Delhi H.C : This petition under Art. 227 of the Constitution is by the owner of property bearing No. 4D/62, Old Rajinder Nagar, New Delhi, against the order dt. 21st Jan., 1987

High Court Of Delhi

S.K. Verma vs. Municipal Corporation Of Delhi

D.P. Wadhwa, J.

C.M. (Main) No. 48 of 1987

18th July, 1988

Counsel AppearedA.S. Chandhiok, for the Petitioner : Jagmohan Sabharwal, for the Respondent

D.P. WADHWA J.:

This petition under Art. 227 of the Constitution is by the owner of property bearing No. 4D/62, Old Rajinder Nagar, New Delhi, against the order dt. 21st Jan., 1987, of the learned Additional District Judge, Delhi, whereby he directed issue of notice of appeal filed by the petitioner under s. 169 of the Delhi Municipal Corporation Act 1957 (for short “the Act”), on the petitioner depositing the amount of the property tax as required under s. 170 of the Act.

The property in question was earlier owned by Ram Saroop, brother of the petitioner, who had purchased the same from the Ministry of Rehabilitation, Government of India, New Delhi. The petitioner purchased this property from his brother. This sale deed is dt. 10th March, 1978. The petitioner, thereafter, it appears, reconstructed the whole of the property. It is now a 2 1/2 storeyed house and the plot of land underneath measures 85.9 sq. yds.

2. A notice under s. 126 of the Act was issued to the petitioner and the Dy. Assessor and Collector assessed the rateable value of the property at Rs. 21,060 w.e.f. 1st April, 1979, and at Rs. 11,130 w.e.f. 1st April, 1984. He took into account the fact that a certain portion of the property had been let out and the rate of rent was taken to be the standard rent for a period of five years under the provisions of the Delhi Rent Control Act, 1958. In this petition, it is not necessary for me to go into the merits of the controversy between the parties if the order of the Dy. Assessor and Collector, which has been challenged in appeal by the petitioner, is in accordance with law, though the petitioner has contended that the value of the land at the commencement of the construction has been wrongly fixed and that allowances for certain deductions have not been given. It is also not the case of the petitioner that the order directing him to deposit the property tax would cause him undue hardship and that he was not in a position to deposit the same. The whole basis of attack is that the learned Addl. District Judge could not have directed him to deposit the property tax and made it a condition precedent for issuing notice of appeal to the respondent-Municipal Corporation of Delhi.

3. Mr. Chandhiok, learned counsel for the petitioner, in support of the petition, has contended that the learned Additional District Judge ignored the provisions of s. 457 of the Act which provided that the procedure as given in the CPC, 1908 (for short “the Code”), relating to appeals would be applicable and particularly he referred to r. 5 of Order 41 of the Code. Under this rule, the Court could grant stay of the order appealed against on sufficient cause being shown, whether on conditions or without. It was submitted that the learned Addl. District Judge did not at all advert to these provisions which gave him ample jurisdiction to stay the operation of the order of the Dy. Assessor and Collector when, in the circumstances of the case, the order suffered from various infirmities and could not stand even a moment’s scrutiny. I do not think Mr. Chandhiok is quite correct on this submission of his as I feel that the order of the Dy. Assessor and Collector is not bad on the face of it. Whether the contentions of the petitioner are accepted or not is different matter altogether and this would be for the Addl. District Judge, who is seized of the appeal, to decide. Sec. 170 of the Act which imposes conditions of right to appeal may be reproduced hereunder : 170. No appeal shall be heard or determined under s. 169 unless (a) the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under s. 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be, within thirty days of the date on which an amendment is finally made under s. 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the notice of assessment or of alteration of assessment or, if no notice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof: Provided that an appeal may be admitted after the expiration of the period prescribed therefor by this section if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within that period ; (b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation.”

4. In support, Mr. Chandhiok referred to a decision of this Court in Punj Sons (P.) Ltd. vs. Municipal Corporation of Delhi (1982) Rajdhani Law Reporter 247 rendered by a singe judge of this Court. In this case, the question which fell for consideration was whether the district Court had any discretion in the matter of deposit of the tax amount while hearing an appeal under s. 169 r/w s. 170 of the Act. The learned judge, however, reframed the question as under : “Where, under s. 126, there is an increase in the rateable value and the assessment, what is the amount to be deposited by the assessee, whether the entire tax amount with the increase or the admitted amount or the disputed amount ?” The learned judge was of the opinion that a literal interpretation of s. 170(b) could perhaps lead to the result not intended by the scheme of taxation under the Act. He was, therefore, of the view that s. 457 of the Act r/w Order 41, r. 5 of the Code, could be pressed into service to resolve the conflicting interest of the assessee and the Corporation. He also observed that the fact that municipal administrations in India were stifled in their activities due to large scale arrears of payment of house tax could not be ignored, but at the same time, he held that the district Court must consider whether the order of deposit would cause substantial loss or extreme hardship to a taxpayer. The learned judge, therefore, held that an appeal under s. 169 could not be heard or determined unless the amount, as directed by the district judge, was deposited by the appellant. He also held that the district judge has a discretion to direct deposit of an admitted amount or disputed amount or a part of the total tax amount, with or without conditions. Reference was also made to a Bench decision of this Court in S. C. Jain vs. Union of India (1983) 37 CTR (Del) 97 : (1983) 143 ITR 607 (Del), in which a residential house was held exempt from attachment under the Code which had been attached by the TRO under the provisions of the IT Act, 1961, when the provisions of the Code were made applicable to the proceedings before the TRO. Then, Mr. Chandhiok referred to a Bench decision of this Court in Kewal Chopra vs. Municipal Corporation of Delhi (C. W. No. 2571 of 1986, decided on 3rd Dec., 1986). Here, the Court stayed the deposit of certain additional demand of house tax till the decision of the appeal. In this case, the assessment was enhanced, on notice under s. 126 of the Act. The learned Additional District Judge, though he admitted the appeal, refused stay of deposit of the tax. But, then, the order in this writ petition was made at the stage of admission and without notice to the respondent Municipal Corporation of Delhi and, further, the order of stay of demand was made in the exercise of jurisdiction under Art. 226 of the Constitution. This judgment is of no help to Mr. Chandhiok.

5. Mr. Sabharwal, learned counsel appearing for the Municipal Corporation of Delhi, submitted that appeal was a creation of the statute and the statute which gave that right could as well impose conditions. He said that there were various statutes which made deposits of the demands as a precondition to the filing and hearing of the appeal and they had been held to be valid. He said a similar provision as contained in s. 170 of the Act existed in the Bombay Municipal Corporation Act, 1888. Mr. Sabharwal referred to a decision of the Supreme Court in Nand Lal vs. State of Haryana, AIR 1980 SC 2097, in which one of the questions for consideration was whether the condition of making deposit of a sum equal to 30 times the land holding tax in respect of disputed areas under s. 18(7) of the Haryana Ceiling on Land Holdings Act, could be regarded as onerous or unreasonable. The Supreme Court held the condition so imposed as valid.

6. But, I do not think this is the point which is being canvassed before me by Mr.. Chandhiok. His contention, as I understand it, is that the learned Additional District Judge should have granted stay by invoking the provisions of r. 5 of Order 41 of the Code and for this he got support from the decision of this Court in Punj Sons’ case (supra). Mr. Sabharwal then referred to a Bench decision of this Court in Panch Shila Co-operative House Building Society Ltd. vs. Municipal Corporation of Delhi (C.W. No. 936 of 1975, decided on 29th July, 1975, by V. S. Deshpande and Yogeshwar Dayal JJ.). In this case, the Court examined the provisions of ss. 169, 170 and 171 of the Act. The Court held that an appeal which was not accompanied by the deposit of the amount could not be entertained by the District Court. The Court then held as under “On a construction of ss. 169 to 171, it may, therefore, be concluded that the deposit of the amount is a condition precedent to the hearing of the appeal and an appeal cannot be entertained or filed unless the condition is complied with. The appellant cannot insist on the appellate Court receiving the memo of appeal but disabling itself from hearing the appeal by the mere refusal of the appellant to deposit the amount.”

7. Now, if, as per the decision in this case, the appeal could not be entertained without there being deposit of the amount, the question of invoking the provisions of r. 5 of Order 41 of the Code could not arise. This Bench decision was not brought to the notice of the learned single judge in Punj Sons’ case (supra). Another Division Bench decision of this Court (N. N. Goswamy and Arun B. Saharya JJ. in R. K. Goel vs. Municipal Corporation of Delhi, C. W. No. 2799 of 1987, decided on 25th Sept., 1987) followed the decision in Punch Shila Co-operative House Building Society’s case (supra). It was contended by the petitioner therein that he could not be asked to deposit the tax as a condition precedent to the hearing of the appeal. The Bench observed that a Division Bench had already considered that question and it had been held that it was to be taken as a condition precedent because the law so required it. Even otherwise, there does not appear to be any conflict between the provisions of s. 457, which laid down the procedure for hearing the appeals under the Code as applicable to appeals under the Act before the District Judge and s. 170(b) of the Act.

Even if r. 5 of Order 41 of the Code is made applicable under s. 457 of the Act, s. 170(b) would carve out an exception and in the case of appeals involving demands for deposit of tax, the amounts would have to be deposited before the appeal could be entertained. It could not be disputed that the judgment of the single judge in Punj Sons’ case (supra), is in conflict with the cases decided by two Division Benches of this Court mentioned above. 1, however, feel bound to follow the judgments of the Division Benches of this Court, and would, therefore, dismiss this petition in limine.

[Citation : 175 ITR 301]

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