Delhi District Court
Manufacture Cooperative Industrial vs Mcd on 22 August, 2014
1
IN THE COURT OF SH. SHAILENDER MALIK,
LD. SCJ/RC/NW/ROHINI COURTS/DELHI
Manufacture Cooperative Industrial
Estate Limited, Udyog Nagar Industrial Area
Rohtak Road, Delhi
Through its Office Secretary
Sh. P.N. Sheopoori .......... Plaintiff.
vs
1.MCD Town Hall, Chandani Chowk, Delhi
2. The Assessor & Collector MCD, Minto Road Complex, Vivekanand Marg, Delhi
3. Lt. Governor Chairman DDA Raj Niwas, Delhi
4. Delhi Development Authority Through Chairman / Vice Chairman Vikas Sadan, New Delhi. .......... Defendants.
Date of institution ......... 02.11.2000 Date of reserving judgment ......... 11.08.2014 Date of announcing judgment ......... 22.08.2014 Judgment:
1. This is a suit for declaration and injunction. Plaintiff is registered cooperative society, registered under the Delhi Cooperative Society Act 1972, having its registered office at Udyog Nagar, Industrial Area, New Delhi. Present suit has been filed on behalf of the plaintiff society by one Sh. P.N. Sheopory who is office secretary of plaintiff society.
2. It is stated in the plaintiff society was alloted 106 acre of land by L & DO vide lease deed dated 17.12.75 measuring 511 bigha 5 biswa, now known as Udyog Nagar Industrial Area Rohtak Road, New Delhi. It is stated that though total 106 acre land was alloted to plaintiff society however, part of land so allotted, was in occupation of Jhuggi cluster 2 therefore, DDA could not execute the lease deed for entire land and executed the lease deed of remaining land except the plot earmarked for shopping centre and administrative blocks etc.
3. it is stated that said portion of land does not belong to plaintiff society till date nor regarding that land lease deed was ever executed by DDA as vacant possession of the said land was never handed over to plaintiff society, as such plaintiff society is not the owner of either particular portion of land.
4. It is stated that most of the alloted land area was divided in to plots in different size and development was made as per the Master Plan and plots were accordingly, carved out and alloted to members but some portion were left for developing the parks, roads etc. it is stated that DDA was called upon for perpetual lease deed regarding disputed land which was carved for shopping center and administrative blocks and to hand over the possession of the same. Moreover, DDA was also requested to deal with MCD so that MCD may not demand any property tax regarding that portion of land as earlier plaintiff society was given letter dated 25.08.99 and 22.11.99 and the bill no.38668 dated 05.08.2000 received by plaintiff society on 14.08.2000. it is stated that out of total area of 106 acre of land, measure part of the area was divided into 278 industrial plot of different sizes. A part of land was also handed over to MCD for developing road, parks and public utility services and remaining area is of shopping center and administrative block etc regarding which no lease deed was executed and information in this regard was also given to MCD but despite furnishing the said information, MCD issued the notice to plaintiff demanding payment of property tax in respect of land for shopping center / administrative blocks which does not belong to plaintiff. It is stated that Tax Recovery Collector of Assessment and Collector Department of MCD had issued the notices since 1992, for which plaintiff society has been raising the objections. The notice dated 10.12.1999 was also served upon to plaintiff on 06.01.2000, wherein demand of house tax was made. Plaintiff society stated to have given reply and raised the objections but to not effect hence the present suit has been filed with the prayer for decree of declaration to declare that defendant no.1 and 2 (MCD and Assestor and Collector of MCD) are not entitled to claim any property tax in respect of part of land as same is in occupation of jhuggi cluster and is owned by DDA. It is also prayed that by decree of declaration it be declared that after receipt of payment of cost of land, DDA is liable to get it vacated from jhuggi cluster and to hand over the possession of the same to plaintiff society and also executed the lease deed in favour of plaintiff society, till then MCD is not entitled to demand the property tax regarding that disputed land. It is prayed that by decree of permanent injunction defendant no.1 and 2 3 sought to be restrained from claiming /charging house tax for portion of land or for raising any demand notice.
5. The suit was filed in year 2000. on behalf of the MCD WS was filed taking the objection that suit is not maintainable because of Section 169 of DMC Act as well as because of barred of Section 41(h) of Specific Relief Act. It is stated that suit is otherwise bad for non service of notice u/s 478 of DMC Act and suit has not been properly valued for the purpose of court fees and jurisdiction. While admitting the fact that plaintiff society was alloted total area of 106 acre of land by L & DO for development however, it is pleaded that plaintiff society is under liability to pay property tax in respect of that portion of land which is earmarked for shopping centre and administrative block in view of judgment of Hon'ble High Court in Vishal Bhardwaj vs MCD 22 (1982) DLT 151. It is also admitted fact that notice u/s 156 of DMC Act was served upon plaintiff demanding property tax. It is pleaded that said notice was issued strictly in accordance with law and rules.
6. DDA (defendant no.4) also filed the WS taking the objection that suit is not maintainable for want of notice u/s 53B of DDA Act, 1957, suit is not properly valued for the purpose of court fess and jurisdiction. It is pleaded that as per the agreement between plaintiff society and DDA dated 12.07.66, plaintiff was granted license to enter upon the piece of land total land of 509 bigha village Nangloi, Jatta for the purpose of development and to carve out the industrial plot out of the said land. This area was subsequently increased from 509 bigha to 511 bigha 5 biswa as per the terms of agreement, lease of land covering plotted area was to be alloted to the members of society, was executed on 17.12.75. It is pleaded that as per the terms that some portion of land has been encroached upon by Jhuggi dwellars and this area has been lay out plan of the society is earmarked for community centre and common facility etc. Society has no right for claiming for execution of lease deed in respect of such portion of land earmarked for community center etc , in the light of agreement between the parties. It is further pleaded that society is liable to pay ground rent only for the plots, for which lease has been executed and further sub lease deed have been executed in favour of members of society. It is also pleaded in the WS of DDA that DDA has executed the lease deed only in respect of plotted area and no lease is executed in respect of land which is earmarked for common facility shopping center and etc.
7. No separate WS was filed on behalf of defendant no.2 and 3.
8. Matter remained pending for long time for disposal of interim applications and 4 ultimately on 28.07.2010, Ld. Predecessor framed following issues:
1. Whether the plaintiff is entitled to the relief of Declaration as prayed for?
2. Whether the plaintiff is entitled to the decree of Permanent injunction as prayed for? OPP.
3. Whether the suit is barred by Section 41(h) of Specific Relief Act?OPD1.
4. Whether the suit is barred by Section 477/478 of DMC Act?OPD1.
5. Whether the suit is barred by Section 53B of DDA Act?OPD4.
6. Whether the suit is not properly valued for the purposes of court fess and jurisdiction? OPD4.
7. Relief
9. It appears from the perusal of the record that during the course of proceedings, none appeared on behalf of MCD (defendant no.1 and 2) and thus, were proceeded exparte on 3.07.2013. though on behalf of defendant no.3 i.e DDA, appearance was made subsequently in the course of trial.
10. On behalf of the plaintiff one witness was examined PW1 Ramesh Chand. On behalf of DDA also one witness was examined namely DW1 Rakesh Kumar.
11. I have heard Ld. Counsel for the plaintiff and counsel for the DDA. My findings on each of the above mentioned issues are following: Issue no.3 (Whether the suit is barred by Section 41(h) of Specific Relief Act?) This issue is being taken up first as it relates to the very maintainability of the suit. This issue was framed on the objection taken on behalf of MCD that suit seeking relief of declaration and injunction is barred by Section 41(h) of Specific Relief Act as plaintiff had the efficacious remedy under the DMC Act and civil suit was not maintainable specifically because of observation of Hon'ble High Court made in "Vishal Builders vs MCD".
It appears from the pleadings that the plea of the MCD that civil suit to restrain from charging property tax by MCD is not maintainable when there is a already efficacious remedy available under the provisions of DMC Act. Provisions of DMC Act will make it clear that Section 120 of DMC Act imposes the liability to levy property tax by MCD. Then different provisions provide as to how property tax will be assessed and in which situation there can be order of revision of Assessment of property tax. Ultimately, it is section 169 of DMC Act which provides for remedy of appeal against the assessment or revision of property tax which will lie before Municipal Taxation Tribunal.
5No doubt there is a provisions in the shape of Section 169 whereby assessment of property tax can be challenged but situation in the present case is different. Plaintiff society is seeking relief of declaration to declare that MCD is not entitled to claim the property tax in respect of a land which is neither in the possession and ownership of plaintiff's society and is occupied in jhuggi cluster. Moreover, is owned by DDA. Precise grievance of plaintiff society is that in respect of a portion of land which was never handed over to plaintiff society and regarding which no lease deed was ever executed by DDA, MCD can not levy property tax in respect of that portion of land on plaintiff's society. Taking these facts on the face of it, I find that suit in the present form is maintainable in the civil court. Section 9 of CPC clearly provides that court have jurisdiction to try all suits of civil nature except where the cognizance is either expressively or implied by the bar. Expression "all suits for civil nature" as given in Section 9 is required to be construed liberally. Jurisdiction to not to entertain any suit of civil nature must be either expressively or impliedly barred in law. So far as Section 41(h) of Specific Relief Act, that clause simply bars to entertain a injunction suit when there is other efficacious remedy available to the plaintiff to seek rather then seeking the relief of injunction simplicitor. In the present case as stated above, it is not simple suit injunction, plaintiff society is seeking the relief of declaration in respect of portion of land, for which MCD is proposing to charge property tax whereas, plaintiff society is neither the owner nor in possession of the said portion of the land.
In this regard Ld. Counsel for the plaintiff has rightly relied upon the judgment in "Ganga Ram Hospital Trust vs Municipal Corporation of Delhi 92 (2001) DLT 775 (DB)", in that case more or less similar issue was involved and it was held that mere fact that a statue provide for certain remedy is not sufficient to exclude the jurisdiction of civil court. The right to approach the civil suit is an inherrent right which normally can not be taken away or presume to be taken away. While discussing the provisions of DMC Act, it was held in para 15 and 16 of the judgment that Section 169 and 170 of DMC Act provide for remedy of appeal against levy or assessment of any tax under the act but neither of these provisions contain any provision barring a civil suit to challenge levy and assessment of such tax under the act. Thus, the sum and substance of ratio of the above mentioned judgment is that since DMC act does not in any manner bar filling of a civil suit in matter of levy of assessment of tax, plaint in such civil suit can not be rejected.
In the present case also I find that bar of Section 41(h) of Specific Relief Act would not be attracted because that provisions applies where there is another efficacious remedy available then filling the suit for injunction. Therefore, it is necessary to understand the expression "efficacious remedy", which to my mind means which would put the plaintiff in the same position in which he would have been if he had not asked for relief of injunction. It refers 6 to the relief being capable of obtaining by another usual mode of proceedings, which can also be equally available in law, giving complete relief which a suit for injunction could have given. Intention of legislature in refusing injunction, when an equally efficacious remedy is available, is not only to prevent multiplicity of litigation but also to give effect to the principle which Order 2 of Civil Procedure Code provides i.e whole of exercise of adjudication of rights of parties in respect of one cause of action, should be in one complete suit and there should not be fragmentation of one cause of action for different relieves.
So far as the judgment of Delhi High Court in Vishal Builders Pvt. Ltd. Vs DMC & Ors. 22 (1982) DLT 151,as relied upon by MCD, said judgment would not be of any help to MCD in this case because the facts of that case and of present case are all together different. In that case petitioner had taken a land on perceptual lease deed for constructing a building and building was assessed to property tax by MCD. In that case petitioner never challenged the auction nor the auction of DDA was ever canceled. Therefore, it was held that petitioner will not be able to deny the liability to pay property tax only on the ground that formal lease deed was never executed. In this case beside non execution of lease deed, DDA even has never admitted in the WS, plaintiff society to be the owner of that land. Thus from all angles, I do not find suit to be barred by Section 41(h) of Specific Relief Act. Accordingly, issue stands decides in favour of the plaintiff and against the defendant.
Issue no.4 (Whether the suit is barred by Section 477/478 of DMC Act?) This issue was framed on the objection taken on behalf of MCD although MCD during the course of trial stopped appearing and thus was proceeded exparte. No argument was raised on this issue even otherwise since it is a case for relief of declaration and injunction and relief of injunction is of urgent nature, therefore, I find that suit can not be held to be bad for want of prior notice u/s 478 of DMC Act. Issue accordingly, decided against the defendant and in favour of the plaintiff.
Issue no.5 (Whether the suit is barred by Section 53B of DDA Act?) No arguments were addressed on this issue. It is further submitted by Ld. Counsel for the plaintiff that essentially relief has been sought against MCD and facts stated by the plaintiff in its plaint have not been disputed by DDA in the WS. As such plaintiff and DDA are not at issues. Accordingly, issue stands decided being not pressed against defendant and in favour of plaintiff.
7Issue no.6 (Whether the suit is not properly valued for the purposes of court fess and jurisdiction?) This issue was framed on the objection raised on behalf of MCD. As stated above, plaintiff is seeking the relief of declaration, for relief of declaration plaintiff has valued the suit for Rs.200/ and accordingly paid the court fees, in accordance with Section 7 (iv) (c) of Court Fees Act. Similarly for relief of injunction, plaintiff has furnished the fixed court fees. Therefore, I do not find that suit has not been properly valued either for court fees or jurisdiction. Accordingly, issue stands decided in favour of the plaintiff and against defendant.
Issue no.1 and 2.
(Whether the plaintiff is entitled to the relief of Declaration as prayed for? and Whether the plaintiff is entitled to the decree of Permanent injunction as prayed for?) Onus of proving these issues was on plaintiff and plaintiff society one witness namely Ramesh Sharma has been examined who in his affidavit of examination in chief as testified that he is honorary treasurer and founder member of plaintiff society and is stated to be well conversant of the facts of the case. PW1 further proves the letter of authorization dated 05.10.2013 issued by Board of Director of plaintiff's society Ex. PW1/1 authorizing him to depose on behalf of plaintiff. PW1 says that plaintiff society was initially alloted 106 acre of land and license of land measuring 509 bigha of village Nangloi Jat for development and carving out industrial plot was issued. Said land was increased up to 511 bigha (106.5 acre). An agreement was entered into between President of India and plaintiff society on 12.07.66 which is Ex.PW1/2. Subsequently perceptual lease deed dated 17.12.75 was entered in to for area measuring 3, 49,428/ sq. yd. known as "Udyog Vihar Industrial Area Rohtak Road". Lease deed is Ex. PW1/3 and lay out plan in Ex. PW1/4. PW1 says that different industrial plot were carved out as per lay out plan. Plaintiff society owned the land under the plots and no more. Moreover, ground rent, payable was also determined on the basis of plotted area and not the entire area. PW1 says that vacant portion of land measuring 33.23 acre which was earmarked for widening main Rohtak Road, development of parks and other civic amenities etc to be provided by civil authorities when factory buildings were to be come up on carved out plots. Plaintiff society never paid ground rent in respect of that land of which DDA has not executed the lease deed as its possession is not with plaintiff society. PW1 says that although total 106 acre of land was allotted in favor of plaintiff and payment was also made but lease deed of entire land could not be executed as part of that land was in possession of jhuggi clusters. DDA executed the lease deed of remaining land except the portion of land in 8 question, the possession of which is with jhuggi clusters. PW1 says that said land was earmarked for shopping centre, administrative mark etc and plaintiff society does not own that land. PW1 while testifying all those facts as stated in the plaint, inter alia pleaded that plaintiff society requested the DDA to deal with MCD regarding demand of property tax in respect of disputed portion of land as MCD by letters Ex.PW1/5 and Ex.PW1/6 dated 25.08.1999 and 22.11.1999 had threatened to recover property tax. PW1 further testifies regardin filing of Writ Petition no. 14928/06 and also regarding reminders/letters given to MCD which Ex.PW1/7. PW1 further testifies that tax recovery controller of MCD issued a demand notice under Section 154 (1) of DMC Act which is Ex.PW1/9 and objection filed by plaintiff society is Ex.PW1/10. Notices given by plaintiff society are collectively Ex.PW1/13.
PW1 was duly cross examined on behalf of DDA however having substantiate came out in the cross examination of PW1 to disbelieve any of the facts stated in the examination in chief. Facts as stated in the evidence of PW1 are otherwise matter of record. From the agreement Ex.PW1/2 and lease deed Ex.PW1/3, it is very much clear that lease deed was executed by the DDA in favor of the plaintiff society for whole of 106.5 acre land, which was initially allotted in year 1960 for development of industrial area. Lease deed was executed in respect of plotted land, in which plots of different areas were carved out and allotted to the members of plaintiff society. Thus reading the terms of agreement of land which was earmarked for shopping centre, administrative block etc and which was not in possession of plaintiff society or DDA rather a jhuggi cluster developed over it, plaintiff society was no the owner. As per the provisions of Section j120 of DMC Act, MCD was not authorised to levy property tax in respect of that portion of land, the possession of which was never handed over to plaintiff society nor plaintiff society is its owner.
The evidence of DW1 led on behalf of DDA also supports the case of the plaintiff society. Therefore from the evidence as come on the record and the material on the record I find that plaintiff society has established its case by preponderance probability and thus is entitled for decree of declaration, whereby it is being declared that (defendant no. 1 and 2) MCD and accessor and controller of MCD are not entitled to claim any property tax in respect of that portion of land which in occupation of jhuggi clusters. Moreover, it is also declared that plaintiff society is entitled to get the possession of the same and even to get the lease deed executed in respect of that portion of land, upon removal of jhuggi clusters from that portion of land. Till then the MCD is not entitled to charge property tax for that portion of land. Defendant no. 1 and 2 are hereby also restrained by decree of injunction nor to claim/charge any house tax from the plaintiff society in respect of that portion of land. It is being made clear this 9 decree is only in respect of portion of land and not in respect of other area for which MCD can lawfully claim property tax under Section 120 of DMC Act. Suit stands decreed. Decree sheet be prepared. File be consigned to RR.
Announced in the open court
On 22.08.2014 (SHAILENDER MALIK)
SCJ/RC/NW/ROHINI COURTS/DELHI
10
Suit No.38/13/09
22.08.2014
Pr. None
Vide my separate judgment of even date, it is being declared that (defendant no. 1 and 2) MCD and accessor and controller of MCD are not entitled to claim any property tax in respect of that portion of land which in occupation of jhuggi clusters. Moreover, it is also declared that plaintiff society is entitled to get the possession of the same and even to get the lease deed executed in respect of that portion of land, upon removal of jhuggi clusters from that portion of land. Till then the MCD is not entitled to charge property tax for that portion of land. Defendant no.1 and 2 are hereby also restrained by decree of injunction nor to claim/charge any house tax from the plaintiff society in respect of that portion of land. It is being made clear this decree is only in respect of portion of land and not in respect of other area for which MCD can lawfully claim property tax under Section 120 of DMC Act. Suit stands decreed. Decree sheet be prepared. File be consigned to RR.
(SHAILENDER MALIK) SCJ/RC/NW/ROHINI COURTS/DELHI