Case: SOUTH DELHI MUNICIPAL CORPORATION Vs. M/S. TODAY HOMES AND INFRASTRUCTURE PVT. LTD. ETC

2. M/s GPS Properties Pvt. Ltd. was the highest bidder in the auction of commercial plot Nos.4, 5 and 6 of Shivaji Complex, District Centre, Raja Garden, New Delhi. Said property was allotted by the Slum & J. J. Department of the Municipal Corporation of Delhi in favour of M/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 development agreement with M/s T oday Homes and Infrastructure Pvt. Ltd. for construction of a mall/commercial complex and for sale of units therein. Occupancy certificate/completion certificate was granted by the DDA vide its letter dated 25.07.2008. The property was assessed for payment of taxes and a demand was raised pursuant to the assessment order. The Respondents approached the Municipal T axation Tribunal (hereinafter, ‘the Tribunal?) by filing an appeal under Section 169 of the Delhi Municipal Corporation Act, 1957 (hereinafter ‘the Act?), which was later withdrawn. Thereafter, a civil suit was filed in the High Court of Delhi challenging the assessment order dated 01.03.2013 and the warrants of attachment. The Appellant raised a preliminary objection regarding the maintainability of the suit which was accepted by the learned Single Judge, who placed strong reliance on the judgment of this Court in NDMC v. Satish Chand (2003) 10 SCC 38     to hold that the civil suit was not maintainable.      3. The approach of the learned Single Judge was disapproved by the Division Bench. The Division Bench held that the learned Single Judge overlooked the distinction between an express bar of a civil suit and where there is no express bar but the remedy provided is onerous. The High Court further observed that the learned Single Judge failed to take into account the relevant factors to determine the maintainability of the civil suit. According to the Division Bench, the learned Single Judge had neither examined whether the remedy provided by the Statute was onerous nor determined whether the limited window for filing a civil suit, in spite of a bar, was available to the Respondents. The Division Bench remanded the matter back for fresh consideration by the learned Single Judge who was directed to examine the facts of the case in the light of the observations made by the Division Bench and the law laid down by this Court.

Reasoning: 9. A perusal of the relevant provisions of the Act would show that there is no express bar on the jurisdiction of Courts.We find that a liability for payment of tax is created by the Delhi Municipal Corporation Act, 1957. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute.Applying the criteria mentioned in Dhulabhai (supra), we are of the opinion that the Civil Court?s jurisdiction is impliedly barred for the followingThere is no pre-existing liability of tax under Common Law. The liability has been created by Delhi Municipal Corporation Act along with a remedy by way of an appeal to the Municipal T axation Tribunal. Necessarily, where a party aggrieved by the decision of the authorities has to resort to the remedy provided under the Statute, civil courts? jurisdiction is barred. See (In Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana AIR 1963 SC 1547  , Firm of Illury Subbayya and In Ram Swarup and Ors. v. Shikar Chand AIR 1966 SCSection 171 of the Act gives finality to orders passed by Municipal T axation Tribunal, which shows the intendment of the legislature to exclude jurisdiction of civilThe remedy provided by Section 169 of the Act is an adequate and effective remedy. We are not in agreement with the High Court that an appeal provided by the Statute against orders of assessments, containing an ‘onerous? pre-condition of deposit of the entire amount in dispute, is not an effective remedy.We have examined the plaint filed by the Respondents carefully. We do not see any allegation made regarding the violation of any provisions of the statute. There is also no pleading with regard to non-compliance of any fundamental provisions of the statute. It is settled law that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar. The civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure. A plain reading of the plaint would suggest that the order impugned in the suit is at the most an erroneous order. No jurisdictional error is pleaded in the plaint. Therefore, the question of maintainability of the suit does not arise. In the absence of any pleadings in the plaint, the High Court ought not to have remanded the matter back to the learned Single Judge.