N.D.M.CversusSATISH CHAND (DECEASED) BY LR. RAM CHAND

                         N.D.M.C.                                        A
                            v.
       SA TISH CHAND (DECEASED) BY LR. RAM CHAND

                        SEPTEMBER 11, 2003

            [BRIJESH KUMAR AND ARUN KUMAR, JJ.]                          B
     Punjab Municipal Act, 1911-Sections 84 and 86-Assessment and
levy of property tax-Suit for permanent injunction filed against demand
ofproperty tax-Held, statue provides specific remedy ofappeal restraining
a party from challenging assessment and levy of tax in any manner other C
than as provided under the Act-Suit clearly barred and not maintainable-
Code of Civil Procedure, 1908-Section 9.

      Code of Civil Procedure, 1908-Section 9-Jurisdiction of civil
courts to try suits-Express bar present where relevant provision contained
in a statute barring jurisdiction of civil courts-Implied bar arises where D
a statute provides a special remedy and procedure for appeal.

      The appellant-municipality levied property tax on property owned
by the respondent-assessee after assessment and served a demand
notice. The same was challenged by the respondent on the ground that
the property was in a basement and due to filling up with sub-soil water E
it could not be used all year round, therefore, could not be said to have
any annual rateable value for the purpose of assessment to property
tax. The respondent filed a suit for permanent injunction restraining
the appellant-municipality from demanding the property tax levied.
The appellant took a preliminary objection against the maintainability F
of the suit as Sections 84 and 86 of the Punjab Municipal Act, 1911,
under which it was constituted, did not permit the same. The trial court
upheld the objection and dismissed the suit. The first appeal of the
respondent-assessee was allowed and the suit was held to be
maintainable. High Court dismissed the second appeal filed by the
appellant-municipality. Hence this appeal.                                G
     Allowing the appeal, the Court

     HELD : 1.1. The civil suit filed by the respondent-assessee
challenging the assessment and demand of property tax is clearly
barred and is not maintainable. [653-F)                          H
                                  645
    646                 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A         1.2. Section 84 of the Punjab Municipal Act, 19II contains a
    provision regarding appeals against assessment and levy of taxes
    providing a remedy of a statutory appeal to a party aggrieved of
    assessment and levy of tax. When a Statute provides a remedy of
    appeal it is a remedy governed by the Statute and has to be exercised
    strictly in accordance with the statutory provisions. Section 86 oft.he
B   Act contains a bar against challenge to any valuation or assessment for
    purposes of tax including property tax except in accordance with
    remedy contained in the Act itself. Any person is further debarred
    from questioning the liability towards, tax based on assessment by the
    authorities under the Act by any manner except the procedure
C   provided in the Act itself. (649-C, D]

        1.3. Though the opening. words of section 9 of the Code of Civil
  Procedure, 1908 give a very wide jurisdiction to the civil courts to try
  all suits of a civil nature, this wide power is qualified by providing an
  exception i.e. "excepting suits of which their cognizance is either
D expressly or impliedly barred." A bar to file a civil suit may be express
  or implied. An express bar is present where a Statute itself contains
  a provision that the jurisdiction of a civil court is barred. An implied
  bar may arise when a Statute provides a special remedy to an
  aggrieved party like a right of appeal as contained in the Punjab
  Municipal Act. Section 86 of the Act restrains a party from challenging
E assessment and levy of tax in any manner other than as provided under
  the Act. The provision is an implied bar as envisaged in Section 9
  C.P.C. against filing a civil suit. (650-D, 651-G-H, 652-A]

          Dholabhai Etc. v. State of Madhya Pradesh & Ors., AIR (1969) SC
F 78; Raja Ram Kumar Bhargava (dead) by L.Rs. v. Union of India, AIR
    (1988) SC 752 and Munshi Ram and Ors. v. Municipal Committee,
    Chheharta, (1979] 3 SCR 463, relied on.

         Sabha Singh & Sons (P) Ltd. v. New Delhi Municipal Committee, 34
    (1988) Delhi Law Times 91, approved.
G
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2700 of
    1997.

         From the Judgment and Order dated 5.7.96 of the Delhi High Court
H   in R.S.A. No. 95 of 1996.
          N.D.M.C. v. SATISH CHAND [ARUN KUMAR, J.]                   647

    Rakesh K. Khanna, Ms. Rashmi Khanna, Reetesh Singh, Shashank A
Shekhar and Surya Kant for the Appellant.

     Rish Maheshwari, Ms. Shally Bhasin Maheshwari, R.K. Maheshwari
and Raj Kumar Kaushik for the Respondent.

     The Judgment of the Court was delivered by                             B
        ARUN KUMAR, J. : The question for consideration in this appeal
 is regarding maintainability of a civil suit to challenge assessment and levy
 of property tax on a property owned by Respondent. Respondent owns a
basement in Property No. 33, Prithvi Raj Road, New Delhi. The appellant C
 is a statutory body responsible for discharging civic functions in specified
 areas in the city of Delhi. To generate revenue for itself the appellant is
 authorized to levy taxes including property tax. The said property was
 assessed to property tax by the appellant. According to respondent the
basement cannot be put to use because it gets filled up with sub-soil water. D
For this reason the respondent claimed that the basement could not be said
to be having any annual rateable value and therefore it could not be
assessed to property tax and no tax could be levied. Inspite of this, the
 appellant assessed the said property to property tax. It was further alleged
by the respondent that objections filed by him against the assessment of
the said property to property tax had been rejected by the appellant and E
a notice of demand had been sent regarding arrears of property tax. This
demand included arrears for certain earlier period even though the same
had been stayed by civil court in separate proceedings. Respondent filed
a suit for permanent injunction stating that the action of the appellant in
assessment of the said property to property tax and demanding arrears of F
tax amounting to Rs. 4,293.35 (Rupees Four thousand two hundred ninety
three and paise thirty five) on this account was illegal and without
jurisdiction. He made a prayer for a permanent injunction restraining the
appellant from recovering the said amount.

      The appellant took a preliminary objection against the maintainability G
of the said suit. The objection is based on Sections 84 and 86 of the Punjab
Municipal Act, 1911 (hereinafter referred to as "the Act"). The NDMC at
the relevant time was constituted under the said Act and assessment and
levy of property tax was a function carried on by NDMC in accordance
with the provision of the said Act. Sections 84 and 86 of the said Act are H
    648                  SUPREMc COURT REPORTS [2003] SUPP. 3 S.C.R.
A reproduced as under :
           "84. Appeals against taxation-(!) An appeal against the assessment
           or levy of any or against the refusal to refund any tax under this
           Act shall lie to the Deputy Commissioner or to such other officer
           as may be empowered by the State Government in this behalf :
B
                Provided that, when the Deputy Commissioner or such other
           officer as aforesaid, is, or was when the tax was imposed, a
           member of the committee, the appeal shall lie to the Commissioner
           of the division.

c          (2) If, on the hearing of an appeal under the section, any question
           as to the liability to, or the principle of assessment of, a tax arises,
           on which the officer hearing the appeal entertains reasonable
           doubt, he may, either of his own motion or on the application of
           any person interested, draw up a statement of the facts of the case
D          and the point on which doubt is entertained, and refer the
           statement" with his own opinion on the point for the decision of
           the High Court.

           (3) On a reference being made under sub-section (2), the subsequent
           proceedings in this case shall be, as nearly as may be, in
E          conformity with the rules relating to references to the High Court
           contained in Section 113 and Order XL VI of the Code of Civil
           Procedure.

           (4) In every appeal the costs shall be in the discretion of the officer
           deciding the appeal.
F
           (5) Costs awarded under this section to the committee shall be
           recoverable by the committee as though they were arrears of a tax
           due from the appellant.

           (6) if the committee fail to pay any costs awarded to an appellant
G          within ten days after the date of the order for payment thereof,
           the officer awarding the costs may order the person having the
           custody of the balance of the municipal fund to pay the amount.

           86. Taxation not to be questioned except under this Act-( I) No
H          objection shall be taken to any valuation or assessment, nor shall
           N.D.M.C. v. SA TISH CHAND [ARUN KUMAR, J.)                  649

         the liability of any person to be assessed or taxed be questioned, A
         in any other manner or by any other authority than is provided
         in this Act.

         (2) No refund of any tax shall be claimable by any person
         otherwise than in accordance with the provisions of this Act and B
         the rules thereunder."

      Section 84 contains a provision regarding appeals.against assessment
and levy of taxes which means that a remedy of a statutory appeal is
provided to a party aggrieved of assessment and levy of tax under the Act.
When a Statute provides a remedy of appeal it is a remedy governed by C
the Statute and has to be exercised strictly in accordance with the statutory
provisions. Section 86 contains a bar against challenge to any valuation or
assessment for purposes of tax including property tax except in accordance
with remedy contained in the Act itself. Section 86 further debars any
person from questioning the liability towards tax based on assessment by D
the authorities under the Act by any manner other than what is proivided
in the Act itself. Thus Section 86 of the Act contains a total bar against
availing any remedy against assessment and or levy of tax except as per
the provision of the Act itself. On the basis of these provisions contained
in the act it was pleaded on behalf of the appellant that the suit was not
maintainable and was therefore liable to dismissed. The trial court upheld E
the objection regarding maintainability of the suit and the suit was
accordingly dismissed. However, appeal against said judgment was allowed
by the Senior Civil Judge. On the question of maintainability of the suit,
the lower appellate court by distinguishing the relevant judicial
pronouncements on the issue, came to a conclusion that the suit was F
maintainable. The High Court dismissed the second appeal in limine. This
has led to filing of the present appeal.

      We have heard the learned counsel for the parties at length. In our
view the legal position on the question of maintainability of civil suits in G
such matters is fairly well settled. Section 9 of the Code of Civil Procedure
contains a provision regarding right of a party to file a civil suit. The same
is reproduced as under :

        "9. Courts to try all civil suits unless barred - The Courts shall
        (subject to the provisions herein contained) have jurisdiction to H
    650                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A           try all suits of a civil nature excepting suits of which their
            cognizance is either expressly or impliedly barred.

             Explanation I - A 3uit in which the right to property or to an
             office is contested is a suit of a civil nature, notwithstanding that
             such right may depend entirely on the decision of questions as to
B            religious rites or ceremonies.

             Explanation fl - For the purposes of this section, it is immaterial
             whether or not any fees are attached to the office referred to in
             Explanation I or whether or not such office is atached to a
c            particular place."

          The opening words of the section give a very wide jurisdiction to the
    civil courts to try all suits of a civil nature however, this wide power
    is qualified by providing an exception i.e. "excepting suits of which
D   their cognizance is either expressly or impliedly barred." Dhulabhai Etc.
    v. State of Madhya Pradesh & Ors., AIR (1969) SC 78 is a celebrated
    judgment on the point which still holds the field. It lays down the following
    principles :

             "(I) Whether the Statute gives a finality to the orders of the special
E            tribunals the Civil Courts' jurisdiction must be held to be excluded
             if there is adequate remedy to do what the civil court would
             normally do in a suit. Such provision, however, does not exclude
             those cases where the provisions of the particular Act have not
             been complied with or the statutory tribunal has not acted in
F            conformity with the fundamental principles of judicial procedure.

             (2) Where there is an express bar of the jurisdiction of the court,
             an examination of the scheme of the particular Act to find the
             adequacy or the sufficiency of the remedies provided may be
             relevant but is not decisive to sustain the jurisdiction of the civil



                                                                                      •
G            court. Where there is no express exclusion the examination of the
             remedies and the scheme of the particular Act to find out the
             intendment becomes necessary and the result of the inquiry may
             be decisive. In the latter case it is necessary to see if the statute
             creates a special right or a liability and provides for the
H            determination of the right or liability and further lays down that
           N.D.M.C. v. SATISH CHAND [ARUN KUMAR, J.]                     651

         all questions about the said right and liability shall be determined A
         by the tribunals so constituted, and whether remedies normally
         associated with actions in civil courts are prescribed by the said
         statute or not.

         (3) Challenge to the provisions of the particular Act as ultra vires B
         cannot be brought before Tribunals constituted under that Act.
         Even the High Court cannot go into that question on a revision
         or reference from the decision of the Tribunals.

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

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

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

         (7) An exclusion of the jurisdiction of the Civil Court is not F
         readily to be inferred unless conditions above set down apply."

      It will be noticed from the provisions contained in Section 9 of the
Code of Civil Procedure that a bar to file a civil suit may be express or
implied. An express bar is where a Statute itself contains a provision that
the jurisdiction of a civil court is barred e.g., the bar contained in Section G
293 of the Income Tax Act, 1961. An implied bar may arise when a Statute
provide a special remedy to an aggrieved party like a right of appeal as
contained in the Punjab Municipal Act \''hich is the subject matter of the
present case. Section 86 of the Act restrains a party from challenging
assessment and levy of tax in any manner other than as provided under H
    652                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A the Act. A provision like this is the implied bar envisaged in Section 9
    C.P.C. against filing a civil suit. In Raja Rain Kumar Bhargava (dead) by
    LRs. v. Union of India, AIR (1988) 752 this Court observed :

            "Generally speaking, the broad guiding considerations are that
            wherever a right, not pre-existing in common-law, is created by
B
            a statute and that statute itself provided a machinery for the
            enforcement of the right, both the right and the remedy having
            been created uno jlatu and a finality is intended to the result of
            the statutory proceedings, then, even in the absence of an
            exclusionary provision the Civil Courts' jurisdiction is impliedly
c           barred. If, however, a right pre-existing in common law is
            recognised by the Statute and a new statutory remedy for its
            enforcement provided, without expressly excluding the Civil
            Court's jurisdiction, then both the common-law and the statutory
            remedies might become concurrent remedies leaving upon an
D           element of election to the persons of inherence. To what extent,
            and on what areas and under what circumstances and conditions,
            the Civil Courts' jurisdiction is preserved even where there is an
            express clause excluding their jurisdiction, are considered in
             Dhulabhai's case."
E
         Munshi Ram and Others v. Municipal Committee, Chheharta, [ 1979]
    3 SCR 463 was a case under the Punjab Municipal Act itself. The Court
    was considering the question of bar created under Sections 84 and 86 of
    the Act regarding hearing and determination of objections to levy of
F   provisional tax under the Act. In connection it was observed :

             "From a conjoint reading of sections 84 and 86, it is plain that
             the Municipal Act, gives a special and particular remedy for the
             person aggrieved by an assessment of tax under the Act, irrespective
             of whether the grievance relates to the rate or quantum of tax or
G            the principle of assessment. The Act further provides a particular
             forum and a specific mode of having this remedy which analogous
             to that provided in Section 66(2) of the Indian Income-tax Act;
             1922. Section 86 forbids in clear terms the person aggrieved by
             an assessment from seeking his remedy in any other forum or in
H            any other manner than that provided in the Municipal Act.
            N.D.M.C. v. SATISH CHAND (ARUN KUMAR, J.]                   653
          It is well recognised that where a Revenue Statute provides for A
          a person aggrieved by an assessment thereunder, a particular
          remedy to be sought in a particular forum, in a particular way, it
          must be sought in that forum and in that manner, and all other
          forums and modes of seeking it are excluded. Construed in the
          light of this principle, it is clear that sections 84 and 86 of the B
          Municipal Act bar, by inevitable implication, the jurisdiction of
          the Civil Court where the grievance of the party relates to an
          assessment under this Act."

       The Court upheld the objection regarding maintainability of the civil
~.                                                                             c
     A Division Bench of the Delhi High Court in Sobha Singh & Sons
(P) Ltd. v. New Delhi Municipal Committee, 34 (1988) Delhi Law Times
91 hacl an occasion to consider the question of maintainability of a civil
suit challenging the assessment and levy of property tax by the NDMC. D
Sections 84 and 86 of the Act came in for consideration. It was held that
the provision of appeal contained in Section 84(1) of the Act provided a
complete remedy to a party aggrieved against the assessment and levy of
tax. Section 86 provides that the remedy of appeal is the only remedy to
a party to challenge assessment for purposes of property tax. No other E
remedy was available to a party in such circumstances. It follows that the
remedy of civil suit is barred.

      In view of the aforesaid position in law, we are of the considered view
that the civil suit filed by respondent challenging the assessment and
demand of property tax by the appellant was clearly barred. The judgments F
of the lower appellate court and the High Court are, therefore, set aside
and the judgment of the trial court is hereby restored. The civil suit filed
by respondent is dismissed as not maintainable. The appeal is allowed.
There will be no order as to costs.

                                                           Appeal allowed.
                                                                               G
A.Q.