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TMI Blog2019 (8) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial plot Nos.4, 5 and 6 of Shivaji Complex, District Centre, Raja Garden, New Delhi. Said property was allotted by the Slum & J. J. Department of the Municipal Corporation of Delhi in favour of M/s GPS Properties Pvt. Ltd. Approval for construction of a mall/commercial complex was granted by the Delhi Development Authority (hereinafter, 'the DDA'). M/s GPS Properties entered into a development agreement with M/s Today Homes and Infrastructure Pvt. Ltd. for construction of a mall/commercial complex and for sale of units therein. Occupancy certificate/completion certificate was granted by the DDA vide its letter dated 25.07.2008. The property was assessed for payment of taxes and a demand was raised pursuant to the assessment order. The Respondents approached the Municipal Taxation Tribunal (hereinafter, 'the Tribunal') by filing an appeal under Section 169 of the Delhi Municipal Corporation Act, 1957 (hereinafter 'the Act'), which was later withdrawn. Thereafter, a civil suit was filed in the High Court of Delhi challenging the assessment order dated 01.03.2013 and the warrants of attachment. The Appellant raised a preliminary objection regarding the maintainability of the suit wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 members, one of whom shall be a member of the Higher Judicial Service of a 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 Taxatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axation 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. 6. There is an inherent right to approach a civil court. The bar on a civil court's jurisdiction is not to be readily or lightly inferred. The jurisdiction of civil courts can be excluded by an express provision of law or a clear intendment in such law. Wolverhampton New Waterworks Co. v. Hawkesford [1859] 6 C. B. (NS) 336 resolved the dispute pertaining to the bar on jurisdiction of civil courts, in the following manner: "One is where there was a liability existing at common law, and that liability is affirmed by a Statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the Statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the Statute gives the right to sue merely, but provides, no particular form of remedy: there, the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 prescribed by the said Statute or not. (3) Challenge to the provisions of the particular Act as ultra vires 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' o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs v. Union of India (1988) 1 SCC 681. 12. We find that a liability for payment of tax is created by the Delhi Municipal Corporation Act, 1957. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute. 13. As to various issues on the correctness of a return itself, or whether or not a return is correct; whether or not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall within the mischief of the charging section; what is the true or real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves. An assessment, based even on an erroneous finding about the character of the transaction, is an assessment made well within jurisdiction and cannot be said to be outside the purview of the Act Kamala Mills Ltd v. State of Bombay (1966) 1 SCR 64. In a case arising out of the Madras General Sales Tax Act, this Court observed that the expression "any assessment made under this act" is wide enough to cover all assessments made by the appropriate au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provisions of the Act was coupled with an onerous condition i.e. deposit of the entire amount of property tax. Hence, it was pleaded that the remedy provided under the Act was not adequate. This Court rejected the said submission by holding that the alternate remedy provided by a statute not being an adequate or efficacious remedy, is not a ground for maintaining a civil suit. However, this Court was of the opinion that a Writ Petition under Article 226 is maintainable if the remedy provided in the statute is not efficacious. 16. We have examined the plaint filed by the Respondents carefully. We do not see any allegation made regarding the violation of any provisions of the statute. There is also no pleading with regard to non-compliance of any fundamental provisions of the statute. It is settled law that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar. The civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure. A plain reading of the plaint would suggest that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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