Mary Matha D.M. Convent vs State Of Kerala
2024 Latest Caselaw 31993 Ker

Kerala High Court

Mary Matha D.M. Convent vs State Of Kerala on 7 November, 2024

Author: P Gopinath

Bench: P Gopinath

                                                    2024:KER:82976

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
   THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
                       WP(C) NO. 39040 OF 2024
PETITIONER:
          MARY MATHA D.M. CONVENT,
          SULTAN BATHERY, SULTHAN BATHERY P.O.,
          WAYANAD, PIN - 673 592,
          REPRESENTED BY ITS PROVINCIAL SUPERIOR.

          BY ADVS.
                     NIRMAL V NAIR
                     M.ANEESH
                     ENCIL K. SABU
                     AMMU AJAY



RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
          REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
          PIN - 695 001.

    2     DISTRICT COLLECTOR,
          CIVIL STATION, KALPETTA, KALPETTA NORTH P.O.,
          WAYANAD DISTRICT, PIN - 673 122.

    3     REVENUE DIVISIONAL OFFICER,
          REVENUE DIVISIONAL OFFICE, MANANTHAVADY P.O., WAYANAD,
          PIN - 670 645.

    4     TAHSILDAR,
          TALUK OFFICE, SULTHAN BATHERY TALUK,
          SULTHAN BATHERY P.O., WAYANAD, PIN - 673 592.

    5     VILLAGE OFFICER,
          SULTAN BATHERY VILLAGE OFFICE, SULTAN BATHERY P.O.,
          WAYANAD, PIN - 673592

          BY ADV. THUSHARA JAMES (SR GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                  2024:KER:82976
WP(C) 39040/2024                 2




                         JUDGMENT

The petitioner has approached this Court challenging

Exts.P3 and P4 orders, finding that the petitioner is liable to

pay One Time Building Tax under the provisions of the

Kerala Building Tax Act, 1975 (hereinafter referred to as the

'1975 Act') as also luxury tax under the provisions of

Section 5A of the very same enactment.

2. It is the case of the petitioner that the petitioner is

entitled to an exemption from payment of building tax and

also from the payment of luxury tax in terms of the

provisions contained in Section 3(1)(b) of the 1975 Act. The

learned counsel appearing for the petitioner relies on the

judgment of the Supreme Court in Government of Kerala

and Another v. Mother Superior Adoration Convent;

2021 (2) KHC 188, in support of his contention.

3. The learned Senior Government Pleader submits

that the petitioner has directly challenged the order of the

original authority (assessing authority) under the 1975 Act

in a writ petition before this Court. It is submitted that the 2024:KER:82976

petitioner is entitled to file an appeal against Exts.P3 and P4.

It is submitted that there is nothing on record to indicate

that the petitioner had ever raised a claim for exemption

before the original authority. It is submitted that going by

the Full Bench judgment of this Court in Aswirathul

Musthaqeem Sangham v. State of Kerala; 2018 SCC

OnLine 22415, the claim for exemption can be entertained

even at the state of first appeal, and if such a claim were to

be raised by the petitioner, the First Appellate Authority can

consider the same in terms of the provisions contained in

Sections 3(1)(b) and 3(2) of the 1975 Act.

4. Having heard the learned counsel for the petitioner

and the learned Senior Government Pleader, I am of the

view that this writ petition can be disposed of directing that

if the petitioner were to file a consolidated appeal or

separate appeals against Exts.P3 and P4 orders and if the

petitioner were to take a contention that the petitioner is

entitled to exemption in terms of the provisions contained in

Section 3(1)(b) of the 1975 Act, the Appellate Authority shall

consider such claim and take a decision thereon, if 2024:KER:82976

necessary, after following the procedure contemplated by

sub-section (2) of Section 3 of the 1975 Act. It is made clear

that the petitioner shall be entitled to maintain an appeal

only after paying the first instalment of building tax as

specified in Exts.P3 and P4. If the petitioner pays the first

instalment and files an appeal/separate appeals as directed

above, the recovery of the remaining amounts shall remain

suspended till the matter is decided by the First Appellate

Authority.

Writ petition ordered accordingly.

Sd/-

GOPINATH P. JUDGE ats 2024:KER:82976

APPENDIX OF WP(C) 39040/2024

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE BUILDING PERMIT NO.

B.A. 187/14-15 DATED 14-8-2014 ISSUED BY THE SECRETARY OF THE ERSTWHILE SULTAN BATHERY GRAMA PANCHAYAT.

Exhibit P2 A TRUE COPY OF THE EXTENSION PLAN OF THE EXISTING BUILDING DATED NIL.

Exhibit P3 A TRUE COPY OF THE ORDER NO.

TLKSBY/910/2021-D2 DATED 6-6-2024 ISSUED BY THE 4TH RESPONDENT.

Exhibit P4 A TRUE COPY OF THE ORDER NO.

TLKSBY/910/2021-D2 DATED 22-6-2024 ISSUED BY THE 4TH RESPONDENT.

Exhibit P5 A TRUE COPY OF THE ORDER TLKSBY/910/2021-D2 DATED 6-6-2024 ISSUED BY THE 4TH RESPONDENT DEMANDING HOUSING PROJECT CESS.

Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 9-7-2024 IN W.P.(C). NO. 28336 OF 2024 AND CONNECTED CASES ON THE FILES OF THIS HONOURABLE COURT.

Exhibit P7 A TRUE COPY OF THE JUDGMENT DATED 24-1-2024 IN W.P.(C). NO. 20621/2022 ON THE FILES OF THIS HONOURABLE COURT.