Dm Education And Research ... vs The State Of Kerala
2021 Latest Caselaw 7135 Ker

                                 1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE S.V.BHATTI

                                     &

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

                          WA.No.319 OF 2021

  AGAINST THE JUDGMENT IN WP(C) 19543/2019(P) OF HIGH COURT OF
                             KERALA


WRIT APPELLANT/WRIT PETITIONER:

             DM EDUCATION AND RESEARCH FOUNDATION
             A CHARITABLE AND EDUCATIONAL TRUST HAVING ITS
             REGISTERED OFFICE AT NASEERA NAGAR, MEPPADI P.O,
             WAYANAD DISTRICT - 673577.
             REPRESENTED BY ITS AUTHORIZED SIGNATORY AND LAW
             OFFICER, MR. ZALAZI KALLANGODAN.

             BY ADVS.
             SRI.S.SREEKUMAR (SR.)
             SRI.P.MARTIN JOSE
             SRI.THOMAS P.KURUVILLA
             SRI.MANJUNATH MENON
             SRI.P.PRIJITH
             SRI.R.GITHESH
             SHRI.HARIKRISHNAN S.
             SRI.AJAY BEN JOSE

RESPONDENTS/RESPONDENTS:

      1      THE STATE OF KERALA
             REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
             SECRETARIAT, THIRUVANANTHAPURAM - 695001.

      2      THE TAHSILDAR
             VYTHIRI, WAYANAD, PIN - 673576.


OTHER PRESENT:

             SRI MOHAMMED RAFIQ -SR GP

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.319 of 2021              2




                                JUDGMENT

Dated this the 1st day of March 2021 S.V.Bhatti, J.

Writ Petitioner is the appellant.

2. The learned Single Judge, through the judgment under

appeal, declined to admit the writ petition on the ground that the

petitioner has statutory remedy of appeal against Ext.P7 dated

10.6.2019 impugned in the writ petition. The circumstances

necessary for disposing of the appeal are briefly stated thus:

The petitioner claims to be a Charitable and Educational

Trust registered through Document No.214 of 2010 of Kozhikode

Sub Registry dated 4.8.2010. The petitioner claims to be fulfilling

the aims and objects for which the Trust was established and

continued to establish by doing several activities stated in the deed.

The petitioner has been accepted as a charitable institution for the

purpose of income tax and a certificate granting exemption under

Section 80(5)(vi) of the Income Tax Act, 1961, Ext.P2 was issued

and the same is subsisting as on date. Through Ext.P7, the second

respondent assessed the petitioner under the Kerala Building Tax

Act, 1975 and demanded a sum of Rs.1,52,38,800/-.

3. The grievance of petitioner against Ext.P7 is that the

petitioner, claiming the status of a charitable institution, prayed

for exemption of levy of building tax for the area now assessed by

second respondent in Ext.P7 assessment order. Firstly, the case of

petitioner is not considered and secondly, the argument is that

once an objection or plea that petitioner is entitled to exemption

is introduced by the owner/assessee of a building, the second

respondent, according to the dictum laid down by this Court in

the judgments reported in Bhagyodayam Company, Kochi v

State of Kerala1 SH Medical Centre Hospital v State of Kerala2

Clarist Medical Trust of the SH Province v Secretary to Govt.,

Revenue Department3 must refer the matter to the first

respondent and proceed subject to a decision taken in this behalf

by the first respondent. Second respondent, firstly, did not

exercise the jurisdiction in the manner provided by law and

secondly, acted contrary to the ratio laid down by this Court in

the decisions referred to above. Incidentally, it is argued that the

1 2015(1) KLT 34 2 (2014) 11 SCC 381

remedy of appeal under the circumstances is avoidable as order in

Ext.P7 is illegal and contrary to the jurisdiction conferred on R-2.

4. On 10.2.2021, at the request of Senior Government

Pleader Mr.Rafeeque, we have granted time till date to enable to

get instructions whether in the case on hand, the second

respondent has forwarded the application of petitioner for

decision to the first respondent or not.

5. The Senior Government Pleader does not dispute the ratio

laid down by this Court, its applicability to the case on hand, in

the judgments referred to above and referring to the instructions

received in this behalf, it is stated that Ext.P7 is issued

independent of any decision made by the first respondent in this

behalf.

6. Keeping in perspective the above submissions, we are of

the view that the petitioner ought not to be relegated to the

remedy of appeal for there is jurisdictional error in determining

and issuing Ext.P7 by the second respondent. Ext.P7 is issued

contrary to the ratio laid down by this Court in the judgments

referred to above. Hence the Writ Appeal is allowed. Ext.P7 is

set aside.

Second respondent is given liberty to act in accordance with

law and make over the matter to first respondent for decision as

laid down in the judgments referred to above.

This Court has not examined the merits of the case viz.

whether as a matter of fact the claim of the petitioner as a

charitable trust or not. It is for the authorities to examine such

plea by referring to the material and evidence placed by the

petitioner in this behalf and decide the issue.

Writ appeal is allowed with the above observations. No

order as to costs.

Sd/-

S.V.BHATTI

JUDGE

Sd/-

BECHU KURIAN THOMAS

JUDGE

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APPENDIX PETITIONER'S EXHIBITS:

ANNEXURE A TRUE COPY OF LETTER DATED 17.12.2020 ISSUED BY THE VILLAGE OFFICER, MUPPAYINAD.