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2015 Supreme(Del) 1625
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRADEEP NANDRAJOG, MUKTA GUPTA, JJ.
Today Homes & Infrastructure Pvt. Ltd. & Anr. - Appellants
Versus
South Delhi Municipal Corporation & Ors. - Respondents
RFA (OS) 13/2015 & 17/2015
Decided on : 24-07-2015
Advocate Appeared:
Mr. Rajat Malhotra, Advocate
Mr. Prasanta Varma, Advocate
The main legal point established in the judgment is that a civil suit challenging the assessment and levy of property tax under the Delhi Municipal Corporation Act, 1957 is not absolutely barred, but the scope of the suit would be limited.
Headnote:
Property Tax - Assessment and Levy - DMC Act, 1957 - Section 169, 170, 171 - The court held that a civil suit challenging the assessment and levy of property tax under the Delhi Municipal Corporation Act, 1957 is not absolutely barred, but the scope of the suit would be limited in light of the law declared by the Supreme Court and Division Benches of this Court in various judgments.
Fact of the Case:
The appellants challenged the order holding their suit for declaration and permanent injunction regarding property tax as not maintainable. The assessment order determined the annual value of the property and raised a demand for house tax. The appellants abandoned the appeal to the Municipal Taxation Tribunal due to the onerous condition of depositing the disputed amount. The court noted that the learned Single Judge overlooked the distinction between express and implied bar to the jurisdiction of a civil court.
Finding of the Court:
The court found that a civil suit challenging the assessment and levy of property tax under the Delhi Municipal Corporation Act, 1957 is not absolutely barred, but the scope of the suit would be limited. The learned Single Judge was directed to determine the maintainability of the suit afresh.
Issues: The issues involved the maintainability of a civil suit challenging the assessment and levy of property tax under the Delhi Municipal Corporation Act, 1957, and the distinction between express and implied bar to the jurisdiction of a civil court.
Ratio Decidendi: The court held that the jurisdiction of a civil court is not absolutely barred, but the scope of the suit challenging the assessment and levy of property tax would be limited. The court emphasized the distinction between express and implied bar to the jurisdiction of a civil court and the onerous nature of the remedy provided under the Act.
Final Decision: The court set aside the impugned order and restored the suit for determination of its maintainability. The learned Single Judge was directed to determine the maintainability of the suit afresh.
Pradeep Nandrajog, J.
1. The appellants of the above captioned two appeals : M/s. GPS Properties Pvt. Ltd. and M/s. Today Homes and Infrastructure Pvt. Ltd. are the co-plaintiffs of CS(OS) 814/2014. In the two appeals filed by them, they have impleaded the other as respondent No.3. The South Delhi Municipal Corporation and its Assessor & Collector, impleaded as defendants No.1 and 2 in the suit, are the respondent No.1 and 2 respectively in the two appeals. The two appeals lay a challenge to the order dated November 17, 2014 passed by the learned Single Judge holding that the suit filed by the two appellants, as co-plaintiffs, was not maintainable.
2. The learned Single Judge has noted 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 and unjustified;
(b) A decree for permanent injunction be passed thereby restraining the Defendants their agents, servants, employees, officers or anybody acting on their behalf from taking coercive steps for recovery of the impugned amount of property tax as assessed vide assessment order dated 01.03.2013; or any other specific coercive steps to recover the said amount from the plaintiffs either through their movable or immovable property or from their bank accounts, securities and deposits etc.”
4. It would be useful to note the assessment order determining the annual value for the reason it was under challenge in the suit, and the demand of house tax raised was pursuant thereto. The order notes the dispute and gives reasons why contention advanced by the assessee, which we note is M/s. GPS Properties (P) Ltd. were not tenable and why in law the assessment was being made. The order reads as under:-
“This order of assessment is of the Annual Value under the Unit Area Method of the basement of the above mentioned property which is under the ownership of M/s. GPS Properties (P) Ltd. Statesman House, 8th floor, Barakhamba Road, New Delhi. In this case, notice U/s 123D of the DMC (Amendment) Act, 2003 dated 2.11.2012 on a/c of non-payment of tax in r/o basement and hoardings was issued against the property. A representation dated 30.11.2012 has been filed by Sh. Lokesh Patodia, DGM of M/s. GPS Properties Pvt. Ltd. enclosing therewith documents which has been taken on record. The basic contention is that there are agreements executed between the owner and the space buyers of the floor area. The property tax for the common area of the mall is the responsibility of the space buyers of the floor areas in proportionate to the common area falling under their share and the same may be recovered from the space buyers.
I have gone through the documents/information filed by the taxpayers. A commercial plot No.4, 5, 6 Shivaji Place, Dist. Centre, Raja Garden, New Delhi meas. 10728 sq.m
