Delhi High Court
Foundation For Organisational ... vs South Delhi Municipal ... on 16 March, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 16.03.2017
+ W.P.(C) 8467/2015
FOUNDATION FOR ORGANISATIONAL RESEARCH &
EDUCATION FORE SCHOOL OF MANAGEMENT
..... Petitioner
Through Mr. Rakesh Khanna, Senior Advocate
with Mr. Vinod Kumar, Mr. R. K.
Joshi, Mr. Saurabh Joshi, Ms. Mahima
Rathi, Ms. Shefali Jain and Mr.
Bushra Kazim, Advocates
versus
SOUTH DELHI MUNICIPAL CORPORATION & ANR.
..... Respondents
Through Mr. Mukesh Gupta, Standing Counsel
with Mr. Praney Jain, Advocate for
SDMC
Mr. Dhanesh Relan, Ms. Isha Garg
and Mr. Amit Mehta, Advocates for
DDA
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (oral)
1 The petitioner before this Court is the Foundation of
Organisational Research and Education Fore School of Management
(herein after referred to as the FORE) located at Qutub Institutional
WP(C) 8467/2015
Area, New Delhi. On 10.10.2008 respondent no.1 / South Delhi
Municipal Corporation had issued a notification for fixing of rates to
be applied for conversion of mix land use and other charges for
enhanced Floor Area Ratio (FAR) arising out of MPD-2021. The said
notification interalia reads as under:
6 (g) Additional (a) 50% of the updated Zonal market
FAR charges rate of institutional properties for those
for institutional disposed by auction as well as for those
plots i.e. properties which were allotted to
including Private Parties. This is not applicable
hospital plots. to those institutions which were
allotted land @ Rs. 1 for whom no such
charges is recommended.
2 This notification was the subject matter of challenge before a
Division Bench in a batch of writ petitions. Lead matter being WP(C)
No. 9572/2009 titled South Delhi Education Society vs. DDA & Anr.
During the pendency of that petition the respondent / SDMC raised a
demand on the petitioner for a sum of Rs. 2,10,27,645/- as the
additional FAR charges. This demand was honoured by the petitioner
vide payment receipt dated 28.03.2012.
3 During the pendency of these petitions (before the Division
Bench) a clarificatory notification dated 17.07.2012 was issued by the
DDA. Relevant extract of the said notification reads herein as under:
WP(C) 8467/2015
"... No additional FAR charges to be recovered from
educational societies / healthcare and social welfare societies having
income tax exemption.."
4 The batch of writ petitions pending before the Division Bench
(WP(C) No. 9572/2009 & Ors.) were disposed of on 20.07.2012. The
contention of the petitioner in those cases was that they are entitled to
a refund of the FAR charges which had been paid by them in view of
the modified notification of the Department dated 17.07.2012. This
prayer of the petitioner had been acceded to. Relevant extract of the
order passed by the Division Bench in WP(C) No. 9572/2009 & Ors.
read as follows:
" In view of the above notification it is absolutely clear that no
additional FAR charges are to be recovered from the Educational
Societies / Health care and Social Welfare societies having income tax
exemption. As such no additional FAR charges would therefore be
recoverable from the present petitioners. If any of the petitioners have
made deposits in this Court pursuant to any order passed by this
Court the same shall be returned to the respective petitioners. In case
of any Bank Guaratees that may have been furnished on account of
directions of this Court in view of the additional FAR charges, the
petitioners concerned would also be entitled to have the same
revoked."
5 The petitioner being similarly placed has accordingly filed the
present writ petition seeking a refund of the FAR charges which had
been paid by him on 28.03.2012. Submission being that in view of the
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clarificatory notification issued by the Department dated 17.07.2012,
he is entitled to this refund.
6 Counter affidavit was filed by the respondent. Submission is
that the notification dated 17.07.2012 would be prospective and not
retrospective. The petitioner is also outside the period of limitation.
The present petition having been filed in August, 2015 and money
having been deposited by the petitioner in March, 2012 this petition
praying for refund of money would be outside the period of limitation.
Learned counsel for the respondent has also drawn attention of this
Court to an order passed by this Court on 03.09.2015. Attention has
also been invited to the judgment of the Apex Court reported as
(2011) 2 SCC 439 titled Godavari Sugar Mills Ltd. Vs. State of
Maharashtra & Ors. This judgment has been highlighted by the
learned counsel for the respondent to support his submission that in all
cases refund cannot be ordered automatically; it would depend upon
the facts and circumstances of each case. The learned Single Judge on
03.09.2015 had primafacie noted that in view of the judgment supra
(Godavari Sugar Mills Ltd) the present petition is not maintainable.
Moreover the hurdle of limitation has also not been crossed by the
petitioner. Additional submission being that payment made by the
petitioner in March, 2012 not being under any demur or protest this
case has a distinguishable feature qua the judgment relied upon by the
petitioner of the learned Single Judge in WP (C) 1149/2013. Petitioner
is not entitled to a refund.
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7 In rejoinder learned senior counsel for the petitioner disputes
these submissions. His submission is that this petition entails not only
a refund of money which has been deposited by the petitioner but also
his additional submission (which is borne out from his grounds of
appeal) is that the benefit of the notification dated 10.10.2008
followed by a clarificatory notification dated 17.07.2012 is available
to the petitioner and this having a retrospective operation the
petitioner is entitled to the refund of his money. Learned senior
counsel for the petitioner additionally points out that he is covered by
judgment of a learned Single Judge of this Court delivered in WP (C)
No. 1149/2013 (22.11.2013) which judgment has been upheld by the
Division Bench as also the Apex Court.
8 Arguments have been heard. Record has been perused.
9 The petitioner is a non profit managmenet institution. It has
been working with the object of developing new domains of
managerial thought. It is exempted from paying tax under the Income
Tax Act in terms of section 80G. The petitioner is running under the
name of FORE School of Management functioning from B-18, Qutub
Institutional Area, New Delhi. The FAR available to the petitioner
was decided in terms of the MPD-2021. There was a long standing
demand to increase the FAR. Being an educational / social welfare
society having an income tax exemption, no additional FAR charges
are to be recovered from him. The notification dated 10.10.2008
(highlighted supra) as also the subsequent notification dated
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17.07.2012 have been perused. The fact that the petitioner is covered
by the notification dated 17.07.2012 is in fact not disputed.
10 This Court notes that the learned Single Judge while dealing
with WP(C) No. 1149/2013 had a similar issue raised before it. The
contention of the petitioner in that case was also for the return of the
money which had been paid to the Department as additional FAR
charges. The Court had held that the second notification dated
17.07.2012 was applicable to the case of the petitioner and the
payment deposited by him on 24.09.2009 (prior to the notification
dated 17.07.2012) was liable to be refunded to him as this notification
would have a retrospective operation. Admittedly this judgement has
been upheld by the Division Bench while disposing of LPA No.
107/2014 decided on 30.04.2014. The retrospective operation of the
notification dated 17.07.2012 had been upheld. The SLP filed against
that order was also dismissed on 15.09.2014. All this is a matter of
record.
11 The petitioner is definitely entitled to a parity. His case is no
different from the case decided by the Single Judge. In that case the
money had been paid prior to the notification dated 17.07.2012; it had
been deposited on 24.09.2009; the notification had come subsequently
on 17.07.2012. In the instant case also the petitioner had deposited the
money before the Department in March, 2012; this notification (dated
17.07.2012) followed later. The petitioner not having protested at the
time when he had made this payment, this Court is of the view that
this cannot be a hurdle. This protest infact emanates from the
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averments made in the petition. It was admittedly during the pendency
of the writ petitions (before the Divsion Bench WP(C) No. 9572/2009
& Ors.) that this demand of a sum of Rs. 2,10,27,645/- was raised
upon the petitioner; this was on 08.07.2010. The petitioner had
honoured this demand on 28.03.2012. The very fact that this payment
was made after almost two years by itself shows that the petitioner
was aggrieved by this demand raised upon him. Merely because there
is no document to show that this payment was made under protest, an
inference cannot be drawn that the petitioner had made no such
protest. That apart the Division Bench having categorically held that
the notification dated 17.07.2012 would have a retrospective operation
and the benefit of the same must accrue to the persons who had made
payment for the additional FAR; this Court is of the view that the
benefit of that order must enure in favour of the petitioner as well. In
fact the guiding principle which was in the mind of the Division
Bench to interpret as to whether the notification dated 17.07.2012
would have a prospective or a retrospective operation was culled out
in para 16 of the order passed by the Division Bench. The relevant
extract reads herein as under:
"Of the various rules guiding how a legislation has to be
interpreted, is the rule, that unless a contrary intention appears a
legislation is presumed not to be intended to have a retrospective
operation. The idea behind the rule is that a current law should
govern current activities. If we do something today, we do it keeping
in view the law of today and in force and not tomorrow's backward
WP(C) 8467/2015
adjustment of it. Our belief in the nature of the law is founded ont he
bed rock that every human being is entitled to arrange his affairs by
relying on the existing law and should not find that his plans have
been retrospectively upset. The principle of law is lex prospicit non
respicit: law looks forwand not backward. As was observed in the
decision retrospective construction is different. If a legislation confers
a benefit on some persons but without inflicting a corresponding
detriment on some other person or on the public generally, and where
to confer such benefit appears to have been the legislators object, then
the presumption would be that such a legislation, giving it a purposive
construction, would warrant it to be given a retrospective effect."
12 This Court is of the view that the benefit of the retrospective
operation of the aforenoted notification must accrue to the benefit of
the petitioner as well.
13 On the ground of limitation learned senior counsel for the
petitioner submits that a writ petition is not specifically guided by the
law of limitation and for this proposition he had relied upon a
judgement of the Apex Court reported as (2016) 3 SCC 422 KV
Ramachandra Raje Urs (Dead) by legal representative Vs. State of
Karnataka and Ors. On the aspect of limitation, the Apex Court was of
the following view.
"Time and again it has been said that while exercising the
jurisdiction under Article 226 of the Constitution of India the High
Court is not bound by any strict rule of limitation. If substantial issues
of public importance touching upon the fairness of governmental
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action do arise, the delayed approach to reach the Court will not
stand in the way of the exercise of jurisdiction by the Court. Insofar as
the knowledge of the appellant - writ petitioner with regard to the
allotment of the land to Respondent 28 Society is concerned, what was
claimed in the writ petition is that it is only in the year 1994 when
Respondent 28 Society had attempted to raise construction on the land
that the fact of allotment of such land came to be known to the
appellant -writ petitioner."
14 This Court notes that the present writ petition has been filed on
24.08.2015. The notification is dated 17.07.2012. Even if the law of
limitation is strictly applied (which would be applied to a suit and not
applicable to a writ petition) there would be delay of only 38 days.
This Court has ample powers to deal with this aspect of limitation and
the Court in the instant case is of the view that the interest of justice
demands that the prayer has to be answered in favour of the party; the
question of delay would not be a hurdle.
15 Petition is allowed. The petitioner is entitled to a refund of the
amount paid by him i.e. Rs. 2,10,27,645/- . This amount be refunded
to the petitioner within a period of 8 weeks from today failing which
this amount shall be returned to him with intrest at 9% per annum.
16 Petition is disposed of in the above terms.
17 Order dasti under signatures of Court Master.
INDERMEET KAUR, J
MARCH 16th, 2017/A
WP(C) 8467/2015
WP(C) 8467/2015
