JUDGMENT
Manmohan Sarin, J.
1. By this common judgment, the above
three writ petitions are being disposed, as the
parties, the premises and the questions arising,
though relating to determination of rateable value
for different assessment years, are common.
2. Petitioner, M/s. Alokit Export Pvt. Ltd.,
has filed the above three writ petitioners. By writ
petition No. 1574/99, petitioner seeks quashing of
bill No. 19705 dated 5th January, 1999, in the sum
of Rs. 21,53,022/- computed on the basis of rateable value of Rs. 77,08,750/- (Rupees Seventy Seven
lacs eight thousand, seven hundred and fifty),
determined by New Delhi Municipal Council in
respect of 5-A, Amrita Shergil Marg New Delhi. The
bill assailed in the writ petition includes the
House tax demand for the year ending 1998-99. A
direction is also sought to restrain the respondent/NDMC from recovering property tax beyond the
rateable value of Rs. 11,316/- less 10 per cent.
for the said property. Writ petition No. 1517/2000
seeks to assail bill No. 9605 dated 19.11.1999,
claiming a sum of Rs. 31,85,763/- (rupees thirty one
lacs eighty five thousand seven hundred and sixty
three), which also includes arrears up to 31.3.1999
and the house tax amount for the year ending 1999-
2000, after giving rebate of 25% for self-occupation computed on rateable value determined at
Rs. 77,087,750/-.
Civil Writ petition No. 7009/2000, seeks
quashing of bill No. 8637 dated 29.9.2000, claiming
a sum of Rs. 73,87,753/- (rupees seventy three lacs
eighty seven thousand seven hundred and fifty
three), computed on the basis of retable value of
Rs. 69,37,8000/- with a current demand of
Rs. 13,87,560/- for the year 2000-2001 and arrears
of Rs. 60,00,193/-. Petitioner also seek restraint
on the respondent/NDMC from recovering tax, computed at the admitted rateable value of more than
Rs. 2,58,212/- yielding annual tax of Rs. 51,642.40.
3. Notices to show cause in CW.No. 1517/2000
and DW.No. 1574/99 had been issued. In CM.2439/99
in CW.No. 1574/99, an interim order, restraining
recovery pursuant to bill dated 5.11.1999, subject
to depositing admitted amount, was passed. While
in CW.No.1517/2000 stay of the impugned bill dated
19.11.1999 was not granted. In CW.No. 7009/2000,
notice had not been issued and the case was directed to be listed along with the above two
connected writ petitions.
4. Counsel for the parties have been heard.
Synopsis of submissions has also been filed by
both the parties. Case set up by the petitioner
is that the premises in question bearing No. 5-A,
Amrita Shergil Marg was constructed as far back in
the year 1939 and had been let out at a rental of
Rs. 250/- p.m. and was assessed by the NDMC at a
rateable value of Rs. 2400/- less 10%. The petitioner assails the determination of the rateable
value based on the purchase price by the petitioner vide a sale deed dated 12.5.1994.
5. Learned counsel Mr. R.P.Sharma submitted
that the standard rent of the property had been
determined prior to 1941. The said statutory rent
as determined should be followed and rateable
value determined based thereon. Further that the
respondents could not initiate proceedings to
determine the rateable value and assess it on a
as is other than the standard rent in terms of
proviso to Section 63(1) of the NDMC Act.
Learned counsel further submitted that the NDMC
Act came into force on 10.11.1995. The notice
issued in February 1995, seeking to revise the
amendment list for the year 1994-95, 1995-96 was
without the authority of law.
6. Learned counsel for the respondent on
the other hand objected to the maintainability of
the writ petitions on the ground that assessment
order dated 12.9.1996, passed for the base year by
which the rateable value for the assessment years
1994-95, 1995-96 and 1996-97 had been determined
in respect of the property in question, had been
assailed by the petitioner vide a writ petition
bearing CW No. 4857/96. A learned Single Judge had
dismissed the said writ petition, vide order dated
6.12.1996 on the ground that efficacious remedy by
way of statutory appeal was available and all the
grounds that had been taken in the writ petition
could be taken before the Appellant authority.
7. The petitioner aggrieved by the order of
dismissal of CW No. 4857/96 had preferred LPA
No. 107/97, challenging the order of the Single
Judge. Apart from the other grounds taken one of
the grounds urged in the LPA was that the impugned
notice of February 1995, for revision in the
assessment list was without jurisdiction as the
NDMC Act came into force subsequently on
10.11.1995. Hence the notice was without jurisdiction.
8. Learned counsel for the respondent
contends that after hearing submissions of both
the parties, the Division Bench was of the view
that the impugned notice as issued was valid and
therefore was inclined to dismiss the appeal.
Learned counsel for respondent submits that the
petitioner at that stage sought permission for
withdrawal of the LPA with liberty to file a
regular appeal before the Appellate Authority.
The petitioner further prayed that the objection
as to limitation should not be pressed by the
respondents as otherwise the appeal would be
barred by limitation. The respondent gave its
consent for the said concession and the Division
Bench accordingly disposed of the appeal on the
above terms.
9. The relevant and operative portion of
the order passed in LPA No. 107/97 is reproduced
for the facility of reference:-
“After arguing for a while learned
counsel for appellant Mr. R.P. Sharma prayed
for withdrawal of this appeal if appellant
was granted liberty to file Appeal before the
statutory forum and if time taken in prosecuting his writ petition and Appeal was not
taken in account for limitation purposes.:
Mr. Arvind Sah, learned counsel for
respondent submitted that no limitation plea
would be pressed into service against appellant provided he satisfied other requirements
for filing such Appeal.
This appeal is accordingly dismissed as
withdrawn with liberty prayed for granted to
appellant who may file an Appeal before
appropriate forum within 30 days from today
and in that case no plea of limitation be
taken against him and recovery sought till
Appellant Forum considers his interim stay
application if any filed.”
10. Learned counsel for the respondent
therefore relying on the order passed by the
Division Bench as noted above submits that the
assessments for the subsequent years which is in
challenge in the aforesaid three writ petitions,
has been done by simply adopting the previous
assessment order dated 12.9.1996. The petitioner
himself having agreed to file appeal after dismissal of his writ petition and withdrawal of the
LPA, cannot now be permitted to invoke the extraordinary writ jursidction for the subsequent
years by assailing the same in the writ jurisdiction and not availing of the appellate remedy.
Learned counsel for respondent argued that it
would be only proper if the challenge to the
assessment order and proceedings for subsequent
years, are also decided by the appellate authority, which is seized of the appeal against the assessment order determining the rateable value
for the base assessment year.
It is therefore urged that the court
should desist from exercising and entertaining the
writ petitions in the exercise of writ jurisdiction. The petitioner having withdrawn the challenge to the base assessment year by way of writ
petition and the appeal thereto and having agreed
to challenge the same before the appellate court,
cannot be permitted to adopt a different approach
in respect of subsequent assessments. Moreover it
is submitted that in the present writ petitions
the plea regarding the validity of the notice
dated 23.2.1995, would also not arise in as much
as the respondents while adopting the rateable
value as determined vide order dated 12.9.1996,
had issued public notices inviting objections.
The notices issued in respect of the assessment
proceedings under challenge in the writ petition
were issued in the same financial year. This the
counsel urged without prejudice to its contention
that the notice issued on 23.2.1995 was legal and
valid. Learned counsel for the respondent also
relied on Gujrat Agro Industries Company Ltd. v. Municipal Corporation of City of Ahmedabad and Ors reported at JT 1999 (3) 259 wherein the
court rejected the argument that simply because
the onerous condition for deposit of tax was
there, the right to appeal has become illusory.
11. Learned counsel Mr. R.P. Sharma in response to the objections of the respondent on
maintainability of the petitions urged that each
assessment year was a separate and independent one
and there would be no bar or estoppel on the
petitioner assailing the assessment orders for
subsequent years in writ petitions. He submitted
that effect of withdrawal of an earlier writ
petition cannot operate as estoppel or bar to the
maintainability of writ petitions challenging the
assessment for subsequent years as long as the
assessments were vitiated by lack of jurisdiction
and were against settled law. He sought to draw
support from M.N. Soi v. NDMC reported at ILR
1975 (ii) Delhi 765 para 3, to the effect that even
if the assessed had omitted to rely on the order
of a Rent Controller fixing the standard rent in
an assessment year, the same does not preclude
from questioning the assessment for subsequent
years. Learned counsel also sought to justify his
plea with regard to the notice of February 1995
revising the assessment list as being nonest.
Learned counsel also sought to place reliance on a
decision of the Division Bench of this court in
S.P. Aggarwal v. NDMC LPA No. 11/1997 a Division
Bench of this court by relying on a larger bench decision of the Supreme Court in Himmat Lal Hari
Lal Mehta v. State of Madhya Pradesh reported at
1954 SCR 1122, held the appellate remedy was onerous. The Division Bench notwithstanding the
judgment of the Supreme Court in Shyam Kishore
v. M.C.D. reported at , quashed the assessment and remanded the case.
Learned counsel for the petitioner therefore
submitted that the petitioners’ writ petition
should also be entertained.
12. I have given my thoughtful consideration
to the submissions urged. It is true that the
exhaustion of the alternate remedy is not absolute
requirement, prior to the entertainment of a writ
petition. it is also correct that while that a
Division Bench of this court relying on Himmat
Lal’s case (Supra) entertained the writ petition,
notwithstanding the existence of an alternate
remedy. However in S.P. Aggarwal’s case the court
had clearly come to the conclusion that the rate-
able value of the premises had to be determined
under Section 6(1)(B)(2B) of the Rent Control
Act and not under Chapter V of the said Act which
had no application. Thus the court finding it to
be a case of lack of jurisdiction and a jurisdictional error has remanded the case for fresh
assessment relying on Himmat Lal’s case where
again the relevant sales tax provision had been
declared ultra vires and imposition of tax without
authority of law.
13. The present cases are on a different
footing altogether. Learned counsel for the
respondent has rightly contended that the petitioner had challenged the determination of rate-
able value for the base year 1994-95, 1995-96,
1996-97 in CW No. 4857/96. The challenge had
been made on all admissible grounds including the
ground relating to the validity of the notice of
February 1995. The petitioner failed in the writ
petition and in LPA as noticed earlier, withdrew
the challenge and accepted to take resort to the
normal appellate remedy. The question to be
considered here is that the petitioner having
agreed to invoke the appellate remedy and having
obtained a concession also from the respondents of
not raising the bar of limitation, should he be
permitted for the subsequent years where the
challenge is on the same grounds to avail of the
remedy of extraordinary writ jursidction on the
ground that there is no estoppel or statutory bar
and each assessment year can be separately challenged. The answer to this has to be in the
negative. In such circumstances, the court would
not exercise the extraordinary writ jurisdiction
and will require the petitioner to avail of the
normal appellate remedy which he is already availing in respect of the base year. There is also
merit in the submission of the counsel for the
respondent that the appellate authority must be
left free to decide the appeal on merits without
in any manner being influenced by the entertainment
of the challenge to the subsequent year in
writ jurisdiction and the possibility of arriving
at a different finding. Moreover, without expressing
any opinion on merits of the matter, the
petitioner has also not made out a prima facie
case of total lack of jurisdiction. The legal
please raised can be conveniently taken before the
Appellate Authority. The writ petitions are held
to be not maintainable and are liable to be dismissed
and are dismissed.
14. Following the order as passed by the
Division Bench in LPA No. 107/97, the petitioner
may prefer appeals within 30 days from today. If
the appeals are so filed the respondents would not
raise limitation as objection. With a view to
subserve the ends of justice, it is directed that
the appeal as preferred by the petitioner against
the order dated 12.9.1996 i.e. the base year if
pending be disposed of expeditiously and within a
period of 3 months from today.