TMI Blog2008 (5) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that there can be two separate enactments dealing with the same subject matter and the question which one of the two enactments will prevail on a particular issue or question, may arise in a given case, but the said question is not relevant and material for the present controversy. Therefore, it is not possible to hold and accept the contention of the respondent corporation that the petitioner ceases to be railway administration within the meaning of Section 2 (32) of 1989 Act in view of definition clauses in 2002 enactment or as 2002 Act stands enforced. Moreover, the expression Railway i s generic in nature and the expression Metro Railway is a mere specie. Metro Railway will be included and forms part of the generic expression Railway . Anything which falls within the definition of term Railway cannot be taxed by the respondent under the Delhi Municipal Corporation Act, 1957 in view of Section 184 of the 1989 Act. However, the respondent is entitled to tax under the Delhi Municipal Corporation Act, 1957 the assets and properties, which do not fall and are not Railways within the meaning of Section 2 (31) of the 1989 Act. A bare reading of the Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is liable to pay property tax and other taxes under the provisions of Delhi Municipal Corporation Act, 1957. The petitioner had earlier filed Civil Writ No. 2065/2002, which was allowed vide order dated 4th April, 2002 with the direction to the Assessing Authority to decide the question whether the petitioner is liable to pay tax in view of Section 184 of the Railways Act, 1989 (hereinafter referred to as the 1989 Act, for short). After remand, the Additional Assessor and Collector passed another assessment order but again without deciding the question whether Section 184 of the 1989 Act was attracted. This Court in Civil Writ No. 1531/2003 quashed the said assessment order and remanded back the matter for determination whether the petitioner is liable to pay tax or is protected under Section 184 of 1989 Act. 2. The assessment order now passed by the Assessor and Collector on 30th March, 2005, in paragraph 3 refers to Section 184 of the 1989 Act, but the entire order is silent and does not specifically deal with the said Section. The Assessor and Collector has examined Section 119 of the Delhi Municipal Corporation Act and corporate entity of the petitioner, which makes it l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir funds. This, however, is subject to the condition that the Central Government can by a notification declare that railway administration shall be liable to pay tax as specified in the said notification. Exemption from tax by a local authority is granted to railway administration . This exemption is notwithstanding any other law to the contrary. Thus, notwithstanding the provisions of Delhi Municipal Corporation Act, 1957, a railway administration is not liable to pay tax under the said enactment, in view of Section 184 of the 1989 Act. It may be noted here that the Delhi Municipal Corporation Act, 1957 is prior in point of time and it was not contended by the respondents that Section 184 of the 1989 Act will not over ride the provisions of Delhi Municipal Corporation Act, 1957. It is also not the case of the respondents that any notification has been issued by the Central Government under Section 184 of the 1989 Act declaring that the Railway Administration is liable to pay tax specified in the notification. 6. The term railway administration has been defined in Section 2 (32) of 1989 Act as under: 2(32) railway administration ' in relation to - (a) a Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay; (d) all rolling stock, stations, officers, warehouses, wharves, workshops, manufactories, fixed plant and machinery, roads and streets, running rooms, rest houses, institutes, hospitals, water works and water supply installations, staff dwellings and any other works constructed for the purpose of, or in connection with, railway; (e) all vehicles which are used on any road for the purposes of traffic or a railway and owned, hired or worked by a railway; and (f) all ferries, ships, boats and rafts which are used on any canal, river, lake or other navigable inland waters for the purposes of the traffic of a railway and owned, hired or worked by a railway administration, but does not include- (i) a tramway wholly within a municipal area; and (ii) lines of rails built in any exhibition ground, fair, park, or any other place solely for the purpose of recreation; 9. The word Railway as per the above definition means Railway or any portion thereof, but the same should be used for public carriage of passengers, goods and includes various properties as specified in Clauses (a) to (f) therein. The term Railway , in the first part of the definition clause relies upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents relied upon by the respondent rather than supporting the respondent, support the case of the petitioner. In Feroze N. Dotivala v. P.M. Wadhwani and Ors. , which was relied upon by the respondent, it has been held that two similar terms may not mean the same thing if their definitions in two different statutes are at variance with each other. Two similar terms can have two different meanings under two enactments depending upon the context in which the said terms have been used. Therefore, it will not be proper to import the definition of the terms Metro Railway , etc. used in 2002 Act into 1989 Act. 1989 Act is a separate enactment and it's clauses have to be interpreted as per the definition given to the said term in the said enactment. Recourse to 2002 enactment is not permissible to define Railway Administration under 1989 Act. It is also equally well settled that there can be two separate enactments dealing with the same subject matter and the question which one of the two enactments will prevail on a particular issue or question, may arise in a given case, but the said question is not relevant and material for the present controversy. Therefore, it is not possible t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 Act, reference to Indian Railways Act, 1890 will mean reference to 1989 Act. The contention of the respondent Corporation that Section 43 of the 1978 Act has become dead and lifeless because it refers to Indian Railways Act, 1890 and not to 1989 Act is misconceived. As noticed above, when 1978 Act was enacted, Indian Railways Act, 1890 was in force but subsequently, 1989 Act was enforced with the earlier enactment being repealed. Similarly, for the purpose of Section 2(2) of 1978 Act reference will have to be made to 1989, Act for defining all words and expressions, which have not been defined in 1978 Act. 15. Logically, it also follows that when Section 104 of the 2002 Act makes reference to 1978 Act, it also makes reference to Section 43 of 1978 Act and therefore to 1989 Act. Section 104 of 2002 Act reads as under: 104. Application of other Acts.- Save as otherwise provided in this Act, the provisions of this Act shall be in addition to and not in derogation of the Metro Railways (Construction of Works) Act, 1978 (33 of 1978). 16. Thus, the said Section states that provisions of 2002 Act are in addition and not in derogation of the 1978 Act. The provisions of 1978 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is entitled to exemption under the said Section. The impugned orders passed by the respondents holding that the petitioner is liable to pay tax under the provisions of Delhi Municipal Corporation Act, 1957 to this extent is liable to be set aside and quashed. 19. However, it is clarified that this Court has not examined and gone into the question with reference to liability of third parties, other than the petitioner to pay property tax and other taxes. It is open to the respondent to examine agreements and transactions entered into between the petitioner and the third parties to verify and decide whether the said third parties are liable to pay tax. 20. Another aspect which requires consideration is whether and which type of properties qualify and can be regarded as Railway for the purpose of Section 2 (31) of the 1989 Act and whether certain properties belonging to the petitioner do not qualify and cannot be regarded as Railway properties and, therefore, are not entitled to exemption under Section 2 (32) read with Section 184 of the 1989 Act. This aspect has not been examined by the Assessor and Collector and requires detailed scrutiny and examination. Factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth was interpreted. It was held that the definition was exhaustive and, therefore, tobacco seeds cannot be regarded as tobacco). The view taken is also fortified by the decision of the Supreme Court in the case of Sales Tax Officer Kanpur (supra). In the said case, reference was made to definition of Railway in Section 3 (4) of the Indian Railways Act, 1890 for the purpose of deciding whether exemption granted under Section 28A (8) of the Uttar Pradesh Sales Tax Act in favor of Railway Administration was applicable. The question that arose for consideration was whether city booking agencies were Railways for the purpose of Section 28A (8) of the Uttar Pradesh Sales Tax Act. It was held that for a city booking agency to fall within the expression Railways , it must fall within one of the categories mentioned in Clauses (a) to (f) mentioned in Section 2 (31) of 1989 Act or Clauses (A) to (D) of Section 3 (4) of Indian Railways Act, 1890. It was also observed that this question could be decided if the relevant rules, orders and instructions including the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X
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