Delhi District Court
Cbse vs Edmc on 10 May, 2024
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 92/2016
CNR No. DLNE01-000102-2016
Central Board of Secondary Education
through its Secretary
2, Community Centre, Preet Vihar,
Delhi. .....Plaintiff
Versus
East Delhi Municipal Corporation
through its Commissioner,
DSIDC Complex, Patparganj, Delhi. .....Defendant
Date of Institution : 14.12.2012
Date of Reserving Judgment : 10.05.2024
Date of Judgment : 10.05.2024
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant seeking the decree of declaration and recovery.
2. Brief facts, as stated in the plaint are that plaintiff is a society registered under the Rajasthan Societies Registration Act, 1958 vide Registration Certificate, dated 14.11.1961 by Registrar of Societies, Jaipur (Rajasthan). It is stated that the Secretary of plaintiff is the Principal Officer and person authorized to sign, verify and file the present suit against the defendant. It is further stated that the objectives of the society are to supervise and regulate High School and Intermediate Education CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 1 of 23 including the Training of Teachers, to purchase, take on lease, accept any building necessary for the purpose of Board, to construct or alter any building again for the purpose of Board, to sell, lease, exchange and otherwise transfer for consideration or by way of gift all or any portion of the properties of the Board, to raise and borrow money, to draw and accept bill, to invest the money of the Board and to do all other things as may be incidental or conducive to the aforementioned objects. It is stated that the defendant had issued the notice under section 126 of the Delhi Municipal Corporation Act, 1957, dated 22.03.1991, proposing the rateable value of the property in question that is property number 2, Community Centre, Preet Vihar, Delhi at rupees 2,34,98,200/- (rupees two crore thirty four lakhs ninety eight thousand two hundred only) with effect from 01.04.1990. It is further stated that the area of the property ad-measuring 705.6 square meters and had been purchased at a consideration of rupees 1,04,735.60 (rupees one lakh four thousand seven hundred thirty five and paise sixty only). It is further stated that by an assessment order, dated 18.03.1999, defendant had determined the assessment of the property at rupees 35,84,100/- (rupees thirty five lakhs eighty four thousand one hundred only) with effect from 19.06.1990.
It is further stated that plaintiff had filed the petition before the Hon'ble High Court against that assessment on 30.09.1994 in which interim order for the stay of the recovery of tax was passed. It is further stated that on 12.12.1994, Chief Engineer-IV of Municipal Corporation of Delhi wrote to the Deputy Secretary (Administration-III) of the plaintiff that community centre had yet not been taken over by the Municipal Corporation of Delhi from Delhi Development Authority. It is further stated that vide demand notice issued under section 154 (1) of the Delhi Municipal Corporation Act by the defendant, a sum of rupees 93,60,070/-
CS No. 92/2016Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 2 of 23 (rupees ninety three lakhs sixty thousand seventy only) with effect from 19.06.1990 being the property tax for the period ending 31.03.1997, has been claimed by the defendant. It is further stated that on 10.08.1998, defendant wrote to the plaintiff for the sum of rupees 1,04,33,800/- (rupees one crore four lakhs thirty three thousand eight hundred only) being the property tax for the period ending 31.03.1999. It is further stated that on 20.12.1998, plaintiff wrote to the defendant and claimed that source of the income of the Board was from fees received from the examinees of Classes 10th and 12th. It was claimed that the Board being an educational institutional was working for the welfare and not earning any profits. It is further stated that on 30.12.1998, defendant again issued show cause notice and demanded a sum of rupees 1,04,33,800/- (rupees one crore four lakhs thirty three thousand eight hundred only) plus (+) rupees 5 (rupees five only) as notice fee being the amount towards outstanding property tax for the period ending 31.03.1999 and threatened to initiate coercive action under section 155, 156 and 157 of the Delhi Municipal Corporation Act for recovery of the demanded amount.
It is further stated that on 14.02.2005, the defendant had issued a demand notice claiming a sum of rupees 16,876.85 (rupees sixteen thousand eight hundred seventy six and paise eighty five only) as amount of property tax for the period ending 31.03.2004. It is further stated that on 28.02.2005, plaintiff wrote to the defendant against the demand of rupees 16,876.85 (rupees sixteen thousand eight hundred seventy six and paise eighty five only), Hon'ble High Court had stayed the recovery by an order, dated 30.09.1994. Later on, defendant informed the plaintiff that in view of the order of Hon'ble High Court, demand was withdrawn. It is further stated that WP (C) number 4160/1994 was heard and decided on 06.08.2009 by the Division Bench of Hon'ble High Court of Delhi and that CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 3 of 23 matter was remanded back to the Assessor and Collector to examine the claim of exemption from payment of General Tax. Question of rateable value and consequent billing would only arise after a decision was returned on the question of exemption under section 115 (iv) of Delhi Municipal Corporation Act. It is further stated that on 08.09.2009, plaintiff again wrote to the defendant to submit the requisite documents. It is further stated that on 30.09.2009, Counsel for plaintiff wrote to the defendant claiming exemption from payment of General Tax and also quantification of rateable value. It is stated that the activities undertaken by the plaintiff's society are well covered under section 115 (iv) of Delhi Municipal Corporation Act. It is also stated in the aforesaid letter that during 2002-03, a sum of rupees 1,74,52,703/- (rupees one crore seventy four lakhs fifty two thousand and seven hundred and three only) was spent. During the year 2004-05 a sum of rupees 3,03,62,053/- (rupees three crore three lakhs sixty two thousand fifty three only) was the expenditure on the aforesaid subjects. During the year 2005-06 a sum of rupees 2,04,42,751/- (rupees two crores four lakhs forty two thousand seven hundred fifty one only) had been spent.
It is further stated that similarly, during the year 2006-07 a sum of rupees 3,26,39,582/- (rupees three crores twenty six lakhs thirty nine thousand five hundred eighty two only) had been spent and during the year 2007-08 a sum of rupees 3,33,29,569/- (rupees three crores thirty three lakhs twenty nine thousand five hundred sixty nine only) had been spent. Plaintiff has relied upon various judgments titled as Municipal Corporation of Delhi v. Children Book Trust, AIR 1992 SC p. 1456, National Institute of Immunology vs. Municipal Corporation of Delhi, 96 (2002) DLT 41 (DB), Christian Children Fund INC vs. Municipal Corporation of Delhi, 1994 (4) SCC pg. 337 and Unnikrishnan vs. State of Andhra Pradesh, 1993 CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 4 of 23 SCC page 645. The contents of the judgments are not repeated for the sake of brevity. It is further stated that on 16.10.2009, defendant made an assessment order rejecting the claim of the plaintiff for grant of exemption. It is further stated that on 31.10.2009, plaintiff had deposited a sum of rupees 1,68,76,185/- (rupees one crore sixty eight lakhs seventy six thousand one hundred eight five only)) being the amount of property tax claimed by the defendant vide cheque number 8157544, dated 29.10.2010 under protest. The said cheque had been duly encashed by the defendant and receipt number 54017, dated 31.10.2009 had been issued by the defendant in favour of the plaintiff. It is further stated that the payment received by the defendant for the period from 1995-96, 1996-97, 1997-98, 1998-99 and a perusal thereof would reveal that during 1995-96, the total amount claimed was rupees 72,12,610/- (rupees seventy two lakhs twelve thousand six hundred ten only) while during the year 1996-97, the amount claimed was rupees 82,86,340/- (rupees eighty two lakhs eighty six thousand three hundred forty only) that is rupees 72,12,610/- (rupees seventy two lakhs twelve thousand six hundred ten only) towards arrears plus taxes for the year 1996-97 amounting to rupees 10,73,730/- (rupees ten lakhs seventy three thousand seven hundred thirty only). It is further stated that the demand for the year 1997-98 was rupees 93,60,070/- (rupees ninety three lakhs sixty thousand seventy only) towards arrears upto 31.03.1998 and inclusive of demand for the year 1997-98 amounting to rupees 10,73,730/- (rupees ten lakhs seventy three thousand seven hundred thirty only).
It is further stated that it made total demand of rupees 1,04,33,800/- (rupees one crore four lakhs thirty three thousand eight hundred only) which included a sum of rupees 10,73,730/- (rupees ten lakhs seventy three thousand seven hundred thirty only) for the year 1998-99. It is further CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 5 of 23 stated that the demand for the year 1999-2000 amounting to rupees 1,15,07,535/- (rupees one crore fifteen lakhs seven thousand five hundred thirty five only) which included a sum of rupees 10,73,730/- (rupees ten lakhs seventy three thousand seven hundred thirty only) for the year 1999- 2000 and arrears of rupees 1,04,33,800/- (rupees one crore four lakhs thirty three thousand eight hundred only). It is further stated that on 31.03.2000, amount payable was computed at rupees 1,15,07,535/- (rupees one crore fifteen lakhs seven thousand five hundred thirty five). It is further stated that defendant by virtue of demand notice, dated 14.02.2005, claimed a sum of rupees 1,68,76,185/- (rupees one crore sixty eight lakhs seventy six thousand one hundred eight five only). It is further stated that the defendant had claimed a sum of rupees 10,73,730/- (rupees ten lakhs seventy three thousand seven hundred thirty only) in excess when the actual demand of rupees 1,58,00,455/- (rupees one crore fifty eight lakhs four hundred fifty five only). It is further stated that the entire payment was made in one go as defendant did not raise any fresh demand after passing of the final assessment order, dated 16.10.2009, whereby, the claim for grant of exemption was rejected. It is further stated that the plaintiff is entitled to the rebate of rupees 33,35,237/- (rupees thirty three lakhs thirty five thousand two hundred thirty seven only) for making timely payments. It is further stated that the defendant is liable to refund a sum of rupees 44,48,967/- (rupees forty four lakhs forty eight thousand nine hundred sixty seven only). It is further stated that plaintiff is an educational institution so liable to pay 75% as service charges.
It is further stated that since the payment was made without bill or notice of demand and within a span of less than 15 days from the date of passing of the final order, plaintiff is entitled for 15% rebate for having paid the amount of arrears. It is further stated that as such municipal CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 6 of 23 services had not been taken over by the defendant so the claim as scavenging tax is not chargeable. It is also stated that a detailed representation, dated 30.10.2009, was made by the plaintiff to the defendant for claiming the advantage of section 116 G of the amended Delhi Municipal Corporation Act, 2003. It is stated that as per the new act, defendant could not determine the rateable value, but had to determine the annual value. It stated that as per the calculation of the plaintiff, the excess payments amount to rupees viz. (a) 20 % rebate on rupees 1,68,76,185/- = rupees 33,75,237/-, (b) payment made in excess = rupees 10,73,730/- and
(c) amount as scavenging tax = rupees 6,79,747/-, total rupees 51,28,714/- (a+b+c). It is further stated that defendant is under legal obligation to refund a sum of rupees 69,74,381/- (rupees sixty nine lakhs seventy four thousand three hundred eighty one only) to the plaintiff regarding which a statutory notice. Dated 06.09.2012, under section 478 of Delhi Municipal Corporation Act had been duly served upon the defendant. Hence, the present suit has been filed.
3. Defendant contested the suit by filing it's written statement in which apart from denying the allegations/contentions of the plaintiff, it is stated that the written statement for and on behalf of defendant is being signed, verified and filed by Sh. Mahipal Singh, who is posted as Deputy Assessor & Collector of defendant. It is further stated that Sh. Mahipal Singh had gone through the contents of plaint and the documents annexed therewith as well as the official records pertaining to the issues involved in the suit. It is further stated that the present suit is barred by limitation as prescribed by section 478 (2) of the Delhi Municipal Corporation Act, 1957. It is further stated that it is pleaded by the plaintiff that the cause of action to file the instant suit, for the first time, had arisen on 16.10.2009, when the CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 7 of 23 assessment order was passed which was beyond the period of six month prescribed under law. It is further stated that the present suit is also liable to be returned/rejected for want of jurisdiction. It is stated that the plaintiff is seeking relief against order, dated 16.10.2009, where request of the plaintiff for grant of exemption under section 115 (iv) of the Delhi Municipal Corporation Act, 1957 was declined. It is stated that section 164 of the Delhi Municipal Corporation Act, 1957 provides for remission or refund of tax. It is further stated that against every order of assessment of any kind of tax, vide section 169 of the Delhi Municipal Corporation Act, 1957, an appeal lies to the Court of District Judge. It is further stated that in terms of section 171 of the said Act, the orders passed in appeal are final. It is further stated that if the admitted facts of the instant case are tested on the touchstone of the law laid down by the Hon'ble Supreme Court of India in the matter titled as Dulabhai etc. v. State of Madhya Pradesh & Anr., AIR 1969 SC 78, which was subsequently approved by a bench consisting of 9 Hon'ble judges of the Hon'ble Supreme Court of India in the matter titled as Mafatlal Industries Limited vs. UOI & Ors., there is no jurisdiction vested in any civil court to try and adjudicate the instant suit.
It is further stated that plaintiff is not a society as claimed, even if it is believed, though not admitted to be so, that the plaintiff is a registered society, plaintiff is not a natural person, and, thus, speaks through the resolution passed by the competent body governing the affairs of the plaintiff. However, nothing has been placed on record of this Hon'ble Court to show/indicate that such competent body has authority of filing of the instant suit. It is further stated that in the absence of any documentary support, the allegations made are bereft of any substance and are presumed to be false. It is further stated that the plaintiff has not placed anything on CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 8 of 23 record to substantiate the allegations. It is further stated that the plaintiff felt itself aggrieved by the assessment order, dated 16.10.2009, it ought to have challenged the same in the manner prescribed by law. It is further stated that it is not open to the plaintiff to find any kind of fault with the said assessment order or the bill raised on the basis of the same. It is further stated that in support of year-wise break up of demand as set out by the plaintiff in the corresponding para of the plaint, plaintiff has not placed anything on record of this Hon'ble Court. It is further stated that the plaintiff has set out imaginary figures as demand of various years. It is further stated that in terms of amnesty scheme in vogue, no penalty or interest was imposed upon the plaintiff and as such the plaintiff was allowed to deposit a sum of rupees 1,68,76,185/-. It is further stated that since with effect from 01.04.2004, the Unit Area System had been implemented whereunder it is the liability of the taxpayer to file self assessment property tax return and there is no need of raising bills. It is specifically denied that the plaintiff is liable to pay only 75% as service tax or that the plaintiff is entitled to any rebate as claimed. It is further stated that in any event, admittedly, there did not exist any contract amongst the parties with respect to the payment of interest nor the plaintiff ever noticed the defendant about it's intention to seek the interest. It is therefore requested that the suit of plaintiff be dismissed.
4. Replications to the written statement of defendant was filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement filed on behalf of defendant.
5. On the basis of pleadings, the following issues were framed:-
(1) Whether the present suit is barred by limitation in view of the prescription contained in Section 478 (2) CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 9 of 23 of the Delhi Municipal Corporation Act? OPD (2) Whether the plaintiff is entitled to recover a sum of rupees 69,74,381/-, or any other amount from the defendant, as prayed for? OPP (3) If Issue number (2) is decided in favour of the plaintiff, whether the plaintiff is entitled to claim interest on the awarded amount and if so, at what rate and for what period? OPP (4) Relief.
Vide order, dated 07.05.2016, two preliminary issues were also framed that are (a) Whether the civil court has jurisdiction to decide the matter or the dispute comes within the preview of the House Tax Tribunal? and (b) Whether the valuation of the suit for purposes of court fees and jurisdiction is correct? The relevant order is reproduced herein for the sake of clarity:-
CS No. 92/1619.07.2016 Present: None.
Plaintiff filed a suit for declaration and recovery in the Hon'ble High Court which was transferred to this court due to change of jurisdiction. In the prayer clause, plaintiff claimed relief of declaration that it is entitled to the exemption u/s 115 (iv) of DMC Act from payment of General Tax w.e.f. 19.06.1990. The second relief is claimed that it is entitled to recover a sum of Rs. 69,74,381/- along with the interest from the defendant. The order sheet of Hon'ble High Court dated 25.08.2015 shows that plaintiff has given up the first relief and proceeded with the suit qua the second relief which is relating to recovery of the money. It means, the relief of declaration as p rayed for now is not to be given to the plaintiff. The order of the Hon'ble High Court dated 22.12.2012 and 08.01.2015 also points out that no objection regarding the payment of any deficient court fees survives and no additional court fees is now necessary.
When the case came to the court then two preliminary issues were framed vide order dated 07.05.2016 regarding the jurisdiction of this Court and regarding the valuation of the suit.
So far the preliminary issue no. 2 is concerned, the suit CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 10 of 23 appears to be having proper valuation and appropriate court fees is already paid and this controversy is already decided vide order dated 22.12.2012 and 08.01.2014, hence the preliminary issue no. 2 framed on 07.05.2016 has become redundant. I am of the opinion that preliminary issue no. 1 framed on 07.05.2016 simply cannot be decided only on the basis of arguments at this stage because a detail interpretation of the documents and correspondence between the parties is required. No doubt, the suit is left pertaining to the recovery but the issue of imposition of the House Tax, legality and validity of the notices and orders issued by the defendants are to be seen to decide the same and then it will be considered whether the House Tax wrongly imposed and plaintiff is entitled to refund of the excess payment or not. Plaintiff directly or indirectly is challenging the House Tax orders of defendant so a question has arisen whether civil court has jurisdiction or matter should go to House Tax Tribunal. So, it is ordered that preliminary issue no. 1 framed on 07.05.2016 shall be decided at the final stage.
Put up this matter now for PE on 26.08.2016.
(Ashwani Kumar Sarpal) Add. Distt. Judge (NE)-01 19.07.2016
6. Plaintiff has led its piece of evidence. Smt. S. Dharini Arun, Joint Secretary, Central Board of Secondary Education, 2 Community Centre, Preet Vihar, Delhi was examined as PW1. PW1 reiterated the facts as are mentioned by Central Board of Secondary Education in it's plaint. Thereafter, she tendered her evidence by way of affidavit which is Ex.PW1/A and relied upon the documents i.e. copy of order, dated 18.03.1999 as Ex.PW1/4, copy of completion certificate, dated 19.06.1990 as Ex.PW1/5, letter dated, 12.12.1994 of Chief Engineer-IV of defendant as Ex.PW1/7, bill, dated 19.09.1994 issued by defendant as Ex.PW1/8, copy of demand notice, dated 03.12.1996 as Ex.PW1/9, copy of letter, dated 29.07.1997 of plaintiff as Ex.PW1/10, copy of letter, dated 9/11.02.1998 of plaintiff as Ex.PW1/11, copy of letter, dated 2/4.09.1998 of plaintiff as Ex.PW1/12, demand notice, dated 20.02.1999 as Ex.PW1/13, copy of letter, dated 23.08.1999 of plaintiff as Ex.PW1/14, bill number 581 issued by the defendant as Ex.PW1/15, copy of letter, CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 11 of 23 dated 01.03.2000 as Ex.PW1/16, copy of letter, dated 08.04.2005 as Ex.PW1/17, order, dated 06.08.2009 as Ex.PW1/18, letter, dated 08.09.2009 as Ex.PW1/19, copy of letter, dated 30.09.2009 as Ex.PW1/19A, letter dated 01.10.2009 as Ex.PW1/20.
PW1 further relied upon order dated 16.10.2009 as Ex.PW1/21, letter dated 26.10.2009, as Ex.PW1/22, letter dated 31.10.2009 as Ex.PW1/24, receipt issued by defendant towards receipt of rupees 1,68,76,185/- as Ex.PW1/25, notice, dated 06.09.2012 as Ex.PW1/26, notice issued under Order XII Rule 8 of Code of Civil Procedure, dated 28.01.2015 as Ex.PW1/27, postal receipt as Ex.PW1/28 and tracking report as Ex.PW1/29. PW1 was cross examined at length by Learned Counsel for defendant. During the course of her cross examination, it is submitted by PW1 that she had no knowledge about the fact that a property tax of rupees 11,77,946/- was due against the plaintiff for the financial year 1990-91 and a property tax of rupees 13,59,958/- was due against the plaintiff for the financial year 1991-92. PW1 further submitted that she had no knowledge about the fact that a property tax of rupees 13,59,958/- was due against the plaintiff for the financial year 1992-93 and a further property tax of rupees 13,59,958/- was due for the financial year 1993-94.
After closing of plaintiff' evidence, defendant has led it's piece of evidence. Sh. Ravinder Kumar, Deputy Assessor and Collection, GRP, East Delhi Municipal Corporation, Udyog Sadan, Patparganjj Industrial Area, Delhi was examined as DW1. DW1 apart from reiterating the contents of written statement deposed in his examination in chief that the plaintiff had applied for the property tax exemption under section 115 (iv) of Delhi Municipal Corporation Act, but, the same was declined by the competent authority that is Deputy Assessor and Collector vide assessment order, dated 18.03.1994. The plaintiff had challenged the assessment order, dated CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 12 of 23 18.03.1994, vide W.P (C) number 4160/1994 and Hon'ble High Court of Delhi remanded back the matter to the Assessor and Collector for re- examination and deciding the exemption of plaintiff vide order, dated 06.08.2009.
DW1 further deposed that Assessor and the Collector of the, erstwhile, Municipal Corporation of Delhi had decided the matter vide order, dated 16.10.2009, holding therein that the plaintiff is neither imparting education to poor nor is supporting fully or in part by the voluntarily contributions and as such is not entitled for grant of exemption from levy of General Tax as per provision of section 115 (iv) of the Delhi Municipal Corporation Act. DW1 further deposed that plaintiff had never challenged the order, dated 16.10.2009 before the Municipal Taxation Tribunal and also has no right to claim the benefit under section 116 G (2) of the Delhi Municipal Corporation Act. DW1 was cross examined at length by Learned Counsel for plaintiff. During the course of his cross examination, DW1 specifically denied the suggestion put to him that defendant was not entitled to claim the scavenging tax tax from the plaintiff as the property was never transferred by the Delhi Development Authority to East Delhi Municipal Corporation.
7. I have heard the arguments advanced on behalf of both the parties and perused the case file carefully. Learned Counsel for plaintiff has also relied upon the following judgments that are Khedut Oil Cake Industries & Ors. vs. Union of India, suit appeal number 342/1972, decided on 25.03.1987, M/s. Niagara Hotels & Builders (P) Ltd. vs. Union of India & Ors, suit number 2511/1986 decided on 22.11.1996, Well Protect Manpower Services Pvt. Ltd. vs. Commissioner Municipal Corporation of Delhi & Ors., RFA No. 394/2010, decided on 16.12.2011 and Ganga Ram CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 13 of 23 Hospital Trust vs. Municipal Corporation of Delhi, RFA No. 163/1997, decided on 01.06.2001. All these judgments have been perused very carefully vis-a-vis facts of the case. With respect to the quantum of the amount sought by the plaintiff, these judgments do not apply regarding the same.
Written submissions have been filed on behalf of plaintiff. In the written submissions apart from reiterating the contents of plaint/replication and testimonies of witnesses, it is stated by the plaintiff that they had already given up the first relief which was with respect to the grant of exemption under section 115 (iv) of the Delhi Municipal Corporation Act. It is clarified by plaintiff that just for the purpose of summing now four issues have to be adjudicated/decided, three framed on 25.08.2015 and one on 07.05.2016. Thereafter, discussion were laid out in the written submissions by the plaintiff qua each of issues separately. It is stated with respect to the House Tax Tribunals that in these tribunals appeals are filed under section 169 of the Delhi Municipal Corporation Act, 1957 and this section has to be read alongwith section 170 of the aforeasid Act. It is further stated that in RFA number 163/1997, decided on 01.06.2001, it was held that neither of these two sections contain any provision which has the capacity to bar a civil suit to challenge levy and assessment tax under the Act. A civil suit can be filed if the authorities have exercised excess jurisdiction and civil court cannot refuse to entertain the suit unless barred by law. Reliance is also placed upon Ganga Ram Hospital Trust vs. Municipal Corporation of Delhi. With respect to the limitation issue vis-a- vis section 478 (2) of Delhi Municipal Corporation Act, it is stated that section 478 (2) be read inconsonance with section 478 (1). The cause of action for filing the present suit arose for the first time on 16.10.2009, the day when the assessment order was passed by the defendant and the said CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 14 of 23 three years expired on 15.10.2012. Plaintiff was to give two months statutory notice in view of section 478 (1) of Delhi Municipal Corporation Act, for filing the suit against the defendant. On 07.09.2012, legal notice dated 06.09.2012 was sent to the defendant under section 478 (1) of Delhi Municipal Corporation Act. It is further stated that two months period of statutory notice was to be added to the period of three years which would further extend period of limitation period to 15.12.2012.
It is further stated that the plaintiff filed the present suit on 07.12.2012 that is before the expiry of the said extended period of limitation. It is also stated that since the defendant had acted contrary to it's rules and regulations, property tax bye-laws and charged property tax in excess, section 478 (2) of Delhi Municipal Corporation Act for filing the suit within the period of six month is not applicable. Thereafter, the testimony of PW1 was discussed in detail qua issue number 3 onus of which is upon the plaintiff. It is stated that DW1 in his cross examination denied to have any knowledge about the date of order vide which plaintiff was asked to deposit a sum of rupees 1,68,76,185/- being the arrears of property tax upto 31.03.2004. It is also raised that DW1 had denied the knowledge that plaintiff has been continuously depositing the property tax on unit area method since the year 2004. It is stated that in the instant case, admittedly, no bill was issued and amount in dispute that is rupees 1.68.76.185/- was claimed by way of letter, dated 26.10.2009 of which payment was made on 29.10.2009. Thereafter, again the contents of the plaint and testimony of PW1 qua the quantum of the tax have been mentioned which are not repeated for the sake of brevity. It is stated that plaintiff is entitled to the recover excess amount of rupees 51,28,714/- alongwith the interest from the defendant.
CS No. 92/2016Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 15 of 23
8. Reasons and analysis/findings, after recording the gist of evidence led by both the parties, let me record the findings on each issue.
To start with, as already discussed vide order dated 07.05.2016 two preliminary issues were framed and issue bearing number (a), that is, whether the civil court has jurisdiction to decide the matter or the dispute comes within the preview of the House Tax Tribunal? has to be decided at the final stage that is now. The onus of proving this issue is upon both the parties.
It is the specific case of the plaintiff that Civil Court has no bar to entertain the present case. In it's written submissions as herein before discussed in detail and are not repeated for the sake of brevity, it is specifically mentioned that the Civil Court cannot refuse to entertain the suit unless barred by law and that Civil Court has very much jurisdiction to entertain the present case in view of the section 169 and 170 of the Delhi Municipal Corporation Act. Neither during the entire pleading nor even during the course of oral submissions, Learned Counsel for defendant has raised any objections with respect to the aforesaid submissions of plaintiff. Further, after perusing of the relevant provisions of the Delhi Municipal Corporation Act there seems to be no bar to a Civil Suit in matter of levy and assessment especially, in a situation when a particular authority fails to act inconformity with the fundamental Principles or say said authority had acted in excess/without their jurisdiction. Reliance is placed upon on Dulabhai etc. vs. State of Madhya Pradesh & Anr, 1969 AIR 78 1968 SCR (3) 662. Therefore, this issue is decided accordingly.
Now, with respect to Issue number 1, that is, whether the present suit is barred by limitation in view of the prescription contained in Section 478 (2) of the Delhi Municipal Corporation Act? The onus to prove this issue is upon the defendant. Again, no evidence/submissions as such in this CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 16 of 23 regard has ever been made by defendant either at the time of leading evidence or at the time of making the submissions. On the other hand, plaintiff has specifically clarified that the statutory notice period must be considered/taken into account while deciding the period of limitation. Further, after perusing the case file properly in light of the Limitation Act/Delhi Municipal Corporation Act/ Code of Civil Procedure, there seems to be no reason for arriving at conclusion the present suit is time barred. Thus, there is no merit in claiming that the suit of the plaintiff is barred by limitation in view of the prescription contained in Section 478 (2) of the Delhi Municipal Corporation Act. Accordingly this issue is decided against the defendant.
Further, with respect to Issue number 2, that is, whether the plaintiff is entitled to recover a sum of rupees 69,74,381/-, or any other amount from the defendant, as prayed for? and Issue number 3, that is, if Issue number 2 is decided in favour of the plaintiff, whether the plaintiff is entitled to claim interest on the awarded amount and if so, at what rate and for what period? Both these issues being interconnected and having the bearing upon each other are taken up together. The onus of proving both these issues is upon the plaintiff. First of all, in respect of these issues, it seems necessary that the aspect of burden of proof/relevancy of the evidence in the civil proceedings needs to be analyzed. In phipson on Evidence, 13th Edn, p 44, para 4-03, it is observed that the phrase burden of proof has three meanings, (1) the persuasive burden, the burden of proof as a matter of law and pleading the burden of establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, (2) The evidential burden, the burden of proof in the sense of adducing evidence and (3) the burden of establishing the admissibility of evidence. In Halsbury, vol. 17, p 11, it is observed that there are at least two distinct CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 17 of 23 senses in which burden of proof is used, and clarity over which sense is relevant at any given time is essential. The legal burden is the burden of proof which remains constant throughout a trial. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends.
The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. With respect to the Indian Evidence Act, as per, Section 101 of the Act, burden of proof of any fact lies on the person claiming or assenting that fact. Section 102 of the Act also says that the burden of proof lies on the person, who would fail, if no evidence was given at either side. Plaintiff has to create a high degree of probability so as to shift the onus on the defendants. At the same time, it needs to be understood that in civil case a mere preponderance of probability due regard being had to the burden of proof must be a sufficient basis of decision. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. Thus, burden of proof lies upon the plaintiff and it is he who has to prove the fact and it never shifts, while the onus shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
CS No. 92/2016Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 18 of 23 Coming back to the facts of the present case, let the relevant order of Hon'ble High Court of Delhi in the W.P. (C) 4160/1994, dated 06.08.2009 be reproduced herein for the appropriate and clear understanding of the sequence of the events/the relief claimed:-
1. This writ petition is directed against the assessment order dated 18.03.1994 passed by the Deputy Assessor & Collector (GRP) of the MCD. The petitioner is the Central Board of Secondary Education, which is under the control of the Central Government through the Ministry of Human Resource Development. The plea taken by the petitioner is that it is not education institution and, therefore, it would fall within the meaning of "charitable purpose" as appearing in Section 115 (iv) of the DMC Act, 1957 (hereinafter referred to as the 'said Act'). Consequently, it is he petitioner's case that it would be entitled to exemption from general tax.
2. The learned counsel for the petitioner pointed out that the plea of exemption was specifically taken when a notice had been received by it. He referred to various representations dated 16.12.1993, 20.2.1993, 22.02.1994 and 28.02.1994. In all these representations, the specific plea of exemption was taken. He submitted that while this was the major ground in response to the show cause notice issued by the respondent MCD, the assessment order doe does not make any determination of on this aspect of the matter. The assessment order straightaway goes on to make the calculations of rateable value whereupon the impugned bill dated 19.09.1994, seeking an amount of Rs. 61,38,880/- by way of arrears, has been raised.
3. We have heard the learned counsel for the parties. We agree with the submission made by the learned counsel for the petitioner that the impugned assessment order dated 18.03.1994 does not at all discuss the question of exemption. For this reason, we are of the view that the matter should be sent back to the Assessor & Collector to determine the issue of exemption under Section 115 (iv) of the said Act as it was applicable at the point of time. Insofar as computation of rateable value is concerned, we are not inclined to disturb the said finding. However, the question of rateable value and consequent billing would only arise after a decision is returned on the question of exemption under the said Section 115 (iv).
4. We remand the matter to the Assessor & Collector for determination of the question of exemption under Section 115 (iv) of the said Act. The parties would be entitled to place additional material before the said Assessor & CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 19 of 23 Collector in order to substantiate their pleas. Since this matter is of 1994,we hope that the proceedings with regard to determining the question of exemption would be concluded within eight weeks. The petitioner shall appear before the Assessor & Collector on 26.08.2009 in first instance at 11 am. The impugned bill dated 19.09.1994 is set aside.
The writ petition stands disposed of.
Dasti to both sides.
BADAR DURREZ AHMED, J AUGUST 06, 2009 Also, in connection to the abovesaid order, the Assessor and Collector had passed the order, dated 16.10.2009 which is reproduced below:-
MUNICIPAL CORPORATION OF DELHI ASSESSMENT AND COLLECTION DEPARTMENT A & C (HQ), LAJPAT NAGAR In this case, the then Dy. Assessor & Collector (GRP) passed the assessment order dated 18.03.1994. The taxpayer aggrieved on the point of exemption under section 115 (iv) went in the court of law. The Hon'ble High Court of Delhi (in W.P. (C) 4160/1994 vide order dated 06.08.2009 remanded back the case to Assessor & Collector for examination and deciding the case of exemption under section 115 (iv) of DMC Act within eight weeks.
On 26.08.2009 Sh. Ajay Mishra, Dy. Financial Advisor and Sh. S.K. Sharma, Sr. Engineer (Estate) for and on behalf of CBSE attended the office in compliance of High Court's order. They requested for ten days time for submitting documents. The case has adjourned for 08.09.2009. On this date on their request, the case was adjourned for 22.09.2009. On this date also request was received for adjournment. The case was fixed for 01.10.2009. On this date Sh. Ajay Mishra, Dy. F.A. attended.
They also filed written submissions and requested for further personal hearing. The case was adjourned for 08.10.2009, Sh. S.K. Sharma, Sr. Engineer (Estate) and Sh. K.K. Chaudhary, Jr. Secy, (Admn. & Estate) attended. The reiterated their earlier stand and stated that they have nothing further to add. They requested for grant of exemption under section 115 (iv) of DMC Act.
Considering the submissions made and the material on record, I decide the remanded the case as under:-
CS No. 92/2016Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 20 of 23 The taxpayer is requesting for exemption under section 115 (iv) of DMC Act. The provision of section 115
(iv) of DMC Act have been considered exclusively and it is found that the main criteria for allowing exemption are as follows:-
i) Object of the society should be entire charitable.
ii) It should be supported wholly or in part (substantial part) by voluntary contribution.
Iii) Application of income to promote its object and not to pay dividend and bonus to its members.
iv) Every year, the separate application for exemption should be made.
v) Premises should be exclusively used for charitable purpose and no part of its should be used for commerce and trade.
vi) The application of income should be mainly for the poor and needy.
The major activities and objectives of CBSE (1) To prescribe conditions of examination and conduct public examination at the end of last X and XII.
(2) To fulfil the educational requirement of those students whose parents were employed in transferable jobs.
(3) To prescribe and update the course of instructions of examination.
(4) To affiliate institutions for the purpose of examination and raise the academic standards of the country.
To qualify for exemption from General Tax liability under section 115 (iv) (a) of DMC Act, it is not necessary for a society imparting education to satisfy other condition contemplated under that section. The test of 'charitable purpose' is satisfied by the proof of any three conditions, namely, relief of the poor, education or medical relief. The fact that some fees is charged from the student is also not decisive inasmuch as the proviso to Section 115 (iv) (a)of the Act, indicates that the expenditure incurred in running the society may be supported either wholly in part by voluntary contribution. Besides, the explanation to section 115 (iv) (a) is in term inclusive and not exhaustive.
"Charitable purpose" includes relief of the poor education and medical relief but does not include a purpose which relate exclusive to religious teaching. "
Section 115 (iv) makes it clear that the exemption is only in respect of the land and building exclusively occupied and used for public worship or by a society or a body for a charitable purpose. The building is being used not for the purpose of imparting education nor are the examinations being held here. It is being used as an office which does not come under section 115 (4) of the DMC Act, 1957. In addition, the proviso to the above section clearly stipulate CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 21 of 23 that the society has to be supported wholly or in part by voluntary contribution which otherwise means that without the voluntary contribution, it may not be possible for the organization to conduct their activities. In the instant case, the assessee has clearly stated that even as their website but they do not receive any voluntary contribution, donation from anywhere either from Central Government or from any other source all their financial requirement (of the board) are made from the annual examination charges, affiliation fee, admission fee from PMT. All India Engineering Entrance Examination and Sale Board's publication.
The CBSE is, therefore, missing the components of "charitable purpose" as mentioned above from point i to vi.
From the above discussion, it is clear that the "CBSE"
is not imparting education to poor nor the society "Board" is being supported fully or in part) substantial) by the voluntary contribution. Hence, is not entitled to grant of exemption from levy of General Tax, being outside the purview of sub- section (4) of section 115 of DMC, Act 1957.
Assessor & Collector Copy to the taxpayer.
Adverting, back to the facts of the present case as already discussed burden of proving the fact that defendant is liable to return a sum of rupees 69,74,381/-, which as per the claim of plaintiff had been deposited in excess by it is on the plaintiff itself. Admittedly, plaintiff has already waived it's claim of exemption under section 115 (iv) of Delhi Municipal Corporation Act. With this new development, plaintiff in support of it's refund/claim of amount of rupees 69,74,381/-, during the course of entire testimony even during the course of oral submissions/or say in written submissions has failed to explain/discuss/clarify the effect of the aforesaid waiver vis-a-vis the claim of recovery amount. Regarding, the claim of non liability towards the payment of scavenging tax, it seems not viable that just by saying that as in documents property was not taken over by Municipal Corporation of Delhi plaintiff is not liable to make the payment of scavenging tax. Further, PW1 has also failed to clarify that how tax rate/assessment is different from the claimed/disputed tax and that rupees CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 22 of 23 69,74,381/- have to be returned to the plaintiff. It seems that the burden of proof lying upon the plaintiff in light of balance of probabilities specifically in terms of rateable/unit area system/self assessment though raised by the plaintiff, but, not discharged by producing relevant/sufficient evidence. It is not clear/understandable that how defendant is liable to make payment of aforesaid amount as except, the mentioning of certain calculations of so called excess money no reason/documentary evidence/oral evidence or say relevant piece of evidence put forward to substantiate it's claim by the plaintiff. Both these issues are therefore decided against the plaintiff.
9. To sum up, having sought the quantified sum of rupees 69,74,381/-, it was incumbent upon the plaintiff to adduce evidence in support of it's claim for the aforementioned determined sum. However, in the overall circumstances, it can be safely said that no relevant evidence whatsoever was produced by the plaintiff in support of the amount of money demanded by it at any point of time. In the absence of such crucial material and also in light of foregoing discussion, the plaintiff's prayer for the aforesaid sum has to be negated. Accordingly, suit of plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
10. File be consigned to Record Room after necessary compliance.
Digitally signedMANU by MANU VEDWAN VEDWAN Date: 2024.05.16 13:03:05 +0530 (Manu Vedwan) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court today i.e. 10th May, 2024 CS No. 92/2016 Central Board of Secondary Education Vs. East Delhi Municipal Corporation Page No. 23 of 23