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Chetan Dass and ors. Vs. Delhi Municipal Corporation, Delhi - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 223D of 1964
Judge
Reported in8(1972)DLT238
ActsDelhi Municipal Corporation Act, 1957 - Sections 126
AppellantChetan Dass and ors.
RespondentDelhi Municipal Corporation, Delhi
Advocates: Bhawani Lal and; D.D. Chawla, Advs
Cases ReferredNew Delhi v. Indian Bank Ltd. It
Excerpt:
(i) municipal tax - enhancement of rateable value - section 126 of delhi municipal act, 1957 - respondents sent bill to appellant requiring them to pay property tax - appellants not given opportunity of proving their non-liability to pay said tax - assessment relied upon outside scope of authority - commissioner can exercise power of amending assessment only with compliance of section 126 (2) requiring him to state reasons for proposing particular amendment - non-compliance makes notice illegal even if objections are filed by appellant - such notice deprives appellant form setting up exact and accurate objections - held, amendment caused in assessment of tax outside act. (ii) civil - jurisdiction - where statute gives finality to orders of special tribunals - jurisdiction of civil courts..........the plaintiffs-appellants instituted a suit on the 20th of march, 1963, against the respondents, delhi municipal corporation, delhi. the plaintiffs alleged that they were carrying on the business of sawing timber on plot no. 10188, situated in motia khan, paharganj, delhi, which at one time was owned by delhi improvement trust. the plot had been leased out to muslims, who became evacuses on the partition of the country, and the lessee rights therein became evacuee property. those rights having been allotted to the plaintiffs, they began paying rent to the custodian and after the plot was acquired by the central government the plaintiffs continue paying rent-to managing officer. in paragraph 4 of the plaint it was alleged that the defendant sent a bill to the plaintiffs demanding the.....
Judgment:

Pritam Singh Safeer, J.

(1) This regular second appeal is directed against the decree dated the 18th of September, 1964, founded On a judgment of that date by an Additional District Judge, Delhi.

(2) The plaintiffs-appellants instituted a suit on the 20th of March, 1963, against the respondents, Delhi Municipal Corporation, Delhi. The plaintiffs alleged that they were carrying on the business of sawing timber on plot No. 10188, situated in Motia Khan, Paharganj, Delhi, which at one time was owned by Delhi improvement Trust. The plot had been leased out to Muslims, who became evacuses on the partition of the country, and the lessee rights therein became evacuee property. Those rights having been allotted to the plaintiffs, they began paying rent to the Custodian and after the plot was acquired by the Central Government the plaintiffs continue paying rent-to Managing Officer. In paragraph 4 of the plaint it was alleged that the defendant sent a bill to the plaintiffs demanding the property tax for the year 1962-63 in respect of plot No 10188. The bill disclosed that the assessment of tax had been made at the rateable value of Rs.3,888.00. The plaintiffs stated in paragraphs 5 and 6 that they had filed objections contending that the plot was owned by the Central Government and the property was not liable to property-tax and that they had also preferred an appeal under section 169 of the Delhi Municipal Corporation Act, which was later on dismissed as withdrawn because they did not deposit the amount of tax, the depositing whereof would have entitled them to the hearing of the appeal. It was in paragraph 8 of the plaint that the plaintiffs-appellants enumerated that grounds on the basis whereof they contended that they were not liable to pay the property tax demanded by the defendants. It is ground (e) contained in paragraph 8 of the plaint, which is relied upon while urging this appeal. As contained therein. It is , 8. That the plaintiffs are not liable to pay the property tax to the defendants in view of the following :- * . * * (e) That no notice as required by law was ever given by the defendant about the basis on which the property tax was being assessed, nor the plaintiffs were given any opportunity of proving their non-liability to pay the said tax. No other plea contained in the plaintiffs being urged in support of this appeal.

(3) The defendants, Delhi Municipal Corporation, filed the written statement bearing the date 30th of May, 1963. The Corporation urged that the property concerned stood in the name of Messrs Veer and Company who had constructed a super-structure on a portion wherein a saw mill was being run. Inparagraphs 4 and 5 of the written statement the defendants stated :-

(4) That in reply to para four of the plaint it is submitted that a notice under section 126 of the DMCAct 1957 was served on M/s. Veer & Co. on 15th February, 1961 and objection was received and a call letter was issued on 9th April, 1961, for hearing the case. The proposed rateable value at Rs. 3,888 was confirmed with effect from 1st April, 1960. It is further submitted that property taxes bill on the value finalized was accordingly issued to M/s. Veer & Co. for the sum of Rs. 1919.45 nP. for the year ending on 31st March, 1963.

(5) That para 5 of the plaint is denied subject to the reply concontained in para 4 above. It is further submitted that M/s Veer & Co., constructed a super-structure over the site in question. They have also installed a 15 H. P. engine for Saw Mill business. It is further submitted that 5 portions of the properly in question have been let out to different tenants who are paying rent to M/s Veer & Co. The total rent realised per month comes to Rs. 135.00. It is submitted that in accordance with the provisions of the Dmc Act M/s Veer & Co. is the person primarily liable for the payment on Municipal Taxes. In this respect the definition of the word 'owner' may kindly referred to as given in the said Act.' It is clear that the defendants urged that they had served a notice under section 126 of the Delhi Municipal Corporation Act, 1957 (hereinafter called 'the Act') and having received objections issued a call letter to the plaintiffs. The defendants admitted in terms of their aforequoted contentions that the proposed rateable value of Rs. 3,888.00 was confirmed with effect from 1st April, 1960. It was stated in paragraph 5 that Messrs Veer and Company had sub-let the premises to various tenants and were Realizing rent and that they fell within the definition of 'owner' as contained in the Act. In paragraphs of the written statement the same plea was repeated. The parties went to trial on the following issues :-

'(1)Whether the plaintiffs are not liable to pay the property tax to the defendant as alleged in para 8 of the plaint (2) What is the effect of dismissal of appeal preferred by the plaintiff before the learned District Judge (3) Whether the suit is barred by section 477 of the D. M. C. Act (4) Whether the suit is barred by section 478(2) of the D. M. C. Act? (5) Whether the Civil Courts have jurisdiction to try the suit (6) Reiief.'

The trial court framed issue No. 1 so as to cover all the grounds urged through para 8 of the plaint. It was that issue on the basis whereof it is urged that it was imperative for the defendants to proceed to make the assessment of tax only after issuing the requisite notice to the plaintiff- appellants. It is urged that the only plea with which the defendants- respondents came forward was that a notice issued under section 126 of the Act had been duly served. The counsel for the appellants submits that no notice complying with the demands of section 126 of the Act having ever been served, the assessment relied upon was outside the scope of the authority conferred by the provisions contained in the Act. For that reason, the learned counsel submits, the defendants were not entitled to realise the tax and the civil court had the jurisdiction to grant the relief.

(6) While hearing this appeal on 27th of September, 1971, my attention was invited by the counsel for the respondents to a document which purported to be a notice under section 126 of the Act. I gave him an opportunity of adducing additional evidence for proving the same. The respondents produced evidence on the 29th of November, 1971, and R. W, 1 examined on that date proved the notice served on the appellants under section 126 of the Act. That document is Exhibit R.W. 1/A.

(7) The counsel for the appellants have firstly relied on section 126 of the Act, which is :-

'126.(1) The Commissioner may, at any time, amend the assessment list:- (a) by inserting therein the name of any person whose name ought to be inserted ; or (b) by inserting therein any land or building previously omitted; or (e) by striking out the name of any person not liable for the payment of property taxes ; or (d) by increasing or reducing for adequate reasons the amount of any rateable value and of the assessment thereupon ; or (e) by making or cancelling any entry exempting any land or building from liability to any property tax ; or (f)by altering the assessment of the land or building which has been erroneously valued cr assessed through fraud, mistake or accident ; or (f) by inserting or altering an entry in respect of any building erected, re-erected altered or added to, after the preparation of the assessment list: Provided that no person shall by reason of any such amendment become liable to pay any tax or increase of tax in respect of any period prior to the commencement of the year in which the amendment is made. (2) Before making any amendment under sub-section (1) the Commissioner shall give to any person affected by the amendment, notice of not less than one month that he proposes to make the amendment and consider any objections which may be made by such person.'

It is urged that the provisions makes it obligatory that the notice to be issued there under must state the reasons for the proposed amendment in the assessment. The notice otherwise would be illegal and any amendment in the assessment of tax consequence thereof would be outside the Act. The order imposing such an assessment being not an order under the Act, according to the learned counsel, will not be appealable under section 169 thereof.

(8) A perusal of Exhibit R. W. I/A persuades me that there is merit in the contention raised on behalf of the appellants. Exhibit R. W. 1/A describes itself as a notice under section 126 of the Act. It is dated the 15th of February, 1961, and is addressed to 'M/s Veer & Co. 10188 Loha Mandi, M. Khan, Delhi.' It is stated in the said notice :-

'WHEREASit is proposed to amend the assessment list for the year 1960-61 by making/amending the entry as under in respect of your premises No. 10188, situated in Ward No. Xv of which you are the assessed and the entry/amendment is proposed to be made with effect from 1st April. 1960.'

Locality House Name of Descrip- Pre- Propo- & Ward the corporation of vious sed rat- Remarks No. Assesses, the pro- Raie- able perty. able value. Loha 10188 M/S S 86 270.00 3888.00 - Mandi Xv Veer & Co.

'WHEREASI, L.H. Marhathe, Assessor and Collector, Municipal Corporation of Delhi, am duly authorised and empowered by the Commissioner of the Municipal Corporation of Delhi. 'I hereby given you notice that if you have any objection to the proposed entry/amendment or the date of effect you must submit the same in writing on or before 17th March, 1961 failing which the entry will be confirmed.'

As is visible from the quotation given above, the previous rateable value was Rs 270.00. It was proposed to increase it to Rs. 3,888.00. No reasons were given in the notice disclosing as to why the increase, was intended. The assesseds were thus not apprised of the grounds on which it was proposed to increase the rateable value. They could not have raised objections because they did not have before them the reasons for which it was intended to increase the rateable value.

(9) The legality and competence of a notice issued under section 67(1) or the Punjab Municipal Act of 1911, which provision was similar to Section 126 with which I am dealing, came in for consideration before a Division Bench of this court in New Delhi Municipal Committee, New Delhi v. Indian Bank Ltd. It was held that the Municipal Committee was bound to inform the person to he afferted by the proposed alteration of the reasons for which the alteration was proposed to be made in the assessment list. Section 126 of the Act makes it clear that the Commissioner can exercise the power of amending the assessment list only after compliance with sub-section (2) thereof. There has to be a notice of not less than one month wherein it has to be stated as to what the proposed amendment is to be. The amendment can be in terms of any or some of the clauses contained in sub-section (1) of section 126. The enumeration contained in clauses (a) to (g) by itself clarifies that the notice will have to state the reasons for proposing the particular amendment. Unless such reasons are stated in the notice it will not be possible for the person receiving it to formulate objections to the intended amendment. A notice, which does not comply with the imperative requirements of section 126, will not give the consequential power to the Commissioner to make any amendment. Where a notice is invalid and illegal, even if any objections are filed by the person who receives it, the filing thereof will not make the notice legal. Section 126 allows the amendment in the assessment list. Such an amendment may increase the tax already imposed. A taxing provision has to be strictly construed. The authority deriving power from such a provision must show strict compliance therewith before it can be held that the order passed by it had been competeatly passed. It must be kept in view that apart from the principles of natural justice, it re- mained a requirement of section 126 that the notice must state the reasons disclosing as to why the amendment was intended to be carried out. A notice, silent like Exhibit R.W. 1/A, would deprive the person receiving it from setting up exact and accurate objections on the basis whereof he may repel it. Exhibit R.W. 1/A, the notice purporting to have been issued under section 126 of the Act cannot be held to be meeting the iequirement of the provision. It remains incompelent and illegal. That being so, the amendment caused in the assessment of lax in respect of the property in suit was outside the Act.

(10) The Supreme Court gave a detailed consideration to the scope of the jurisdiction of a civil court in the course of its judgment in Dhulabhai etc. v. State of MadhyaPradesh and another. In paragraph 32 of the judgment the Supreme Court recorded several conclusions. It is the first conclusion so recorded with which I am concerned in this case:-

'(1)Where the statute gives a finality to the orders of the special tribunals, the civil court's jurisdiction must bs held to he excluded if there is adequate remedy to do what the civil courts would normally 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 It is urged on behalf of the appellants that the impugned assessment being outside the Act, the civil court had the jurisdiction to entertain the suit and to adjudicate thereupon. Having held that the notice Exhibit R. W. 1/A is illegal, I conclude that the civil court had the jurisdiction in such a case to entertain and try the suit, I hold that the impugned assessment was outside the Act. No valid notice had been issued so as to entitle the Commissioner to amend the assessment list. The appeal is accepted. The suit, as filed, is decreed with costs throughout.'


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