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1995 DIGILAW 956 (DEL)

VISHVANATH KHANNA v. NDMC

1995-12-11

LOKESHWAR PRASAD, R.C.LAHOTI

body1995
LOKESHWAR PRASAD ( 1 ) THE above mentioned writ petitions, filed by the petitioners, under Article 226 of the Constitution of India, raise a common question of law as to whether in respect of a bill, raised by the New Delhi Municipal Committee (hereinafter referred to as the NDMC) under Section 80 of the Punjab Municipal Act, 1911, as extended to the Union Territory of Delhi (hereinafter referred to as the Act), demanding payment of tax, payable under the Act, in respect of property, an appeal under Section 84 of the Act is maintainable before the concerned Appellate Authority? ( 2 ) THE facts, relevant for the disposal of the above mentioned writ petitions, broadly speaking, are common and the same lie in a narrow compass. All the petitioners after the receipt ofbill (s) for payment of property tax from the NDMC filed appeal (s) before the concerned competent authority under Section 84 of the Act. ( 4 ) THE Additional District Magistrate, New Delhi, the authority competent under Section 84 of the Act, vide common order dated 19th May, 1994, passed in case No. 544/94 - Mrs. Mohini Chowdhary and others Vs. New Delhi Municipal committee, dismissed all the appeals inter alia holding that there was no provision in the Act to file an appeal against the bill. ( 5 ) FEELING aggrieved, some of the appellants have filed the above mentioned writ petitions before this Court assailing the above said order, passed by the Appellate Authority, under Section 84 of the Act. ( 6 ) NOTICES of the petitions were issued to the respondents. The respondent NDMC entered appearance through its duly authorised counsel. ( 7 ) WE have heard the learned counsel of the parties at length and have also carefully gone through the material/documents on record. ( 8 ) AS already stated the short question requiring consideration is whether against the impugned bill (s) appeal under Section 84 of the Act is maintainable ? The learned Appellate Authority vide impugned order held the same to be not maintainable. ( 8 ) AS already stated the short question requiring consideration is whether against the impugned bill (s) appeal under Section 84 of the Act is maintainable ? The learned Appellate Authority vide impugned order held the same to be not maintainable. The operative porti of the impugned order which is relevant for resolving the present controversy runs as under- "after going through the language of the provisions of the above referred sections, I am of the opinion mat as per section 85 of the Punjab Municipal Act, appeal can only be preferred against the assessment and not against the bill as envisaged under the DMC Act. Hence the judgment cited on behalf ofthe appellant titled Radhu Place Vs. MCD has only dealt with the provisions ofthe DMC Act and have not considered the provision of P. M. Act and thus the said decision is not binding being per incuriam. Even otherwise admittedly in the instant appeal the assessment order has been passed and prior to it the appellant was served the required notice under the P. M. Act and the same was respondent by the appellant by filing the objections which were considered by the respondents and hence the plea ofthe appellant that he was not served with the notice and neither he was provided opportunity of being heard not he was aware ofthe passing ofthe resolution is not sustainable in the eyes of law. The contention ofthe counsel for appellant that the appeal can also be filed against the bill as provided U/s 80 (1) and 85 ofthe P. M. Act is also not tenable. I have perused the Section 80 of the P. M. Act. This section deals with the recovery of taxes payable, the contention of the counsel for appellant the bill itself gives a fresh cause of action is not tenable. The bill can only be raised if there is any assessment of tax. Serving of the bill is the second event. It is a well known fact that assessment of house tax in respect of every property has been finalised by the committee by first April of even year. Here a plea can be raised that court should take liberal approach, however any liberal approach should not be at the cost of the system and the provisions contained in the statute book. Here a plea can be raised that court should take liberal approach, however any liberal approach should not be at the cost of the system and the provisions contained in the statute book. However, in the case under consideration there is nothing on the record which would justify a liberal approach. In result, I dismiss the present appeal and all appeals mentioned in the enclosed list in which the facts and arguments are very much similar. " ( 9 ) CHAPTER V of the Act deals with Taxation and the said Chapter of the Act provides a self- contained and complete procedure relating to the manner of the imposition, levy and collection of taxes and also the provision relating to filing of appeals by the aggrieved parties. Section 84, occurring in the said Chapter, providing for appeals, reads as under: - "appeals against Taxation - (1) An appeal against the assessment or levy of any or against the refusal to refund any tax under this Act shall lie to the Deputy Commissioner or to such other officer as may be empowered by the (State) Government in this behalf: Provided that, when the (Deputy Commissioner) or such other officer as aforesaid is, or was when the tax was imposed a member of the committee, the appeal shall lie to the (State) Government (2) If on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises on which the officer hearing the appeal entertains personable doubt, he may either of his own motion or on the application of any person interested draw up a statement of the facts of the case and the point on which doubt, is entertained, and refer the statement with his own opinion on the point for the decision of the (High Court.) (3) On a reference being made under sub-section (2), the subsequent proceedings in this case shall be as nearly as may be, in conformity with the rules relating to references to the High Court contained in Section 113 and order XLVI of the Code of Civil Procedure. (4)In every appeal the costs shall be in the discretion of the officer deciding the appeal. (5) Costs awarded under this Section to the Committee shall be recoverable by the committee as thought they were arrears of a tax due form the appellant. (4)In every appeal the costs shall be in the discretion of the officer deciding the appeal. (5) Costs awarded under this Section to the Committee shall be recoverable by the committee as thought they were arrears of a tax due form the appellant. (6) If the committee fail to pay any costs awarded to an appellant within ten days after the date of the order for payment thereof, the officer awarding the costs may order the person having the custody of the balance of the municipal fund to pay the amount. " ( 10 ) IN our opinion the expression Levy occurring in sub-section (2) of Section 84 of the Act is wide enough to cover an appeal, filed merely receipt of the bill requiring the payment of tax within its ambit and scope. In our above views we stand fortified by a decision of the Supreme Court in case Assistant Collector of Central Excise, Calcutta Vs. National Tobacco Company of India Ltd. Reported as AIR 1972 SC - 256. Moreover, while interpreting the provisions of any statute. We have to see Legislative intent. Had the framers of the statute (Act) intended, as interpreted by the learned Appellate Authority in the impugned order, in that event Legislature while enacting the statute would have used the word assessment only in the above said provision of sub-section (1) of Section 84 of the Act. The use of the words assessment or Levy in the above said provision by the Legislature is indicative of the intention of the framers of the statute that by incorporating the word Levy in the above said provision by of Section 84 of the Act they clearly intended to bring such appeals also within the sweep of the above said provision of the Act. ( 11 ) IT is true that ordinarily the bill is to be preceded by an order of assessment but it may have been that person may not have received an order of assessment or it may be that an order of assessment is not passed where Rateavable Value is being maintained and only a bill is sent. We have not gone into the question whether the latter procedure, which may be adopted, is correct or not. We have not gone into the question whether the latter procedure, which may be adopted, is correct or not. What we want to emphasis is that if the tax payer has a genuine grievance against the bill which has been received by him (as in the present cases) then the bill has to be regarded as levy of tax, appealable under Section 84 of the Act. If this not so, great prejudice can be caused to the tax payers. As for example, there may be cases where the bill. so received by the tax payer, may be in excess of the assessment and if we accept the interpretation of the learned Appellate Authority then in such an eventuality the tax payer has no efficacious remedy under the provision of the Act, which is unthinkable more particularly keeping in view the Legislative intent as explained above. ( 12 ) IN our opinion the bill gives an independent cause of action to the petitioner to file an appeal under Section 84 of the Act. Same view has en taken bv a Division Bench of this Court in case Radhu Plate Vs. MCD reported as 49 (1993) DLT 14. ( 13 ) FROM a perusal of the impugned order it is apparent that the learned Appellate Authority has. held that as the decision in the case of Radhu Place (supra) was with reference to the provisions of the Delhi Municipal Corporation Act, 195 7, the same has no application to the facts and circumstances ofthe present cases which are underthe the provision of the Punjab Municipal Act, 1911. In our opinion the above view, so taken by the learned Appellate Authority. is not a correct view. No doubt the Division bench decision of this Court in the case of Radhu Place (Supra) related to the provisions of the Delhi Municipal Corporation Act, 1957. but it cannot be stated that the said decision has no relevance wiith the present cases which are under the Punjab Municipal Act. 1911. Just as under the Punjab Municipal Act. 1911. the right to file an appeal is contained in Section 84 of the Act. the same right under the Delhi Municipal Corporation Act. 1957 is governed by the provisions of section 169 of the above said Act. On a careful reading of both the provisions, as contained in Section 84 ofthe Punjab Municipal Act. 1911. the right to file an appeal is contained in Section 84 of the Act. the same right under the Delhi Municipal Corporation Act. 1957 is governed by the provisions of section 169 of the above said Act. On a careful reading of both the provisions, as contained in Section 84 ofthe Punjab Municipal Act. 1911 as extended to the Union Territory of Delhi and as contained in Section 169 of the Delhi Municipal corporation Act. 1957, it is apparent that they are almost identical on all material aspects more particularly to the filing of appeals relating to assessment or Levy of property tax either under the Punjab Municipal Act. 1911 or under the Delhi Municipal Act, 1957. In other words, the above provisions both the statute are pari-materia, if not, in letter then decidedly in spirit. The Supreme Court in case Dewan Daulat Ram Kapoor etc. Vs. NDMC and another reported as AIR 1980 SC 541 while dealing with the question of assessment of annual value for the purpose of Levy of house tax. under the provisions of the Punjab Municipal At, 1911 and the Delhi Municipal Corporation Act, 1957 has also taken the same view. ( 14 ) THUS in our opinion, the view taken by the learned Appellate Authority in the impugned order is not sustainable in the eyes of law. According to us such an appeal, filed against the bill also in maintainable under Section 84 of the Act. ( 15 ) SECTION 85 of the Act prescribes the period within which such an appeal can be filed and the same provides:- "limitation of appeal - (1) No appeal shall lie in respect of a tax on any land or building unless it is prescribed by section 66 or section 68 or after the date of any final order section 61, as the case may be and no appeal shall he in respect of any other tax unless it is preferred within one month from the time when the demand for the tax is made: Provided that an appeal may be admitted after the expiration of the period prescribed therefore by this section if the appellant satisfied the officer before whom the appeal is preferred that he had sufficient cause for not presenting the appeal within that period. (2) No appeal shall be entertained unless the appellant has paid an municipal taxes due from him to the committee upto the date of such appeal". ( 15 ) AS already held by us, Levy of tax may be by pending a bill requiring the payment of tax and in terms of the provisions of Section 85 of the Act as quoted above, in our opinion such an appeal can be filed within one month of the receipt of the bill i. e. the demand for the tax is made. ( 16 ) IT is well settled that so long as an efficacious alternate remedy is available, the person aggrieved should be left to pursue that remedy and should not be permitted to invoke writ jurisdiction of the High Court by-passing such remedy. This is not a rule of law but a rule of discretion and a well established rule of practice governing writ jurisdiction of High Courts. It will be a sound exercise of discretion to follow the above said rule though in appropriate case the High Court may be inclined to exercise its writ jurisdiction in spite of the availability of an alternate efficacious remedy. In Union of India Vs. T. R. Verma AIR 1957 SC 882 , their Lordships have laid down the law in the following terms :- "it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; buy the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226. unless there are good grounds therefore. " ( 16 ) IN the context of property tax matters under DMC Act. their Lordships have laid down the law in Shyam Kishore Vs. MOD, AIR 1993 SC 2279 (vide para 42) as under: "the resort to Articles 26 and 227 should be discouraged when there is an alternative remedy. unless there are good grounds therefore. " ( 16 ) IN the context of property tax matters under DMC Act. their Lordships have laid down the law in Shyam Kishore Vs. MOD, AIR 1993 SC 2279 (vide para 42) as under: "the resort to Articles 26 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the statute itself ( 17 ) IN Tansingh Nathmal Vs. A. Muzid Supdt. of taxes AIR 1969 SC 1419. their Lordships have observed - the jurisdiction of the High Court under Article 226 of the Constitution is couched i wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the Jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it w ill ordinarily be exercised subject to certain self imposed limitations. . . Where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 ofthe Constitution, the machinery created under the statute to be by-passed, and w ill leave the party apply ing to it to seek resort to the machinery so set up. " ( 18 ) THE law, so laid down. very recently the Supreme Court has reiterated in State of U. P. Vs. Labh Chand, AIR 1994 SC 744 as under:- "when a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 ofthe Constitution is a legal position which is too well settled. " ( 19 ) THE legislature, as already stated, expressly, provided for the remedy of appeal and by conferring appellant jurisdiction provided for an efficacious remedy and the person aggrieved should be left to pursue that remedy and the High Court normally would not permit entertaining a petition under Article 226 ofthe Constitution of India being extraordinary jurisdiction ofthe High Court. ( 20 ) BEFORE concluding, we would like to make it clear that qua the determination ofthe Rateable value, a tax payer does not have two rights of appeal, he cannot first challenge the fixation of Rateable Value by impugning the assessment order an thereafter challenging the said Rateable Value, once again, by filing an appeal against the bill which is received pursuant to it. However, if the Rateable value is less then what is indicated in the bill then certainly, an appeal would be maintainable. Needless to say that the challenge at the second exercise of right of appeal (preferred against the bill) shall be confined to the Bill being at variance with the Rateable value determined during assessment, the same having achieved a finality with the order passed in appeal against assessment. ( 21 ) IN view ofthe above discussion, the impugned order passed by the Appellate Authority under Section 84 of the Punjab Municipal Act is set aside and the matter is remanded to the Appellate Authority with the directions to dispose of the same on merits in accordance with law and also keeping in view the observations made by us.