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TMI Blog2015 (7) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that learned counsel for the appellants relied upon the decisions reported as (1994) 6 SCC 572 Srikant Kashinath Jituri vs. Corporation of the City of Belgaum, AIR 1979 SC 1250 Munshi Ram & Ors. vs. Municipal Committee Chheharta, 34 (1988) DLT 91 Sobha Singh & Sons (P) Ltd. vs. New Delhi Municipal Committee, AIR 1969 SC 78 Dhulabhai etc. vs State of Madhya Pradesh & Anr., and 2001 (60) DRJ 549 Ganga Ram Hospital Trust vs. Municipal Corporation of Delhi but has held that the same were of no help to the appellants in view of the decision reported (2003) 10 SCC 38 NDMC vs. Satish Chand, with reference to which decision the learned Single Judge has held that keeping in view the ratio thereof the suit filed by the appellants was not maintainable. 3. The two appellants, as co-plaintiffs, had prayed in the suit as under:- "(a) A decree for declaration be passed thereby declaring the demand for payment of property tax on the suit property, the Assessment order dated 01.03.2013 bearing No. TAX/CIR/2013/453 issued on 02.03.2013 and all consequential demands and Warrants of Distress as null and void and inoperative and the same be set aside and quashed being per se illegal, unlawful a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned plan of building, there are two basements (lower & upper) and total area of basement is 18134.92 sq.mtr. The contention of the taxpayer in the representation dated 30.11.2012 that since all units have been sold out to different buyers, the taxpayer is not liable to pay property tax in r/o basement is not tenable as entire ownership rights of the basement remains with M/s.GPS Properties Pvt.Ltd. as per perpetual lease executed with DDA. Though there is no legal definition of Super area/common area of Mall but in case it includes the car parking then the parking area cannot be sold as per the Perpetual Lease agreement executed. I have gone through the lease agreement dated 15/5/2006 executed between Slum & JJ Dept. of MCD and M/s.GPS Properties Pvt.Ltd. In this regard, clause the Perpetual Lease Deed executed between the Slum & JJ Dept. of MCD and the owner/assessee, provides as under:- "6(a) The Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the commercial plot except with the previous consent in writing of the Lessor which he shall be entitled to refuse in his absolute discretion." However, the other provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee immediately and initiate recovery proceedings under the provisions of DMC ACT if the demand is not liquidated within due date of payment given to the taxpayer/assessee." 5. From a perusal of the assessment order it is clear that as per the assessee, being authorized to sell the different portions of the building constructed on the plot of land, while selling different portions to different parties the price charged included proportionate common areas and since they had a right to park the vehicles in the basements the interest in the basements would seize to be with the assessee; inherent in the plea was that while determining the rateable value of the different units sold on unit area method the assessment had to be with the liability on the purchasers of the different portions of the building. The contention was rejected by the assessing officer noting that as per the perpetual lease-deed conferring ownership rights on the assessee it was authorized to sell the floor space alone and hence not the basement. There is a presumptive reasoning in the assessment order that the individual buyers of the units were using the parking space on payment of parking fee, and we say so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the assessment and levy of property tax is not barred; clarifying that the limited gateway open was as per the law declared by the Constitution Bench of the Supreme Court in Dhulabhai's case which has been followed in various decisions, and the decision rendered in Satish Chand's case by the learned Judge pertained to assessment and levy of house tax under the Punjab Municipal Act. 11. In Satish Chand's case Section 86 of the Punjab Municipal Act, 1911 was noted by the Supreme Court and interpreted to be an express bar to the maintainability of a civil suit. No such express bar was shown to the Division Bench of this Court in Ganga Ram Hospital Trust's case, and hence the view taken that a civil suit would be maintainable, but the scope thereof would be limited. 12. Regretfully, in the instant case, the learned Single Judge has overlooked this fine but critical distinction i.e. where a statute expressly bars the jurisdiction of a Civil Court and where a statute does not expressly bar the jurisdiction of a Civil Court but merely provide for a remedy against an assessment order but makes the remedy conditional to the deposit of the house tax and thereby making the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally 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 virus canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 very lightly. 21. The legal position in this behalf has been summarised by the Supreme Court in the decision reported as (1988) 171I TR 254 (SC) 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 flatus and a finality is intended to the result of the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the levy and assessment of tax is not in accordance with the Act or is vocative 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. The Division Bench note that the 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. 25. While on the question of express or implied bar to a civil suit, the Division Bench noted that elsewhere in the Delhi Municipal Corporation Act, 1957, where the legislature intended to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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?" 26. The Division Bench concluded that while considering the provisions of a statute and determining whether there was an implied bar in the maintainability of a civil suit, the scheme of the statute with reference to the adequacy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 29. 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 the decision r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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