TMI Blog2001 (6) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... ty vide notice dated 16th March, 1985 for enhancement of rateable value w.e.f. 1st April, 1984 to ₹ 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 ₹ 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 ₹ 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 rupee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memorial. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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