M/S. TODAY HOMES & INFRASTRUCTURE PVT. LTD. vs. SOUTH DELHI MUNICIPAL CORPORATION & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: July 14, 2015
Judgment Delivered on: July 24, 2015

+ RFA (OS) 13/2015
M/S. TODAY HOMES AND
INFRASTRUCTURE PVT. LTD. ..... Appellant
Represented by: Mr.Rajat Malhotra, Advocate

versus

SOUTH DELHI MUNICIPAL
CORPORATION & ORS. ..... Respondents
Represented by: Mr.Prasanta Varma, Advocate for R-1
and R-2
None for R-3 (Proforma Respondent)

RFA (OS) 17/2015
M/S. GPS PROPERTIES PVT. LTD. ..... Appellant
Represented by: Mr.Rajat Malhotra, Advocate

versus

SOUTH DELHI MUNICIPAL
CORPORATION & ORS. ..... Respondents
Represented by: Mr.Prasanta Varma, Advocate for R-1
and R-2
None for R-3 (Proforma Respondent)

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

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
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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
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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.
th
Statesman House, 8 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.mtr. was
allotted by Slum & JJ dept. in favour of M/s.GPS Properties
Pvt.Ltd., possession of which was taken over on 24.9.2004.
M/s.GPS Properties Pvt.Ltd. paid vacant land tax under unit
area method from 2004-05 onwards. Building plan for
construction of mall was issued on 8.2.2005, completion
certificate applied on 25.3.2008, which was issued on
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25.7.2008. As per documents i.e. sanctioned plan of building,
there are two basements (lower & upper) and total area of
basement is 18134.92 sq.mtr. The contention of the taxpayer
in the representation dated 30.11.2012 that since all units have
been sold out to different buyers, the taxpayer is not liable to
pay property tax in r/o basement is not tenable as entire
ownership rights of the basement remains with M/s.GPS
Properties Pvt.Ltd. as per perpetual lease executed with DDA.
Though there is no legal definition of Super area/common area
of Mall but in case it includes the car parking then the parking
area cannot be sold as per the Perpetual Lease agreement
executed. I have gone through the lease agreement dated
15/5/2006 executed between Slum & JJ Dept. of MCD and
M/s.GPS Properties Pvt.Ltd.
In this regard, clause the Perpetual Lease Deed executed
between the Slum & JJ Dept. of MCD and the owner/assessee,
provides as under:-
“ 6(a) The Lessee shall not sell, transfer, assign or
otherwise part with the possession of the whole or
any part of the commercial plot except with the
previous consent in writing of the Lessor which
he shall be entitled to refuse in his absolute
discretion.”
However, the other provisions of the perpetual lease deed makes
it amply clear that the said rights are available only in respect
of the floor space and not in respect of the basements of space
for general parking and landscape area of general parking.
It is, thus, apparent from the above that the owner/ assessee is
not authorized to sell out parking space or any portion thereof to
any other person. Apparently the owner has given rights to the
individual buyers of the units to use parking space, on payment
of parking fee, whereas the ownership of the parking space
continues to rest with the assessee. Also as per section
120(1)9a) of the DMC act the Property Tax on any land or
building shall primarily be leviable upon the owner thereof.
Thus the owner of the basement cannot shift his responsibility
for payment of property tax for the basements to those who are
not owners of the basements.
In view of the above facts, the basements and parking space at
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assessee, being authorized to sell the different portions of the building
constructed on the plot of land, while selling different portions to different
parties the price charged included proportionate common areas and since
they had a right to park the vehicles in the basements the interest in the
basements would seize to be with the assessee; inherent in the plea was that
while determining the rateable value of the different units sold on unit area
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method the assessment had to be with the liability on the purchasers of the
different portions of the building. The contention was rejected by the
assessing officer noting that as per the perpetual lease-deed conferring
ownership rights on the assessee it was authorized to sell the floor space
alone and hence not the basement. There is a presumptive reasoning in the
assessment order that the individual buyers of the units were using the
parking space on payment of parking fee, and we say so for the reason the
language of the relevant part of the assessment order reads: Apparently the
owner has given rights to the individual buyers of the units to use parking
space, on payment of parking fee, whereas the ownership of the parking
space continues to rest with the assessee.
6. M/s.GPS Properties Pvt. Ltd. filed an appeal challenging the
assessment since Section 169 of the DMC Act, 1957 confers a right upon a
person aggrieved by an assessment of any tax under the Act to file an appeal
before the Municipal Taxation Tribunal, but abandoned the appeal in view
of the fact that Section 170 of the DMC Act, 1957 prohibits the Municipal
Taxation Tribunal to hear any appeal if it relates to the levy and assessment
of property tax unless the amount which is disputed in the appeal is
deposited by the appellant in the office of the Corporation.
7. Section 171 of the DMC Act, 1957 reads as under:-
“ 171. Finality of appellate orders –
The order of the Municipal Taxation Tribunal confirming,
setting aside or modifying an order in respect of any rateable
value or assessment or liability to assessment or taxation shall
be final.
Provided that it shall be lawful for the Municipal Taxation
Tribunal, upon application or on its own motion, to review any
order passed by it in appeal within three months from the date
of the order.”
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8. Noting that the right to file an appeal against an order assessing and/or
levying property tax was available to the aggrived assessee and Section 171
of the DMC Act, 1957 gave finality to the order passed by the Municipal
Taxation Tribunal, applying the ratio of law declared by the Supreme Court
declared in Satish Chand ’s case (supra), the learned Single Judge has
concluded that a civil suit questioning an assessment order concerning a
property and levying property tax was not maintainable.
9. Though 5 decisions cited by the appellants have been noted by the
learned Single Judge, the ratio thereof has not been discussed.

10. It would be interesting to highlight that the decision of the Division
Bench of this Court in Ganga Ram Hospital Trust ’s case was authored by
the same learned Judge who authored the decision in Satish Chand ’s case
after being elevated to the Supreme Court. Concerning assessment and levy
of house tax under the Delhi Municipal Corporation Act, 1957 the learned
Judge has held that a civil suit to challenge the assessment and levy of
property tax is not barred; clarifying that the limited gateway open was as
per the law declared by the Constitution Bench of the Supreme Court in
Dhulabhai ’s case which has been followed in various decisions, and the
decision rendered in Satish Chand ’s case by the learned Judge pertained to
assessment and levy of house tax under the Punjab Municipal Act.
11. In Satish Chand ’s case Section 86 of the Punjab Municipal Act, 1911
was noted by the Supreme Court and interpreted to be an express bar to the
maintainability of a civil suit. No such express bar was shown to the
Division Bench of this Court in Ganga Ram Hospital Trust ’s case, and
hence the view taken that a civil suit would be maintainable, but the scope
thereof would be limited.
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12. Regretfully, in the instant case, the learned Single Judge has
overlooked this fine but critical distinction i.e. where a statute expressly bars
the jurisdiction of a Civil Court and where a statute does not expressly bar
the jurisdiction of a Civil Court but merely provide for a remedy against an
assessment order but makes the remedy conditional to the deposit of the
house tax and thereby making the condition so onerous that it would be a
case akin to giving charity by the left hand and taking it away by the right
hand.
13. Since the matter has to be remanded before the learned Single Judge
because of her reasoning hereinafter to decide on the maintainability of the
suit by looking into the pleadings and determining whether the scope of the
suit is within the narrow window opened by the law in respect of which
alone suits can be filed, an exercise not done by the learned Single Judge,
we proceed to note the various decisions and the fineness of the distinction
with reasons in support as to why, concerning assessment and levy of house
tax under the DMC Act, 1957 it cannot be said that the jurisdiction of a civil
Court is completely barred to entertain a suit challenging the
assessment/levy of property tax.
14. A suit for its maintainability requires no authority of law and it is
enough that no statute bars the suit. This was so held in the decision
reported as (1974) 3 SCR 882 Gangabai v. Vijay Kumar & Ors .
15. Section 9 of the Code of Civil Procedure reads as under:-
"9. The Courts shall subject to the provisions herein
contained have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or
implied barred."
16. Thus, Courts have the jurisdiction to try all suits of a civil nature with
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the only limitation being the right expressly or impliedly barred by law.
17. Many statutes contain express bars with respect to the right to file a
civil suit. For instance, Section 293 of the Income Tax Act contains such a
bar. Similarly there are a number of other statutes containing such a bar.
While interpreting Section 9 of the Code of Civil Procedure, in the decision
reported as (1968) 3 SCR 662 Dhulabhai etc. v. State of Madhya Pradesh &
Anr. , the five Judge Bench of the Supreme Court laid down the following
principles:-
"32. Neither of the two cases of Firm of Illuri Subayya, [1963]
50I TR 93(SC) or Kamla Mills, [1965] 3 SCR 173 can be said
to run counter to the series of cases earlier noticed. The result
of this inquiry into the diverse views expressed in this Court
may be stated as follows:
(1) Where the statute gives a finality to the orders of the special
tribunals the civil court's jurisdiction must be held to be
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.
(2) Where there is an express bar of the jurisdiction of the
court, an examination of the scheme of the particular Act to
find the adequacy or the sufficiency of the remedies provided
may be relevant but is not decisive to sustain the jurisdiction of
the civil court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays down that
all questions about the said right and liability shall be
determined by the tribunals so constituted, and whether
remedies normally associated with actions in civil courts are
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prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra
virus cannot be brought before Tribunals constituted under that
Act. Even the High Court cannot go into that question on a
revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or
the constitutionality of any provision is to be challenged, a suit
is open. A writ of certiorari may include a direction for refund
if the claim is clearly within the time prescribed by the
Limitation Act but it is not a compulsory remedy to replace a
suit.
(5) Where the particular Act contains no machinery for refund
of tax collected in excess of constitutional limits or illegally
collected a suit lies.
(6) Questions of the correctness of the assessment apart from
its constitutionality are for the decision of the authorities and a
civil suit does not lie if the orders of the authorities are
declared to be final or there is an express prohibition in the
particular Act. In either case the scheme of the particular Act
must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not
readily to be inferred unless the conditions above set down
apply."
18. Thus except where a civil suit is specifically barred under a particular
statute there can be no bar to a civil suit. A suit for its maintainability
requires no authority of law. It is enough that no statute bars the suit. The
jurisdiction of civil court is all embracing. It is determined on the basis of
pleadings of the plaintiff in the suit.
19. This is the reason why, in Satish Chand ’s case (supra), because of
Section 86 of the Punjab Municipal Act, 1911 a suit to question the
assessment and levy of property tax was held to be barred, because the bar
was express.
20. An implied bar, as distinguished from an express bar, may arise in a
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situation, where for instance a statute creates a special right and lays down a
special remedy for exercising the right. For exercising such special right a
party will be required to have resort to the special remedy as per the statute.
Impliedly it may be inferred that there can be no other remedy with respect
to the special right. Position in law regarding implied bars, is that such bars
need not be readily inferred. Exclusion of jurisdiction of a civil court is a
serious matter and cannot be encouraged. No court would like to overstep
the limits placed on its jurisdiction by law. At the same time, courts will not
be eager to restrict their jurisdiction on basis of implied bars. It is a matter of
legal right of a party. Legal rights ought to be normally given effect to rather
than curtailed by inviting implied bars to jurisdiction. Often one comes
across specific bars contained in statutes regarding right to file a civil suit.
The reason for this is simple. Where the legislature intends to bar institution
of civil suits it should not hesitate in saying so specifically in the statute
itself. The cases of implied bar are rare. That is why the courts have
universally taken the view that implied bars to civil suits need not be
inferred very lightly.
21. The legal position in this behalf has been summarised by the Supreme
Court in the decision reported as (1988) 171I TR 254 (SC) Raja Ram
Kumar Bhargava v. Union of India as follows:
"Generally speaking, the broad guiding considerations are that
wherever a right, not pre-existing in common-law, is created by
a statute and that statute itself provided a machinery for the
enforcement of the right, both the right and the remedy having
been created uno flatus and a finality is intended to the result of
the statutory proceedings, then, even in the absence of an
exclusionary provision the civil courts' jurisdiction is impliedly
barred. If, however, a right pre-existing in common law, is
recognised by the statute and a new statutory remedy for its
enforcement provided, without expressly excluding the civil
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courts' jurisdiction, then both the common-law and the
statutory remedies might become concurrent remedies leaving
upon an element of election to the persons of inherence. To
what extent, and on what areas and under what circumstances
and conditions, the civil courts' jurisdiction is preserved even
where there is an express clause excluding their jurisdiction,
are considered in Dhulabhai's case."
22. In the decision reported as (1963) 50I TR 93(SC) Firm I.S. Chetty &
Sons v. State of Andhra Pradesh , the Supreme Court observed:
"The mere fact that a special statute provides for certain
remedies may not by itself necessarily exclude the jurisdiction
of the civil courts to deal with a case brought before it in
respect of some of the matters covered by the said statute."
23. Thus the mere fact that a statute provides for certain remedies is not
sufficient to exclude jurisdiction of civil courts. The right to approach the
civil courts is an inherent right which normally cannot be taken away or
presumed to be taken away. The right is too strong to be denied by indirect
means. Only a specific bar could take it away. In this background the
Division Bench of this Court in Ganga Ram Hospital ’s case ventured into
the provisions of the DMC Act, 1957 to find out whether they impliedly
barred the jurisdiction of a Civil Court to entertain a civil suit.
24. Section 169 provides for a remedy of appeal against levy or
assessment of any tax under the Act and Section 170 lays down conditions
subject to which the right of appeal conferred by Section 169 can be
exercised. The Division Bench noted that neither of these two sections
contains any provision barring a civil suit to challenge levy and assessment
of tax under the Act. The Division Bench held that thus at best it may be
argued that in view of the remedy of appeal provided under Section 169 of
the Act, a party should have recourse to the said remedy. The Division
Bench held that there may be cases where a party filing a civil suit to
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challenge the levy and assessment of tax under the Act may like to urge that
the levy and assessment of tax is not in accordance with the Act or is
vocative of the provisions of the Act. In other words it may be the case of a
plaintiff that the authorities under the Act have not acted in accordance with
the provisions of the Act while levying and assessing tax and, therefore, it is
entitled to exercise its inherent right to challenge such a levy and assessment
by way of a civil suit. The Division Bench note that the availability of an
alternative remedy may be treated as a bar by the court while exercising its
writ jurisdiction because writ jurisdiction under Article 226 of the
Constitution of India is a matter of exercise of discretionary jurisdiction of
the court but it is not the same case while entertaining a civil suit. Exercise
of jurisdiction to entertain civil suit is not a discretionary matter before the
civil court. A civil court may reject the plaint as per law or dismiss a civil
suit on merits. It cannot refuse to entertain the suit unless barred by law.
25. While on the question of express or implied bar to a civil suit, the
Division Bench noted that elsewhere in the Delhi Municipal Corporation
Act, 1957, where the legislature intended to create a specific bar to exercise
of right to file a civil suit, it had specifically provided for it. In this
connection the Division Bench made a reference to Sections 347A, 347B
and 347E of the Act, in matters relating to unauthorised construction in
properties and demolition of such construction, the statute having
established an Appellate Tribunal before which the parties were entitled to
agitate their grievances. In all such cases appeals were provided to the
Appellate Tribunal and further appeal was provided from the order of the
Appellate Tribunal to the Administrator under Section 347B. Section 347E
was providing for a complete bar on the power of a civil court to entertain
any suit/application or other proceedings in respect of any order or notice
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appealable under Section 343 or Section 347B. The Division Bench
highlighted that it was clear that wherever the legislature intended to create a
bar to the maintainability of a civil suit on a particular subject matter, it was
so provided in the Act itself. The Division Bench noted that even pertaining
to issues concerning constructions, where the statute created an express bar
in the maintainability of a civil suit, the conditions under which a suit would
be maintainable were determined by the Supreme Court and thus even in
such cases, on limited issues, a civil suit would lie. The decision of the
Supreme Court on this aspect noted by the Division Bench is reported as
(1993) 3 SCR 522 Shiv Kumar Chadha v. Municipal Corporation of Delhi ,
wherein it was observed:
"According to us, it cannot be urged that the provisions of the
Act have created any right or liability and for enforcement
thereof remedy has been provided under the Act itself. The Act
purports to regulate the common law right of the citizens to
erect or construct buildings of their choice. This right existed
since time immemorial. But with the urbanisation and
development of the concept of planned city, regulations,
restrictions, on such common law right have been imposed. But
as the provisions of the Act intend to regulate and restrict a
common law right, and not any right or liability created under
the Act itself, it cannot be said that the right and the remedy
have been given uno flatus e.g. "in the same breath". Most of
the cases of this Court referred to above related to statutes
creating rights or liabilities and providing remedies at the same
time. As such the principles enunciated therein, shall not be
fully applicable in the present case. In spite of the bar
prescribed under sub-sections (4) and (5) of Section 343 and
Section 347-E of the Corporation Act over the power of the
courts, under certain special circumstances, the court can
examine, whether the dispute falls within the ambit of the Act.
But once the court is satisfied that either the provisions of the
Act are not applicable to the building in question or the basic
procedural requirements which are vital in nature, have not
been followed, it shall have jurisdiction, to enquire and
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investigate while protecting the common law rights of the
citizens. Can a court hold a suit to be not maintainable,
although along with the plaint materials are produced to show
that the building in question is not within the Corporation
limits, or that the constructions were made prior to coming into
force of the relevant provisions of the Act?"
26. The Division Bench concluded that while considering the provisions
of a statute and determining whether there was an implied bar in the
maintainability of a civil suit, the scheme of the statute with reference to the
adequacy of remedies provided for have to be gone into and would be
decisive in view of the law declared by the Supreme Court in the decision
reported as (1965) 57I TR 643(SC) Kamala Mills Ltd. v. State of Bombay .
27. In the decision reported as (1954) 1 SCR 1122 Himmatlal Harilal
Mehta v. State of Madhya Pradesh it was held by the Supreme Court that if
the remedy provided by the Act is of an onerous and burdensome character,
it can hardly be said to be an adequate alternative remedy. Before the
appellant can avail of it he has to deposit the whole amount of tax. Such a
provision can hardly be described as an adequate alternative remedy. It
renders the right of appeal illusory and not real. Again, in the decision
reported as (1966) 1 SCR 284 M.G.Abrol.Addl.Collector of Customs.
Bombay & Anr. v. M/s.Shantilal Chhotelal and Co. it was observed:
"15. Lastly, it was argued that the High Court should not have
exercised its jurisdiction under Article 226 of the Constitution,
as the respondents had an effective remedy by way of appeal to
higher Customs Authorities. But the High Court rightly pointed
out that the respondents had no effective remedy, for they could
not file an appeal without depositing as a condition precedent
the large amount of penalty imposed on them. That apart, the
existence of an effective remedy does not oust the jurisdiction of
the High Court, but it is only one of the circumstances that the
Court should take into consideration in exercising its
discretionary jurisdiction under Article 226 of the
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Constitution."
28. In the decision reported as 63 (1996) DLT 163 Indian Hotels
Company Limited v. New Delhi Municipal Council , a Division Bench of this
Court held that the condition of pre-deposit amounts to negation of the right
of appeal. The requirement of pre-deposit makes the remedy too onerous. To
illustrate the point the court gave several examples. The following
observations contained in the said judgment highlight the issue:
"36. A condition requiring 100% amount of tax to be deposited
as a condition precedent to hearing by the Appellate Authority
may amount to negation of right of appeal in some cases. To
illustrate, a property may be assessed in the name of someone
who is neither the owner nor occupier thereof and fixed with
liability to pay tax; a property not falling within the limits of the
Municipal Corporation may come to be assessed and taxed;
property may be grossly overvalued by the Assessing Authority
attracting an obligation to pay an amount of tax absolutely
disproportionate with the value of the property and means of
the owner. In all such cases under the present law, the assessed
must deposit the tax before he may deserve a hearing from the
Appellate Authority. This provision too deserves to be suitably
amended so as to confer a discretionary power on the Appellate
Authority allowing dispensation of the deposit of the amount of
tax wholly or partially in very deserving cases depending on the
facts of individual case and for reasons to be recorded.
Provision may be made for payment of interest so as to
adequately compensate the Corporation for the delayed
recovery in the event of appeal being dismissed or interim
order being vacated. Such a provision would serve the ends of
justice giving relief to the assessed/appellants in deserving
cases and reduce the filing of writ petitions in superior Courts."
29. The above quotation shows that the Bench has even made certain
recommendations for amendment of the relevant provisions of the statute.
Similarly another Division Bench of this Court in the decision reported as
AIR 1999 Delhi 67 D.R. Aggarwal v. N.D.M.C., relying upon Himmatlal 's
case (supra) held that the remedy of appeal is onerous and can hardly be
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called to be adequate alternative remedy.
30. The Division Bench decision of this Court reported as 34 (1988) DLT
91 Sobha Singh & Sons (P) Limited v. N.D.M.C. was a case under the
Punjab Municipal Act, 1911 and in view of the express bar created by
Section 86 of the Punjab Municipal Act remedy by way of suit was held to
be barred.
31. In this connection, the decision of the Supreme Court reported as
(1979) 118I TR 488 (SC) Munshi Ram & Ors. Vs. Municipal Committee
Chheharta , needs to be noted wherein the Supreme Court recognised that if
the Municipal Committee acts beyond or in abuse of powers under the Act a
civil suit to challenge such an act would be maintainable inspire of a specific
bar to such a suit contained in the Act. The Court accepted that normally a
particular remedy prescribed by a statute has to be pursued as per the
provisions of the statute. It must be sought in the forum and in the manner
given under the statute. However, the bar to the jurisdiction of the civil court
would not apply in cases where the Committee in levying a tax or
committing an act clearly acts outside or in abuse of its powers under the
Act.
32. Since the learned Single Judge has not looked into the issue required
by law to be looked into and the error in the impugned decision is to
overlook the distinction where jurisdiction of a civil court is expressly
barred under a statute and where the jurisdiction is impliedly barred due to a
remedy available under a statute but the remedy is onerous and has also not
looked into the pleadings to determine whether a limited window was
opened to the plaintiffs to maintain the civil action, we dispose of the two
appeals declaring that there is no absolute bar to the maintainability of a suit
RFA (OS) Nos.13/2015 & 17/2015 Page 17 of 18


challenging assessment and levy of property tax under the Delhi Municipal
Corporation Act, 1957, but the scope of the suit would be limited i.e. the
challenge would be limited in light of the law declared hereinabove by the
Supreme Court and Division Benches of this Court in various judgments to
which we have adverted to hereinabove. Thus, we set aside the impugned
order dated November 17, 2014 and restore CS (OS) No.814/2014. The
learned Single Judge, guided by the legal principles we have culled out
hereinabove, would determine the maintainability of the suit afresh.
33. The Registry is directed to list the suit for directions before the Roster
Bench on August 10, 2015.
34. No costs.

(PRADEEP NANDRAJOG)
JUDGE



(MUKTA GUPTA)
JUDGE
JULY 24, 2015
mamta
RFA (OS) Nos.13/2015 & 17/2015 Page 18 of 18