Delhi High Court
Ganga Ram Hospital Trust vs Municipal Corporation Of Delhi on 1 June, 2001
Equivalent citations: 2001(60)DRJ549
Author: Arun Kumar
Bench: Arun Kumar, B.N. Chaturvedi
ORDER Arun Kumar, J.
1. Sir Ganga Ram Trust Society is a society registered under the Societies Registration Act. The society is running a hospital known as Sir Ganga Ram Hospital at its premises at New Rajendra Nagar, New Delhi. The present controversy arises from assessment of the property of the plaintiff where the hospital is being run including the staff quarters etc. for purposes of property tax by the respondent MCD. The respondent issued a notice dated 7th March, 1984 proposing to revise the rateable value from Rs. 80,590/- to Rs.1, 90,55,400/- with effect from 1st April, 1983 on the following grounds:
1. Erection of new building.
2. Erroneously valued.
2. The society filed objections to the proposal as permissible under the law. While the said proposal for enhancement of rateable value with effect from 1st April, 1983 was pending, another proposal was received by the society vide notice dated 16th March, 1985 for enhancement of rateable value w.e.f. 1st April, 1984 to Rs.17,97,41,600.90p on the following grounds:
1. Erection of building.
2. Standard rent as per the Delhi Rent Control Act.
3. Another proposal for further enhancement of rateable value w.e.f. 1st April, 1985 to Rs.2,07,13,690/- was made by the Municipal Corporation of Delhi on same grounds.
4. Yet another proposal for further enhancement of rateable value w.e.f. 1st April, 1986 to Rs.2,15,23,690/- was made on same grounds. The case of the appellant is that ti filed objections in response to the proposals for enhancement of rateable value made by the M.C.D. The objections are said to be supported with relevant material and documents. Assessments followed with which the appellant was not satisfied. The appellant challenged the assessments by way of appeals as provided in Section 169 of the Delhi Municipal Corporation Act. But the appeals cannot be heard and decided on merits unless the amount of tax is deposited beforehand as per provision contained in Section 170(b) of the Act. Appellant state that the amount of tax assessed comes to more than a crore of rupees and it cannot afford to deposit the same. Without the deposit of tax the appeals cannot be heard. For some period the appellant filed a writ petition in this Court challenging the assessment of rateable value for purposes of levy of property tax. For a different period the appellant filed a civil suit challenging the assessment, levy and demand of property tax. The suit was dismissed as not maintainable by the learned Addl. District Judge vide the impugned judgment dated 31st March, 1997.
5. This appeal is directed against the said judgment of the learned Addl. District Judge. Since the suit was dismissed as not maintainable it is not necessary to go into merits of the objections against the proposed rateable value of the property. In this appeal the controversy revolves around pure question of law with respect to maintainability of a civil suit to challenge levy and assessment of property tax. The legal issues which arise for consideration are:
(a) Right to file a civil suit.
(b) Is there express or implied bar to institution of civil suit in the Delhi Municipal Corporation Act?
(c) The effect of provision under section 169 of the DMC Act for appeal t challenge levy and assessment of tax.
(d) Is the remedy of appeal adequate and efficacious in view of the provision regarding pre-deposit being a condition precedent to hearing of appeal as per section 170 (b) the Act.
6. The trial court framed the following preliminary issue in the suit :
1. Whether the suit is barred in view of section 169 of the DMC Act and Section 41(h) of the Specific Relief Act.
7. The said issue was decided against the plaintiff, hence this appeal.
8. Right to file a civil suit and express or implied bar to exercise of this right in the Delhi Municipal Corporation Act.
9. There is a inherent right in every person to institute a civil suit unless the suit is barred by any statute. "One may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit." Gangabai v. Vijay Kumar and Others . Section 9 of the Code of Civil Procedure contains the relevant provision. The relevant portion of section 9 is reproduced as under :
"9 The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or implied barred."
10. The above provision uses the words "all suits of a civil nature" (emphasis added). The only limitation contained in section 9 with respect to the right to file a civil suit is express or implied bar to such right. Many statutes contain express bars with respect to the right to file a civil suit. For instanced, section 293 of the Income-tax Act contains such a bar. Similarly there are a number of other statutes containing such a bar. While interpreting section 9 CPC, the Supreme Court in Dhulabhai etc. v. State of Madhya Pradesh and Another laid down the following principles :
"32. Neither of the two cases of Firm of Illuri Subayya, or Kamla Mills, can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:
(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply."
11. Thus except where a civil suit is specifically barred under a particular statute, there can be no bar to a civil suit. A suit for its maintainability requires no authority of law. It is enough that no statute bars the suit. The jurisdiction of civil court is all embracing. It is determined on the basis of pleadings of the plaintiff in the suit. It is no answer to a suit, however, frivolous the claim in suit may be, that law confers no such right to sue. A plaintiff who brings a frivolous suit does so at his own peril. While the right to file a suit is inherent in a person, there is no such legal right to file an appeal because right to file an appeal is a creation of statute. ( Ganga Bai v. Vijay Kumar and Others, .
12. An implied bar as distinguished from an express bar may arise in a situation where for instance a statute creates a special right and lays down a special remedy for exercising the right. For exercising such special right a party will be required to have resort to the special remedy as per the statute. Impliedly it may be inferred that there can be no other remedy with respect to the special right. Position in law regarding implied bars is that such bars need not be readily inferred. Exclusion of jurisdiction of a civil court is a serious matter and cannot be encouraged. No court would like to overstep the limits placed on its jurisdiction by law. At the same time courts will not be eager to restrict their jurisdiction on basis of implied bars. It is a matter of legal right of a party. Legal rights ought to be normally given effect to rather than curtailed by inviting implied bars to jurisdiction. Often one comes across specific bars contained in statutes regarding right to file a civil suit. The reason for this is simple. Where the legislature intends to bar institution of civil suits it should not hesitate in saying so specifically in the statute itself. The cases of implied bar are rare. That is why the courts have universally taken the view that implied bars to civil suits need not be inferred.
13. The legal position in this behalf has been summarised by the Supreme Court in Raja Ram Kumar Bhargava v. Union of India as follows:
"Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common-law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common law, is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil courts' jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving upon an element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil courts' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai's case."
14. In Firm I.S. Chetty & Sons v. State of Andhra Pradesh , the Supreme Court observed:
"The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute."
15. Thus the mere fact that a statute provides for certain remedies is not sufficient to exclude jurisdiction of civil courts. The right to approach the civil courts is an inherent right which normally cannot be taken away or presumed to be taken away. The right is too strong to be denied by indirect means. Only a specific bar could take it away. In this background we have to see whether the DMC Act contains an express or implied bar to institute a civil suit to challenge levy and assessment of tax under the Act. The relevant provisions in this behalf in the Act are sections 169 and 170 which are reproduced as under :
169. Appeal against assessment, etc.-
(1) An appeal against the levy or assessment of any tax under this Act shall lie to the court of the district judge of Delhi.
(2) If, before or on the hearing of an appeal under this section, any question of law or usage having the force of law or construction of a document arises, the court of the district judge on its own motion may, or on the application of any party to the appeal, shall, draw up a statement of the facts of the case, and the question so arising, and refer the statement with its opinion on the question for the decision of the High Court.
(3) On a reference being made under sub-section (2), the subsequent proceedings in the case shall be, as nearly as may be in conformity with the rules relating to references to the High Court contained in Order XLVI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).
(4) In every appeal, the costs shall be in the discretion of the court.
(5) Costs awarded under this section to the Corporation shall be recoverable by the Corporation as an arrear of tax due from the appellant.
(6) If the Corporation fails to pay any costs awarded to an appellant within ten days after the date of the order for payment thereof, the court may order the Commissioner to pay the amount to the appellant.
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 no 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 amounts, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation."
16. Section 169 provides for a remedy of appeal against levy or assessment of any tax under the Act while section 170 lays down conditions subject to which the right of appeal conferred by section 169 can be exercised. Neither of these two sections contain any provision barring a civil suit to challenge levy and assessment of tax under the Act. At best it may be argued that in view of the remedy of appeal provided under section 169 of the Act a party should have recourse to the said remedy. But a party filing a civil suit to challenge the levy and assessment of tax under the Act may like to urge that the levy and assessment of tax is not in accordance with the Act or is violative of the provisions of the Act. In other words it may be the case of a plaintiff that the authorities under the Act have not acted in accordance with the provisions of the Act while levying and assessing tax and, therefore, it is entitled to exercise its inherent right to challenge such a levy and assessment by way of a civil suit. Availability of an alternative remedy may be treated as a bar by the court while exercising its writ jurisdiction because writ jurisdiction under Article 226 of the Constitution of India is a matter of exercise of discretionary jurisdiction of the court but it is not the same case while entertaining a civil suit. Exercise of jurisdiction to entertain civil suit is not a discretionary matter before the civil court. A civil court may reject the plaint as per law or dismiss a civil suit on merits. It cannot refuse to entertain the suit unless barred by law. The DMC Act does not contain any such bar to a civil suit in matters of levy and assessment of tax.
17. While on the question, of express or implied bar to a civil suit it has to be noticed that elsewhere in the DMC Act where the legislature intended to create a specific bar to exercise of right to file a civil suit it has specifically provided for it. In this connection reference may be made to sections 347A, 347B and 347E. In mattes relating to unauthorised construction in properties and demolition of such construction the statute has established an Appellate Tribunal before which the parties are entitled to agitate their grievances. In all such cases appeals are provided to the Appellate Tribunal and further appeal is provided from the order of the Appellate Tribunal to the Administrator under section 347B. Section 347E provides for a complete bar to the power of civil court to entertain any suit/application or other proceedings in respect of any order or notice appealable under section 343 or section 347B. The section further goes on to provide that no such order or notice shall be called in question otherwise than by preferring an appeal under sections 343 or 347B. Thus an express bar has been provided to the exercise of jurisdiction by the civil court in entertaining a civil suit or application in cases covered under the relevant provision. Sections 169 and 170 of the Act do not contain any such bar to civil suits or applications to challenge levy and assessment of tax under the Act nor is there any other provision in the Act barring a civil suit or application in cases pertaining to levy and assessment of taxes. Rather section 478 of the Act which contains general provision regarding advance notice being served on the Corporation before institution of suits against it, shows that the Act envisages civil suits being normally filed against the Corporation. From this discussion we conclude that there is no bar to civil suits to challenge levy and assessment of tax under the Act.
18. We would like to note here some observations of the Supreme Court in relation to exercise of inherent right to approach the civil court. In Shiv Kumar Chadha v. Municipal Corporation of Delhi, , it was observed:
"According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given uno flatu e.g. "in the same breath". Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. In spite of the bar prescribed under sub-sections (4) and (5) of Section 343 and Section 347-E of the Corporation Act over the power of the courts, under certain special circumstances, the court can examine, whether the dispute falls within the ambit of the Act. But once the court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. Can a court hold a suit to be not maintainable, although along with the plaint materials are produced to show that the building in question is not within the Corporation limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act?"
19. Possibly it could be argued that in view of the provision of appeal contained in section 169 of the Act a civil suit to challenge the levy and assessment of tax under the Act should be impliedly taken as barred. In our view such an argument cannot be accepted. It is well established that an implied bar should not be readily inferred. There is a genuine reason for this. The reason is that court should not lean in favor of curtailing civil rights or inherent rights of parties. The code itself contains safeguards against frivolous suits being brought before courts. First is the power of the court to reject a plaint under Order VII Rule 11 CPC. Next the burden is heavy on the plaintiff who brings a suit to establish his/her case in accordance with law before relief can be available. Lastly courts are fully empowered to impose costs in case of frivolous litigation being brought before them. The power of imposition of costs is left to the discretion of the courts. For instance if the plaintiff fails to establish that the levy and assessment of tax is contrary to the statute or that the Corporation failed to follow the procedure prescribed under the Act before levy and assessment of tax, the suit may be dismissed with costs.
20. It will normally depend on the nature of the statutory provision whether a civil suit can be said to be barred. Whenever a plea is raised before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the court naturally has to consider the provision in the statute in the first instance. If the statute contains a specific bar, it will be end of the matter. In the absence of a specific bar the nature of statutory remedy will have to be considered. The court has to consider whether the statutory remedy is adequate and efficacious. Where the exclusion of the civil court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of remedies provided for by it may be relevant, it cannot, however, be decisive. But when exclusion is pleaded as a matter of necessary implication such consideration would be very important and, in conceivable circumstances, might even become decisive. Kamala Mills Ltd. v. State of Bombay, .
21. This brings us to the issue whether the remedy of appeal provided under section 169 of the Act is adequate and efficacious. It has been argued that the remedy by way of appeal is neither adequate nor efficacious. The District Judge who hears the appeal has limited powers. It is a truncated right of appeal. He cannot decide questions of law, for which he has to refer the matter to the High Court. He cannot dispense with the requirement of pre-deposit contained in Section 170 (b) nor he can reduce the amount. He has no power to order refund of the amount deposited in the event of success of the assessed in the appeal. There is no doubt that the right of appeal under section 169 cannot be compared with the powers of a civil court in a civil suit. A statute while giving the right of appeal, may confer finality on the decision of the appellate Tribunal and may provide that decision of the Tribunal cannot be questioned in a civil court. In such a case a civil suit may have to be held to be barred. Both the channels cannot be said to be open to the aggrieved party simultaneously and it can exercise its choice about the remedy to be pursued.
22. An important question which needs to be considered in this connection is whether the statutory remedy is adequate and equally efficacious or it is too onerous. Even when a statutory remedy is adequate it may turn out to be highly onerous and it may be impossible for an aggrieved party to avail of the same. Often the statutory remedies are saddled with a condition that before the remedy can be availed of the aggrieved party has to deposit the amount in dispute with the Appellate Tribunal or elsewhere as the case may be. In the Delhi Municipal Corporation Act which is under consideration section 170 (b) lays down a condition that the amount in dispute in the appeal has to be deposited by the appellant in the office of the Corporation before an appeal can be heard. This provision is often difficult to comply and it renders the remedy highly onerous leading to negation of right of appeal. A party which cannot afford to deposit the amount in dispute will not be able to exercise the right of appeal. The constitutional validity of this provision has been upheld by the Supreme Court in Shyam Kishore v. M.C.D., but the Supreme Court was not concerned with the controversy which is under consideration in the present appeals i.e. whether in view of this remedy being saddled with the requirement of pre-deposit, a civil suit to challenge the levy and assessment of tax can be said to be barred. This aspect has been subject matter of decisions of the Apex Court on various occasions. In Himmatlal Harilal Mehta v. State of Madhya Pradesh, 1954 SCR 1122 it was held by the Supreme Court that if the remedy provided by the Act is of an onerous and burdensome character, it can hardly be said to be an adequate alternative remedy. Before the appellant can avail of it he has to deposit the whole amount of tax. Such a provision can hardly be described as an adequate alternative remedy. It renders the right of appeal illusory and not real.
23. Again in M. G. Abrol. Addl. Collector of Customs. Bombay and Another v. M/s. Shantilal Chhotelal and Co., , it was observed:
"15. Lastly, it was argued that the High Court should not have exercised its jurisdiction under Article 226 of the Constitution, as the respondents had an effective remedy by way of appeal to higher Customs Authorities. But the High Court rightly pointed out that the respondents had no effective remedy, for they could not file an appeal without depositing as a condition precedent the large amount of penalty imposed on them. That apart, the existence of an effective remedy does not oust the jurisdiction of the High Court, but it is only one of the circumstances that the Court should take into consideration in exercising its discretionary jurisdiction under Article 226 of the Constitution."
24. In Indian Hotels Company Limited v. New Delhi Municipal Council, a Division Bench of this Court held that the condition of pre-deposit amounts to negation of the right of appeal. The requirement of pre-deposit makes the remedy too onerous. To illustrate the point the court gave several examples. The following observations contained in the said judgment highlight the issue :
"36. A condition requiring 100% amount of tax to be deposited as a condition precedent to hearing by the Appellate Authority may amount to negation of right of appeal in some cases. To illustrate, a property may be assessed in the name of someone who is neither the owner nor occupier thereof and fixed with liability to pay tax; a property not falling within the limits of the Municipal Corporation may come to be assessed and taxed; property may be grossly overvalued by the Assessing Authority attracting an obligation to pay an amount of tax absolutely disproportionate with the value of the property and means of the owner. In all such cases under the present law, the assessed must deposit the tax before he may deserve a hearing from the Appellate Authority. This provision too deserves to be suitably amended so as to confer a discretionary power on the Appellate Authority allowing dispensation of the deposit of the amount of tax wholly or partially in very deserving cases depending on the facts of individual case and for reasons to be recorded. Provision may be made for payment of interest so as to adequately compensate the Corporation for the delayed recovery in the event of appeal being dismissed or interim order being vacated. Such a provision would serve the ends of justice giving relief to the assessed/appellants in deserving cases and reduce the filing of writ petitions in superior Courts."
25. The above quotation shows that the Bench has even made certain recommendations for amendment of the relevant provisions of the statute. Similarly another Division Bench of this Court in D.R. Aggarwal v. N.D.M.C., relying upon Himmatlal's case (supra) held that the remedy of appeal is onerous and can hardly be called to be adequate alternative remedy.
26. The learned counsel for the respondent/Corporation relied on a Division Bench decision in Sobha Singh and Sons (P) Limited v. N.D.M.C., . This was a case under the Punjab Municipal Act. The said Act contains a specific bar to institution of civil suits to challenge levy and assessment of tax. Therefore, this judgment cannot be an authority for purposes of present case which pertains to the Delhi Municipal Corporation Act which does not contain any specific bar to institution of civil suits to challenge levy and assessment of tax.
27. In view of the above statement of law the conclusion is inevitable that the remedy of appeal provided under section 169 of the Act for which a pre-requisite condition is the deposit of amount in dispute in view of section 170(b) of the Act is too onerous to be called an adequate or efficacious alternative remedy. The condition which is required to be satisfied before the right of appeal can be exercised often renders the right of appeal illusory. Without complying with the requirement of pre-deposit an appeal cannot be heard. This condition often negates the right of appeal conferred by the statute. Therefore, it cannot be said that the Delhi Municipal Corporation Act contains an adequate or efficacious remedy by way of appeal in matters pertaining to levy and assessment of property tax under sections 169 and 170 of the Act. When the right of appeal is such a truncated right and often it is difficult to avail of the right, the inevitable which follows is that an aggrieved party must have a remedy and the remedy of civil suit cannot be denied to such a party.
28. The learned counsel for M.C.D. also cited Srikant Kashinath Jituri & Ors. Vs. Corporation of City of Belgaum. in support of her case that a civil suit is not maintainable to challenge levy and assessment of tax. In our view this judgment does not help the respondent at all. The question for consideration in this case was whether a civil suit challenging revision of property tax was maintainable in view of the bar created by Rule 25 framed under the Karnataka Municipal Corporations' Act, 1976. Rule 25 made the assessment or demand of any tax final subject only to any order of the District Court or the Divisional Commissioner or of the Taxation Appeals Committee. It was observed by the Supreme Court that none of the grounds on which an assessment can be challenged in Civil Court was even alleged in the plaint. The case did not satisfy the tests indicated in Dhulabhai's case, Supra. All that was complained of was that the enhancement was excessive. It was argued before the Supreme Court that the right of second appeal to the District Court was coupled with an onerous condition, viz., deposit of the entire property tax. There was no power to relax that condition. Therefore, the remedy of appeal could not be called an adequate or efficacious remedy. For this reason it was argued that the suit was maintainable. It was also argued that if a writ petition is maintainable without filing a second appeal, a suit is equally maintainable. On this the Supreme Court observed:
"In our opinion, the said contention is based upon a misconception. Such an onerous provision may be a ground for entertaining a writ petition on the ground that the alternative remedy provided by the statute is not an adequate or efficacious remedy (see Himmatlal Harilal Mehta Vs.State of Madhya Pradesh, ), but that can never be a ground for maintaining a civil suit. Both the jurisdictions are different and are governed by different principles. Article 226 provides a constitutional remedy. It confers the power of judicial review on High Courts. The finality clause in a statute is not a bar to the exercise of the constitutional power whereas the jurisdiction of a civil court arises from another statute, viz., S.9 of the Code of Civil Procedure. In such a case, the bar arising from an express provision like Rule 25, or arising by necessary intendment can be overridden only in cases and situations pointed out in Dhulabhai."
29. The civil suit was held to be barred in view of the aforestated specific bar. As already noted the DMC Act does not contain any such bar to institution of a civil suit nor does it make the decision of the Appellate Authority in an appeal under Section 169 of the Act as final and/or not open to challenge in a civil court. Therefore, this judgment is of no help to the respondent.
30. Similarly, the decision of the Supreme Court in S. Vanathan Muthuraja v. Ramalingam 1997 JT 110 relied upon by the counsel for the respondent is a case of specific bar to jurisdiction of civil court. The statute conferring jurisdiction on the Tribunal gave finality to orders of the Tribunal and, therefore, a civil suit was held to be barred.
31. In this connection, we would like to refer to two decisions of the Supreme Court cited by the counsel for the respondent. In Munshi Ram & Ors. v. Municipal Committee Chheharta , the Court recognised that if the Municipal Committee acts beyond or in abuse of powers under the Act a civil suit to challenge such an act would be maintainable inspite of a specific bar to such a suit contained in the Act. The Court accepted that normally a particular remedy prescribed by a statute has to be pursued as per the provisions of the statute. It must be sought in the forum and in the manner given under the statute. However, the bar to the jurisdiction of the civil court would not apply in cases where the Committee in levying a tax or committing an act clearly acts outside or in abuse of its powers under the Act. In the facts of the case it was found that the Committee had not acted in any manner in abuse of powers under the Act and therefore, the suit was held to be barred because of the specific bar to civil (SIC) contained in the Act. Thus the case was decided on the basis of its peculiar facts.
32. The other case in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi & Ors. . Again the question of maintainability of a suit under Section 9 Code of Civil Procedure came up for consideration. The came related to remedy being sought in connection with alleged unauthorised and illegal constructions which the Corporation wanted to demolish. Section 347 E of the DMC Act provided a specific bar to jurisdiction of Courts in such matters and the only remedy provided for under the statute was an appeal to the Appellate Tribunal and a further appeal to the Administrator. It was held that inspite of the bar placed on the power of the Court, orders passed under such statutes can be examined on jurisdictional question. Under such circumstances the Court can examine whether the dispute falls within the ambit of the Act. For instance it was noticed that a suit could not be held to be not maintainable when Along with the plaint material was produced to show that the building in question was not within the Corporation limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act.
33. These decisions of the Supreme Court lay down in cases of specific bar to the jurisdiction of civil courts, a civil suit was maintainable where it could be shown that the impugned action was in violation of the statue or outside the purview or jurisdiction of the authority. These cases, therefore, do not help the respondent. Rather they help in advancing the proposition canvassed by the appellants.
Two other case cited by the learned counsel for the respondent i.e. Radhu Place Vs. M.C.D., and National Institute of Technology v.M.C.D., are cases of writ petitions under Article 226 of the Constitution of Indian.The parameter for exercise of writ jurisdiction under Article 226 of the Constitution of India are totally different as compared to the right to institute a civil suit which inheres in a part being a common law right.The exercise of jurisdiction under Article 226 is discretionary and availability of an alternative remedy is a vital consideration.
Finally the counsel for the Municipal Corporation of Delhi relied upon a Single Bench Judgment of this Court in Kirpal Singh Vs. M.C.D. . In the said judgment view had been expressed that a vivil (sic) to challenge assessment list bypassing the statutory (sic) of appeal is not maintainable.In a later decision while sitting in a Division Bench the same learned Single Judges took a view that the condition precedent for exercise of statutory remedy of appeal is too onerous which renders the right of appeal nugatory.This view was expressed.In Indian Hotels Co.Ltd. Vs. NDMC, . The condition of pre-deposit amounts to negation of right to appeal and a recommendation was made for modification of the law in this respect.In that view of the matter the decision in Kirpal Singh's case cannot be said to be of any help to the respondents.
The result of the above discussion is that the impugned judgment of the trial court holding that a civil suit is not maintainable cannot be sustained.The finding of the trial court on the preliminary issue is hereby set aside. It is held that a civil suit to challenge levy and assessment of tax is not barred in view of section 169 of the Act.A civil suit in such cases is maintainable. It is , however, a different matter whether on merits a plaintiff is able to make out a case in its favor in the suit. on question of merits of the controversy in the suit we say nothing.The trial court dismissed the suit on the threshold holding it as not maintainable and, therefore, we have only considered the question of maintain ability of civil suit in this appeal. The appeal is allowed and the impugned judgment of the trial court is set aside. The suit is remended back to the trial court for decision in accordance with law. In the facts and circumstances of the case, there will be no order as to costs.