Kerala High Court
Mother Superior vs State Of Kerala on 8 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:83277
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 39493 OF 2024
PETITIONER:
MOTHER SUPERIOR,
AGED 66 YEARS,
ALPHONSA SADHAN CONVENT, KEERIKKARA, IDUKKI DISTRICT,
PIN - 685533.
BY ADVS.
LIJI.J.VADAKEDOM
ATHUL V. VADAKKEDOM
REXY ELIZABETH THOMAS
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, FINANCE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 THE SUB COLLECTOR,
IDUKKI, COLLECTORATE P.O., IDUKKI, PIN - 685603.
3 TAHSILDAR-PEERMADE,
PEERMADE TALUK OFFICE,PEERMADE, IDUKKI,
PIN - 685531.
4 THE VILLAGE OFFICER,
PEERMADE VILLAGE OFFICE, PEERMADE, IDUKKI,
PIN - 685531.
5 THE SECRETARY,
PEERMADE GRAMA PANCHAYAT, PEERMADE, IDUKKI,
PIN - 685531.
BY SRI.ASWIN SETHUMADHAVAN, SPL.GP
SRI.JOICE GEORGE, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 39493 OF 2024
2
2024:KER:83277
JUDGMENT
The petitioner has approached this Court challenging
Exts.P5 , P5(a) and Ext.P8 proceedings determining the liability of the
petitioner to pay building tax in respect of a building, which the
petitioner claims, is entitled to exemption in terms of the provisions
contained in Section 3(1)(b) of the Kerala Building Tax Act, 1975
(hereinafter referred to as 'the 1975 Act').
2. The learned counsel appearing for the petitioner
submits that the impugned orders are liable to be set aside on a short
ground. It is submitted that though the claim for exemption under
Section 3(1)(b) of the 1975 Act was raised both before the Original
Authority as well as before the Appellate Authority, the claim for
exemption has been rejected without referring the matter for
consideration of the Government as contemplated by the provisions of
sub-section (2) of Section 3 of the 1975 Act.
3. Heard the learned Government Pleader also.
4. Having heard the learned counsel for the petitioner
and the learned Government Pleader and having regard to the fact
that the claim of the petitioner for exemption under Section 3(1)(b) of
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the 1975 Act has been decided without referring the matter to the
Government as contemplated by the provisions of sub-section (2) of
Section 3 of the 1975 Act, I am of the opinion that this writ petition
can be allowed by setting aside Ext.P8 order and restoring the appeal
filed by the petitioner against Exts.P5 and P5(a) to the files of the 2 nd
respondent. It is clear from the decision of a Full Bench of this Court
in Aswirathul Musthaqeem Sangham, Pengattu Kundu v. State of
Kerala and Another [2019(1) KHC 312] that the claim for exemption
can be considered even by the Appellate Authority .
5. Accordingly, this writ petition is allowed by setting
aside Ext.P8 order, as a result of which, the appeal filed by the
petitioner against Exts.P5 and P5(a) will stand restored to the file of
the 2nd respondent. The 2nd respondent shall consider the claim raised
by the petitioner for exemption under Section 3(1)(b) of the 1975 Act
and refer the claim for exemption to the Government for its
consideration as contemplated by the provisions of sub-section (2) of
Section 3 of the 1975 Act. Thereafter, the appeal shall be decided by
the 2nd respondent on the basis of the decision to be taken by the
Government. Before a decision is taken by the Government on the
reference to be made as directed above, the petitioner shall also be
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afforded an opportunity of being heard. If the petitioner has already
paid the 1st instalment of the amount payable in terms of Ext.P5(a),
the recovery of the remaining amount shall remain suspended till a
fresh decision is taken as directed above.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C) NO. 39493 OF 2024
2024:KER:83277
APPENDIX OF WP(C) 39493/2024
PETITIONER EXHIBITS
Exhibit P1 A COPY OF THE BUILDING PERMIT NO.
6988/11 DATED 27.2.2012
Exhibit P2 A COPY OF THE RECEIPT
NO.1220101394/G060804 DATED 30.8.2022
Exhibit P3 A COPY OF THE NOTICE NO.A5-8942/19 DATED
6.11.2019 ISSUED BY THE 3RD RESPONDENT
TO THE THEN MOTHER SUPERIOR
Exhibit P4 A COPY OF THE COMMUNICATION NO.8942/19
DATED 2.7.2020 ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER
Exhibit P5 THE COPY OF THE ASSESSMENT ORDER NO. A5-
8942/19 DATED 17.12.2022 FIXING TAX OF
RS.15,995/-
Exhibit P5(a) THE COPY OF THE PROCEEDINGS NO. A5-
8942/19 DATED 17/12/2022OF THE TAHSILDAR
FIXING LUXURY TAX FROM THE FINANCIAL
YEAR 2013-14 ONWARDS
Exhibit P6 THE COPY OF THE NOTICE DATED 6.10.2023
ISSUED FROM THE OFFICE OF THE 2ND
RESPONDENT TO THE COUNSEL APPEARING ON
BEHALF OF THE PETITIONER
Exhibit P7 A COPY OF THE ARGUMENT NOTE DATED
12.10.2023 SUBMITTED BY THE COUNSEL FOR
THE PETITIONER BEFORE THE 2ND RESPONDENT
(WITHOUT THE ANNEXURES)
2023-D1 DATED 18.8.2024 PASSED BY THE
2ND RESPONDENT
