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High Court Of Delhi
AJAY ENTERPRISES LIMITED - Appellant
Versus
MUNICIPAL CORPORATION OF DELHI - Respondent
Interim Application 11352 of 1991
Decided On : 04/03/1998
MUNICIPAL CORPORATION - ASSESSMENT OF PROPERTY - INCLUSION OF COST OF AIR-CONDITIONING, FURNITURE AND FIXTURES, AND ELECTRIC FITTINGS IN THE COST OF BUILDING - MAINTAINABILITY OF SUIT FOR PERMANENT INJUNCTION - DELHI MUNICIPAL CORPORATION ACT, 1957, SECTIONS 2(3), 2(24), 116(3), 169, 170, 478 - SPECIFIC RELIEF ACT, 1953, SECTION 41(H) - DELHI MUNICIPAL CORPORATION (DETERMINATION OF RATEABLE VALUE) BYE-LAWS, 1994.
Fact of the Case:
The plaintiff, a company, challenged the assessment order dated 23rd March, 1991, and the threatened recovery of bills dated 7th May, 1991, and 10th September, 1991, amounting to Rs. 21,38,231.00 issued in respect of a property known as Vishal Cinema, Rajouri Gardan, New Delhi. The plaintiff contended that the assessment order included water tax amounting to Rs. 1,01,252.00 and refused to give credit of Rs. 5,39,274.00 on account of vacancy remission. The plaintiff also claimed that the rateable value was erroneous as it included the cost of air-conditioning, furniture, and fixtures, especially when the rectification was pending before the Deputy Assessor and Collector.
Finding of the Court:
The court held that the suit for permanent injunction was barred by the provisions of Section 41(h) of the Specific Relief Act, 1953, as an equally efficacious remedy of filing an appeal under Section 169 of the Delhi Municipal Corporation Act, 1957, was available to the plaintiff. The court further held that the inclusion of the cost of air-conditioning, furniture, and fixtures, and electric fittings in the cost of the building was justified as per the provisions of Sections 2(3), 2(24), and 116(3) of the Delhi Municipal Corporation Act, 1957, and the Delhi Municipal Corporation (Determination of Rateable Value) Bye-Laws, 1994.
Issues: 1. Whether the suit for permanent injunction was maintainable in light of the availability of an alternative remedy of appeal under Section 169 of the Delhi Municipal Corporation Act, 1957? 2. Whether the inclusion of the cost of air-conditioning, furniture, and fixtures, and electric fittings in the cost of the building was justified under the relevant provisions of the Delhi Municipal Corporation Act, 1957, and the Delhi Municipal Corporation (Determination of Rateable Value) Bye-Laws, 1994?
Ratio Decidendi: 1. The court held that the suit for permanent injunction was barred by the provisions of Section 41(h) of the Specific Relief Act, 1953, as an equally efficacious remedy of filing an appeal under Section 169 of the Delhi Municipal Corporation Act, 1957, was available to the plaintiff. The court noted that the appeal process, though slightly harsh, provided the plaintiff with an opportunity to challenge the assessment order and obtain relief. 2. The court held that the inclusion of the cost of air-conditioning, furniture, and fixtures, and electric fittings in the cost of the building was justified as per the provisions of Sections 2(3), 2(24), and 116(3) of the Delhi Municipal Corporation Act, 1957, and the Delhi Municipal Corporation (Determination of Rateable Value) Bye-Laws, 1994. The court distinguished the case of Hindustan Lever Ltd. v. Municipal Corporation of Greater Bombay, (1995) 3 SCC 716, which excluded the cost of air-conditioning machinery from the rateable value, on the basis of the different language used in the relevant provisions of the Delhi Municipal Corporation Act, 1957, and the Bombay Municipal Corporation Act.
Final Decision: The court dismissed the plaintiff's suit for permanent injunction and rejected the plaint under clause (d) of Order 7 Rule 11 of the Code of Civil Procedure, 1908. The court also dismissed the plaintiff's application for interim stay under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908.
( 1 ) THE plaintiff company is challenging the assessment order dated 23rd March, 1991 and threatened recovery of the bills dated 7th May, 1991 and 10th September, 1991 amounting to Rs. 21,38,231. 00 issued in respect of a property known as Vishal Cinema, Rajouri Gardan, New Delhi. Action of the defendant/mcd is challenged on the ground that it includes water tax amounting to Rs. 1,01,252. 00 and refusal to give credit of Rs. 5,39,274. 00 on account of vacancy remission. The rateable value is erroneous for it includes the cost of air-conditioning, furniture and fixtures, specially when the rectification is pending before Shri Anand Kishore, Dy. Assessor and Collector. The suit for permanent injunction is mandatory as there exist no other equally efficacious remedy than to file the present suit.
( 2 ) THIS suit is being contested by the defendant on the ground the suit is not maintainable for the suit is barred under following provisions: (i) Under Section 169 of the Delhi Municipal Corporation Act, 1957 (hereinafter called "the DMC Act" for short) read with Section 41 (h) of the Specific Relief Act, 1953; and (ii) under Section 478 of the DMC Act for want of requisite notice and being barred by the period of prescribed limit under Section 478 (2) of the DMC Act. The suit has been filed with the sole aim and intention to evade payment of legal and valid dues. This Court has no jurisdiction and competence to adjudicate upon mode of assessment and quantum of assessment. In so far as the question of water tax is concerned that has been deleted from the bill and revised demand bill had been sent to the plaintiff on 23rd December, 1991. The claim of vacancy remission has been rejected as the plaintiff has not complied with the relevant provisions of the DMC Act. No rectification proceeding is pending and the assessment order dated 23rd March, 1991 is absolutely legal and final. The cost of fittings and fixtures and air- conditioning has been rightly taken into account for arriving at a rateable value of the property in question.
( 3 ) HAVING heard learned counsel for the parties and after going through the records, it appears that the present dispute relates to the following points:
(I) Inclusion of cost of electric fittings, furniture and fixtures and air-conditioning in the cost of building; and (ii) Question of vacancy remission; and (iii) Maintainability of the suit.
( 4 ) SO far as the question of giving notice is concerned, the present suit being an injunction suit falls in the exceptional category and in terms of sub-section (3) of Section 478 of the DMC Act, nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice of postponement of the institution of the suit. In so far as the prescribed limit of six months is concerned, under Section 478 (2) of the DMC Act, if nothing is to be deemed to apply to a suit in which relief claimed is injunction would mean that the suit is beyond the scope of sub-section (1) of Section 478 of the DMC Act. It cannot be said to be suit such as described in sub- section (1) nor it can be said that it cannot be instituted after expiry of six months from the date on which the cause of action arises. There are two bills in the present case recovery of which is sought to be stayed; one is dated 7th May, 1991 and another is dated 10th September, 1991. For the two bills fall within six months, therefore the objection raised in this regard cannot be sustained.
( 5 ) AS regards inclusion of certain items for the purpose of rateable value is concerned, one has to refer to the definition of the words "land and building" and "plant and machinery" as used in Sections 2 (3), 2 (24) and 116 (3) of the DMC Act. They read as under:
"2 (3) "building" means a house, ut-house, stable, latrine, urinal, shed, but, wall (other than a boundary wall) or any other structure, whether of masonry, bri
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