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Judgment
Indermeet Kaur, J.—This second appeal has impugned the judgment dated 18.8.1988 which had endorsed the finding of the Trial Judge dated 2.3.1985. The Trial Judge vide the judgment and decree dated 2.3.1985 had decreed the suit of the plaintiff namely Shri Sardari Mal Rattan Lal Jain Trust (regd.) thereby restraining the defendant i.e. the MCD from realizing a sum of Rs. 22,600.20 at the rateable value of Rs. 26,240/- per annum with respect to property No. 412-17, Esplanade Road, Kuche Bulaki Begum, Delhi.
plaintiff Shri Sardari Mal Rattan Lal Jain Trust was a registered Trust created on 9.5.1943. The Trust had purchased land measuring 485 sq. yards situated in 412-17, Esplanade Road, Kuche Bulaki Begum, Delhi-110006. The Jain Dharamshala and Digambar Jain Boarding House were constructed therein for the advancement of education by the Trust. Income from the premises attached and adjoining to the Dharamshala were used only for promoting its aforenoted objectives. No dividend or bonus was also paid to its members or trustees. The plaintiff had claimed exemption being fully covered u/s 115(4) of the Delhi Municipal Corporation Act (hereinafter referred to as ''the DMC Act''). On 12.2.1980 a sum of Rs. 22,600.20/- was claimed as property tax from the plaintiff at the rateable value of Rs. 26,240/- per annum. This has been challenged in the present suit.
In the written statement the proceedings were contested. It was stated that the plaintiff was not covered u/s 115(4) of the DMC Act. The income from the Trust was not being used solely for charitable purposes.
Five issues were framed by the Trial Court. It was held that the plaintiff is entitled to seek exemption from the levy of property tax as it is covered u/s 115(4) of the DMC Act; the demand of Rs. 22,600.20 is illegal. Section 477 of the said Act is not applicable; there is no bar to the filing of the present suit. Suit was decreed in favour of the plaintiff.
On 16.8.1988 the judgment of the Trial Court was endorsed. Statement of PW-1 Rajinder Prasad Jain, PW-2 Suresh Chand Chain was considered in detail. The trust deed Ex. PW-1/1 had been proved on record spelling out the purpose for which the trust was created i.e. for a charitable purpose. The rental income was also being used for the purpose of the maintenance of the Dharamshala and Piyao; there was no commercial activity; the income from the property was used purely and solely for a charitable purpose i.e. for promoting the objects of the Dharamshala; the plaintiff was entitled to the exemption granted to him u/s 115(4) of the DMC Act. Appeal was dismissed.
This second appeal has been filed by MCD. The appeal has not yet admitted although it has been shown on the Regular Board. On 19.9.1990, the Counsel for the appellant had made a submission that the interpretation of Section 115(4) of the DMC Act was a subject pending decision before the Full Bench of this Court. The appeal had thereafter been adjourned time and again for the said purpose i.e. for awaiting decision in CWP No. 962/1989. The said petition was dismissed as withdrawn on 1.10.2001.
On 16.8.2010, it had been pointed out by Learned Counsel for the respondent that the questions of law which have been raised by the appellant and as engrafted on page 3 of the memo of appeal no longer survive.
For a better appreciation of this argument it would be necessary to reproduce the said questions of law which have been formulated by the appellant which inter alia reads as follows:
A. Whether in view of the provisions as contained in Section 169/170 DMC Act, 1957 and the various decisions of this Hon''ble Court is not the jurisdiction of civil courts to entertain matters impugning the validity of property taxes assessed/levied or against the authentication of assessment list or against the demand bills, barred by law.
B. Whether the principles of res judicata application to assessment proceedings in as much as each assessment year is a separate year having a separate and distinct cause of action.
Learned Counsel for the appellant has placed reliance upon a judgment of this Court reported in Ganga Ram Hospital Trust Vs. Municipal Corporation of Delhi, to support his submission that a suit is maintainable to challenge the levy and assessment of the property tax. Section 169 of the DMC Act deals with an appeal against assessment; Section 170 stipulates the condition of the right to appeal. They are reproduced as follows:
Appeal against assessment, etc.- (1) An appeal against the levy or assessment or revision of assessment of any tax under this Act shall lie to the Municipal
Taxation Tribunal constituted under this section:
Provided that the full amount of the property tax shall be paid before filing any appeal:
Provided further that the Municipal Taxation Tribunal may, with the approval of the District Judge of Delhi, also take up any case for which any appeal may be pending before the court of such District Judge:
Provided also that any appeal pending before the court of such District Judge shall be transferred to the Municipal Taxation Tribunal for disposal, if requested by the applicant for the settlement thereof on the basis of annual value.
(2) (a) The Government shall constitute a Municipal Taxation Tribunal consisting of a Chairperson and such other members as the Government may determine:
Provided that on the recommendation of the Government, the Chairperson may constitute one or more separate Benches, each Bench comprising two State or a Union territory and the other member from the higher administrative service, and may transfer to any such Bench any appeal for disposal or may withdraw from any Bench any appeal before it is finally disposed of.
(b) The Chairperson, and not less than half of the other members, of the Municipal Taxation Tribunal shall be persons who are or have been the members of the Higher Judicial Service of a State or a Union territory for a period of not less than five years, and the remaining members, if any, shall have such qualifications and experience as the Government may by rules determine.
(c) The Chairperson and the other members of the Municipal Taxation Tribunal shall be appointed by the Government for a period of five years or till they attain the age of sixty-five years, whichever is earlier.
(d) The other terms and conditions of service of the Chairperson and the other members of the Municipal Taxation Tribunal, including salaries and allowances, shall be such as may be determined by rules by the Government.
(e) The salaries and allowances of the Chairperson and the other members of the Municipal Taxation Tribunal shall be paid from the Municipal Fund.
(3) In every appeal, the costs shall be in the discretion of the Municipal Taxation Tribunal or the Bench thereof, if any.
(4) Costs awarded under this section to the Corporation shall be recoverable by the Corporation as an arrear of tax due from the appellant.
(5) If the Corporation fails to pay any costs awarded to an appellant within ten days from the date of the order for payment thereof, the Municipal Taxation Tribunal may order the Commissioner to pay the costs to the appellant.
Conditions of right to appeal.- No appeal shall be heard or determined u/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 u/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 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 therefore by this section if the appellant satisfies the [Municipal Taxation Tribunal] 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.
The relevant extract of the judgment which answers the question (A) formulated by the appellant reads as follows:
Section 169 provides for a remedy of appeal against levy or assessment of any tax under the Act while Section 170 lays down conditions subject to which the right of appeal conferred by Section 169 can be exercised. Neither of these two sections contain any provision barring a civil suit to challenge levy and assessment of tax under the Act. At best it may be argued that in view of the remedy of appeal provided u/s 169 of the Act a party should have recourse to the said remedy. But a party filing a civil suit to 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. 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. The DMC Act does not contain any such bar to a civil suit in matters of levy and assessment of tax.
It is clear that the question No. A as formulated by the appellant no longer survives.
Question No. B as has been pointed out by the Learned Counsel for the respondent is not borne out from the pleadings of the parties.
The present suit was a suit for injunction. It had impugned the act of the respondent on the levy of the property tax at the rateable value of Rs. 26,240/- i.e. a sum of Rs. 22,600/-. The written statement filed by the defendant has also been perused. Issues framed were as follows:
Whether the plaintiff is entitled to the exemption from the levy of property tax u/s 115(4) of the DMC Act?
Whether the demand of Rs. 22600/20 p. is illegal?
Whether the suit is time barred u/s 478(2) of the DMC Act?
Whether the suit is not maintainable u/s 447/478 of the DMC Act?
Relief.
The principle of resjudicata was not a defence of the department; it had neither been gone into by the Trial Court nor by the first Appellate Court. It is clear that this question i.e. the question No. B as formulated in the memo of appeal is not borne out from the pleadings of the parties; it was not a bone of contention between the parties.
As already noted, the appeal has not yet been admitted. From the arguments addressed before this Court, it is apparent that no question of law much less any substantial question of law has arisen. Appeal is dismissed in limine.