Delhi High Court
Alokit Exports Pvt. Ltd. vs New Delhi Municipal Council on 4 January, 2002
Equivalent citations: 2002IIIAD(DELHI)539, 2002(62)DRJ27
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
1. By this common judgment, the above three writ petitions are being disposed, as the parties, the premises and the questions arising, though relating to determination of rateable value for different assessment years, are common.
2. Petitioner, M/s. Alokit Export Pvt. Ltd., has filed the above three writ petitioners. By writ petition No. 1574/99, petitioner seeks quashing of bill No. 19705 dated 5th January, 1999, in the sum of Rs. 21,53,022/- computed on the basis of rateable value of Rs. 77,08,750/- (Rupees Seventy Seven lacs eight thousand, seven hundred and fifty), determined by New Delhi Municipal Council in respect of 5-A, Amrita Shergil Marg New Delhi. The bill assailed in the writ petition includes the House tax demand for the year ending 1998-99. A direction is also sought to restrain the respondent/NDMC from recovering property tax beyond the rateable value of Rs. 11,316/- less 10 per cent. for the said property. Writ petition No. 1517/2000 seeks to assail bill No. 9605 dated 19.11.1999, claiming a sum of Rs. 31,85,763/- (rupees thirty one lacs eighty five thousand seven hundred and sixty three), which also includes arrears up to 31.3.1999 and the house tax amount for the year ending 1999- 2000, after giving rebate of 25% for self-occupation computed on rateable value determined at Rs. 77,087,750/-.
Civil Writ petition No. 7009/2000, seeks quashing of bill No. 8637 dated 29.9.2000, claiming a sum of Rs. 73,87,753/- (rupees seventy three lacs eighty seven thousand seven hundred and fifty three), computed on the basis of retable value of Rs. 69,37,8000/- with a current demand of Rs. 13,87,560/- for the year 2000-2001 and arrears of Rs. 60,00,193/-. Petitioner also seek restraint on the respondent/NDMC from recovering tax, computed at the admitted rateable value of more than Rs. 2,58,212/- yielding annual tax of Rs. 51,642.40.
3. Notices to show cause in CW.No. 1517/2000 and DW.No. 1574/99 had been issued. In CM.2439/99 in CW.No. 1574/99, an interim order, restraining recovery pursuant to bill dated 5.11.1999, subject to depositing admitted amount, was passed. While in CW.No.1517/2000 stay of the impugned bill dated 19.11.1999 was not granted. In CW.No. 7009/2000, notice had not been issued and the case was directed to be listed along with the above two connected writ petitions.
4. Counsel for the parties have been heard. Synopsis of submissions has also been filed by both the parties. Case set up by the petitioner is that the premises in question bearing No. 5-A, Amrita Shergil Marg was constructed as far back in the year 1939 and had been let out at a rental of Rs. 250/- p.m. and was assessed by the NDMC at a rateable value of Rs. 2400/- less 10%. The petitioner assails the determination of the rateable value based on the purchase price by the petitioner vide a sale deed dated 12.5.1994.
5. Learned counsel Mr. R.P.Sharma submitted that the standard rent of the property had been determined prior to 1941. The said statutory rent as determined should be followed and rateable value determined based thereon. Further that the respondents could not initiate proceedings to determine the rateable value and assess it on a as is other than the standard rent in terms of proviso to Section 63(1) of the NDMC Act.
Learned counsel further submitted that the NDMC Act came into force on 10.11.1995. The notice issued in February 1995, seeking to revise the amendment list for the year 1994-95, 1995-96 was without the authority of law.
6. Learned counsel for the respondent on the other hand objected to the maintainability of the writ petitions on the ground that assessment order dated 12.9.1996, passed for the base year by which the rateable value for the assessment years 1994-95, 1995-96 and 1996-97 had been determined in respect of the property in question, had been assailed by the petitioner vide a writ petition bearing CW No. 4857/96. A learned Single Judge had dismissed the said writ petition, vide order dated 6.12.1996 on the ground that efficacious remedy by way of statutory appeal was available and all the grounds that had been taken in the writ petition could be taken before the Appellant authority.
7. The petitioner aggrieved by the order of dismissal of CW No. 4857/96 had preferred LPA No. 107/97, challenging the order of the Single Judge. Apart from the other grounds taken one of the grounds urged in the LPA was that the impugned notice of February 1995, for revision in the assessment list was without jurisdiction as the NDMC Act came into force subsequently on 10.11.1995. Hence the notice was without jurisdiction.
8. Learned counsel for the respondent contends that after hearing submissions of both the parties, the Division Bench was of the view that the impugned notice as issued was valid and therefore was inclined to dismiss the appeal. Learned counsel for respondent submits that the petitioner at that stage sought permission for withdrawal of the LPA with liberty to file a regular appeal before the Appellate Authority. The petitioner further prayed that the objection as to limitation should not be pressed by the respondents as otherwise the appeal would be barred by limitation. The respondent gave its consent for the said concession and the Division Bench accordingly disposed of the appeal on the above terms.
9. The relevant and operative portion of the order passed in LPA No. 107/97 is reproduced for the facility of reference:-
"After arguing for a while learned counsel for appellant Mr. R.P. Sharma prayed for withdrawal of this appeal if appellant was granted liberty to file Appeal before the statutory forum and if time taken in prosecuting his writ petition and Appeal was not taken in account for limitation purposes.:
Mr. Arvind Sah, learned counsel for respondent submitted that no limitation plea would be pressed into service against appellant provided he satisfied other requirements for filing such Appeal.
This appeal is accordingly dismissed as withdrawn with liberty prayed for granted to appellant who may file an Appeal before appropriate forum within 30 days from today and in that case no plea of limitation be taken against him and recovery sought till Appellant Forum considers his interim stay application if any filed."
10. Learned counsel for the respondent therefore relying on the order passed by the Division Bench as noted above submits that the assessments for the subsequent years which is in challenge in the aforesaid three writ petitions, has been done by simply adopting the previous assessment order dated 12.9.1996. The petitioner himself having agreed to file appeal after dismissal of his writ petition and withdrawal of the LPA, cannot now be permitted to invoke the extraordinary writ jursidction for the subsequent years by assailing the same in the writ jurisdiction and not availing of the appellate remedy. Learned counsel for respondent argued that it would be only proper if the challenge to the assessment order and proceedings for subsequent years, are also decided by the appellate authority, which is seized of the appeal against the assessment order determining the rateable value for the base assessment year.
It is therefore urged that the court should desist from exercising and entertaining the writ petitions in the exercise of writ jurisdiction. The petitioner having withdrawn the challenge to the base assessment year by way of writ petition and the appeal thereto and having agreed to challenge the same before the appellate court, cannot be permitted to adopt a different approach in respect of subsequent assessments. Moreover it is submitted that in the present writ petitions the plea regarding the validity of the notice dated 23.2.1995, would also not arise in as much as the respondents while adopting the rateable value as determined vide order dated 12.9.1996, had issued public notices inviting objections. The notices issued in respect of the assessment proceedings under challenge in the writ petition were issued in the same financial year. This the counsel urged without prejudice to its contention that the notice issued on 23.2.1995 was legal and valid. Learned counsel for the respondent also relied on Gujrat Agro Industries Company Ltd. v. Municipal Corporation of City of Ahmedabad and Ors reported at JT 1999 (3) 259 wherein the court rejected the argument that simply because the onerous condition for deposit of tax was there, the right to appeal has become illusory.
11. Learned counsel Mr. R.P. Sharma in response to the objections of the respondent on maintainability of the petitions urged that each assessment year was a separate and independent one and there would be no bar or estoppel on the petitioner assailing the assessment orders for subsequent years in writ petitions. He submitted that effect of withdrawal of an earlier writ petition cannot operate as estoppel or bar to the maintainability of writ petitions challenging the assessment for subsequent years as long as the assessments were vitiated by lack of jurisdiction and were against settled law. He sought to draw support from M.N. Soi v. NDMC reported at ILR 1975 (ii) Delhi 765 para 3, to the effect that even if the assessed had omitted to rely on the order of a Rent Controller fixing the standard rent in an assessment year, the same does not preclude from questioning the assessment for subsequent years. Learned counsel also sought to justify his plea with regard to the notice of February 1995 revising the assessment list as being nonest. Learned counsel also sought to place reliance on a decision of the Division Bench of this court in S.P. Aggarwal v. NDMC LPA No. 11/1997 a Division Bench of this court by relying on a larger bench decision of the Supreme Court in Himmat Lal Hari Lal Mehta v. State of Madhya Pradesh reported at 1954 SCR 1122, held the appellate remedy was onerous. The Division Bench notwithstanding the judgment of the Supreme Court in Shyam Kishore v. M.C.D. reported at , quashed the assessment and remanded the case. Learned counsel for the petitioner therefore submitted that the petitioners' writ petition should also be entertained.
12. I have given my thoughtful consideration to the submissions urged. It is true that the exhaustion of the alternate remedy is not absolute requirement, prior to the entertainment of a writ petition. it is also correct that while that a Division Bench of this court relying on Himmat Lal's case (Supra) entertained the writ petition, notwithstanding the existence of an alternate remedy. However in S.P. Aggarwal's case the court had clearly come to the conclusion that the rate- able value of the premises had to be determined under Section 6(1)(B)(2B) of the Rent Control Act and not under Chapter V of the said Act which had no application. Thus the court finding it to be a case of lack of jurisdiction and a jurisdictional error has remanded the case for fresh assessment relying on Himmat Lal's case where again the relevant sales tax provision had been declared ultra vires and imposition of tax without authority of law.
13. The present cases are on a different footing altogether. Learned counsel for the respondent has rightly contended that the petitioner had challenged the determination of rate- able value for the base year 1994-95, 1995-96, 1996-97 in CW No. 4857/96. The challenge had been made on all admissible grounds including the ground relating to the validity of the notice of February 1995. The petitioner failed in the writ petition and in LPA as noticed earlier, withdrew the challenge and accepted to take resort to the normal appellate remedy. The question to be considered here is that the petitioner having agreed to invoke the appellate remedy and having obtained a concession also from the respondents of not raising the bar of limitation, should he be permitted for the subsequent years where the challenge is on the same grounds to avail of the remedy of extraordinary writ jursidction on the ground that there is no estoppel or statutory bar and each assessment year can be separately challenged. The answer to this has to be in the negative. In such circumstances, the court would not exercise the extraordinary writ jurisdiction and will require the petitioner to avail of the normal appellate remedy which he is already availing in respect of the base year. There is also merit in the submission of the counsel for the respondent that the appellate authority must be left free to decide the appeal on merits without in any manner being influenced by the entertainment of the challenge to the subsequent year in writ jurisdiction and the possibility of arriving at a different finding. Moreover, without expressing any opinion on merits of the matter, the petitioner has also not made out a prima facie case of total lack of jurisdiction. The legal please raised can be conveniently taken before the Appellate Authority. The writ petitions are held to be not maintainable and are liable to be dismissed and are dismissed.
14. Following the order as passed by the Division Bench in LPA No. 107/97, the petitioner may prefer appeals within 30 days from today. If the appeals are so filed the respondents would not raise limitation as objection. With a view to subserve the ends of justice, it is directed that the appeal as preferred by the petitioner against the order dated 12.9.1996 i.e. the base year if pending be disposed of expeditiously and within a period of 3 months from today.