M/S. ASSOCIATED JOURNALS LTD. Vs. MCD

JUDGEMENT

(1.) Plaintiff has filed a suit against Municipal Corporation of Delhi for grant of a permanent injunction restraining the Corporation from recovering/enforcing the demand framed in its bill dated 1.9.1993, Annexure A to the plaint, in any manner and from recovering the property-tax in respect of its property called HERALD HOUSE situate at 5-A, Bahadur Shah Zafar Marg, New Delhi during the years 1985-86 onwards in excess of the rateble value of Rs. 1,73,800.00. During the pendency of this suit, plaintiff also filed I.A. No. 10506.93 for grant of ad-interim injunction. Ad-interim injunction was issued ex-parte and notice was issued to the Corporation. On putting in appearance the Corporation contested the suit as well as this application. It appears that thereafter the plaintiff also filed I.A. No. 10916/93 under Order 39 Rules 1 and 2 read with Sec. 151 Code of Civil Procedure ('Code' for short) for the same relief. Both these applications have been contested by the Corporation. They have also filed written statement.

(2.) I have heard arguments advanced by learned counsel for the parties. First, I called upon learned counsel for the defendant to argue as to why an injunction be not granted restraining the Corporation from recovering the property tax as per Annexure A. It may be noted that Annexure A is a revised bill sent by the Corporation to the plaintiff for recovery of property tax comprising of various compliments like general tax etc. in the sum of Rs. 1,02,62,794.00 w.e.f. 1.12.1988 to 1993-94. She submitted that a Division Bench of this Court in the case of Government Servants Co-operative House Building Society Ltd. and another Vs. Union of India and others, 1993(3) Delhi Lawyer 269 (DB) upheld the amendment in the Delhi Rent Control Act to the effect that the Delhi Rent Control Act will not be applicable to properties in respect of which the monthly rent exceeds Rs. 3,500.00 According to her the necessary consequence is that the rateable value/annual value of the properties will be either on the basis of cost of construction of the property and if the same is let out, on the basis of actual rent received. It may be noted that in the aforesaid authority contentions against the above proposition were not accepted and the writ petition was dismissed. She has also drawn my attention to a recent judgment of Honourable the Supreme Court of India in Municipal Corporation of Delhi Vs. C.L. Batra, 1994(3) R.R.R. 216 : 1994(3) L.J.R. 787, Civil Appeal No. 4671/94 wherein the assessee was directed to deposit admitted liability of Rs. 3 lacs, but by an interim order the recovery was stayed. After consideration of a number of authorities, Honourable Supreme Court in view of the authority, in the case of Shri Shyam Kishore and others Vs. Municipal Corporation of Delhi and another, 1992(2) RRR 566 : JT 1992(5) SC 335 held Sec. 170(b) of the Delhi Municipal Corporation Act to be intra vires because it only barred the hearing of the appeal and disposal on merits and not the entertainment of the appeal under section 169 DMC Act. That section provides for an appeal against the assessment of property tax before the District Judge. The first reason given was that it was not statutorily explained why the statutory remedy of appeal was allowed to be by-passed. The second reason was that when the assessee had filed a writ petition, praying for similar relief, and when interim order was not granted, he withdrew the writ petition and filed the suit which was an abuse of process of law. The third reason was that in case of Siliguri Municipality & others Vs. Amalendu Das and others, 1984 (2) SCR 344 the Supreme Court had vacated interim order staying recovery of tax. While doing so it pointed out :

(3.) In the present case also learned counsel for the Corporation pointed out that the plaintiff filed a writ petition No. 5556/93 for the same relief in this court in which rule was issued but stay was not granted. The fact that stay was refused is not disputed by learned counsel for the plaintiff. Learned counsel for the plaintiff submitted that a civil suit was maintainable when certain demand is raised by the Corporation regarding property tax which is not within the competence of the Corporation and thus without jurisdiction. However, it is difficult to agree to the argument of the learned counsel for the plaintiff. I am not at all convicted that the impugned recovery of property tax is prima facie without jurisdiction because it was held in the case of Government Servants Co-operative House Building Society Ltd. and others (supra) that in case of property being let out for more than Rs. 3500.00 per month, the rateable value will be on the basis of actual rent received. If the plaintiff was aggrieved against such recovery, the proper remedy will be by way of an appeal under Sec. 169 of the Delhi Municipal Corporation Act, and it has been so clearly held by Honourable Supreme Court in the case of Shri Shyam Kishore and others (supra). If that be so, a suit prima facie could be filed for a injunction for stay of recovery of the property tax. Moreover, it may be noted that the plaintiff has failed to obtain a stay order regarding the recovery of this very amount in the writ petition filed by it. Therefore, I am of the view that there is no prima facie case in favour of the plaintiff. The balance of convenience will also require that the recovery which is being sought against the plaintiff be not stayed in view of additional reasons given in Siliguri Municipality case (supra). The record shows that the plaintiff is recovering huge amounts by way of rent from the disputed property from various tenants. Therefore, there is no question of any hardship also. Taking the totality of the circumstances into consideration, I am of the view that plaintiff is not entitled to the grant of ad-interim relief of injunction as prayed for in these applications which are accordingly dismissed. Suit may now be listed for further proceedings before the Court on 5th Dec., 1994.