Ashish Malhotra vs N.D.M.C.

S. Muralidhar, J.—The challenge in this writ petition is to an Assessment Order dated 5.10.2006 (purportedly signed according to the

petitioner on 3.10.2006) by the Assessing Authority, New Delhi Municipal Council (NDMC) fixing the rateable value for the premises in question

for the year 2006-07 at Rs. 12,83,900/-. This Order was passed u/s 70(6) of the NDMC Act, 1994 (''Act'').

In reply to a question by the Court whether against the said impugned Assessment Order the petitioner has an alternative statutory remedy,

learned Counsel for the petitioner points out that although an appeal has been provided for u/s 115 of the Act, read with Section 116 thereof, that

remedy is not efficacious but burdensome and Therefore the petitioner is not precluded from assailing the impugned order under Article 226 of the

Constitution.

In support of his submissions, learned Counsel for the petitioner places reliance first on the judgment of the Hon''ble Supreme Court in

Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, and in particular the observations in para 9 thereof to the following effect:

...the principle that a Court will not issue a prerogative writ when and adequate alternative remedy was available could not apply where a party

came to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Moreover, the remedy

provided by the Act is on an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax.

Such a provision can hardly be described as an adequate alternative remedy.

Learned Counsel for the petitioner then places reliance on judgment of the Division Bench of this Court in Chemical Sales Corporation Vs. New

Delhi Municipal Committee, to the same effect. The observations in the latter case reads as under:

The next point about the bar of exhaustion of the equally efficacious remedy by way of appeal. In ordinary course, it may not be very appropriate

to resort to the jurisdiction of the High Court under Article 226 if an alternative efficacious remedy is available. However, an alternative remedy is

not an absolute bar to the maintainability of the petition where an authority has acted wholly without jurisdiction. One has to take into consideration

that in case of allegation relating to infringement of fundamental rights, lack of jurisdiction in the Tribunal trying the matter and in cases where the

impugned order has been made in violation of principles of natural justice, it has been held that the exhaustion of alternative remedy is no bar to

entertaining the writ under Article 226 the reason being that in such matters the order can be treated as void or non-est.

Learned Counsel for the petitioner submits that in the present case too his fundamental right has been violated since there has been a violation of

the principle of natural justice on account of the impugned Assessment Order having been passed without giving him an opportunity of being heard.

In order to appreciate the factual position asserted by the petitioner, the pleadings in the writ petition may have to be examined. The relevant

portions of Paras 18 and 19 of the writ petition read as under:

petitioners again filed objections on 18.9.2006. On the said objections the respondent fixed a hearing on 25.9.2006. Copy of the objections is

annexed as Annexure P-24.

That a hearing took place on 25.9.2006, however, Assessing Authority maintained the Ratable Value of the property at Rs. 1283900/- fixing

the same on the basis of comparable rent...

On the petitioner''s own showing the contention that the impugned Order was passed without hearing the petitioner is not borne out. Prima facie

there does not appear to be a violation of the principles of natural justice in the manner alleged by the petitioner, before the impugned Order was

passed.

It is true that the statutory remedy of an appeal u/s 115 of the NDMC Act is hedged in by the conditions that can be imposed u/s 116 of the

said Act, the relevant portion of which reads as under:

Conditions of right to appeal.- No appeal shall be Heard or determined u/s 115 unless-

(b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Council.

Section 129E of the Customs Act 1962 which imposes a similar condition of pre- deposit of the disputed amount of duty as a pre-condition to

entertaining an appeal under that statute has been upheld by the Hon''ble Supreme Court. In Vijay Prakash D. Mehta and Another Vs. Collector

of Customs (Preventive), Bombay, , the Supreme Court had the occasion to consider the plea that the right of appeal under Sections 129A and

129E of the Customs Act, 1962 was whittled down on account of the condition of a pre-deposit of the disputed duty. The Hon''ble Court

observed (JT p.438):

(The) right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi

judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.

In The Anant Mills Co. Ltd. Vs. State of Gujarat and Others, , the Hon''ble Supreme Court had occasion to consider virus of Section 406(2)(e)

of the Bombay Provincial Municipal Corporations Act (Bombay Act 59 of 1949) as amended by Gujarat Acts No. 8 of 1968 and No. 5 of 1970

which required the pre- deposit of the disputed tax by the appellant as a pre-condition to entertaining an appeal. Upholding the validity of this

provision, it was observed (SCR p.247):

The bar created by Section 406(2)(e) to the entertainment of the appeal by a person who has not deposited the amount of tax due from him and

who is not able to show to the appellate judge that the deposit of the amount would cause him undue hardship arises out of his own omission and

default. '' Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no

difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an

accompanying liability upon a party upon whom a right is conferred or to prescribe conditions for the exercise of the right. '' A disability or

disadvantage arising out of a party''s own default or omission cannot be taken to be tantamount to the creation of two classes offensive to Article

14 of the Constitution, especially when that disability or disadvantage operates upon all persons who make the default or omission.

The Hon''ble Supreme Court in Shyam Kishore and others Vs. Municipal Corporation of Delhi and another, had occasion to consider the

validity of Section 170(b) of the Municipal Corporation of Delhi Act 1957 which reads:

Conditions of right to appeal.- No appeal shall be heard or determined u/s 169 unless-

(b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation.

The above provision is identically worded as Section 116(b) of the NDMC Act. In interpreting and upholding the validity of the said provision

(Section 170(b) MCD Act) the Hon''ble Supreme Court held (JT page 359 para 47): ''47. We, Therefore, agree with the majority of the Division

Bench of the High Court that Section 170(b) of the DMC Act is intra vires. The District Judge has no jurisdiction to waive the condition of deposit

or stay the collection of the tax pending disposal of the appeal before him. We, however, hold that he has the power to adjourn the hearing of the

appeal or pass interim orders enabling the assessed to pay up the taxes before the appeal is actually heard and determined. But this is a power

which he shall have to exercise judicially on the basis of the requirements of each case, the interests of revenue and the position of the cases on the

hearing list before him.

In view of the law as explained in the above decisions, and in particular the judgment in Shyam Kishore which upholds a similarly worded

provision of the MCD Act, it is held that the condition imposed u/s 116 cannot be said to render the remedy of appeal u/s 115 of the Act

inefficacious. The interpretation given to Section 170(b) of the MCD Act in Shyam Kishore will equally apply to Section 116 of the NDMC Act.

The judgments relied upon by learned Counsel for the petitioner only affirm the unexceptionable proposition that the mere existence of an

alternative remedy is not an absolute bar to the High Court entertaining a writ petition under Article 226. The question really is whether in a given

case the grounds on which the petitioner seeks to assail an order of assessment by way of a writ petition under Article 226 are available to be

raised before the statutory appellate forum. That is the test of efficaciousness. Much has been said since the decision in Himmatlal v. State of M.P.

(followed by this Court in Chemical Sales Corporation) to indicate that where there exists an alternative remedy, the High Court will be slow to

entertain a writ petition challenging an assessment order. A reference may be made to the decisions in U.P. Jal Nigam and Another Vs. Nareshwar

Sahai Mathur and Another, , Danda Rajeshwari Vs. Bodavula Hanumayamma and others, and Titaghur Paper Mills Co. Ltd. and Another Vs.

State of Orissa and Others, . In particular a reference may be made to the decisions in Assistant Collector of Central Excise, Chandan Nagar,

West Bengal Vs. Dunlop India Ltd. and Others, , while deprecating the resort to the filing of the writ petition under Article 226 in respect of a

matter for which remedy lay under the Central Excise and Salt Act, 1944, the Hon''ble Supreme Court observed as under (AIR p. 332 Para 3):

...Art. 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the

demands of extraordinary situations, as for instance where the very virus of the statute is in question or where private or public wrongs are so

inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of

the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters

involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority

of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the

proceedings by one device or the other. The practice certainly needs to be strongly discouraged.

In the present case on going through the writ petition it appears that the grounds on which petitioner seeks to assail the impugned assessment

order can very well be raised before the Appellate Authority. The Appellate Authority is bound to consider those grounds, as and when an appeal

is filed, in accordance with the law. In that view of the matter this writ petition cannot be entertained on the ground of existence of an efficacious

alternative remedy.

Learned Counsel for the petitioner then points out that there is a limitation prescribed under the Act for preferring an appeal which can be

condoned u/s 117 of the Act. If the appeal is filed by the petitioner within fifteen days, the Appellate Authority will favorably consider the question

of condensation of delay in filing the appeal in light of the fact that the petitioner has bonafide been pursuing the present writ petition.

With these observations, the writ petition is dismissed. Miscellaneous application for interim stay stands dismissed accordingly.