1994 Supreme(Del) 708

High Court Of Delhi
K.L.RATHI - Appellant
Versus
MUNICIPAL CORPORATION OF DELHI - Respondent
Civil Writ 3136 of 1993
Decided On : 10/20/1994

Headnote:1. Constitution of India - Article 226 — Alternate remedy — Whether in Municipal Taxation aggrieved party should exhaust the statutory remedy of appeal before approaching the writ Court? — When writ court will interfere, discussed.

       2. Administrative Law — Distinction between non-service of notice and service of defective notice, discussed.

       3. Delhi Municipal Corporation Act, 1957 - Section 126(1) — whether assessment list can be retrospective?

       In this writ petition concerning the levy and assessment of house tax, a preliminary objection was raised by the respondent to the effect that an alternate remedy by way of statutory appeal existed.

       Disposing of the writ petition, the Court.

       Held:

       1. In the matter of Municipal taxation, the rate payer should first exhaust the statutory remedy of appeal or revision, unless such a remedy is totally inefficacious. When the Legislature has entrusted the task of resolving the dispute by creating a proper machinery of appeal, this Court should not stretch its judicial arm to grab the subject matter, on the assumption that justice can be meted out only by this Court. Constitution has created the writ jurisdiction to see that statutory bodies, authorities and quasi-judicial Tribunals function according to law. The essence of the writ jurisdiction in matters of this nature lies in the scope of the Judicial Review. The power has to be exercised to examine whether there is any illegality, irrationality or procedural impropriety in an administrative action. The term "administrative action" here, would include quasi-judicial functions of the statutory authorities.

       2. The writ court cannot and should not anticipate that the statutory authority would act illegally, irrationally or with procedural impropriety and with such an anticipation (or assumption) proceed to exercise the writ jurisdiction.

       The exceptions are, where the very law is unconstitutional (a question which the statutory authority cannot decide), or the initiation of the proceedings is totally without jurisdiction or on the face of it the principles of natural justice are violated in following the statutory procedure. However, in the latter two types of cases, if the question involved requires investigation of disputed facts, the court may wait for these facts to be resolved under the Statute, since, the writ jurisdiction is ill-suited to resolve disputed questions of facts.

       The respective jurisdictions and areas of operations of the main three branches of the State are — (1) Legislature, (2) Judiciary & (3) Executive. Each department of the State (the term State connotes the `State in its abstract sense comprehensing all the three departments) has to respect the functions of the other two. The balance amongst the three shall have to be kept and maintained.

       There cannot be a mistrust of one department, by another. The function of the judiciary is to see that the rule of law prevails and the other two departments of the State function strictly according to the Constitution and the law. If so, it necessarily follows that this court cannot ignore the jurisdictions created under any law, such as the Delhi Municipal Corporation Act. When this law has provided the machinery to resolve the disputes pertaining to the levy, assessment or collection of property tax, it is imperative that this Court should not ignore the said provisions by proceeding to exercise its writ jurisdiction, at the initial stage of the levy or assessment of the tax.

       3. The distinction between non-service of a notice within the prescribed period and serving an incomplete or defective notice has to be borne in mind. The former defect cannot be cured after the lapse of the period of limitation, while the latter is capable of being rectified by issuance of a proper notice.

       Section 126(1) of the DMC Act which empowers the Commissioner to amend the assessment list. The very concept of amendment, connotes the existence of a document which is to be amended. In the very nature of an amendment, it has to be retrospective. Section 126(1) which is the main provision, empowering the amendment says, the assessment list may be amended "at any time". Sub Section (3) has, actually imposed a procedural restriction Along with a restriction as to the years in respect of which amendment may be done.