Delhi District Court
R/O 235 vs New Delhi Municipal Committee (Ndmc) on 15 December, 2010
Page 1 of 16
IN THE COURT OF Ms. VEENA RANI, ADMINISTRATIVE CIVIL JUDGE
CUM COMMERCIAL CIVIL JUDGECUM ADDITIONAL RENT
CONTROLLER, PATIALA HOUSE COURTS, NEW DELHI
Suit No:63/09 ( 15021990)
Sh. Anil Kumar S/o Sh. L.Sumat Pershad
R/o 2351, Dharampura, Delhi .....Plaintiff
Versus
1. New Delhi Municipal Committee (NDMC)
Palika Kendra, Sandad Marg, New Delhi
through its Administrator or Secretary.
2. Sh. Ashok Kumar S/o Late L.Sumat Pershad
R/o 2351, Dharampura, Delhi .....Defendants
DATE OF INSTITUTION
:15021990
DATE OF FINAL ARGUMENT :30112010
DATE OF FINAL JUDGMENT :15122010
SUIT FOR DECLARATION, MANDATORY AND PERPETUAL INJUNCTIONS
JUDGMENT
1. Plaintiff has filed the present suit for declaration, mandatory injunction and perpetual injunctions. Briefly stated the facts of the case are that late L.Munshi Lal grand father of the plaintiff and defendant no:2, as the Karta of his Hindu undivided family acquired a building site measuring 42430 sq. ft./0.974 acres in Block N. Connaught Circus, New Delhi on perpetual lease from the Government of India by indenture of lease dated 951038. It is stated that as per the Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 2 of 16 development plan of the Government late L Munshi Lal was required to construct and complete a building upon the aforementioned land as per the plan approved and sanctioned by the defendant no:1, therefore, he duly constructed three storey building comprising of shops and garage on the ground floor and flats on the first and second floor which building came to be known as Munshi Lal Lal building. It is stated that the entire building had been let out to various tenants portion wise and it continues to be thus occupied by tenants.
2. It is further stated that late Sh. L. Munshi Lal along with his son Sumat Pershad Jain divided the said building property in the equal portion of 50:50 shares and both the members of the HUF owned and possessed their respective shares separately from each other.
3. It is stated that Sh. Munshi Lal grand father of the plaintiff and defendant no:2 during his life time made a Will dated 2651957 bequeathing his ½ portion of the Munshi Lal building in the joint names of his grandsons i.e. the plaintiff and defendant no:2. It is averred that at that time both the plaintiff and defendant no:2 were minors, therefore, it was directed that on the bequest being effective the same shall be administered for & on behalf of the minor by their mother Smt. Jaimala Devi as guardian. It is stated that this fact was duly intimated to the defendant no:1/NDMC so as to enable them to assess and collect taxes in respect to their respective shares and defendant no:1 duly recognized the owning of ½ portion each separately by the plaintiff and defendant no:2 and other half by Sh. Sumat Pershad Jain and had been assessing the building accordingly and collecting tax.
4. It is averred that L. Munshi Lal died on 2071957 and the mother of the plaintiff and defendant no:2 obtained letters of Administration on the basis of aforementioned Will in Probate case No:9/58 from Sh. Hans Raj Khanna, the Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 3 of 16 then Ld. District Judge, Delhi vide order dated 2741961. It is stated that after the attaining of age of Majority by the plaintiff and defendant no:2 the said ½ portion of Munshi Lal building was handed over to the plaintiff and defendant no:2.
5. It is stated that plaintiff and defendant no:2 along with their father Sh. Sumat Pershad formed a H.U.F with regard to the other portion of the Munshi Lal building and on attaining majority they felt like separating their share from that of their father and the matter of separation of the shares of the plaintiff and defendant no:2 on one part and that of late Sh. Sumat Pershad was referred to the sole Arbitration of Sh. D.K. Tandon, Advocate, who after taking due proceedings in between the parties delivered an Award dated 3031975 separating the share of the plaintiff and defendant no:2 from that of their father Sh. Sumat Pershad and the said award was duly made a rule of the court by a decree passed in suit no:292A/75 entitled "Ashok Kumar & others Vs. Sumat Pershad Jain" vide court's order dated 3051975.
6. It is stated that L. Sumat Pershad after the decree of partition made on the basis of the Arbitration Award written to defendant no:1 for assessing the property in accordance to Arbitration Award but the defendant no:1 in spite of due intimation having been given has been omitting to assess and collect the tax. It is further stated that this omission on the part of the defendant no:1 has been creating confusion, anamolies and disputes with the result that there had been consistently a chain of suits filed against the defendant no:1 challenging each year's demand with a view to dispel the confusion and remove the anamolies.
7. It is submitted that plaintiff and defendant no:2, finding that it is not possible to continue jointly with the portion of the Munshi Lal Building of their shares filed a civil suit for partition bearing no:505/75 titled Ashok Kumar Vs. Anil Kumar Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 4 of 16 and a decree was passed by the Delhi High Court on 891975 vide which the plaintiff became the owner of Shop No:18,19,20,21,22 and flat No:102, Flat No:
9698, Flat No:6365, Kothri, Garrage 33/4 , 33/1,33/2,33/3 and staricase no:3 in the building known as Munshi Lal Building and mutation regarding this share has also been done by the Land & Development office vide their letter dated 11101979.
8. It is stated that the father of the plaintiff and defendant no:2 Sh. Sumat Pershad Jain died on 551983 and before his death he executed a Will bequeathing his ½ shares in the Munshi Lal Building to his children.
9. It is further stated that defendant no:1 is legally bound to recognize the plaintiff and defendant no:2 as the separate owner as per the definition of the terms and as per section 61 of the P.M Act and to assess and collect tax from them regarding their respective portion. It submitted that despite repeated letters and requests the defendant No:1 is failed and omitted to mutate the plaintiff and defendant No:2 as separate and independent owner/assesses with respect to their portions and has been issuing bills and demand notices in the joint name of the plaintiff and defendant no:2 styling them as minors through their mother Smt. Jaimala Devi which act of the defendant No:1 is arbitrary and unwarranted.
10. It is stated that defendant No:1 raised a arbitrary demand of Rs.3,84,881.10/ alleging the same to be tax in respect of the parcels of the building referred to as N18, 19 etc for the period 141989 to 3131990. It is submitted that the aforementioned demand has been made as usual in the joint names of the plaintiff and defendant No:2 while styling them as minors through their mother Smt. Jaimala Devi which demand is illegal, without jurisdiction, arbitrary and ultravires the provisions of the P.M. Act on the ground that no notice of assessment as prescribed by Section 65 of the PM Act has ever been issued in the Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 5 of 16 name of the plaintiff or defendant No:2 separately proposing assessment and no objection were demanded from them which is against the principles of natural justice as the plaintiff and defendant no:2 have been condemned to pay the said arbitrary demand without any assessment. It is stated that despite due intimation having been given to the defendant no:1 about the partition taken place, the defendant no:2 has not recognized the plaintiff and defendant no:2 as separate owner/assesses as per section 74 of the PM Act and raised the aforementioned illegal demand. Hence the present suit.
11. It is stated that defendant no:1 has been duly issued and served with a notice u/s 49 of the P.M. Act calling upon them to recognize the character and entitlement of the plaintiff.
12. It is further stated that cause of action for filing the present suit accrued for the firs time when intimation about the partition of the property having taken place was made and it further accrued afresh from year to year when demand for arbitrary tax was made ignoring the said partition and further it accrued on 11121989 when notice u/s 49 of P.M. Act was issued, thereafter a month later when the expiry of the period stipulated therein and for the relief of perpetual injunction it accrued for the first time in the first week of February, 1990 when the distress warrant was issued and it continues to accrue from day to day.
13. Defendant no:1/NDMC filed written statement and raised preliminary objection that plaintiff has no locus standi to file the present suit in his single name as the assessment in question is in the joint names of the plaintiff and defendant no:2 as such the suit of the plaintiff is liable to be dismissed. Defendant further raised objection that the suit of the plaintiff is barred under section 49, 84 & 86 of the P.M. Act and liable to be dismissed. It is stated that civil suit is not maintainable as only remedy lies before the plaintiff was to file an appeal where he could Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 6 of 16 agitate his grievances with respect to the alleged wrong assessment, hence the suit of the plaintiff is liable to be dismissed.
In their reply on merits it is submitted by the defendant no:1 that portion of property N Block Connaught Circus, New Delhi i.e. Portion N18 to 33, 22/1, IIP/J/49 to 67, 33/67, 9, N63 to 67, 96 to IIP/J68 to 81 102, 33/16, 6,8 and 140 to 143 11,12, store no:C33 one IIP/J144, 145, room at 2nd floor 148, 149 (994) 33/5, 33/13 & 6 B, Mezz.Msg. 500 sq. IIP/J163 to 169 and 500 sq. ft. 320 sq. ft, 150 sq. ft, 130 sq. ft, 200 sq. ft 150 sq. ft and 150 sq. ft in N 18, 23, 25,27,29,31 & 33 stands assessed to house tax in the names of Anil Kumar(Plaintiff) and Ashok Kumar (defendant no:2). It is further stated by the defendant no:1 that plaintiff and defendant no:2 have not furnished the alleged mutation letter dt. 11101979 from the office of L&DO showing the separate portion in their names to the defendant no:1 so that the property may be assessed separately in their respective names. It is stated that the property can not be accepted till L&DO clear the case of partition and only thereafter the Committee mutates the property separately in the name of plaintiff and defendant no:2 after depositing the transfer duties with the answering defendant no:1. It is stated that house tax bill has been issued in accordance with law jointly in the names of the plaintiff and defendant no:2.
14. In his replication the plaintiff has reiterated the facts as stated in the present suit.
15. From the pleadings of the parties the following issues were framed:
(1) Whether the impugned demand raised by the defendant is illegal and liable to be stayed as alleged in para 12 of the plaint ? OPP (2) Whether the defendant has failed to recognize and act upon the partition of the property affected by the judgment of Delhi High Court as referred in the plaint ? OPP Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 7 of 16 (3) Whether the suit is barred by Section 8486 and 49 of the P.M. Act ? OPD (4) Whether the plaintiff has not come to the court with clean hands as alleged in the WS ? (OPD)
16. Despite repeated opportunities the plaintiff has failed to lead his evidence and his evidence was closed vide order dated 24102000 and the case was fixed for defendants evidence.
17. Defendants have also failed to lead any evidence despite repeated opportunities, therefore, DE was also closed vide order dated 1332006 and case was fixed for final argument.
18. I have perused the written submission filed on behalf of the parties and perused the record carefully. The issue no:3 is a legal issue and needs to be decided first, therefore , my findings on the issue no:3 is as under:
19. Issue no:3 "Whether the suit is barred by S. 49, 84 & 86 of the Punjab Municipal Act ? OPD"
The defendants had raised the objection that the present suit is not maintainable in view of the provisions of S.49, S84 & S.86 of the Punjab Municipal Act inasmuch that the assessment order passed by the defendant NDMC was only challenge able before the appellate authority as provided under the said act.
Delhi has had a long and an intriguing history. By an Act of 1858, Delhi became a Provincial town of the Frontier Province and later it was transferred to the newly formed Punjab under a Lieutenant Governor. The Delhi Territory remained as a district province of Punjab for the a long time. It was during those years that the Punjab Municipal Act, 1911. The NDMC at the relevant time was constituted under the said Act and assessment and levy of property tax was a Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 8 of 16 function carried on by NDMC in accordance with the provision of the said Act. Sections 84 and 86 of the said Act are reproduced as under :
S.84. Punjab Municipal Act, 1911 deals with the 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 Commissioner of the division. (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 reasonable 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 subsection (2), the subsequent proceedings in this case shall be, as nearly as may be, in conformity with the Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 9 of 16 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 though they were arrears of a tax due from 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.
S.86 Punjab Municipal Act, 1911 deals with the Taxation not to be questioned except under this Act :
(1) No objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act. (2) No refund of any tax shall be claimable by any person otherwise than in accordance with the provisions of this Act and the rules thereunder."
Section 84 contains a provision regarding appeals against assessment and levy of taxes which means that a remedy of a statutory appeal is provided to a Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 10 of 16 party aggrieved of assessment and levy of tax under the Act. When a Statute provides a remedy of appeal it is a remedy governed by the Statute and has to be exercised strictly in accordance with the statutory provisions. Section 86 contains a bar against challenge to any valuation or assessment for purposes of tax including property tax except in accordance with remedy contained in the Act itself. Section 86 further debars any person from questioning the liability towards tax based on assessment by the authorities under the Act by any manner other than what is provided in the Act itself. Thus Section 86 of the act contains a total bar against availing any remedy against assessment and or levy of tax except as per the provision of the Act itself. On the basis of these provisions contained in the Act it was pleaded on behalf of the appellant that the suit was not maintainable and was therefore liable to be dismissed. The trial Court upheld the objection regarding maintainability of the suit and the suit was accordingly dismissed.
A bar to file a civil suit may be express or implied. An express bar is where a statute itself contains a provision that the jurisdiction of a civil Court is barred e.g., the bar contained in S. 293 of the Incometax Act, 1961. An implied bar may arise when a statute provides a special remedy to an aggrieved party. S. 86 of the Act restrains a party from challenging assessment and levy of tax in any manner other than as provided under the Act. A provision like this is the implied bar envisaged in S. 9, C.P.C. against filing a civil suit. (see AIR 2003 SC 3187 "N.D.M.C v. Satish Chand") The legal position on the question of maintainability of civil suits in such matters is fairly well settled. Section 9 of the Code of Civil Procedure contains a Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 11 of 16 provision regarding right of a party to file a civil suit. The same is reproduced as under :
"S.9 of the CPC : Courts to try all civil suits unless barred. 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 impliedly barred.
Explanation I A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
The opening words of the section give a very wide jurisdiction to the civil Courts to try all suits of a civil nature however, this wide power is qualified by providing an exception i.e. "excepting suits of which their cognizance is either expressly or impliedly barred." Dhulabhai etc. v. State of Madhya Pradesh and others, (AIR 1969 SC 78) is a celebrated judgment on the point which still holds the field. It lays down the following principles :
"(1) Where the Statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such provision, Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 12 of 16 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 is not a compulsory remedy to replace a suit.
Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 13 of 16 (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."
It will be noticed from the provisions contained in Section 9 of the Code of Civil Procedure that a bar to file a civil suit may be express or implied. An express bar is where a Statute itself contains a provision that the jurisdiction of a Civil Court is barred e.g., the bar contained in Section 293 of the Incometax Act, 1961. An implied bar may raise when a Statute provide a special remedy to an aggrieved party like a right of appeal as contained in the Punjab Municipal Act which is the subjectmatter of the present case. Section 86 of the Act restrains a party from challenging assessment and levy of tax in any manner other than as provided under the Act. A provision like this is the implied bar envisaged in Section 9, C.P.C. against filing a civil suit.
In Raja Ram Kumar Bhargava (dead) by L.Rs. v. Union of India (AIR 1988 SC 752) this Court observed : Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 14 of 16 "Generally speaking, the broad guiding considerations are that wherever a right, not preexisting, in commonlaw, 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 preexisting in common law is recognized by the Statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court's jurisdiction, then both the commonlaw 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."
Munshi Ram and others v. Municipal Committee, Chheharta (1979 (3) SCR 463) was a case under the Punjab Municipal Act itself. The Court was considering the question of bar created under Sections 84 and 86 of the Act regarding hearing and determination of objections to levy of provisional tax under the Act. In this connection it was observed :
"From a conjoint reading of Sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under the Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principles of assessment. The Act further Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 15 of 16 provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66(2) of the Indian Incometax Act, 1922. Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act."
It is well recognized that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum in a particular way, it must be sought in that forum and in that manner, and all other forum and modes of seeking it are excluded. Construed in the light of this principles, it is clear that Sections 84 and 86 of the Municipal Act bar, by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act."
A Division Bench of the Hon'ble Delhi High Court in Sobha Singh and Sons (P) Ltd. v. New Delhi Municipal Committee (34 (1988) Delhi Law Times
91) had an occasion to consider the question of maintainability of a civil suit challenging the assessment and levy of property tax by the NDMC. Sections 84 and 86 of the Act came in for consideration. It was held that the provision of appeal contained in Section 84(1) of the Act provided a complete remedy to a party aggrieved against the assessment and levy of tax. Section 86 provides that the remedy of appeal is the only remedy to a party to challenge assessment for purposes of property tax. No other remedy was available to a party in such circumstances. It follows that the remedy of civil suit is barred.
Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 ) Page 16 of 16 In view of the aforesaid position in law, I am of the considered view that the civil suit filed by the plaintiff challenging the assessment and demand of property tax by the appellant was clearly barred. Since, issue no.3 stands decided against the plaintiff therefore, there is no need to decide other issues. Hence, in view of the aforementioned discussion and observations the suit of the plaintiff for declaration, mandatory and perpetual injunction stand dismissed. The civil suit filed by plaintiff is dismissed as not maintainable. File be consigned to the record room.
Announced in the open court on this 15th day of December, 2010. (VEENA RANI) CCJ:ARC:ACJ :New Delhi.
Sh. Anil Kumar Vs. NDMC & others ( Suit No:63/09 )