{"id":161445,"date":"2003-04-28T00:00:00","date_gmt":"2003-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-red-cross-society-vs-new-delhi-municipal-committee-on-28-april-2003"},"modified":"2015-12-26T01:22:27","modified_gmt":"2015-12-25T19:52:27","slug":"indian-red-cross-society-vs-new-delhi-municipal-committee-on-28-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-red-cross-society-vs-new-delhi-municipal-committee-on-28-april-2003","title":{"rendered":"Indian Red Cross Society vs New Delhi Municipal Committee & … on 28 April, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Indian Red Cross Society vs New Delhi Municipal Committee & … on 28 April, 2003<\/div>\n
Author: R Pal<\/div>\n
Bench: Ruma Pal, B.N. Srikrishna.<\/div>\n
           CASE NO.:\nAppeal (civil)  5043 of 2001\n\nPETITIONER:\nIndian Red Cross Society\n\nRESPONDENT:\nNew Delhi Municipal Committee & Ors.\n\nDATE OF JUDGMENT: 28\/04\/2003\n\nBENCH:\nRuma Pal & B.N. Srikrishna.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
RUMA PAL, J.\n<\/p>\n
\tThe appellant-Society is a charitable organisation.  In
\n1930, it was granted a permanent lease of premises No. 1, Red
\nCross Road, New Delhi.\t Between 1975-77 the appellant
\nconstructed a building on the premises.\t The building consists
\nof a basement, ground floor and five floors above the ground
\nfloor.\t A portion of the building is used by the appellant for the
\npurposes of its Headquarters and its various offices which
\ninclude a Blood Bank, St. John’s  Ambulance Brigade,
\nMaternity and Child Welfare Bureau and also the Hindkusht
\nNivaran Sangh.\tThe balance portion of the building is rented
\nout by the appellant.  It is the appellant’s case that the rent is
\nutilised wholly for  charitable purposes.  The appellant has
\nclaimed exemption from payment of house tax in respect of the
\nbuilding for the years 1977-78 to the present day.
\n\tPrior to 1994, house tax in respect of properties in Delhi
\nwas imposed under the  Punjab Municipal Act, 1911.  The
\nPunjab Act was repealed by the New Delhi Municipal Council
\nAct, 1994 (briefly the NDMC Act) as far as New Delhi is
\nconcerned with effect from the day that the respondent No. 1
\nCouncil was established under Section 3 read with Section
\n416(1) of the latter Act.   According to the appellant, it had, till
\nthat time, paid some amounts of money towards the demands
\nraised by the respondent No.1 on account of property  tax and
\nhad  also  applied to the respondents for grant of exemption.
\nAccording to the appellants, there was no response to the
\nappellant’s representation.  The appellant filed a Writ Petition
\nbefore the High Court at Delhi specifically impugning
\ntwo bills raised by the Municipal Corporation  dated 20.7.90 and
\n31.5.91 which were for the sums of Rs.69,14,792.71 and
\nRs.6,13,492 respectively.  Interim protection was given to the
\nappellant No.1 by the High Court and the demands were
\nstayed.\t The appellant then filed eight more writ petitions before
\nthe High Court questioning the subsequent demands on
\naccount of property tax raised by the respondent No. 1 in
\nrespect of the appellant’s building.   The writ petitions were
\nheard and disposed of by the High Court by directing the
\nappellant to make a fresh representation to the Director (Tax) of
\nthe respondent No.1 who was required to\t consider and
\ndispose of the same.  Liberty was also granted to the appellant
\nto re-agitate the grounds on which the writ petitions were filed in
\nthe event  the decision of the Director (Tax) went against the
\nappellant.\n<\/p>\n
\tThe appellant made a representation pursuant to the
\norder of the High Court.  This was disposed of on 26.2.2001 by
\nthe Assistant Secretary (Tax).\tThe Assistant Secretary noted
\nthat he was examining the claim for exemption only for the
\nperiod 1991-92 to 2000-2001.  The position under the Punjab
\nMunicipal Act, 1911 was examined and it was found that the
\nappellant had filed an application claiming exemption under that
\nAct only in respect of the self-occupied portion of the building.
\nThe Municipal Committee which was the competent authority
\nunder Section 70 of the Punjab Act had resolved to grant
\nexemption from payment of property  tax under the Punjab Act
\nin respect of the self-occupied portion of the building.  The
\nresolution of the Committee was approved by the State
\nGovernment.  The exemption was granted\tupto the year 1990-\n<\/p>\n
91.  The order also stated that there was no application for
\nexemption by the appellant for 1991-92 to 1993-94 as such no
\nresolutions had been taken by the Committee.
\nThe Assistant Secretary then considered Sections 60, 61
\nand 62 of the NDMC Act, 1994 and noted that exemption could
\nbe granted, if at all, under the provisions of the NDMC Act in
\nrespect of that portion of the building occupied by the appellant
\nand used for charitable purposes.  Although the Assistant
\nSecretary was of the view that even  the portion occupied by
\nthe appellant did not qualify for exemption as the premises
\nwere not used exclusively for charitable purposes, nevertheless
\nas the Committee under the Punjab Act had given exemption to
\nthe self-occupied portion  treating the same as used for
\ncharitable purposes, “the same intention is allowed to continue”.
\nWith respect to the appellant’s claim for exemption in respect of
\nthe rented portion of the premises, the Assistant Secretary was
\nof the view that it was not permissible under Section 62(2) of
\nthe NDMC Act.  It was said that “the user of the income from
\nthe building is wholly irrelevant for the purposes of grant to a
\nbuilding”.   The claim of the society was rejected because it was
\nsaid that to accede to the claim would have far reaching
\nconsequences.  It was said that “although the income may get
\nexemption in income tax but in the Municipal Act, there is no
\nsuch concept of granting exemption to the property just
\nbecause that income is being utilised for  charitable purposes”.
\nDecisions of the Delhi High Court and of this Court were
\nconsidered in coming to the conclusion that no exemption for
\nthe portion in occupation of the tenants is available as the
\nportions were not used for charitable purposes.\t An
\napprehension was expressed that if the interpretation sought to
\nbe placed by the appellant-society were accepted, then\tany
\nsociety could  claim exemption on the ground that rental income
\nwould be used for charitable purposes.\tThis, according to the
\nAssistant Secretary, was not the intention of the legislature.
\nAccordingly it was held that no exemption could be granted
\nunder Section 62(1)(a) read with Section 62(2) in respect of the
\nportion of the building which had been rented out by the
\nappellant.  However, exemption was to be allowed for the self-
\noccupied portion if the appellant continued to be supported
\nthrough voluntary contributions and did not generate surpluses
\nyear after year.  On the basis of the statements made to this
\neffect by the appellant, the Assistant Secretary granted
\nexemption for the self-occupied portions for the period 1991-92
\nto 2000-2001.  It was also stated that the society would have to
\nclaim  exemption every year and satisfy the conditions required
\nfor exemption every year.\n<\/p>\n
\tThe appellant then filed an application for reviving the writ
\npetitions which had been disposed of earlier by the High Court.
\nAlthough this application was allowed by the High Court, the
\nwrit petitions were dismissed with the observation that the
\nappellant was at liberty to discharge its liability to the
\nrespondent No.1 by instalments.\t The appellant has preferred
\nthis appeal by way of a Special Leave Petition.
\n\tThe appellant relied on the decision of this Court in
\nMunicipal Corporation of Delhi v. Children Book Trust<\/a> 1992
\n(3) SCC 390 to\tcontend that since it is a charitable
\norganisation and the entire building is used for charitable
\npurposes,  it is not liable to pay property tax under Section 62 of
\nthe NDMC Act, 1994 in respect of the entire building including
\nthe rented portion at  all.   In the alternative it has been
\nsubmitted that\tif the appellant is liable to pay property  tax, the
\npower to grant exemption had not been properly exercised by
\nthe respondent No.1 under the provisions of Section 124 read
\nwith section 72 (e) of the NDMC Act.\n<\/p>\n
\tLearned counsel appearing for the respondents
\ncontended that Section 62 of the NDMC Act explicitly made
\nbuildings which were not self-occupied by a charitable
\norganisation, subject to house tax.  It was further submitted that
\nthe decision relied upon by the appellant was not applicable to
\nthe appellant’s case.\tAs far as the alternative submission of
\nthe appellant is concerned, it is the respondents’ contention that
\nthere was no power under the NDMC Act to grant exemption in
\nan individual case.  Exemption could only be granted to a class
\nof similarly  situated bodies or persons.
\n\tThe appellant has in the meanwhile cleared all the
\noutstanding demands of the respondent No. 1 and continued to
\napply for exemption from payment of property tax in respect of
\nthe entire building.  Two of the applications dated 17th May
\n2001 and 20th August 2001 have been brought on record.\tAn
\norder passed by the Advisor (Revenue) of the NDMC dated
\n22nd March 2002 limited to the question of fixation of the
\nrateable value of the rented portion for the purposes of house
\ntax has also been brought on record.  The order records that
\nthe self-occupied portion of the building has been exempted
\nfrom payment of property tax.  However, it is clear from the
\nbody of the order that it was not passed in response to the
\nappellant’s application for  grant of exemption to the appellant
\nunder the provisions either of the Punjab Act or the NDMC Act.
\nUnder the Punjab Act, the tax on all property was
\nimposed under Section 61. The statute itself did not allow for
\nany specific exemption in respect of any class of property and
\nleft it to the discretion of the Committee or the State
\nGovernment to grant  exemption in the circumstances
\nprescribed.  The “Committee” has been defined in Section 3(4)
\nas the Municipal Council or a Nagar Panchayat, as the case
\nmay be, constituted under Section 12 of the Act.  Section 70  of
\nthe Punjab Act provided\t for the ‘Power of the Committee in
\nregard to taxes’.   Sub-section (2) of Section 70 provided:
\n“A Committee, by a resolution passed at
\na special meeting and confirmed by the
\nState Government, may<\/p>\n
(a)\tprovide that all or any persons
\nmay be allowed to compound for
\ntaxes imposed under sub-clauses\n<\/p>\n
(c), (d) and (e) of clause (1) and
\nunder clauses (2) and (3) of
\nsection 61:\n<\/p>\n
(b)\tabolish, suspend or reduce in
\namount any tax imposed under the
\nforegoing sections; or<\/p>\n
(c)\texempt in whole or in part from the
\npayment of any such tax, any
\nperson or class of persons or any
\nproperty or description of
\nproperty.”\n<\/p>\n
\tApart from the power of the Committee under the
\naforesaid provisions, the State Government was given power
\nunder Section 71 by order to :\n<\/p>\n
“exempt in whole or in part from the
\npayment of any such tax any person or
\nclass of persons or any property
\ndescription of property.\n<\/p>\n
\tIf at any time it appears to the
\nState Government on complaint made
\nor otherwise, that any tax imposed
\nunder the foregoing sections is unfair in
\nits incidence or that the levy thereof or
\nof any part thereof is injurious to the
\ninterests of the general public, it may
\nrequire the committee to take within a
\nspecified period measures to remove
\nthe objection: and, if within that period
\nthe requirement is not complied with to
\nthe satisfaction of the State Government
\nthe State Government may by
\nnotification suspend the levy of the tax
\nor of such part thereof until the objection
\nhas been removed.”\n<\/p>\n
\tAs far as the NDMC Act is concerned, property tax is
\nleviable on lands and buildings in New Delhi under Section
\n60(1)(a) read with Section 61(1).  Section 62 which has been
\nconstrued in the impugned order by the Assistant Secretary, is
\nquoted:\n<\/p>\n
“62(1)\t Save as otherwise provided in this
\nAct, the property tax shall be levied in respect
\nof all lands and buildings in New  Delhi
\nexcept : –\n<\/p>\n
(a)\tlands and buildings or portions of lands
\nand buildings exclusively occupied and
\nused for public worship or by a society
\nor body for a charitable purpose:\n<\/p>\n
Provided that such society or body is
\nsupported wholly or in part by voluntary
\ncontributions, applies its profits, if any,
\nor other income in promoting its objects
\nand does not pay any dividend or bonus
\nto its members.\n<\/p>\n
Explanation  ‘Charitable purpose’
\nincludes relief of the poor, education
\nand medical relief but does not include a
\npurpose which relates exclusively to the
\nreligious teaching.\n<\/p>\n
(b)\tlands and buildings vested in the
\nCouncil, in respect of which the said tax,
\nif levied, would under the provisions of
\nthis Act be leviable primarily on the
\nCouncil;\n<\/p>\n
(c)\tagricultural lands and buildings (other
\nthan dwelling houses).\n<\/p>\n
(2)\t   Lands and buildings or portion  thereof
\nshall not be deemed to be exclusively
\noccupied and used for public worship or for a
\ncharitable purpose within the meaning of
\nclause (a) of sub-section (1) if any trade or
\nbusiness is carried on in such lands and
\nbuildings or portion thereof or if in respect of
\nsuch lands and buildings or portions thereof,
\nany rent is derived.\n<\/p>\n
(3)   Where any portion of any land or
\nbuilding is exempt from the property tax by
\nreason of its being exclusively occupied and
\nused for public worship or for a charitable
\npurpose such portion shall be deemed to be
\na separate property for the purpose of
\nmunicipal taxation.”\n<\/p>\n
\tIf one analyses the relevant clauses of Section 62(1),
\nlands  and buildings or portions of lands and buildings are
\nexempt from property tax if they are:\n<\/p>\n
(i)\texclusively  occupied by a society or
\nbody for a charitable purpose;\n<\/p>\n
(ii)\tsuch  society or body is supported
\nwholly or in part by voluntary
\ncontributions;\n<\/p>\n
(iii)\tthe said society applies its profits, if any
\nor other income in promoting its objects
\nand does not pay any dividend or bonus
\nto its members,
\nIt is clear that under Section 62(1) of the NDMC Act, if
\nthe appellant-society fulfils these three conditions it is entitled
\nas a matter of right to be exempted from payment of property
\ntax.\tWhere the Assistant Secretary  erred, was in treating the
\nright to exemption in respect of the self-occupied portions of
\nthe appellant’s building as a matter of discretion.   It is not.  It
\nis a matter of right provided of course of the conditions laid
\ndown in\t Section 62(1) are fulfilled by the society.
\nSub-section (2) of Section 62, however, carves out two
\nexceptions to this exemption, namely if (a)  any trade is
\ncarried out in such lands and buildings, or (b) in respect of any
\nportion of such land or building or portion thereof any rent is
\nderived.  In such a case, under sub-section (3), the portion of
\nthe land or building exclusively occupied and used for
\ncharitable purposes under Section 62(1) and the portion,
\nwhich is excepted under sub-section (2) are deemed to be
\nseparate properties for the purpose of municipal taxation.
\nThus the statutory exemption under Section 62(1) is not
\navailable to the society if the building is not self-occupied but
\nis rented out.\tThe section does not make any allowance even
\nif the rental income is used for charitable purposes.  The
\nphrase ‘for a charitable purpose’ only qualifies self occupation
\nunder Section 62(1)(a).\t The appellant’s claim for the benefit
\nof such statutory exemption under Section 62 of the Act in
\nrespect of the rented portion of the building is, therefore,
\nuntenable and the Assistant Secretary had rightly rejected it.
\n\tThe appellant’s reliance on the decision of this Court in
\nMunicipal Corporation of Delhi V. Children Book Trust and
\nAnr.<\/a> ( supra) is misplaced although in that decision, this Court
\nhad construed Section 115(4) (5) and (6) of the Delhi Municipal
\nCorporation Act, 1957 which are verbatim the same as Sections
\n62(1), (2) and (3) of the NDMC Act.  There the Court had
\ndisposed of two appeals.  The first appeal was filed by the
\nCorporation against the Children Book Trust and the second
\nwas by the Safdarjung Enclave Education Society against the
\nCorporation.  As far as\t the appeal filed by the Children Book
\nTrust was concerned,  a portion of the premises occupied by
\nthe Trust was rented out to a Press. The Municipal Corporation
\nhad sought to levy property tax under the Delhi Municipal
\nCorporation Act, 1957 in respect of the entire premises.   The
\nTrust filed a writ petition  claiming total exemption from payment
\nof property tax under Section 115 (4) of the 1957 Act before the
\nHigh Court at Delhi.\tThe writ petition was allowed by the
\nlearned Single Judge who held that the\tTrust was entitled to
\nclaim total exemption from payment of tax under Section 115(4)
\nof the 1957 Act except in respect of that portion which was
\nrented out.  However, the learned Judge held that even from
\nthe rental value, the Trust was entitled to claim exemption in the
\nproportion of the income accruing to it from the publication of
\nchildren’s book which was held to be a charitable purpose.  The
\nDivision Bench partly allowed the  Municipal Corporation’s
\nappeal holding that in view of the mandatory provisions of
\nSection 115(4) of the New Delhi Corporation Act, exemption
\nfrom the payment of property tax could not be allowed in
\nrespect of the area which was rented out or not occupied by the
\nTrust itself for charitable purposes within the meaning of the
\n1957 Act.  The further appeal of the Municipal Corporation
\nbefore this Court was dismissed.  It is to be noted that the Court
\nwas only considering the Municipal Corporation’s appeal in
\nrespect of the portion of the premises which had not been
\nrented out by the Trust.   As far as the rented portion was
\nconcerned, the Court noted “Admittedly, no exemption could be
\nclaimed concerning this portion.  It is the other portions which
\nare otherwise relevant for the purpose of this case”.
\n\t  In the appeal of the Education Society, the Education
\nSociety claimed an exemption in respect of  premises owned by
\nit where a school was being run.    The Society had filed a writ
\npetition challenging an assessment order of the Municipal
\nCorporation.  The writ petition was dismissed by the High Court.
\nThe Education Society then preferred an appeal before this
\nCourt.\tThe contention which was raised before this Court was
\nthat the Society was running the school which was in
\noccupation of the premises and that the giving of education was
\na charitable purpose and, therefore, the society was entitled to
\nexemption under the provisions of Section 115(4) of the Act.
\nThis Court held that the Society could not be said to be
\noccupying the building.\t “The School being a separate entity,
\npremises occupied by the school will belong to it and not to the
\nsociety.  Therefore, the society cannot claim to be in exclusive
\noccupation and use of the land and building in question.”\tIt
\nwas also held that although the imparting of education may be
\na charitable purpose, the Society would have to further show
\nthat education was the primary objective and not the making of
\nprofit.\t   It was also held that unless the society was supported
\nwholly or substantially by voluntary contributions, in view of the
\nproviso to Section 115(4)(a), [Section 62(1)(a) of the NDMC
\nAct] exemption from payment of property tax could not be
\nclaimed.  None of  these findings are relevant for our present
\npurpose.  There is no dispute that the appellant-Society before
\nus  exclusively occupies a portion of the premises for a
\ncharitable purpose and otherwise fulfils the conditions required
\nfor exemption from property tax in respect of such portion.  We
\nare, in this appeal, unlike in the appeals in the Children Book
\nTrust, only concerned with the balance portion of the building
\nwhich has been rented out by the appellant.  It is true that this
\nCourt in Children Book Trust  made an observation that:
\n“.if the profits or income
\nof trade or business is\t devoted to a
\ncharitable purpose and no part thereof is
\ndistributed among the members as
\ndividends or bonus, then that trade or
\nbusiness is a means to an end.\tIt is
\ncharity.\n<\/p>\n
\tBut, if there is a trade or business
\ncarried on in a land or building and its
\nprofits are not applied to a charitable
\npurpose, sub-section (6) says that that
\npart of the land or building where a trade
\nor business is carried on or from which
\nrent is derived, will be subject to tax.”\n<\/p>\n
However, these observations were made in the context of
\nSection 115(4) [Section 62(1) of the NDMC Act)] which
\nenvisages  societies occupying the subject premises, making
\nprofit or deriving income.  The proviso to sub-Section 4, clause\n<\/p>\n
(a) requires  such profits or income to be utilised in promoting
\nthe objects of the society and\tnot to be paid by way of dividend
\nor bonus to the members of the society.\t  It was in that
\nconnection that the Court made the observation quoted above.
\nThe observation would not be relevant to a situation where
\nproperty is not in occupation of the Society at all but is rented
\nout.\n<\/p>\n
Coming to the alternative case of the appellant viz., the
\ngrant of exemption in respect of the tax leviable on the rented
\nportions, although, the Assistant Secretary did not have any
\nother option but to consider the appellant’s claim for exemption
\nin view of the direction of the High Court, no discretion is
\nconferred under Section 62 of the NDMC Act on the Assistant
\nSecretary for granting any exemption to the assessee from any
\nportion of the taxes leviable except to the extent the statute
\nitself provides.\n<\/p>\n
Section 72(1)(e) on which the appellant has relied
\nprovides:\n<\/p>\n
“72(1) The chairperson may, at any
\ntime, amend the assessment list<\/p>\n
(e)\tby making or cancelling any entry
\nexempting any land or building
\nfrom liability to property tax; ”\n<\/p>\n
This section also does not confer any discretion on the
\nChairperson to exempt any property from payment of tax.
\nAll that it does is to empower the Chairperson to give effect
\nto any exemption otherwise granted, by amending the
\nAssessment List.  The power and discretion to grant
\nexemption under the NDMC Act has been conferred on the
\nCouncil under Section 124.\n<\/p>\n
Section 124 provides:\n<\/p>\n
“The Council may, by resolution passed
\nin this behalf, exempt\teither wholly or in
\npart from the payment of any tax levied
\nunder this Act, any class of persons or
\nany class of property or goods.”\n<\/p>\n
\tThe respondents are correct in their submission that
\nunder Section 124, as far as the present controversy is
\nconcerned, the Council’s power must be exercised, if at all, in
\nfavour of   a class of persons or a class of property.\tThis
\npower may be contrasted with the Punjab Municipal Act where
\nexemption may have been allowed,  even in respect of an
\nindividual by  the Committee  under Section 70(2)(c) and the
\nState Government under Section 71.\n<\/p>\n
\tTherefore, while dismissing  the appellant’s appeal in so
\nfar as it has claimed statutory exemption under Section 62 in
\nrespect of the rented portion of the building, we grant the
\nliberty to the appellant-Society to apply to the Council for
\nexemption from payment of taxes leviable in respect of the
\nrented portion.\t It would be open to the Council to resolve
\nunder the provisions of Section 124 to exempt all persons who
\nare similarly situated as the appellant-society\t on the
\napplication of the appellant.  The  Council will dispose of the
\nappellant’s representation after giving the appellants an
\nopportunity of being heard.\n<\/p>\n
\tThere will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Indian Red Cross Society vs New Delhi Municipal Committee & … on 28 April, 2003 Author: R Pal Bench: Ruma Pal, B.N. Srikrishna. CASE NO.: Appeal (civil) 5043 of 2001 PETITIONER: Indian Red Cross Society RESPONDENT: New Delhi Municipal Committee & Ors. DATE OF JUDGMENT: 28\/04\/2003 BENCH: Ruma Pal & B.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-161445","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndian Red Cross Society vs New Delhi Municipal Committee & ... on 28 April, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indian-red-cross-society-vs-new-delhi-municipal-committee-on-28-april-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian Red Cross Society vs New Delhi Municipal Committee & ... on 28 April, 2003 - 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