Delhi High Court
Municipal Corporation Of Delhi & ... vs Shambhuji & Ors. on 12 January, 2018
$~4 & 5 (common order)
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th January, 2018
+ CM(M) 41/2010 and CM APPL.597/2010 (stay)
+ CM(M) 975/2010 and CM APPL.13488/2010 (stay)
MUNICIPAL CORPORATION OF DELHI & ORS.
.... Petitioners
Through: Ms. Madhu Tewatia, Advocate with
Mr. Adhirath Singh, Advocate
versus
SHAMBHUJI & ORS. ..... Respondents
Through: Respondent no.1 in person.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The first respondent admittedly is the assessee in respect of
property described as flat No.73, Amit Cooperative Group Housing
Society, Plot No.32, Sector 13, Rohini, Delhi-110085 for purposes of
assessment and levy of municipal taxes commonly known as
"property taxes". It appears that the petitioner corporation, now
represented by North Delhi Municipal Corporation (after trifurcation)
through its assessor and collector had held an inquiry and passed an
order of assessment in its regard. Such assessment was challenged by
the first respondent (the assessee), by writ petition (civil)
No.4561/2005, which was disposed of by order dated 26.04.2005
whereby the matter was remitted to the assessing authority of the
petitioner for passing a speaking order within the time specified, the
assessee having been directed to appear before the concerned joint
assessor and collector on 10.05.2005.
2. On 29.08.2005, the assessee instituted a civil suit impleading,
amongst others, the petitioners herein seeking damages in the sum of
Rs.1 lac for wrongful and malicious injuries on account of illegal
attachment of his savings bank account and having caused defamation,
harassment and torture, demanding refund of money recovered in
excess of his liability. The said civil suit (Suit No.102/09/05) may
hereinafter be referred to as "the first civil suit".
3. It is stated by the petitioners that in the wake of compliance
with the aforesaid orders of the High Court, the joint assessor and
collector (North Range) passed a fresh order of assessment on
14.10.2005 under Section 116-G of Delhi Municipal Corporation Act,
1957. It further appears that pursuant to the said assessment order,
certain further steps were taken by the concerned agency of the
petitioner corporation for recovery of the tax arrears. Against this
backdrop, the first respondent (the assessee) instituted another civil
suit on 12.04.2006 (Suit No.101/09/06) describing it again as suit for
damages and compensation for injuries of defamation, mental torture,
harassment and further malicious attempts to wrongfully attach his
properties, praying, inter alia, for reliefs of declaration to the effect
that the assessment order dated 14.10.2005 was not only illegal, but
also mala fide, having been passed in collusion and conspiracy, it
amounting to contempt of court and being in the nature of a colourable
exercise of power against the provisions of Delhi Municipal
Corporation Act, 1957, also praying for relief of permanent injunction
against any money being realized pursuant to such order and for
payment of Rs.1,05,900/- as damages and compensation with interest.
The said civil suit may be hereinafter referred to as "the second civil
suit".
4. The petitioners moved separate applications seeking rejection of
the plaints in each of the afore mentioned suits referring to the
provisions contained under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (CPC), the prime contention pressed being that the
assessment order was subject to appeal under the provisions of
Sections 169 and 170 of the Delhi Municipal Corporation Act, 1957
before the tribunal created by the statute and that the same were also
barred by the provisions contained in Sections 477 and 478 of the
Delhi Municipal Corporation Act, 1957. Both the applications were
considered by the Additional District Judge. While the application in
the first civil suit was dismissed by order dated 08.09.2009, the
application in the second suit was dismissed by order dated
13.05.2009, the said orders having been challenged in these petitions.
5. The prime question to be examined in the context of the prayer
for rejection of a plaint in each of these two suits is as to whether there
is an express or implied bar to the institution of such suits in view of
the availability of the remedy of appeal against the assessment orders
under Sections 169 and 170 of the Delhi Municipal Corporation Act,
1957. The trial Judge has rejected the contention of the petitioners
referring to the view taken by a division bench of this court in the
case reported as Ganga Ram Hospital Trust vs. Municipal
Corporation of Delhi, 2001 (60) DRJ 549. At the hearing, the counsel
for the petitioners instead primarily placed reliance on the decisions of
the Supreme Court in Dhulabhai Etc. vs. State of Madhya Pradesh &
Anr., AIR 1969 SC 78; Shiv Kumar Chadha vs. Municipal
Corporation of Delhi, 1993 (3) SCC 161 and N.D.M.C. vs. Satish
Chand (2003) 10 SCC 38.
6. The learned counsel for the petitioners fairly conceded that
unlike the provisions contained in Punjab Municipal Act, 1911 to
which the case of Satish Chand (supra) pertained, the case at hand
relates to the provisions contained in Delhi Municipal Corporation
Act, 1957, wherein there is no provision stating that the jurisdiction of
the civil court is barred in matters relating to assessment of properties
for purposes of levy of property tax. Her focus, however, was on the
fact that the latter statute makes the decision of the tribunal in appeal
under Sections 169 and 170 of the Delhi Municipal Corporation Act,
1957 final. This, in her submission, renders the civil court divested of
the jurisdiction, her argument being that there is no reason why the
appeal before the tribunal under Sections 169 and 170 of the Delhi
Municipal Corporation Act, 1957 cannot be treated as an appropriate
or more efficacious remedy.
7. In the considered view of this court, the view taken by the
division bench in Ganga Ram Hospital Trust (supra) governs the field
in the particular context of the provisions of Delhi Municipal
Corporation Act, 1957. Even if, however, it could be construed that
there is an implied bar or that it was appropriate for the first
respondent to approach the tribunal in appeal under Sections 169 and
170 of the Delhi Municipal Corporation Act, 1957, to question the
assessment, it cannot be ignored that his civil suits do not raise only
the issue of validity or otherwise of the assessment orders. They go
beyond by imputing acts of commission and omission in the nature of
harassment and torture leading to defamation and demanding damages
or compensation in their respect. Such part of relief, which is
intertwined with his case about the illegality of the assessment order,
does not concededly lie within the jurisdiction of the tribunal
established to hear the appeals under Sections 169 and 170 of the
Delhi Municipal Corporation Act, 1957. At the stage of consideration
of prayer for rejection of the plaint, the court cannot judge the merits
of the case. In these circumstances, the prayers for rejection of the
plaints have been correctly repelled by the Additional District Judge
by the orders which have been impugned before this court in these
petitions.
8. As regards the objections under Sections 477 and 478 of the
Delhi Municipal Corporation Act, 1957, it cannot be ignored that the
reliefs claimed in the second suit include that of injunction. Further, it
would be a mixed question of facts and law as to whether first civil
suit was filed within the period of limitation after service of notice or
otherwise.
9. Thus, both the petitions are dismissed. The interim orders are
vacated.
10. Pending applications also stand disposed of.
R.K.GAUBA, J.
JANUARY 12, 2018
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