JUDGMENT
R.C. Jain, J.
1. This Second Appeal raises a short legal
question — Whether a civil suit challenging the
rateable value assessed by the Municipal Corporation
of Delhi under the provisions of Delhi Municipal
Corporation Act, 1957 isbarredin view of the
provisions of Section 169 of the Act?
2. The appellants herein had filed four
suits for permanent injunction against the
respondent-MCD forrestraining them from recovering
property tax with respect to property No.450 to 453,
Ward No.V,Chandni Chowkat a rateablevalue of
Rs.24,400/-w.e.f.1.4.75. It was averred that the
assessment of the aforesaid rateable value was illegal
andwithout jurisdiction and in any case excessive in
as much as the standard rent and agreed rent of the
premises was much less. The suits were contested by
thedefendant-MCD inter alia on the ground that the
suits were not maintainable in view of the provisions
of Sections 169-170 and 477-478 of the Delhi Municipal
Corporation Act and the civil court had no
jurisdiction to try thesuit.The trial court
answered both the objections in negative and decreed
the suits of the appellant and restrained the MCD from
recovering property tax for the year 1976-77 up to the
period ending 31st March, 1980 at a rateable value
higher than Rs.6610/- per annum.
3. Aggrieved by the said judgment and decree
of the trial court, the MCD filed an appeal. The
appellate court allowed the appeal and dismissed the
suits primarily on the ground that jurisdiction of the
civil court was barred in a matter relating to the
assessment of house tax particularly when the relief
sought by the plaintiff could be obtained by filing a
statutory appeal which was the proper and efficacious
remedy available under the statute.
4. I have heard learned counsel for the
parties and have given my thoughtful consideration to
their respective submissions. At the outset, learned
counsel for the appellant has submitted that the above
question of law has been considered and answered by a
Division Bench of this Court in the case of Ganga Ram
Hospital Trust Vs.MCD 92(2001) DLT 775. The court
on a consideration of the provisions of the DMC Act
has held as under :-
“Section 169 provides for a
remedy ofappeal 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 under Section
169 of theAct aparty should have
recourse tothe said remedy. Butthe
party filing a civil suit to challenge
the levy and assessment of tax under the
Act may like to urge that the levyand
assessment of tax is not in accordance
withthe Act or is violative ofthe
provisions of the Act. In other words it
may be the case of a plaintiff thatthe
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
writjurisdiction 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 ofjurisdiction 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.”
xxxx xxxx
“The result ofthe above
discussion is that the impugned judgment
of the Trial Court holding that a civil
suit is not maintainable cannot be
sustained. The finding of the Trial
Court on the preliminary issue is hereby
set aside. It is held that a civil suit
to challenge levy and assessment oftax
is not barred in view of Section 169 of
the Act. A civil suit in such cases is
maintainable. Itis, however, a
different matter whether on merits a
plaintiff is able to make out a case in
its favor in the suit. On question of
merits of the controversy in the suit we
say nothing. The Trial Court dismissed
the suit on the threshold holding it is
not maintainable and, therefore, we have
only considered the question of
maintainability of a civil suit in this
appeal. The appeal is allowed andthe
impugned judgment of the Trial court is
set aside. The suit is remanded back to
theTrialCourtfor decision in
accordance with law. In the factsand
circumstances of the case, there will be
no order as to costs.”
5. In view of the legal position emerging
from the above decision, the judgment passed by the
first appellate court holding that the jurisdiction of
thecivil court to entertain and try the matter
relating to the assessment of house tax is barred,
cannot be sustained and is liable to be set aside.
However, as the judgment of the First Appellate court
is confined only to the maintainability of the suit
andno finding was rendered on the merits of the
appeal though the impugned judgment and decree of the
trial court was sought to be challenged on merits also
on several grounds, this court is of the opinion that
theappealfiled by the MCD should be heard and
disposed of on merits.
6.In the result this appeal succeeds and is
hereby allowed and the impugned judgment and decree of
theFirst Appellate court dated 9.3.98 is hereby set
aside and the matter is remanded back to the First
Appellate court to dispose of the appeal of the MCD on
merits. Parties are directed to appear before the
learned District Judge, Delhi on 28th May, 2002 who
will either hear the appeal of the MCD himself or will
make over the same to an Additional District Judge for
hearing and disposal of the appeal on merits in
accordance with law.