ASHISH MALHOTRA Vs. N D M C
HIGH COURT OF DELHI
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S.Muralidhar, J. -
(1.) 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 under Section 70(6) of the NDMC Act, 1994 ("Act").
(2.) 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 under Section 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.
(3.) In support of his submissions, learned counsel for the petitioner places reliance first on the judgment of the Hon"ble Supreme Court in Himmatlal v. State of M.P. AIR 1954 SC 403 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 v. NDMC 64 (1996) DLT 160 (DB) 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.";
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