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Kuldip Singh Dhingra Vs. New Delhi Municipal Committee - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 76 of 1981
Judge
Reported in20(1981)DLT141
ActsPunjab Municipal Act, 1911 - Sections 84 and 215
AppellantKuldip Singh Dhingra
RespondentNew Delhi Municipal Committee
Advocates: S.N. Misra,; S.S. Janhar and; K.C. Mittal, Advs
Cases ReferredWest Bengal v. The Indian Iron and Steel Co. Ltd.
Excerpt:
municipal tax - jurisdiction of civil courts - sections 84 and 215 of punjab municipal act, 1911 - notice under section 215 prerequisite for demand of tax duly sent through registered post though returned unserved but presumed to be proper service - provisions of act duly complied with - civil courts have no jurisdiction except in case of violation of provisions of act. - - 108 of 1976. it is urged on the basis of these judgments that the committee should have determined the annual letting value on the basis of standard rent which they have failed to do. kumar bussi (supra) can be given in a case like this in which the very jurisdiction of the court stands ousted......not act under the act but in violation of its provisions; firm seth badha kishan v, adminisliator municipal committee ludhiana, : [1964]2scr273 and 'the state, of west bengal v. the indian iron and steel co. ltd., air 1970 s.c. 2298. (4) i had an occasion to examine similar matter under the delhi municipal corporation act, 1957 and had come to the conclusion that where the appellate authority can grant adequate relief wnich is asked for by the civil court, then it shall be deemed that the jurisdiction of the civil court is ousted. section 81 of the act provides for an appeal against the assessment or levy of any lax under the act to the deputy commissioner, or such other officer as may be empowered by the government in this behalf. surely if an appeal had been filed to the deputy.....
Judgment:

M.L. Jain, J.

(1) Brief facts are that the appellants are owners of the property No. 85) Golf Link, New Delhi. The property was assessed to house tax in the year 1971-72. It was proposed to be revised for the year 1972-73. The property owners claimed that they are residents of Amritsar. A notice under sub-section (2) of section 215 of the Punjab Municipal Act, 1911 (the Act) was sent in a registered cover addressed to their Amritsar address by the New Delhi Municipal Gommittee (herein the committee). It appears that these notices were returned unserved because the addresses were not available on the given address. The committee thereforee, issued fresh notices and served them by affixation on the property in Golf Links, New Delhi under sub-section (1) of section 215 of the Act. No body appeared in response to this notice and eventually the tax was revised and a demand of Rs. 7559-10 paise was raised. The owners filed a suit for permanent injunction and prayed that the defendant committee be restrained permanently from recovering the alleged property tax based on a wrong valuation and it be held that the assessment by the defendant committee is illegal, invalid, inoperative and without jurisdiction. The committee in (heir written statement took several objections. The learned Sub-Judge by his judgment dated December 18, 1975 decreed the suit. His finding was that the assessment made by the committee is not in accordance with law because the notice under sections 65 and 68 of the Act was not served in accordance with provisions of subsection (2) of section 215. He further held that he had the jurisdiction to decide the matter regarding house tax etc.

(2) On appeal, the learned Additional District Judge by his judgment dated May 21,1980 reversed i he decree. He held that the civil court had no jurisdiction to go into the dispute. Hence, this second appeal.

(3) It is urged that the civil court has jurisdiction to decide the subject matter of the suit because the assessing authority did not comply with the provisions of section 215 of the Act. It could not acquire jurisdiction unless a proper notice was served. It is not a case of irregular or wrong exercise of jurisdiction but it is a case of usurpation of powers. Administrator, City (if Lahore v. Abdul Mojid, Air 1945 Lah 81 was dited in support. Civil court's julisdiclion is not ousted if the Tribunal abuses its powers or does not act under the Act but in violation of its provisions; Firm Seth Badha Kishan v, Adminisliator Municipal Committee Ludhiana, : [1964]2SCR273 and 'The State, of West Bengal v. The Indian Iron and Steel Co. Ltd., Air 1970 S.C. 2298.

(4) I had an occasion to examine similar matter under the Delhi Municipal Corporation Act, 1957 and had come to the conclusion that where the appellate authority can grant adequate relief wnich is asked for by the civil court, then it shall be deemed that the jurisdiction of the civil court is ousted. Section 81 of the Act provides for an appeal against the assessment or levy of any lax under the Act to the Deputy Commissioner, or such other officer as may be empowered by the government in this behalf. Surely if an appeal had been filed to the Deputy Commissioner, then he could have granted adequate relief to the appellants.

(5) Now, whether service has been effected in the prescribed manner or not is a question of fact and the learned Additional District Judge has come to the finding that service has been properly effected. As far as subsection (1) of section 215 of the Act is concerned, the service of the notice has been effected by pasting thereof upon the Golf Links premises and there is proper compliance of said sub-section (1). The Committee had also taken the precaution of sending their notices by registered cover according to subsection (2) of section 215. According to section 27 of the General Clauses Act, if a document is required to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post) a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Nand Lal DW2 and Suresh Mohan DW3 have said that registered notices were sent but they were returned unserved. Unless the plaintiff proves otherwise, the - presumption is that there has been proper service. In the plaint there is no specific averment that notices were not served in the manner provided under section 215. What was averred was vide para 7 of the plaint, that the plaintiffs have not been given any opportunity of showing cause as to how the figure of Rs. 7559-10 paise of the alleged property tax was arrived at. The whole procedue adopted by the defendant regarding levying of the tax and the assessment of the property in dispute, was invalid, in utter disregard of the principles of law and natural justice and against the requirements of law. In reply to this paragraph, the committee stated that the assessed has been given due opportunity to prefer and substantiate objections against the proposed assessment) vide notice dated 28-12-1971 pasted at site on 24-1-1972. The assesseds filed objections in the committee office on 9-2-1972. But the plaintiffs did not put in appearance in support of their objections. In the replication the plaintiffs made no specific denial but simply said that para 7 of the written statement is not admitted to be correct and the same is denied and the corresponding para No. 7 of the plaint is re-affirmed. KuldipSingh (P.W.2) deposed that he did not remember as to -whether any show cause notice was issued to him for enhancement. In this state of averments and evidence, I am unable to find any fault with the finding of the Additional District Judge that it cannot be held that provisions of section 215 of the Act have not been complied with, and that is a finding of fact.

(6) That apart Mr. Mittal referred to Munshi Ram and ors. v. Municipal Committee Chheharta, : [1979]118ITR488(SC) . The Supreme Court held that it is clear that sections 84 and 86 of the Act bar, by inevitable implication of the civil court where the grievance of the party relates to an assessment or the principle of assessment under the Act. That concludes the controversy. The learned Additional Dretrict Judge, thereforee, was correct in holding that the civil court had no jurisdiction. Firm Seth Radha Kishan (supra) and The Indian Iron an't Steel Co. Ltd. have ' also in the end held likewise.

(7) Lastly the learned counsel for the appellants referred to Diwan Daulat Rai Kapoor and others v. New Delhi Municipal committee and others : [1980]122ITR700(SC) and to a Division Bench decision of this court in Nand Kumar Bussi and another v. New Delhi Municipal committee, LP.A. 108 of 1976. It is urged on the basis of these judgments that the committee should have determined the annual letting value on the basis of standard rent which they have failed to do. Sub-clause (a) of clause (1) of section 61 and clause (1) sub-clause (b) of section 3 of the Act have been so construed. The Supreme Court has held that the landlord cannot reasonably accept to get more rent than the standard rent payable in accordance with the principles laid down in Delhi Rent Control Act. The assessing authority would have to arrive at its own figure of standard rent by complying the principles laid down in the said Rent Act. That is a task which the assessing authority shall have to perform as a part of process of assessment. The Supreme Court vide para 12 also observed that the assessment of annual value in excess of the standard rent was illegal and ultravires. In the light of these observations, the Division Bench of this court has quashed the assessment which was also challenged by way of a suit. It was argued that where the assessment is illegal and ultravires, the civil court had jurisdiction to deal with it because it is then a case of violation of the provisions of the Act. The suit of the appellants) thereforee, was not outside the juridiction of the civil court. It does not appear from the report of Diwan Daulat Rai (supra) whether the valuation was challenged on this ground initially, but from Nand Kumar Bussi (supra) it is clear that the contention of the plaintiffs in their suit was that the contractual rent in question could not be regarded as standard rent. But in the present case, the plaintiffs did not raise such a plea in their suit. thereforee, this new ground cannot be allowed to be taken up in this second appeal. Moreover, no such direction as was given in Nand. Kumar Bussi (supra) can be given in a case like this in which the very jurisdiction of the court stands ousted. In the said D.B. decision, no controversy as to the jurisdiction of the court was raised.

(8) I am thereforee, of the view that this appeal raises no substantial question of law which is already not concluded by the Supreme Court. Dismissed in liming.


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