Delhi High Court
Radhu Palace vs Municipal Corporation Of Delhi on 25 October, 1991
Equivalent citations: 49(1993)DLT14
Author: B.N. Kirpal
Bench: B.N. Kirpal, Arun Kumar
JUDGMENT B.N. Kirpal, J.
(1) The challenge in this writ petition is to the bill dated 10th September 1991 requiring the petitioner to pay house tax and other taxes to talling Rs. 13.16.897.00 This bill has been sent to the petitioner on the assumption that the rateable value of the property in question, namely. Radhu Palace Commercial Complex is Rs. 6.57.140.00 .
(2) The grievance of the petitioner is two-fold. It is first stated that an assessment order has been made by the Joint Assessor & Collector on 9th September 1991 wherein the rateable value has been determined. The submission is that the rateable value so determined, which was Rs.6.17,150.00 with effect from 1st April 1982 and Rs. 5.42,000.00 with effect from 1st April 1987, is much less than the rateable value indicated in the impugned bill, The second submission of the learned Counsel for the petitioner is that the petitioner is entitled to vacancy remission as has been held by the Joint Assessor & Collector himself in an earlier order dated 29th November 1985 and this remission has not been given to the petitioner.
(3) In our opinion this is not a fit case where this Court should exercise its jurisdiction under Article 226 of the Constitution. The petitioner has adequate alternate remedy available to it. We are aware that in hard cases or cases where irreparable injury is caused to a citizen, this Court has entertained petitions under Article 226 of the Constitution but in this particular case even if there is any mistake in the bill. the quantum of tax demanded is not so exorbitant which the petitioner is unable to pay in the event of an appeal being filed. No irreparable injury or damage will be caused to the petitioner if it is required to take recourse to the remedies under the statute.
(4) It is submitted by the learned Counsel for the petitioner that against an impugned bill no appeal is provided. He contends that an appeal can be filed only against an assessment which is being made and this is evident according to the learned Counsel, from the reading of Section 170 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act).
(5) In our opinion, there is no merit in this submission. The right to file an appeal is contained in Section 169 and not Section 170 of the Act. Section 169(1) reads as under :-
"SECTION 169. Appeal against assessment etc. (1) An appeal against the levy of assessment of any tax under this Act shall lie to the Court of the district judge of Delhi."
(6) The expression "levy" in Section 169(1) is wide enough, in our opinion, to contemplate on appeal being filed merely on the receipt of the bill requiring the payment of tax. Ordinarily the bill should be preceded by an order of assessment but it may have been that a person may not have received an order of assessment or it may be that an order of assessment is not passed and, where the rateable value is being maintained, only a bill is submitted. We have not gone into the question whether the latter procedure which may be adopted is correct or not but what we want to emphasise is that if the tax payer has a grievance against the bill which has been received, as in the present case, than the bill has to be regarded as a levy of tax against which an appeal is provided under Section 169(1). It this was not so, great prejudice can he caused to the tax payers. As has been alleged by the petitioner in the present Case itself the bill which has been sent is far in excess of the assessment which has been made be the Joint Assessor & Collector. Can it be that the Act does not provide for a remedy against an injustice so perpetuated? The answer to this question must be in the negative. The bill has given the petitioner an independent cause of action and the bill has to be regarded as a levy of tax against which an appeal can be filed under Section 169(1) of the Act. In the appeal it is open to the petitioner to raise the contentions sought to be pressed before us, namely, that the figure of rateable value has been wrongly taken and, secondly, vacancy remission has not been given.
(7) We make it clear that we are not giving ........... whether the "petitioner is or is not entitled to any relief on merits, for, that has to be decided by the Appellate Authority. It is for the Appellate Authority to decide whether in fact vacancy remission is due to the petitioner and what should be the proper computation of tax.
(8) Coming to the provisions of Section 170 of the Act, the said Section lays down two conditions. Section 170(a) prescribes the period within which an appeal has to be filed and sub-Section (b) states that no appeal shall be heard if the amount in dispute in appeal has hot been deposited by the appellant in the office of Corporation. Section 170 of the Act reads as under:-
"SECTION 170. Conditions of right to appeal. No appeal shall be heard or determined under Section 169 unless :- (a) the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be, within thirty days of the date on which an amendment is finally made under Section 126, and, in the case of any other tax. within thirty days next after the date of the receipt of the notice of assessment or of alteration of assessment or, if the notice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof; Provided that an appeal may be admitted after the expiration of the period prescribed therefore by this Section if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within that period; (b) the amount, if any, in dispute in the appeal has been deposited by the appellant in tile office of the Corporation."
(9) Reading the said sub-Section (a) of 170 as a whole, in our opinion, an appeal can be filed against the authentication of the list of Section 126 within the period prescribed therein. In addition thereto the latter portion of sub-Section (a) also refers to an appeal being filed within thirty days from the date of the presentation of the first bill of the first notice of demand in respect thereto. It is contended by the learned Counsel for the petitioner that this has reference only to the notice of assessment or of alteration of assessment We are unable to agree with this submission. Section 170 has to be read Along with Section 167. Levy of tax may be by the sending of a bill requiring the payment of tax. Reading the two Sections together it is evident that an appeal can be filed within thirty days of the receipt of the bill and it will be heard only if the provisions of Section 170(b) are complied with. We would like to make it clear that when an assessment is made, an appeal challenging the assessment will have to be filed. If the assessment order is followed by a bill and the rateable value indicated in the bill conforms to the rateable value determined by the assessment then it can be that a tax payer challenges the rateable value by filing of appeal against the bill only. The challenge to the rateable value can only be to the determination thereof and which determination takes place only under Section 124 when the list is authenticated or under Section 126 when it is amended. It may, however, happen that the tax payer has no notice of or has not been served with any assessment order and it is only a bill levying the tax which is presented to him. In such a case, possibly, the Appellate Authority would be justified in entertaining the objection, if any to the amount of rateable value determined.
(10) What we want to emphasise is this that qua the determination of the 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 and thereafter challenging the said rateable value, once again, by filing an appeal against the bill which is received pursuant to it. if the rateable value is less than what is indicated in the bill, then certainly an appeal would be maintainable.
(11) For the aforesaid reasons this writ petition is dismissed as the petitioner has adequate alternative remedy available to it under the Act. Writ dismissed.
Delhi High Court Present : Mr. J.K. Mehra, .J. Bhagwan DASS-Petitioner Versus N.D.M.C.-Respondent C.W.P. No. 799 of 1974- Decided on 21-10-1992 Constitution of India, 1950- Article 226-Civi! writ-Discrimination Three hawkers selling eatables in Connaught Pi.ace under a tree-NDMC dispossessed forcefully one of them-His writ petitions failed up to S.C.-license was granted again and on cancellation he again filed writ-lie was held entitled for possession of one third space under the tree on ground of discrimination by NDMC. He!d\]\a.t Ndmc passed Resolution No. 28 dated 10th November 1989 pursuant to the recommendation made by the Lok Adalat on November 19 19^9. The Committee was appointed by the Supreme Court vide its order dated 20. 1988. One of the decisions under the said Scheme was that squatters up to 1977 shall be eligible for allotment of a shop, kiosk, stall etc. (Para 8) Further held that I quash the order cancelling the allotment in favor of the petitioner and further order that h" shall not be removed from the site i.e. the site in dispute wherefrom he is presently carrying on the said trade subject to his paying Tehbazari charges at the rate of Rs 385.00 p.m. or inch reasonable increase therein as may be resorted to by th" r.^pondent for all the three occupants under the said tree in future. (Para 11)