Canossa Convent, Maruthurkulangara, Karunagappally Taluk, Kollam v. State of Kerala and Tahsildar, Assessing Authority, Karunagappally, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938** **WP(C).No. 28967 of 2012 (U) ----------------------------** **PETITIONER: -----------** **CANOSSA CONVENT, MARUTHURKULANGARA, KARUNAGAPPALLY TALUK,KOLLAM, REPRESENTED BY ITS MOTHER SUPERIOR, SR.ELSY CHACKO.** **BY ADV. DR.K.P.PRADEEP** **RESPONDENT(S):** **--------------** **1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE TAHSILDAR, ASSESSING AUTHORITY, KARUNAGAPPALLY, KOLLAM-690573.** **BY GOVERNMENT PLEADER SMT.N.M.JASMINE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 28967 of 2012 (U) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT. P1 : TRUE COPY OF THE ORDER DATED 22.9.1999.** **EXT. P2 : TRUE COPY OF THE JUDGMENT IN O.P.NO.26052/1999 DATED 19.5.2004.** - **EXT. P3 : TRUE COPY OF THE ORDER DATED 5.7.2012 PASSED BY THE 1ST RESPONDENT.** - **EXT. P4 : TRUE COPY OF THE ORDER DATED 5.11.12 PASSED BY THE 2ND RESPONDENT.** - **EXT. P5 : TRUE COPY OF THE ORDER IN G.O.(RT).NO.735/91/RD (TAXES DEPARTMENT) DATED 28.4.1992.** - **EXT. P6 : TRUE COPY OF THE JUDGMENT IN O.P.NO.35206/02 DATED 25.11.2002.** **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **mbr/** ## **K.VINOD CHANDRAN, J. ==================== W.P. (C). No. 28967 of 2012 ----------------------------------------Dated this the 18[th] day of January, 2017** ## **JUDGMENT** The petitioner is aggrieved with the restricted exemption granted by Ext. P3; under Section 3 of the Kerala Building Tax Act, 1975 (for brevity BT Act). The petitioner is a convent, a registered religious congregation principally engaged in various religious, educational and charitable activities. The petitioner has two buildings in its premises having a total plinth area of 1081.1 sq.mtrs. One of the buildings has plinth area of 223.4 sq.mtrs and other 857.7 sq.mtrs., with the latter built in two floors. 2. The petitioner had claimed for exemption from BT Act which was directed to be considered as per Ext.P2. The consideration made at Ext.P3, confining the exemption to certain areas, is challenged herein. The single storied building, which has a plinth area of 223.4 sq.m., used as a W.P.(C) No. 28967 of 2012 2 tailoring school and typewriting school was not exempted. The ground on which the exemption was declined was that they are functioning under the Directorate of Technical Education and Social Welfare Department. Essentially, there is an educational activity going on in the said building, though a vocational education. 3. In this context, the learned counsel for the petitioner relied on **1999 (1) KLT 815** _**Principal, St. Thomas College** v_ _**. State of Kerala,**_ in which, a learned Single Judge of this Court held that exemption under Section 3(1)(2) of the Act cannot be denied on the ground of the educational institution being a parallel college. In the teeth of such declaration, especially considering the fact that the activity carried on is one recognized by the Directorate of Technical Education, this Court is of the opinion that the exemption would have to be reconsidered by the W.P.(C) No. 28967 of 2012 3 Government. It is declared that the training imparted for vocational activities of tailoring and typewriting, recognized by the Directorate of Technical Education and Social Welfare Department, is entitled for exemption under Section 3 of the BT Act. 4. On the claim of the institution being involved in charity; the learned Government Pleader has a contention based on **2014 (1) KLT 316,** _**S.H. Medical Centre Hospital** v._ _**State of Kerala**_ that the mere assertion of a charitable institution being carried on, would not automatically result in a grant of exemption. The Hon’ble Supreme Court has categorically held that mere fact that a building is principally used for charitable purposes is not the determinative test and it would have to be examined as to whether the income derived from the institution is principally applied for charity or not. This Court is of the opinion that W.P.(C) No. 28967 of 2012 4 the said principle may not strictly apply in the present case, especially since the petitioner is also carrying on religious activities and educational activities, which are separately referred to in the provision entitling exemption from Building Tax. 5. With respect to the two storied building, it was factually found that the 1[st] floor consists of the chapel and residential accommodation of the nuns. The entire plinth area of 433.6 sq.mtrs. in the 1[st] floor was exempted. The nursery school and teaching room for typewriting and tailoring carried on in the 1[st] floor was also exempted. The balance portion was dining area and kitchen as also the veranda, which were not exempted by Ext.P3 order. The specific contention taken up by the learned Counsel for the petitioner is that only the plinth area of the training schools and the nursery school was considered for exemption and W.P.(C) No. 28967 of 2012 5 even the veranda was left off. The exercise made under Ext. P3 cannot hence be fully upheld, since it exempts a portion and declines the benefit to other parts. The exemption granted already cannot in any event, be set aside. 6. Admittedly, the petitioner is a religious congregation engaged in religious, educational and charitable works. Reports as relied on by the Government itself indicates that the petitioner is carrying on training schools under the vocational stream imparting training in tailoring and typewriting to persons of the marginalised section of society. There is also a Creche in the ground floor of the two storied building, wherein it is reported that there were 28 kids at the time of inspection. Separate building with the ground floor alone of plinth area of 223.40 sq.mtrs. is also used for tailoring school and typewriting school. A portion of the two storied building in the ground floor is used W.P.(C) No. 28967 of 2012 6 as a dispensary, which has not been considered for exemption on the ground that proper medical facilities for treatment is not available. The dispensary carried on, need not have such facilities as would be found in a hospital and the provision is only intended as a charitable purpose again, for the marginalised sections of society. In such circumstances, this Court is of the opinion that the issue has to be considered afresh on the basis of the declaration made and also on the basis of the declaration in Writ Appeal No. 601 of 2014 of a Division Bench dated 29.09.2015, in which it has been held so: _“Para 4. The aforesaid factors clearly show that nuns stay in different rooms in the ground floor and in the first floor. The single building houses a church as well. The first floor also has library, counselling hall and a training hall for tailoring classes. Taking the entire extent of the ground floor and the first floor together and having a pragmatic view of the entire facts situation, it needs to be understood that when nuns reside, they have to have the necessary requisites to support a collective social living. Existence of a_ W.P.(C) No. 28967 of 2012 7 _dining hall, chapel and kitchen in the ground floor only points out the fact that there is a collective social living of the nuns in the building, which also houses chapel. They also extend counselling to women, particularly of old age and also to mentally challenged, who have different disorders. They also extend an arm of help to the local marginalised women to provide an opportunity to make a living through tailoring. There is no material with the Government, or even a suggestion, that any income is derived from any portion of the building either by way of rent or through commercial activity. With these materials, it was abundantly fit case where the entire building ought to have been taken as comprehensive one which is put principally to religious and charitable activities. There is no other way of looking. On the totality of the facts and circumstances, any other conclusion would be destructive of the entire factual scenario. We, are, therefore, unable to accept the approach adopted under the impugned judgment to point out that 50% of the plinth area of the building has to be exempted. Hence, we are of the view that the decision rendered by the Government through Ext. P4 and that of the learned single Judge affirming it do not stand on the basis of the indisputable facts. The appellant/writ petitioner was entitled to complete exemption for the building in question from the provisions of the KBT Act.”_ 8. The writ petition hence stands allowed setting aside Ext.P3 to the extent it declines exemption to the W.P.(C) No. 28967 of 2012 8 building having only ground floor and the portion of the second floor building in the other building. The issue shall be considered afresh after affording an opportunity of hearing to the petitioner. The petitioner shall produce the copies of the judgments before the authority considering the issue. The assessment order shall be kept in abeyance till orders are passed by the Government as directed above. The writ petition is disposed off accordingly. **sd/K.VINOD CHANDRAN JUDGE** SKS //TRUE COPY// P.A. TO JUDGE