Yogeshwar Dayal, J.
(1) respondent Mansa Devi, is the owner of premises No. 302, Teliwara, Delhi. That property was previously assessed for purpose of house-tax at the rateable value of Rs. 580.00 per annum. The corporation issued notice under Section 126 of the Delhi Municipal Corporation Act, 1957 thereinafter called 'the Act') to her proposing to raise the rateable value from Rs. 580.00 to Rs. 8320.00 w.e.f. 1-4-68. This notice proposing the enhancement was served on the respondent on 11-2-1969 and required her to file objections by 13-3-69. The ground mentioned for enhancement was that there had been construction on the second floor of the building and there had increase in rents. The respondent filed objections dated 24-2-1969 asserting that the proposed increase was arbitrary and that as a matter of fact she had let out this property to M/s. Goela Enterprises Private Limited at Rs. 80.00 p.m. only and as such the rateable value should be taken at the rate at which she had let it out. In support of her contention she offered to produce evidence, if required.
(2) The respondent appeared before the Assistant Assessor and Collector, Shri Ratti Rao,on 26-5-1971 but the record of the Assessor and Collector did not record her presence; rather it recorded the presence of one Din Dayal, who was said to have no letter of authority from the assessed and the case was adjourned to 31-5-1971 to enable Shri Din Dayal to produce the latter of authority from the assessed. On 31-5-1971, no one appeared and a call letter was ordered to be issued tothe assessed-respondent for 9-9-1971. The said call letter purports to have been served on one Prabhu Dayal, alleged to be brother of the plaintiff-respondent and when none appeared before the Assistant Asssessor and Collector on 9-9-1971, he proceeded ex-parte, dismissed the objections and fixed the rateable value at the enhanced amount of Rs. 8320.00 w.e.f. 1-4-68.
(3) The appellant, thereafter, filed a suit for permanent injunction paying the perpetual injunction granted in favor of the plaintiff-respondent and against the defendant, restraining the defendant-corporation, its officers, servants and agents from demanding, penalising or recovering any amount by way of taxes, in accordance with law.
(4) The Trial Court dismissed the suit on the view that the plaintiff- respondent had been given proper opportunity in the assessment proceedings.
(5) The respondent was dissatisfied and went up in appeal and the learned lower appellate court took the view that the plaintiff-respondent had not had proper opportunity before the assessment was finalised. The lower appellate court consequently set aside the order of dismissal of suit and decreed the suit as prayed.
(6) Miss Uma Mehta, who appears on behalf of thes Corporation, submits that the blanket decree for injuction could not have been granted, and if at all the court was satisfied that proper opportunity had not been given, then all that could be done was to declare the previous assessment as illegal and direct the re-assessment in accordance with law
(7) It will be noticed that the present appeal had arisen out of the proceedings by way of a regular suit and in a regular suit once the court finds that the particular assessment arrived at is ultra virus the provisions of the Act, all that the Civil Court could do was to declare that as illegal and as a consequence pass a decree for permanent injunction restraining the Corporation from enforcing it.
(8) During the hearing. Miss Uma Mehta, learned counsel for the appellant, did not dispute the finding of the learned lower appellate court that the notice issued for the hearing fixed for 9th September, 1971 was not served on the plaintiff-respondent or any member of her family as the respondent has been found by the lower appellate court to have no brother by the name of Prabhu Dayal. Once this conclusion is reached, there can be no doubt that the order of assessment was passed without complying with the rules of natural justics and, thereforee, the assessment order culminating as a result of ' notice under Section 126 of the Act was illegal. But the question arises what should be the nature of the decree to be passed in such a case. The lower appellate court was right in passing a decree for permanent injunction that on the basis of this particular order, the Corporation be restrained from enforcing it. But in the interest of justice, however, it is clarified that this does not, in any way, debar the Corporation from proceeding in accordance with the initial notice for enhancement issued u/s. 126 of the Act and giving proper opportunity to the plaintiff-respondent to contest it.
(9) With these remarks, the appeal fails and is dismissed with no order as to costs.