SOUTH DELHI MUNICIPAL CORPORATION & ANR. versus M/S. TODAY HOMES AND INFRASTRUCTURE PVT. LTD. ETC. on 19 August 2019

[2019] 10 S.C.R. 707

SOUTH DELHI MUNICIPAL CORPORATION & ANR.

v.

M/s. TODAY HOMES AND INFRASTRUCTURE PVT. LTD.

ETC.

(Civil Appeal No. 6377-6378 of 2019)

AUGUST 19, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Delhi Municipal Corporation Act, 1957: Maintainability ofcivil suits in disputes pertaining to payment of tax under the Act –Held: Wherever a right or liability, not pre-existing in common lawis created by a statute and that statute itself provides a machineryfor enforcement of such right or liability, both the right/liabilityand the remedy having been created uno flatu and a finality isintended to the result of the statutory proceedings, then, even in theabsence of an exclusionary provision the jurisdiction of the civilcourt is impliedly barred – Delhi Municipal Corporation Act, 1957creates a liability for payment of tax – There is no pre-existing liabilityof tax under Common Law – Further, a remedy by way of an appealagainst an order of assessment, before an appropriate forum orauthority, is also provided by the same statute – Necessarily, wherea party aggrieved by the decision of the authorities has to resort tothe remedy provided under the Statute, civil courts’ jurisdiction isbarred – S.171 gives finality to the orders passed by MunicipalTaxation Tribunal, which shows the intendment of the legislature toexclude jurisdiction of civil courts – Jurisdiction – Code of CivilProcedure, 1908 – S.9.

Delhi Municipal Corporation Act, 1957: Jurisdiction of civilcourts, where exercisable – Held: The civil courts shall havejurisdiction to examine a matter in which there is an allegation ofnon-compliance of the provisions of the statute or any of thefundamental principles of judicial procedure – No jurisdictionalerror pleaded in the plaint.

Delhi Municipal Corporation Act, 1957: Onerous remedyprovided in the Act – Remedy provided by a statute not beingadequate or efficacious remedy, is not a ground for maintaining acivil suit – However, Writ Petition under Article 226 is maintainable.

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AAllowing the appeals, the CourtHELD : 1. Section 9 of the Code of Civil Procedure, 1908confers jurisdiction on the Civil Courts to try all suits, exceptingthose which are either expressly or impliedly barred. ChapterVIII of the Act deals with levy of taxes that can be imposed byBthe Corporation. Property tax is dealt with in Sections 114 toSection 135 of the Act. There is an inherent right to approach acivil court. The bar on a civil court’s jurisdiction is not to bereadily or lightly inferred. The jurisdiction of civil courts can beexcluded by an express provision of law or a clear intendment insuch law. A perusal of the relevant provisions of the Act wouldCshow that there is no express bar on the jurisdiction of Courts.However, Section 169 of the Act provides for an appeal to theMunicipal Taxation Tribunal. Section 171 of the Act providesthat the order of the Municipal Taxation Tribunal in the appealfiled by the Assessee shall be final. According to the Corporation,Dthese Sections, read together, create a bar on the jurisdiction ofcivil courts. [Paras 5, 6, 9] [712-C; 714-G; 717-C]Dhulabhai and Ors. v. The State of Madhya Pradeshand Anr. [1968] 3 SCR 662 – relied on.

Secretary of State v. Mask AIR 1940 PC 105 – referredEto.Wolverhampton New Waterworks Co. v. Hawkesford[1859] 6 C. B. (NS) 336 – referred to.

2. Any person having a grievance that he had been wrongedor his right has been affected can approach a civil court on theFprinciple of ‘ubi jus ibi remedium’ - where there is a right, thereis a remedy. As no internal remedy had been provided in differentstatutes creating rights or liabilities, the ordinary civil courts hadto examine the grievances in the light of those statutes. With theadvent of a ‘Welfare State’, it was realised that enactments creatingGliabilities in respect of payment of taxes, obligations after vestingof estates and conferring rights on a class of citizens, should becomplete codes by themselves. With that object in view, forumswere created under the Acts themselves where grievances couldbe entertained on behalf of the persons aggrieved. [Para 10][717-D-F]H

SOUTH DELHI MUNICIPAL CORPORATION v. M/S TODAY HOMES ANDINFRASTRUCTURE (P) LTD.

3. As to various issues on the correctness of a return itself,or whether or not a return is correct; whether or not transactionswhich are not mentioned in the return, but about which theappropriate authority has knowledge, fall within the mischief ofthe charging section; what is the true or real extent of thetransactions which are assessable; all these and other alliedquestions have to be determined by the appropriate authoritiesthemselves. An assessment, based even on an erroneous findingabout the character of the transaction, is an assessment madewell within jurisdiction and cannot be said to be outside thepurview of the Act. [Para 13] [718-B-C]

4. The Civil Court’s jurisdiction is impliedly barred for thefollowing reasons: There is no pre-existing liability of tax underCommon Law. The liability has been created by Delhi MunicipalCorporation Act along with a remedy by way of an appeal to theMunicipal Taxation Tribunal. Necessarily, where a party aggrievedby the decision of the authorities has to resort to the remedyprovided under the Statute, civil courts’ jurisdiction is barred.Section 171 of the Act gives finality to orders passed by MunicipalTaxation Tribunal, which shows the intendment of the legislatureto exclude jurisdiction of civil courts. The remedy provided bySection 169 of the Act is an adequate and effective remedy. TheHigh Court erred in holding that an appeal provided by the Statuteagainst orders of assessments, containing an ‘onerous’ pre-condition of deposit of the entire amount in dispute, is not aneffective remedy. [Para 14] [718-E-G; 719-A-B]

Firm Seth Radha Kishan v. Administrator, MunicipalCommittee, Ludhiana AIR 1963 SC 1547 : [1964] SCR 273 ; Firm of Illury Subbayya and In Ram Swarup andOrs. v. Shikar Chand AIR 1966 SC 893 : [1966] SCR 553 ; Srikant K. Jituri v. Corporation of the City ofBelgaum (1994) 6 SCC 572 : [1994] 4 Suppl. SCR 262– relied on.

5. It is settled law that jurisdiction of the civil courts cannotbe completely taken away in spite of either an express or impliedbar. The civil courts shall have jurisdiction to examine a matterin which there is an allegation of non-compliance of the provisions

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Aof the statute or any of the fundamental principles of judicialprocedure. A plain reading of the plaint would suggest that theorder impugned in the suit is at the most an erroneous order. Nojurisdictional error is pleaded in the plaint. Therefore, thequestion of maintainability of the suit does not arise. In theabsence of any pleadings in the plaint, the High Court oughtBnot to have remanded the matter back to the Single Judge.[Para 16] [719-F-H; 720-A]

NDMC v. Satish Chand (2003) 10 SCC 38 ; Secretaryof State v. Mask AIR 1940 PC 105 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6377-6378 of 2019.

EFrom the Judgment and Order dated 24.07.2015 of the High Courtof Delhi at New Delhi in RFA (OS) Nos. 13 and 17 of 2015.

Sanjiv Sen, Sr. Adv., Praveen Swarup, Sayan Ray, Rahul Tomar,Soumo Palit, Chandra Pratap Singh, Advs. for the Appellants.

Sunil Malhotra, Rajat Malhotra, Diggaj Pathak, Ms. ShwetaFSharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J. Leave granted.

1. The order of assessment dated 01.03.2013 and the demand forGpayment of property tax made on the Respondents was the subject matterof challenge in a civil suit filed before the High Court of Delhi. LearnedSingle Judge of the Delhi High Court rejected the plaint by holding thatthe suit was not maintainable. The appeals filed by the Respondentswere allowed by a Division Bench. The judgment in the said civil suit H

was consequently set aside and the learned Single Judge was directedto decide the point of jurisdiction afresh on the basis of legal principleslaid down in the judgment of the Division Bench. Aggrieved thereby,the South Delhi Municipal Corporation (hereinafter, ‘the SDMC’) hasfiled this appeal.

2. M/s GPS Properties Pvt. Ltd. was the highest bidder in theauction of commercial plot Nos.4, 5 and 6 of Shivaji Complex, DistrictCentre, Raja Garden, New Delhi. Said property was allotted by the Slum& J. J. Department of the Municipal Corporation of Delhi in favour ofM/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 developmentagreement with M/s Today Homes and Infrastructure Pvt. Ltd. forconstruction of a mall/commercial complex and for sale of units therein.Occupancy certificate/completion certificate was granted by the DDAvide its letter dated 25.07.2008. The property was assessed for paymentof 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 ofthe Delhi Municipal Corporation Act, 1957 (hereinafter ‘the Act’), whichwas later withdrawn. Thereafter, a civil suit was filed in the High Courtof Delhi challenging the assessment order dated 01.03.2013 and thewarrants of attachment. The Appellant raised a preliminary objectionregarding the maintainability of the suit which was accepted by the learnedSingle Judge, who placed strong reliance on the judgment of this Courtin NDMC v. Satish Chand[1] to hold that the civil suit was not maintainable.

3. The approach of the learned Single Judge was disapproved bythe Division Bench. The Division Bench held that the learned SingleJudge overlooked the distinction between an express bar of a civil suitand where there is no express bar but the remedy provided is onerous.The High Court further observed that the learned Single Judge failed totake into account the relevant factors to determine the maintainability ofthe civil suit. According to the Division Bench, the learned Single Judgehad neither examined whether the remedy provided by the Statute wasonerous nor determined whether the limited window for filing a civil suit,in spite of a bar, was available to the Respondents. The Division Bench A

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Aremanded the matter back for fresh consideration by the learned SingleJudge who was directed to examine the facts of the case in the light ofthe observations made by the Division Bench and the law laid down bythis Court.

4. Whether a civil suit is maintainable in disputes pertaining toBpayment of tax under the Delhi Municipal Corporation Act, 1957 is thequestion that arises for our consideration in these appeals.

5. Section 9 of the Code of Civil Procedure, 1908 (hereinafter‘the CPC’) confers jurisdiction on the Civil Courts to try all suits, exceptingthose which are either expressly or impliedly barred. Chapter VIII ofCthe Act deals with levy of taxes that can be imposed by the Corporation.Property tax is dealt with in Sections 114 to Section 135 of the Act.Sections 169 to 171 which relate to appeals that may be filed againstorders of assessment are as follows:

169. Appeal against assessment, etc.D

(1) An appeal against the levy or assessment or revision ofassessment of any tax under this Act shall lie to the MunicipalTaxation Tribunal constituted under this Section:

Provided that the full amount of the property tax shall bepaid before filing any appeal:

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Provided further that the Municipal Taxation Tribunal may,with the approval of the District Judge of Delhi, also take upany case for which any appeal may be pending before theCourt of such District Judge:

Provided also that any appeal pending before the Court ofsuch District Judge shall be transferred to the MunicipalTaxation Tribunal for disposal, if requested by the applicantfor the settlement thereof on the basis of annual value.

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(2) (a) the Government shall constitute a Municipal TaxationTribunal consisting of a Chairperson and such other membersGas 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 UnionTerritory and the other member from the Higher AdministrativeService, and may transfer to any such Bench any appeal fordisposal or may withdraw from any Bench any appeal beforeit is finally disposed of.

(b) The Chairperson, and not less than half of the othermembers, of the Municipal Taxation Tribunal shall be personswho are or have been the members of the Higher JudicialService of a State or a Union Territory for a period of notless than five years, and the remaining members, if any, shallhave such qualifications and experience as the Governmentmay by rules determine.

(c) The Chairperson and the other members of the MunicipalTaxation Tribunal shall be appointed by the government fora period of five years or till they attain the age of 65 years,whichever is earlier.

(d) The other terms and conditions of service of theChairperson and the other members of the Municipal TaxationTribunal, including salaries and allowances, shall be suchas may be determined by rules by the Government.

(e) The salaries and allowances of the Chairperson and theothers members of the Municipal Taxation Tribunal shall bepaid from the Municipal fund.

(3) In every appeal, the costs shall be in the discretion of theMunicipal Taxation Tribunal or the Bench thereof, if any.

(4) Costs awarded under this section to the [a Corporation]shall be recoverable by the [a Corporation] as an arrear oftax due from the appellant.

(5) If [a Corporation] fails to pay any costs awarded to anappellant within ten days from the date of the order forpayment thereof, the Municipal Taxation Tribunal may orderthe Commissioner to pay the costs to the appellant.

170. Conditions of right to appeal.

No appeal shall be heard or determined under section 169unless—

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SUPREME COURT REPORTS

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(a) the appeal is, in the case of a property tax, broughtwithin thirty days next after the date of authentication ofthe assessment list under section 124 (exclusive of the timerequisite for obtaining a copy of the relevant entries therein)or, as the case may be, within thirty days of the date onwhich an amendment is finally made under section 126,and, in the case of any other tax, within thirty days nextafter the date of the receipt of the notice of assessment orof alteration of assessment or, if no notice has been given,within thirty days after the date of the presentation of thefirst bill or, as the case may be, the first notice of demandin respect thereof:

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Provided that an appeal may be admitted after theexpiration of the period prescribed therefor by this sectionif the appellant satisfies the (Municipal Taxation Tribunal)that he had sufficient cause for not preferring the appealwithin that period; D

(b) The amount, if any, in dispute in the appeal has beendeposited by the appellant in the office of [a Corporation].

171. Finality of appellate orders.

The order of the [Municipal Taxation Tribunal] confirming,setting aside or modifying an order in respect of anyrateable value or assessment or liability to assessment ortaxation shall be final:

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Provided that it shall be lawful for the [Municipal TaxationTribunal], upon application or on its own motion, to reviewFany order passed by it in appeal within three months fromthe date of the order.

6. There is an inherent right to approach a civil court. The bar ona civil court’s jurisdiction is not to be readily or lightly inferred. Thejurisdiction of civil courts can be excluded by an express provision ofGlaw or a clear intendment in such law. Wolverhampton New WaterworksCo. v. Hawkesford[2]resolved the dispute pertaining to the bar onjurisdiction of civil courts, in the following manner:

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“One is where there was a liability existing at common law,and that liability is affirmed by a Statute which gives a specialand peculiar form of remedy different from the remedy whichexisted at common law: there, unless the Statute containswords which expressly or by necessary implication excludethe common law remedy the party suing has his election topursue either that or the statutory remedy. The second classof cases is, where the Statute gives the right to sue merely, butprovides, no particular form of remedy: there, the party canonly proceed by action at common law. But there is a thirdclass, viz., where a liability not existing at common law iscreated by a Statute which at the same time gives a specialand particular remedy for enforcing it........ The remedyprovided by the Statute must be followed and it is not competentto the party to pursue the course applicable to cases of thesecond class.”

7. In a case arising under the Sea Customs Act (1878), the PrivyCounsel in Secretary of State v. Mask[3] observed as follows:

“It is settled law that the exclusion of the jurisdiction of thecivil courts is not to be readily inferred, but that such exclusionmust either be explicitly expressed or clearly implied. It isalso well settled that even if jurisdiction is so excluded, thecivil courts have jurisdiction to examine into cases where theprovisions of the Act have not been complied with, or thestatutory tribunal has not acted in conformity with thefundamental principle of judicial procedure.”

8. Section 17 of the Madhya Bharat Sales Tax Act, 1950 barredthe jurisdiction of any court in matters pertaining to assessments madeunder the Act. The recovery of Sales Tax under the said Act was thesubject matter of civil suits filed by the asessees. The State objected tothe maintainability of the civil suits on the ground that jurisdiction of civilcourt was barred. After taking note of several judgements of this Courton the point of ouster of jurisdiction of the civil courts, Hidayatullah, J. inDhulabhai and Ors. v. The State of Madhya Pradesh and Anr.[4]observed as follows:

3 AIR 1940 PC 105

4 1968 (3) SCR 662 at 682

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(1) Where the Statute gives a finality to the orders of the specialtribunals the Civil Courts’ jurisdiction must be held to beexcluded if there is adequate remedy to do what the CivilCourts would normally do in a suit. Such provision, however,does not exclude those cases where the provisions of theparticular Act have not been complied with or the statutorytribunal has not acted in conformity with the fundamentalprinciples of judicial procedure.

(2) Where there is an express bar of the jurisdiction of theCourt, an examination of the scheme of the particular Act tofind the adequacy or the sufficiency of the remedies providedmay be relevant but is not decisive to sustain the jurisdictionof the Civil Court.

Where there is no express exclusion the examination of theremedies and the scheme of the particular Act to find out theintendment becomes necessary and the result of the inquirymay be decisive. In the latter case it is necessary to see if theStatute creates a special right or a liability and provides forthe determination of the right or liability and further laysdown that all questions about the said right and liability shallbe determined by the tribunals so constituted, and whetherremedies normally associated with actions in Civil Courts areprescribed by the said Statute or not.

(3) Challenge to the provisions of the particular Act as ultravires cannot be brought before Tribunals constituted underthat Act. Even the High Court cannot go into that question ona revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional. orthe constitutionality of any provision is to be challenged, asuit is open. A writ of certiorari may include a direction forrefund if the claim is clearly within the time prescribed by theLimitation Act but it is not a compulsory remedy to replace asuit.

(5) Where the particular Act contains no machinery for refund’of tax collected in excess of constitutional limits or illegallycollected a suit lies.

SOUTH DELHI MUNICIPAL CORPORATION v. M/S TODAY HOMES ANDINFRASTRUCTURE (P) LTD. [L. NAGESWARA RAO, J.]

(6) Questions of the correctness of the assessment apart fromits constitutionality are for the decision of the authorities anda civil suit does not lie if the orders of the authorities aredeclared to be final or there is an express prohibition in theparticular Act. In either case the scheme of the particular Actmust be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is notreadily to be inferred unless the conditions above set downapply.

9. A perusal of the relevant provisions of the Act would show thatthere is no express bar on the jurisdiction of Courts. However, Section169 of the Act provides for an appeal to the Municipal Taxation Tribunal.Section 171 of the Act provides that the order of the Municipal TaxationTribunal in the appeal filed by the Assessee shall be final. According tothe Corporation, the aforementioned Sections, read together, create abar on the jurisdiction of civil courts.

10. Any person having a grievance that he had been wronged orhis right has been affected can approach a civil court on the principle of‘ubi jus ibi remedium’ - where there is a right, there is a remedy. As nointernal remedy had been provided in different statutes creating rights orliabilities, the ordinary civil courts had to examine the grievances in thelight of those statutes. With the advent of a ‘Welfare State’, it was realisedthat enactments creating liabilities in respect of payment of taxes,obligations after vesting of estates and conferring rights on a class ofcitizens, should be complete codes by themselves. With that object inview, forums were created under the Acts themselves where grievancescould be entertained on behalf of the persons aggrieved[5].

11. Wherever a right or liability, not pre-existing in common law iscreated by a statute and that statute itself provides a machinery forenforcement of such right or liability, both the right/liability and the remedyhaving been created uno flatu and a finality is intended to the result ofthe statutory proceedings, then, even in the absence of an exclusionaryprovision the jurisdiction of the civil court is impliedly barred[6].

5 Shiv Kumar Chadha Etc. Etc v. Municipal Corporation of Delhi (1993) 3 SCC 161

6 Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India (1988) 1 SCC 681

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A12. We find that a liability for payment of tax is created by theDelhi Municipal Corporation Act, 1957. Further, a remedy by way of anappeal against an order of assessment, before an appropriate forum orauthority, has been provided by the same statute.

13. As to various issues on the correctness of a return itself, orBwhether or not a return is correct; whether or not transactions whichare not mentioned in the return, but about which the appropriate authorityhas knowledge, fall within the mischief of the charging section; what isthe true or real extent of the transactions which are assessable; all theseand other allied questions have to be determined by the appropriateauthorities themselves. An assessment, based even on an erroneousCfinding about the character of the transaction, is an assessment madewell within jurisdiction and cannot be said to be outside the purview ofthe Act[7]. In a case arising out of the Madras General Sales Tax Act,this Court observed that the expression “any assessment made underthis act” is wide enough to cover all assessments made by the appropriateDauthority under the Act, whether the said assessments are correct ornot.[8] If the appropriate authority has been given the jurisdiction todetermine the nature of the transaction and proceed to levy a tax inaccordance with its decision, even if such issue is erroneously determinedby the authority, the tax levied by it in accordance with its decision cannotbe said to be ‘without jurisdiction’. See (Kamla Mills - supra).E14. Applying the criteria mentioned in Dhulabhai (supra), we areof the opinion that the Civil Court’s jurisdiction is impliedly barred for thefollowing reasons:

(i) There is no pre-existing liability of tax under Common Law. TheFliability has been created by Delhi Municipal Corporation Act alongwith a remedy by way of an appeal to the Municipal TaxationTribunal. Necessarily, where a party aggrieved by the decision ofthe authorities has to resort to the remedy provided under theStatute, civil courts’ jurisdiction is barred. See (In Firm SethRadha Kishan v. Administrator, Municipal Committee,GLudhiana[9], Firm of Illury Subbayya and In Ram Swarup andOrs. v. Shikar Chand[10].

7 Kamala Mills Ltd v. State of Bombay (1966) 1 SCR 64

8 Firm of Illuri Subbaya Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 3229 AIR 1963 SC 154710 AIR 1966 SC 893H

SOUTH DELHI MUNICIPAL CORPORATION v. M/S TODAY HOMES ANDINFRASTRUCTURE (P) LTD. [L. NAGESWARA RAO, J.]

(ii) Section 171 of the Act gives finality to orders passed by MunicipalTaxation Tribunal, which shows the intendment of the legislatureto exclude jurisdiction of civil courts.

(iii) The remedy provided by Section 169 of the Act is an adequateand effective remedy. We are not in agreement with the HighCourt that an appeal provided by the Statute against orders ofassessments, containing an ‘onerous’ pre-condition of deposit ofthe entire amount in dispute, is not an effective remedy.

15. We seek support for these views from a judgement of thisCourt in Srikant K. Jituri v. Corporation of the City of Belgaum[11].The question that arose for consideration of this Court in the said judgmentwas regarding the jurisdiction the civil courts being barred by Rule 25contained in Part-I of Schedule-III of the Karnataka MunicipalCorporations Act, 1976. Resolving the dispute about the maintainabilityof a civil suit against the order passed by the revisional authority, thisCourt held that the suit was not maintainable. In the said case, thesubmission on behalf of the Assessee was that the right to second appealto the District Court as per the provisions of the Act was coupled withan onerous condition i.e. deposit of the entire amount of property tax.Hence, it was pleaded that the remedy provided under the Act was notadequate. This Court rejected the said submission by holding that thealternate remedy provided by a statute not being an adequate or efficaciousremedy, is not a ground for maintaining a civil suit. However, this Courtwas of the opinion that a Writ Petition under Article 226 is maintainableif the remedy provided in the statute is not efficacious.

16. We have examined the plaint filed by the Respondentscarefully. We do not see any allegation made regarding the violation ofany provisions of the statute. There is also no pleading with regard tonon-compliance of any fundamental provisions of the statute. It is settledlaw that jurisdiction of the civil courts cannot be completely taken awayin spite of either an express or implied bar. The civil courts shall havejurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamentalprinciples of judicial procedure. A plain reading of the plaint would suggestthat the order impugned in the suit is at the most an erroneous order. Nojurisdictional error is pleaded in the plaint. Therefore, the question of 11 (1994) 6 SCC 572

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720SUPREME COURT REPORTS

Amaintainability of the suit does not arise. In the absence of any pleadingsin the plaint, the High Court ought not to have remanded the matter backto the learned Single Judge.

For the aforementioned reasons, judgement of the Division Benchof the High Court is set aside and the appeals are allowed.

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Devika Gujral

Appeals allowed.

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