HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J (ORAL)
CM APPL. 8320 & 8321/2012 (EXEMPTION)
1. Allowed, subject to just exceptions.
2. Applications stand disposed of.
W.P.(C) 3972/2012 & CM APPL. 8319/2012
3. By the present petition under Article 226 of the Constitution of India, petitioner has prayed for issuance of an appropriate writ, order or direction for quashing of the Electricity-tax imposed on the petitioner. Petitioner also seeks refund of electricity –tax already deposited. The case of the petitioner in short is that respondent no.2, Delhi Metro Rail Corporation Ltd. has been authorized by the Government of India to undertake development of Airport Metro Express Line; respondent no.2 entered into a Concession Agreement dated 25.08.2008 with the petitioner for design, installation, commissioning operation and maintenance of the WP (C) 3972-2012 Page 1 of 3 line for 30 years. Consequently, the petitioner commenced operation on 23.02.2011. Respondent no.1 has been raising bills for electricity-tax, which stands paid under protest. Counsel for the petitioner submits that in terms of Article 287 of the Constitution of India, petitioner is not entitled to pay the electricity-tax. Article 287 of the Constitution of India reads as under:
“287. Exemption from taxes on electricity. --
Save in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the consumption or sale of electricity (whether produced by a Government or other persons) which is –
(a) consumed by the Government of India, or sold to the Government of India for consumption by that Government; or
(b) consumed in the construction, maintenance or operation of any railway by the Government of India or a railway company operating that railway, or sold to that Government or any such railway company for consumption in the construction, maintenance or operation of any railway, and any such law imposing, or authorising the imposition of, a tax on the sale of electricity shall secure that the price of electricity sold to the Government of India for consumption by that Government, or to any such railway company as aforesaid for consumption in the construction, maintenance or operation of any railway, shall be less by the amount of the tax than the price charged to other consumers of a substantial quantity of electricity”
4. In support of the plea that petitioner will fall in the definition of Railways, counsel for the petitioner has placed reliance on Section 2(32) of the Railways Act. Strong reliance has also been placed on a decision rendered by a Single Judge of this Court in Delhi Metro Rail Corporation Ltd. Vs. Municipal Corporation of Delhi & Ors. [WP(C)3152/2006 decided on 07.05.2008], wherein it has been held by the learned Single WP (C) 3972-2012 Page 2 of 3 Judge that MCD is not entitled to claim property tax from the Railways.
5. Mr.Nayar, learned senior counsel for the petitioner submits that present case is fully covered in fact and law by the abovesaid decision of learned Single Judge of this court. Counsel for the petitioner further submits that despite various representations, the respondent no.1 has failed to pass a reasoned order, especially in the light of the issues raised by them and more so on the basis of law laid down in the case of Delhi Metro Rail Corporation Ltd. Vs. Municipal Corporation of Delhi (Supra).
6. Learned counsel for the petitioner submits that at the first instance respondent no.1 be directed to consider the representation of the petitioner in the light of law of the land and the judgment rendered in the case of Delhi Metro Rail Corporation Ltd. (supra). Learned counsel for the respondent has no objection to the same.
7. Accordingly, petitioner shall make a detailed representation to respondent no.1 with supporting documents and copy of the judgment rendered by learned Single Judge. Respondent no.1 will grant a personal hearing to the petitioner and thereafter will pass a reasoned order. Needless to say, in case the petitioner is aggrieved by the order to be passed, petitioner will be entitled to seek such remedy which may be available in accordance with law. Accordingly, petition [W.P.(C) 3972/2012] and the application [CM APPL. 8319/2012] stand disposed of.
G.S.SISTANI, J
JULY 09, 2012
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