Delhi H.C : The challenge in this writ petition is to the order dt. 1st Oct., 1985, passed by Mr. B. S. Chaudhry, Addl. District judge, who had allowed the appeal, filed against the levy of house tax and has quashed the demand which had been raised against respondents Nos. 1 and 2.

P. Nandrajog, for the Petitioner : Rajeev Trivedi, for the Respondent

B. N. KIRPAL, J.:

The challenge in this writ petition is to the order dt. 1st Oct., 1985, passed by Mr. B. S. Chaudhry, Addl. District judge, who had allowed the appeal, filed against the levy of house tax and has quashed the demand which had been raised against respondents Nos. 1 and 2.

2. The said respondents Nos. 1 and 2 obtained a perpetual sub-lease dt. 6th April,1978, from the Ishwar Nagar Co- operative House Building Society Ltd. The society had in ‘turn obtained the lease from the Delhi Development Authority.

The case of the petitioner/Corporation is that, vide notice dt. 18th March, 1980, the rateable value of the vacant plot was sought to be fixed at Rs. 1,600 w.e.f. 1st April, 1979. It is alleged that no objections were filed and the rateable value was confirmed as proposed by the Asstt. Assessor and the Collector. According to the petitioner, public notice was issued under s. 124 of the Delhi Municipal Corporation Act, 1957, in respect of the subsequent assessment years, namely, 1981-82 to 198485, but no objections were received. The rateable value was accordingly confirmed at Rs. 1,600.

3. It is the admitted case that a bill dt. 10th Nov., 1982, was served on respondents Nos. 1 and 2, demanding house tax w.e.f. 1st April, 1979, till 31st March, 1983. This demand was not paid. Thereafter, another demand was raised, vide bill dt. 22nd Oct., 1984. This was a notice in respect of the year 1984-85, and after including therein, the arrears for the earlier years, the total demand sought to be raised was Rs. 1,263. This amount was deposited by respondents Nos. 1 and 2 but, at the same time, an appeal was filed before the Addl. District Judge, Delhi. The Addl. District Judge, vide his order dt. 1st Oct., 1985, allowed the said appeal. The reason for allowing this appeal is contained in the following observations of the impugned order: “Even during the course of arguments no satisfactory reply was put forward as to how the demand raised by the respondents in respect of the aforesaid plot in the absence of the mandatory procedure as laid down having been followed can be justified.” The Addl. District Judge, while allowing the appeal, directed that the amount of’ Rs. 1,263 which had been deposited should be refunded.

A perusal of the aforesaid observations of the Addl District Judge shows that he was of the opinion that the grounds taken in the memorandum of appeal of the non-following of the mandatory provisions of ss. 124 and 126 had not been rebutted by the Corporation. There is no provision of law which requires, on an appeal being filed, the respondents to file a reply to the memorandum of appeal. If the intention of the Addl. District Judge was that the Corporation ought to have filed a reply to the memorandum of appeal, then, I am afraid, the conclusion to this effect is not correct. When such a ground is raised in the grounds of appeal, the Corporation can meet the same at the time of the arguments. Of course, if the Court so desires, it would, be at liberty to ask for a written explanation or a reply or an affidavit from the Corporation. This, however, had not been done in the present case. The Addl. District Judge, therefore, cannot find fault with the Corporation in not filing a written reply to the grounds of appeal.

The Addl District Judge has then come to the conclusion that the petitioner herein had not put forth a satisfactory explanation with regard to the following of the mandatory provisions laid down by ss. 124 and 126 of the Corporation Act. This part of the order is sought to be challenged by placing before this Court a notice dt. 18th March, 1980/20th March, 1980, stated to have been sent under s. 126 of the Corporation Act. To my mind, this notice can be of no assistance to the Corporation. The notice is addressed to respondent No. 2, not at the residential address but at the address of the plot in question. It is known to the Corporation that the plot is unbuilt and nobody is residing therein. Knowingly, the Corporation has issued notice to one of the owners at an address where she does not reside. There was, therefore, no valid service of notice on the owner of the plot in question. The Addl. District Judge was, therefore, justified in coming to the conclusion that the entire demand was unjustified and illegal.

Mr. Nandrajog, learned counsel for the petitioner, has, however, contended that in the present case, the appeal wasfiled by respondents Nos. 1 and 2 against the demand which was raised for the year 1984-85 by notice dt. 22nd Oct., 1984. Learned counsel submits that the demand, even if it was illegal, had become final for the earlier years and, as such, the Additional District judge was not justified in setting aside the demand even for the years prior to 1984-85. As a proposition of law, the contention of learned counsel for the petitioner is correct. In such cases of taxation, each assessment year stands by itself. The assessment of each year has to be made separately. It is no doubt true that in the notice dt. 22nd Oct., 1984, the arrears of the earlier years had also been included but the appeal which was filed in law, was only against the assessment for the year 198485. The assessments which had been made earlier, even if they were irregularly made, had become final and could not be a subject-matter of the appeal which was filed. In the memorandum of appeal, it has been stated that notice had been received by the owners informing them about the rateable value which had been fixed and objection had been filed thereto. Receipt of the bill dt. 10th Nov., 1982, for the year 1982-83 is also admitted. This being so, it was open to the respondents-owners to file an appeal at least against the bill dt. 10th Nov., 1982, which pertains to the asst. yr. 1982-83 and including therein the arrears of the earlier years 1979-80 to 1981-82. No appeal having been filed against this bill dt. 10th Nov., 1982, it was not open to the respondentowners to challenge the said demand when it filed an appeal in respect of the year 1984-85.

7. Even though the extent of the relief which had been granted by the Addl. District Judge was not proper because there could not be valid challenge to the assessment for the years 1979-80 to 1983-84, nevertheless, this Court, in exercise of its jurisdiction under Art. 226 of the Constitution is required to do substantial justice. Relief under Art. 226 of the Constitution cannot be asked for as a matter of right as the remedy is a discretionary one. Now, in the present case, it is obvious that there has been no valid assessment or levy of tax as far as respondents Nos. 1 and 2 are concerned. If this is so, then the petitioner/Corporation cannot be allowed to retain the tax wrongly collected by it. The respondents/owners have succeeded before the Addl. District Judge who has directed the refund of the amount of tax paid to the petitioner. If the respondents had challenged the levy for the years 1979-80 to 1983-84 by filing an appeal earlier, they would have got the relief which has now been given to them. Looking at the paltry amount involved in this case and the fact that the provisions of ss. 124 and 126 of the Corporation Act have not been properly followed, this is not a fit case where any interference is called for by this Court in exercise of its jurisdiction under article 226 of the Constitution. The writ petition is accordingly dismissed but with no order as to costs.

[Citation : 170 ITR 496]