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TMI Blog2015 (7) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 steps for recovery of the impugned amount of property tax as assessed vide assessment order dated 01.03.2013; or any other specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hoardings put up at the building have yet been provided, assessment in r/o hoardings will be process separately. ZI/AZI is directed to send a demand to the taxpayer/assessee immediately and initiate recovery proceedings under the provisions of DMC ACT if the demand is not liquidated within due date of payment given to the taxpayer/assessee. 5. From a perusal of the assessment order it is clear that as per the 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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. 12. Regretfully, in the instant case, the learned Single Judge has overlooked this fine but critical distinction i.e. where a statute expressly bars th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticed. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nned 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 investigate while protecting the common law rights of the citizens. Can a court hold a suit to be not maintainable, althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations 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 com ..... 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