI AD (S.C.) 330 to submit
that in tax matters writ petitions are not to be entertained as alternate
remedies are available to file an appeal against the impugned order.
Nothing else is urged by either side.
Upon hearing and on perusal of impugned order, material on record
and the decisions cited, I find that Supreme Court in Ankur Filling Station
vs. Hindustan Petroleum Corporation Ltd. & Anr. (2011) 12 SCC 749 has
considered the scope of judicial review in particular reference to
exhaustion of alternate remedy and has referred the matter to Larger
Bench in view of the conflicting views on this aspect. However, Supreme
Court in its later decision in Chhabil Dass Agarwal's case (supra), in a
matter of tax liability has categorically ruled that where the Act provides
complete machinery then the remedy available under the Act ought to be
availed in tax matters and the parties ought to be relegated to avail of
alternate remedy and resort to Article 226 of the Constitution of India
ought not to be permitted.
In light of the afore-referred legal position and the facts of instant
case, this Court is of considered view that instant case is not of
infringement of fundamental rights or of violation of natural justice and it
cannot be said that the impugned order is wholly without jurisdiction. In
such a situation, it is deemed appropriate to relegate petitioner to avail
alternate remedy by way of filing an appeal against the impugned order
before the Municipal Tax Tribunal.
W.P.(C) 11352/2016 Page 4
This petition and accompanying applications are disposed of with
abovesaid observations, while not commenting upon the merits of this
case, lest it may prejudice either side before the Tribunal.
(SUNIL GAUR)
JUDGE
MAY 23, 2017
skb
W.P.(C) 11352/2016 Page 5
