Kerala High Court
Charitable Educational And Welfare So, ... vs State Of Kerala on 1 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:81510
WP(C) Nos.30886/2024, 31114/2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
WP(C) NO. 30886 OF 2024
PETITIONER:
MOUNT ZION MEDICAL COLLEGE,
CHAYALODE P.O., ADOOR, PATHANAMTHITTA DISTRICT,
PIN - 680596
BY ADV JESTIN MATHEW
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANATHAPURAM, PIN - 695035
2 DISTRICT COLLECTOR,
PATHANAMTHITTA DISTRICT, COLLECTORATE,
PATHANAMTHITTA, PIN - 689645
3 TAHSILDAR,
ADOOR, TALUK OFFICE, ADOOR, PATHANAMTHITTA
DISTRICT, PIN - 691523
4 DEPUTY TAHSILDAR,
KOZHENCHERRY TALUK, PATHANAMTHITTA, PIN - 689645
5 VILLAGE OFFICER,
ENADIMANGALAM VILLAGE, ADOOR TALUK,
PATHANAMTHITTA, PIN - 691524
6 VILLAGE OFFICER,
KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA, PIN - 689641
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WP(C) Nos.30886/2024, 31114/2024
2
SMT. THUSHARA JAMES (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.11.2024, ALONG WITH WP(C).31114/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:81510
WP(C) Nos.30886/2024, 31114/2024
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
WP(C) NO. 31114 OF 2024
PETITIONER:
CHARITABLE EDUCATIONAL AND WELFARE SO, CIETY,
KOZHENCHERRY PO, KADAMMANITTA, PATHANAMTHITTA
DISTRICT, REPRESENTED BY ITS CHAIRMAN, K.J.
ABRAHAM, PIN - 689649
BY ADV JESTIN MATHEW
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANATHAPURAM, PIN - 695035
2 DISTRICT COLLECTOR,
PATHANAMTHITTA DISTRICT, PIN - 689645
3 TAHSILDAR,
TALUK OFFICE, ADOOR, PATHANAMTHITTA DISTRICT, PIN
- 691523
4 VILLAGE OFFICER,
ENADIMANGALAM VILLAGE, ADOOR TALUK,
PATHANAMTHITTA, KERALA, PIN - 691524
SMT. THUSHARA JAMES (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.11.2024, ALONG WITH WP(C).30886/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:81510
WP(C) Nos.30886/2024, 31114/2024
4
JUDGMENT
These writ petitions have been filed challenging
orders issued by the Assessing Authority under the Kerala
Building Tax Act, 1975 (hereinafter referred to as 'the 1975
Act') determining building tax payable under the said Act in
respect of certain buildings belonging to the petitioners in
these cases.
2. The learned counsel appearing for the
petitioners in both cases would submit that the assessment
is without application of mind. It is submitted that the
petitioner is entitled to an exemption from payment of
building tax in terms of the provisions contained in section
3(1)(b) of the 1975 Act. It is submitted that in respect of
buildings referred to in section 3(1)(b) of the 1975 Act the
provisions of the 1975 Act will not apply and therefore the
petitioner may be permitted to challenge the assessment
order directly before this Court by filing a writ petition
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under Article 226 of the Constitution of India.
3. The learned Senior Government Pleader
submits on instructions that in both these cases the
petitioners filed their returns before the Assessing
Authority under the 1975 Act and did not even raise any
claim for exemption under the provision of section 3(1)(b) of
the 1975 Act. It is submitted that the claim for exemption is
for the first time raised before this Court in this writ
petition and there is no ground made out to interfere with
the order of assessment bypassing the alternate remedy of
appeal under the provisions of section 11 of the 1975 Act.
It is submitted that the petitioner in W.P.(C) No.30886 of
2024 even paid 3 of the installments and thereafter
approached this Court by filing the writ petition. It is
submitted that going by the full bench judgment of this
Court in Aswirathul Musthaqeem Sangham v. State of
Kerala; 2018 SCC OnLine Ker 22415 a claim under
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WP(C) Nos.30886/2024, 31114/2024
section 3(1)(b) of the 1975 Act can be raised even at the
appellate stage and if the petitioner were to raise such
claim the Appellate Authority will consider the matter as
contemplated by the provisions of section 3(2) of the 1975
Act, if necessary by referring the matter to the Government
for its consideration.
4. The learned counsel for the petitioner
would submit in reply that going by the judgment of the
Supreme Court in State of Kerala v. Mother Superior
Adoration Convent; (2021) 5 SCC 602 where buildings
are principally connected with the purpose for which an
exemption is granted under the provisions of section 3(1)(b)
of the Act, such buildings will also be exempt from the levy
of Building Tax. Particular reference is made to the findings
of the Supreme Court in Paragraph 15 of the aforesaid
judgment where it was held:
"15. A reading of the provision would show that
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the object for exempting buildings which are used
principally for religious, charitable or educational
purposes would be for core religious, charitable or
educational activity as well as purposes directly
connected with religious activity. One example will
suffice to show the difference between a purpose
that is directly connected with religious or
educational activity and a purpose which is only
indirectly connected with such activity. Take a
case where, unlike the facts in Civil Appeal No.
202 of 2012, nuns are not residing in a building
next to a convent so that they may walk over to the
convent for religious instruction. Take a case
where the neighbouring building to the convent is
let out on rent to any member of the public, and
the rent is then utilised only for core religious
activity. Can it be said that the letting out at
market rent would be connected with religious
activity because the rental that is received is
ploughed back only into religious activity? Letting
out a building for a commercial purpose would lose
any rational connection with religious activity. The
indirect connection with religious activity being
the profits which are ploughed back into religious
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activity would obviously not suffice to exempt such
a building. But if on the other hand, nuns are living
in a neighbouring building to a convent only so
that they may receive religious instruction there,
or if students are living in a hostel close to the
school or college in which they are imparted
instruction, it is obvious that the purpose of such
residence is not to earn profit but residence that is
integrally connected with religious or educational
activity."
He further contended that in an almost identical case the
Government had by the order marked as Ext.P6 in W.P.
(C).No.31114 of 2024 granted exemption from the payment
of building tax.
5. Having heard the learned counsel for the
petitioners and the learned Senior Government Pleader, I
am of the view that the learned Senior Government Pleader
is right in contending that if the petitioners have a claim
that they are entitled to exemption under section 3(1)(b) of
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the 1975 Act it is for them to raise that contention. It is
admitted before me that such contentions was never raised
before the Assessing Authority and going by the full bench
judgment of this Court in Aswirathul Musthaqeem
Sangham (supra) the claim for such exemption can be
raised even before the Appellate Authority. Therefore, I am
not inclined to consider the contentions taken by the
learned counsel for the petitioners that the buildings in
question or entitled to an exemption of section 3(1)(b) of the
1975 Act, taking into account of the fact that no such claim
for exemption was raised before the original authority.
Accordingly, these writ petitions are disposed of
permitting the petitioners to file statutory appeals under
section 11 of the 1975 Act before the First Appellate
Authority also raising a claim that the buildings in question
are entitled to an exemption under the provisions of section
3(1)(b) of the 1975 Act. If such appeals are filed within a
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period of two weeks from the date of receipt of a certified
copy of this judgment, such appeals shall be treated as
appeals filed in time. If the petitioners raise a claim for
exemption of section 3(1)(b) of the 1975 Act before the
Appellate Authority such claim shall also be considered by
the Appellate Authority in accordance with the law and also
keeping in mind the provisions of sub-section (2) of section
3 of the the 1975 Act. It is made clear that if the
petitioners pay the first of the installments granted by the
Assessing Authority, the recovery of the balance amount
shall be kept in abeyance pending disposal of the appeals to
be filed by the petitioners before the First Appellate
Authority. All questions of law raised are left open to be
considered/urged before the First Appellate Authority.
GOPINATH P.
JUDGE
GBG
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WP(C) Nos.30886/2024, 31114/2024
APPENDIX OF WP(C) 31114/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER OF PERMISSION DATED
18/07/2014 BEARING NO. U.12012/781/2014-ME
(P – II) ISSUED BY THE MINISTRY OF
HEALTH AND FAMILY WELFARE
Exhibit P2 TRUE COPY OF THE RENEWED APPROVAL ISSUED BY
INDIAN NURSING COUNCIL IN FILE NO: 18-
16/8501 DATED 13/10/2023
Exhibit P3 TRUE COPY OF THE LETTER ISSUED BY THE INDIAN
PHARMACY COUNCIL IN THE REF NO. 32-
1153/2014-PCI DATED 30/07/2015
Exhibit P4 TRUE COPY OF THE DEMAND NOTICE BEARING NO.
B1/420975/2023 DATED 20/06/2024 ISSUED BY
THE 3RD RESPONDENT
Exhibit P5 TRUE COPY OF THE REPLY LETTER BEARING NO.
CEWS/MZMC/REF-2/2024 DATED 30/07/2024
SUBMITTED BY THE CHAIRMAN OF CHARITABLE
EDUCATIONAL AND WELFARE SOCIETY
Exhibit P6 TRUE COPY OF THE ORDER NO. 3796/2022/RD
DATED 14/09/2022 THE 1ST RESPONDENT
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WP(C) Nos.30886/2024, 31114/2024
APPENDIX OF WP(C) 30886/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER OF PERMISSION DATED
18/07/2014 BEARING NO. U.12012/781/2014-ME
(P - II) ISSUED BY THE MINISTRY OF HEALTH
AND FAMILY WELFARE
Exhibit P2 TRUE COPY OF THE ORDER OF ASSESSMENT BEARING
NO. B1/142841 - 220488/2022 DATED 25/05/2023
ISSUED BY THE 3RD RESPONDENT
Exhibit P3 TRUE COPY OF THE DEMAND NOTICE BEARING NO.
RRC NO. 2024/6237/03 DATED 03/07/2024 ISSUED
BY 4TH RESPONDENT
Exhibit P3(a) TRUE COPY OF THE DEMAND NOTICE BEFORE
AUCTION NOTICE BEARING NO. RRC NO.
2024/6237/03 DATED 03/07/2024 ISSUED BY 4TH
RESPONDENT
Exhibit P4 TRUE COPY OF THE REPLY LETTER BEARING NO.
CEWS/MZMC/REV-1/2023 DATED 30/07/2024
SUBMITTED BY THE CHAIRMAN OF MOUNT ZION
MEDICAL COLLEGE
Exhibit P5 TRUE COPY OF THE REPLY LETTER NO. MZMC/REF-
3/2024 DATED 12/07/2024 SUBMITTED BY THE
PETITIONER TO THE 4TH RESPONDENT
Exhibit P6 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE
PETITIONER FROM THE PERIOD ON 03/11/2023 IN
DHANLAXMI BANK
Exhibit P7 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE
PETITIONER FROM THE PERIOD ON 30/01/2024 IN
DHANLAXMI BANK
