Delhi District Court
Panchshila CoOperative Housing ... vs South Delhi Municipal Corporation on 21 April, 2018
PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION
IN THE COURT OF MS TYAGITA SINGH
SENIOR CIVIL JUDGECUMRENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
CS SCJ 84592/16
CNR NO.: DLST030012292016
IN THE MATTER OF:
PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD.
THROUGH ITS AUTHORISED REPRESENTATIVE
PANCHSHILA CLUB BUILDING
NBLOCK, PANCHSHILA PARK
N. DELHI110016.
....PLAINTIFF
VERSUS
SOUTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
DR. SPM CIVIC CENTRE
MINTO ROAD
NEW DELHI110002.
....DEFENDANT
DATE OF INSTITUTION : 20.07.2016
DATE OF RESERVING : 20.04.2018
DATE OF PRONOUNCEMENT : 21.04.2018
DECISION : Dismissed
Advocates appearing in the case:
Sh. Anil Kumar Aggarwal and Mohd. Imtiaz, Ld. counsels for plaintiff.
Ms. Promila Kapoor and Ms. Meenakshi, Ld. counsels for defendant.
CS SCJ 84592/16 Page 1 of 20
PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION
O R D E R
1.Vide this order, I shall decide the point of maintainability of this suit. The present suit for declaration and permanent injunction has been filed by the plaintiff Panchshila Cooperative Housing Society Ltd. against defendant South Delhi Municipal Corporation (henceforth referred to as 'SDMC').
2. Brief facts of the case (as mentioned in the plaint) necessary for decision upon point of maintainability are as follows:
2.1 That the plaintiff is a Cooperative House Building Society, which was allotted land by DDA for development and construction of houses for its members and the layout plan was prepared and submitted by the Society to the erstwhile MCD and it was approved on 06.11.1966.
2.2 That later on, following three plots were allotted by DDA to plaintiff Society on lease or licence basis:
(i) First Plot admeasuring 0.9 acre marked as public park in the layout plan of the colony was allotted by DDA on 13.01.1971 on perpetual lease basis on yearly rent of Rs.1/ for limited use as park/lawn.CS SCJ 84592/16 Page 2 of 20
PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION
(ii) Second plot admeasuring 1.2 acres, adjoining residential plot no. N33 was allotted on 08.06.1971 on perpetual lease basis on yearly rent of Rs.1/, on which the plaintiff Society constructed and is running its office/Club as per the use permitted by the DDA/lessor.
(iii) Third plot, earmarked as green area in the Master Plan, admeasuring 3.5 acres, adjacent to the Club building was allotted by DDA on 10.08.1977 on licence basis for use as Tennis Court/sports activities on annul licence fee of Rs.1/.
2.3 That the plaintiff Society is not permitted to sublet the said plots and it is also not permitted to raise any construction on first and third plots, and title of all the three plots is with DDA and plaintiff Society is merely a lessee/ licensee.
2.4 That on 28.03.2009, the defendant issued notice under Section 123 of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as 'DMC Act') for the purpose of assessment of property tax on vacant land and thereafter, another notice under Section 123D of DMC Act was issued on 10.01.2013 for short payment of property tax for the financial year 20052006 to 20122013.
2.5 That the plaintiff provided all the relevant information including copies of lease and licence deed of the said three plots and CS SCJ 84592/16 Page 3 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION covered area certificate of the club building from the registered Architect, and copies of audited books of account of the club as demanded by the Assessing Officer and contested the notice on merit as well as on the ground of lack of jurisdiction, and a written representation vide letter dated 04.03.2016 and 15.03.2016 were also sent to the defendant, in which it was clearly mentioned that the land under first plot and third plot have been kept vacant by the plaintiff and are not subject to property tax, therefore, plaintiff Society is not liable to pay any property tax in respect of the said two vacant plots as the owner of the said plots is DDA. That the Assessing Officer deliberately ignored the express terms and conditions of lease/licence deed and misapplied the law and passed the impugned order without any authority or jurisdiction, against the plaintiff.
2.6 That the Assessing Officer wrongly and illegally overstretched and enlarged the statutory definition of "owner" to include the person who is in beneficial enjoyment of property and wrongly held that the club, who is in beneficial enjoyment of the plots, is the owner of land for the purpose of tax liability and wrongly imposed tax liability upon the plaintiff.
2.7 That the DDA is the owner of the said plots and DDA alone is primarily liable to pay property tax as per Section 120 (1)(a) of DMC Act, 1957. That the Assessing Officer has wrongly relied upon one CS SCJ 84592/16 Page 4 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION term of the lease/licence deed that "the lessee/licensee will pay all rates, taxes and charges which are now payable or hereinafter be payable in respect of the said plot.". The plaintiff alleged that the liability of the defendant, if any, is towards the lessor/licensor DDA and defendant is not entitled to take benefit of this term of lease/licence deed to impose the liability upon plaintiff.
2.8 That the Assessing Officer has committed gross error in considering all the three plots as a single unit of assessment, ignoring the fact that all the three plots were allotted to plaintiff by DDA on different dates for entirely different usage and permission and the said plots are entirely independent and capable of separate enjoyment. Plaintiff alleged that usage of first and third plot is not intrinsically linked to club building erected on the second plot and, therefore, the first and third plot cannot be considered as part of the second plot and club building.
2.9 That the Assessing Officer failed to consider that the club building, parks, lawns, playground and parking lots are common assets and property of the residents of the area and wrongly held that all the three plots are not meant for public.
2.10 The plaintiff alleged that there is no other efficacious or speedy remedy against the impugned order except to file the present suit.
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3. On the basis of abovestated facts and circumstances, the plaintiff has prayed for relief of declaration for declaring the assessment order dated 31.05.2016 bearing No. Tax/A&C/HQ/SDMC/2016/D348 and all consequential actions, demands and orders, as abinitio null and void and nonest in eyes of law. The plaintiff has also prayed for relief of permanent injunction restraining the defendant, its agents, servants, employees, officers from taking any coercive steps for recovery of any demand for property tax as per the impugned assessment order dated 31.05.2016.
4. The defendant was duly served with summons. The defendant took preliminary objections that the suit of plaintiff is liable to be dismissed on the ground that as per Section 169 of DMC Act, an appeal against the levy/assessment or revision of assessment of any tax under DMC Act shall lie to the Municipal Taxation Tribunal (MTT) constituted under this Section. The most basic objection of defendant was of Section 169 DMC Act and on this ground, defendant prayed that suit is not maintainable and civil Court has no jurisdiction to entertain the present suit since the remedy lies before Municipal Taxation Tribunal and not before the Civil Court.
5. The defendant further stated in the written statement that plaintiff was given enough opportunity to put forward its arguments CS SCJ 84592/16 Page 6 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION and to submit information, and personal hearing was given on various dates, and a detailed speaking order has been passed by the Assessor and Collector, SDMC after considering all the facts and circumstances, therefore, assessment order dated 31.05.2016 does not suffer from any infirmity or lack of jurisdiction, as alleged by the plaintiff.
6. The facts regarding passing of the impugned order and regarding the lease deed/licence deed in respect of all the three plots have been admitted by the defendant. However, the defendant has categorically stated in the written statement that the impugned assessment order was passed after giving detailed hearing to plaintiff and it does not suffer from any illegality and the remedy to plaintiff is only under Section 169 of DMC Act, hence, the suit of the plaintiff is not maintainable.
7. Vide order dated 23.07.2016, ad interim exparte injunction was passed in favour of the plaintiff and the defendant was restrained from taking any coercive steps for recovery of the demand of property tax in terms of impugned order of Assessing Officer, dated 31.05.2016.
8. Arguments on maintainability were heard at length on behalf of both the parties on the last date of hearing and case was kept for CS SCJ 84592/16 Page 7 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION order for today.
9. During arguments, Ld. counsel for plaintiff has vehemently argued that as per definition of "owner" under Section 2 (37) of DMC Act read with Section 120 (1)(a) of DMC Act, the property tax on any land or building shall primarily be leviable upon the owner. In the present case, DDA is the owner and plaintiff is merely a licensee/lessee of DDA and hence, the DDA is responsible for payment of property tax to the defendant and defendant is not entitled to claim any tax from plaintiff directly.
10. Ld. counsel for plaintiff relied upon following judgments in support of his arguments:
(a) Today Homes & Infrastructure Pvt. Ltd. & Ors. v. South Delhi Municipal Corporation & Ors., 222 (2015) DLT 182 (DB);
(b) Ganga Ram Hospital Trust v. Municipal Corporation of Delhi, 2001 (60) DRJ 549 [referred and relied in Today Homes & Infrastructure Pvt.
Ltd.'s case (supra)];
(c) Munshi Ram & Ors. v. Municipal Committee Chheharta, reported as (1979) 118 ITR 488 (SC) [referred and relied in Today Homes & Infrastructure Pvt. Ltd.'s case (supra)];
(d) Indian Hotels Company Limited v. New Delhi Municipal Council, 63 CS SCJ 84592/16 Page 8 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION (1996) DLT 163 [referred and relied in Today Homes & Infrastructure Pvt. Ltd.'s case (supra)];
(e) Gurbax Singh v. Financial Commissioner & Anr., 1991 Supp (1) SCC 167;
(f) Delhi Transport Corporation v. Commissioner, Service Tax, 2015 (149) DRJ 668;
(g) Yashod Kumari & Anr. v. MCD & Ors., 111 (2004) DLT 33;
(h) Raghunath Das v. Union of India & Anr., (1969) 1 SCR 450 [referred and relied in Yashod Kumari & Anr.'s case (supra)].
11. On the other hand, Ld. counsel for defendant vehemently argued that as per Section 120 (2) of DMC Act, if any land has been let to a tenant for a term exceeding one year and such tenant has built upon such land, the property tax assessed in respect of such land and in respect of the building erected thereon, shall be payable by such tenant, whether the land and the building are in the occupation of such tenant or a subtenant of such tenant.
12. Ld. defence counsel argued that in the present case, the plaintiff has erected a club building on the second plot and the first and third plots are being used as part of the club building erected upon second plot. Therefore, all the three plots are liable for payment CS SCJ 84592/16 Page 9 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION of tax as a single unit in the hands of plaintiff as per Section 120 (2) of DMC Act.
13. Ld. defence counsel further brought attention of this Court to Section 169 of DMC Act, in which it is specifically mentioned that an appeal against the levy or assessment or revision of assessment of any tax under this Act shall lie to the Municipal Taxation Tribunal constituted under this section, provided that full amount of the property tax shall be paid before filing any appeal. Ld. defence counsel relied upon the following judgments in support of her arguments:
(i) Vinod Chawla v. M/s V.C. Investment Pvt. Ltd. & Anr., AIR 2001 Delhi 112;
(ii) Kirpal Singh Surjeet Singh v. Municipal Corporation of Delhi, 1995 IIAD Delhi 405;
(iii) Municipal Corporation of Delhi & Anr. v. Tata Engineering % Locomotive Company Ltd., 128 (2006) DLT 300;
(iv) Municipal Corporation of Delhi v. C.L. Batra, JT 1994 (5) SC 241;
(v) Mahesh Kapoor & Anr. v. Municipal Corporation of Delhi, 105 (2003) DLT 77;CS SCJ 84592/16 Page 10 of 20
PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION
(vi) NDMC v. Satish Chand (Deceased) by LR Ram Chand, Appeal (Civil) 2700 of 1997, dated 11.09.2003, passed by the Hon'ble Supreme Court of India.
14. During arguments, Ld. counsel for plaintiff has heavily relied upon judgment titled 'M/s Today Homes and Infrastructure Pvt. Ltd. v. South Delhi Municipal Corporation & Ors.' (2012) 222 DLT 182 (DB). In this judgment, the Hon'ble High Court of Delhi discussed various judgments of Hon'ble Supreme Court of India and Hon'ble High Courts, and observed that a limited window was opened to the plaintiffs to maintain the civil action, where there is no absolute bar to the maintainability of a suit. In abovesaid case, the Hon'ble High Court of Delhi cited the case titled 'Dhulabhai v. State of Madhya Pradesh' (1968) 3 SCR 662, in para 17 of its judgment and observed that five Judge Bench of the Hon'ble Supreme Court in Dhulabhai's case (supra) laid down the following principles:
"(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts 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 conformity with the fundamental principles of judicial CS SCJ 84592/16 Page 11 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION 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 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 determination of the right or liability and further lays down that all questions about the said right and liability shall be determined 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 virus 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 CS SCJ 84592/16 Page 12 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION is to be challenged, a suit is 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 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 final or there in 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 readily to be inferred unless the conditions above set down apply."
15. After enumerating the principles laid down by the Hon'ble Supreme Court of India in Dhulabhai's case (supra), the Hon'ble High Court remanded the case back to Ld. Single Judge for re determination of the issue of maintainability in the light of law declared by the Hon'ble Supreme Court of India and reiterated by the various devision benches of the Hon'ble High Court in various CS SCJ 84592/16 Page 13 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION judgments, as discussed in this case of M/s Today Homes and Infrastructure Pvt. Ltd. (supra).
16. On the strength of abovestated judgments, Ld. counsel for plaintiff argued that the Assessor and Collector SDMC has exceeded his jurisdiction in passing the impugned order dated 31.05.2016 and in giving a finding that the definition of "owner" in Section 2 (37) DMC Act, is an inclusive definition and it includes " a person who has a right to let or a right to beneficial enjoyment" over the property/land.
17. Ld. counsel for plaintiff further argued that the Assessor and Collector also exceeded his jurisdiction in taking benefit of the lease/ licence between the plaintiff and DDA in which it was mentioned that "the lessee will pay all rates, taxes and charges which are now payable or hereinafter be payable in respect of the said plot". Ld. counsel for plaintiff vehemently argued that the Assessor and Collector being third party cannot take benefit of the terms of lease/licence between plaintiff and DDA and even if any tax is chargeable upon the vacant plots of land, DDA being the owner shall be asked to pay the tax and plaintiff who is merely a licensee/lessee in respect of the said plots cannot be compelled to pay any tax in respect of the vacant land falling in "first plot" and "third plot".
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18. Ld. counsel for the plaintiff has also put forth the argument that remedy of the appeal provided under Section 169 read with Section 170 and 171 of DMC Act, against the order of Assessor and Collector is not an adequate remedy as the appellant is compelled to deposit 100% of the tax amount at the time of filing the appeal, hence, this is a burdensome/onerous right and it cannot be said to be a just and proper remedy in the eyes of law. Ld. counsel for plaintiff prayed that the suit of the plaintiff is maintainable in the Civil Court as there is no express bar to the jurisdiction of the Civil Court and the implied bar has to be construed and interpreted only in terms of guidelines of the Hon'ble Supreme Court of India as discussed above.
19. On the other hand, Ld. defence counsel has argued that only a limited window is kept open as per the guidelines of the Hon'ble Supreme Court of India in Dhulabhai's case (supra) and only those cases can be entertained in Civil Court wherein the statutory authority has exceeded its jurisdiction or where the statutory authority did not comply with the provisions of the statute and did not act in conformity with the fundamental principles of judicial procedure, however, in the present case, the statutory authority i.e. Assessor and Collector had duly complied the provisions of the statute and had acted in conformity with the fundamental principles of judicial procedure, as opportunity of hearing was given to plaintiff many times and all the documents submitted by the plaintiff before CS SCJ 84592/16 Page 15 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION the statutory authority were duly considered, before passing the impugned order dated 31.05.2016, therefore, implied bar of jurisdiction of Civil Court duly applies in this case and the limited window of challenge to the order of the statutory authority is not open to the plaintiff in this case.
20. I have heard detailed arguments on behalf of both the parties and have duly perused written arguments of plaintiff as well as judgments cited by both the parties.
21. I have also perused the impugned order of Assessor and Collector dated 31.05.2016 which is under challenge in this suit. Perusal of impugned order dated 31.05.2016 reveals that the issue of tax assessment of the three plots was pending since year 2009 when notice 123C of DMC Act was issued to plaintiff on 28.03.2009. However, plaintiff kept paying the property tax proportionately, in respect of the second plot of land upon which the club building has been constructed, but did not pay the remaining tax, due to which notice under Section 123 DMC Act was again issued to plaintiff on 10.01.2013, for short payment of property tax since 200506 to 2012
13.
22. Vide impugned assessment order dated 31.05.2016, the assessment of tax for period 200506 to 201516 was made. Perusal CS SCJ 84592/16 Page 16 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION of impugned order dated 31.05.2016 further reveals that detailed hearing was given to plaintiff on various dates and plaintiff had filed various representations and had also submitted various documents including account books, lease deed/licence deed, etc. for perusal of Assessor and Collector and only after perusal of all the documents submitted by the plaintiff and only after consideration of all the representations, a detailed speaking order was passed by the Assessor and Collector running into seven pages. Therefore, it cannot be said that no opportunity of hearing was given to the plaintiff and his documents and representation were not duly considered before passing the order.
23. The argument of the plaintiff that it is a liability of the DDA to pay the tax for vacant land falling in first plot and third plot, is not tenable since the effective use and enjoyment of the land is with plaintiff and bare perusal of the plaint as well as lease deed/licence deed reflects that the two chunks of land falling in first and third plots are being used for the benefit of club members only. The club building is situated in the second plot. Therefore, the argument of the plaintiff that all the three plots are independent of other and are capable of being used independently is not tenable. It is clear from the perusal of lease deed of "first plot", that it was to be used as lawn/park. Perusal of licence deed of the "third plot" reveals that it was to be used for tennis, functions /parties and marriage purposes.
CS SCJ 84592/16 Page 17 of 20PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION The perusal of plaint itself reflects that the land of all the plots is being used for benefit of members of the society and residents of the colony only. All the three plots are not open for use of general public. Therefore, argument of the plaintiff that the plots in question are open for public use and are not liable for tax assessment, is not tenable.
24. With due respect to the Hon'ble Supreme Court and Hon'ble High Court of Delhi, the facts of the case are completely different from the facts of the case in M/s Today Homes and Infrastructure Pvt. Ltd. v. South Delhi Municipal Corporation & Ors. (supra). In present case, the entire use and enjoyment of property is with plaintiff, and DDA is merely getting nominal rent/licence fee of Rs.1/ per annum. Therefore, effectually, the plaintiff is liable to pay the taxes, as per the terms and conditions of the lease deed. After due perusal of the impugned order dated 31.05.2016, this Court is of the opinion that the Assessor and Collector has not exceeded his jurisdiction in any manner, and he has acted in conformity with the fundamental principles of judicial procedure and has duly complied with all the provisions of DMC Act, before passing the impugned order.
25. Due opportunity of hearing was given on various dates, to plaintiff before passing the impugned order, therefore, only remedy CS SCJ 84592/16 Page 18 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION to plaintiff was to approach the Municipal Taxation Tribunal (MTT) under Section 169 read with Section 170 and 171 of DMC Act. Section 171 of DMC Act clearly provides finality to the appellate orders of the Municipal Taxation Tribunal. Therefore, as per the guidelines of the Hon'ble Supreme Court in Dhulabhai's case (supra), the jurisdiction of Civil Court is impliedly barred. This Court has duly considered the question of maintainability of the suit visa vis principles laid down by the Hon'ble Supreme Court of India and this Court is of the opinion that no ground is made out in favour of the plaintiff, for challenging the impugned order dated 31.05.2016 in the Civil Court.
26. It is pertinent to mention here that the Hon'ble Supreme Court of India has observed in the guidelines mentioned in Dhulabhai's case (supra) that, "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 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."
27. In the present case, due opportunity of hearing has already been availed by the plaintiff and plaintiff is trying to challenge the correctness of the assessment order dated 31.05.2016 which is CS SCJ 84592/16 Page 19 of 20 PANCHSHILA COOPERATIVE HOUSING SOCIETY LTD. V. SOUTH DELHI MUNICIPAL CORPORATION certainly outside the purview of the civil court. Civil court cannot sit in appeal over the decision of the Assessor and Collector, since the appellate authority in this case is Municipal Taxation Tribunal (MTT). Therefore, no ground for maintainability of the suit is made out.
28. The suit is dismissed, as not maintainable in view of the provisions of Section 169, Section 170 and Section 171 of DMC Act. Parties to bear their own costs.
29. Decree sheet be prepared accordingly.
30. File be consigned to record Room.
(Announced in the open (Tyagita Singh)
Court on 21.04.2018) SCJcumRC (South), Saket Courts
New Delhi
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