Daughters of Mary Charitable Society v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942** ## **WP(C).No.10430 OF 2020(C)** ## **PETITIONER/S:** **DAUGHTERS OF MARY CHARITABLE SOCIETY REG.NOT.1072/99, D.M. CONVENT, VENNIYOOR, NELLIVILA P O, VENGANOOR, THIRUVANANTHAPURAM-695523, REPRESENTED BY ITS PRESIDENT.** **BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**SECRETARY**| ||**NEYYATTINKARA MUNICIPALITY,NEYYATTINKARA MUNICIPALITY**| ||**OFFICE, TB JUNCTION-HOSPITAL JCT RD, ALUMMOODU,**| ||**NEYYATTINKARA, KERALA-695121.**| |**3**|**VILLAGE OFFICER,**| ||**KOLLAYIL VILLAGE OFFICE, SWADESHABHIMANI NAGAR,**| ||**NEYYATTINKARA, KERALA-695121.**| |**4**|**TAHSILDAR,**| ||**NEYYATTINKARA TALUK OFFICE, ALUMMOODU, NEYYATTINKARA,**| ||**KERALA-695121.**| |**5**|**TAX OFFICER,**| ||**NEYYATTINKARA TALUK OFFICE,**| ||**ALUMMOODU, NEYYATTINKARA, KERALA-695121.**| ||**R2 BY SRI.R.T.PRADEEP, SC, NEYYATTINKARA MUNC**| ## **OTHER PRESENT:** **DR THUSHARA JAMES R1 ,3, 4,5 SRI R T PRADEEP R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.10430 OF 2020(C)** **2** ## **JUDGMENT** ## **Dated this the 27[th] day of May 2020** The Petitioner, a Society registered under the TravancoreCochin Literary, Scientific and Charitable Societies Act XII of 1955 has approached this Court under Article 226 of the Constitution of India seeking declaration of building bearing No.157 situated in Ward No.XXV of Neyyattinkara Municipality ie., D.M.Convent Chaikkottukonam owned by the petitioner Society to be exempted under Section 3(1)(b) of the Kerala Building Tax Act, 1975 and from Property tax under Section 235(A) of the Municipalities Act, 1994 with a further prayer for quashing Ext.P7 order issued by the 2[nd] respondent as also a writ of mandamus commanding the first respondent to refund the amounts collected towards the building and luxury taxes including the property tax. 2. As per the contents of the writ petition, there exists 22 convents under the petitioner Society wherein nuns are staying and are engaged in religious practices and religious **WP(C).No.10430 OF 2020(C)** **3** functions. The aforementioned pleadings are taken out from the list of the convents marked as Ext.P3. The Society also runs schools, special schools, baal bhavans, balika bhavans and performs social works. The building referred to above is in occupation 560 sq.ft, a home only to the nuns and no other activity ie., the commercial or otherwise is undertaken. It also contains a Novitiate Home for training nuns, lodging spaces and prayer rooms. Reliance has been laid to Residential Certificate issued by the 2[nd] respondent Municipality, Ext.P4. The aforementioned D.M.convent was being assessed to building tax also luxury and property tax as per the provisions of the Kerala Municipality Act and Kerala Building Tax Act, 1975. Petitioner remitted the Building Tax in equal installments till 2019. The representation Ext.P7 has also been made for granting exemption as activity of the petitioner society squarely falls within the amended provisions of Section 235(A) of the Kerala Municipality Act and Section 3(1)(b) of the 1975 Act as wells as Section 3(1)(b) of the Kerala Building **WP(C).No.10430 OF 2020(C)** **4** Tax Act, 1975. Learned counsel appearing on behalf of the petitioner submits that the petitioner was not aware of the exemption granted which is squarely applicable to the convent. On a plain and simple reading of the provisions of Section 3(1) (b) of the 1975 Act, it is principally being used for religious, charitable and educational purposes and it is a home owned to nuns and no other commercial activities is carried out. 3. In support of the contention, he relies upon the Division Bench judgment of this Court in _**Mother Superior v Government of Kerala [2008 (1) KLT 446]**_ whereby the question of imposition of property tax under the erstwhile provisions of Section 235(A) of the Kerala Municipality Act was challenged. It was held that the building and the convent used by the nuns are exempted from the payment of the property tax as there was a chapel. The chapel cannot be run without providing any residence to perform religious duty. 4. On the other hand, Sri.R.T.Pradeep, learned counsel appearing on behalf of the 2[nd] respondent submits that Section **WP(C).No.10430 OF 2020(C)** **5** 235(A) was amended in 2009 and as per the provisions therein, the buildings which are performing public functions and used for incidental purposes are exempted. However, the present case do not fall within the amended provisions of Section 235(1)(A) of the Kerala Municipality Act as the documents annexed with the writ petition prima facie discloses the building is being used only for residential purposes. The representation Ext.P7 is an afterthought neither accompanied by any relevant nor substantial material to bring the case within the aforementioned provision and urges this Court for dismissal of the writ petition. 5. Dr.Thushara James appears on behalf of the respondents and reiterates the arguments as submitted by Mr.R.T Pradeep. 6. Heard the learned counsel for the parties and appraised the paper book. No doubt, the petitioner a registered society providing reliefs to the poor including medical, spread of education, maintaining orphanages, houses **WP(C).No.10430 OF 2020(C)** **6** for benefit of poor, sick, destitute, homeless, aged, disabled, crippled, handicaps, distributes free and subsidized food, clothing etc. The objects also include forestation, water resources development, degeneration, restoration of degraded eco systems, accept donations, incomes, grants acquired by him, purchase, exchange lien, self manage transfer exchange, mortgage, to build, construct houses, structures, building etc.,. But, the certificate Ext.P4 issued by the Neyyattinkara Municipality reflects the building to be a residential building. Any person performs the religious function in the residential building cannot claim an exemption from the payment of property tax, building and luxury tax. Otherwise it would construe that every residential house having the prayer rooms would also be exempted. No religious activity is being run except imparting the nuns which can always be performed in a residential home. Section 3(1)(b) of the Kerala Building Tax Act, 1975 do not bring the case within the exemption zone. Section 3(1)(b) of 1975 Act for the sake of brevity is **WP(C).No.10430 OF 2020(C)** **7** reproduced below. - **“3. Exemptions** -(1) Nothing in this Act shall apply to - a. xxx - b. buildings used principally for religious, charitable or - educational purposes or as factories or workshops.” The cumulative reading of the provisions of law and the observation herein above, it is irresistibly concluded that the petitioner cannot be granted any exemption and submission of the representation would not give a cause of action. It is an attempt to raise cause of action for seeking indulgence of this Court or issuance of direction which as noticed above cannot be issued in the absence of any prima facie material on record. writ petition is devoid of merits and accordingly dismissed. **Sd/-** **AMIT RAWAL** nak **JUDGE** 8 **WP(C).No.10430 OF 2020(C)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE CERTIFICATE OF**| |---|---| ||**REGISTRATION DATED 07.07.1999 OF THE**| ||**PETITIONER SOCIETY UNDER THE TRAVANCORE-**| ||**COCHIN LITERARY, SCIENTIFIC AND**| ||**CHARITABLE SOCIETIES ACT XII OF 1955**| ||**ISSUED BY THE REGISTRAR OF SOCIETIES.**| |**EXHIBIT P2**|**A TRUE COPY OF THE MEMORANDUM OF**| ||**ASSOCIATION OF THE PETITIONER SOCIETY**| |**EXHIBIT P3**|**A TRUE COPY OF THE LIST OF CONVENTS UNDER**| ||**THE PETITIONER SOCIETY**| |**EXHIBIT P4**|**A TRUE COPY OF THE RESIDENTIAL**| ||**CERTIFICATE ISSUED BY 2ND RESPONDENT**| ||**MUNICIPALITY.**| |**EXHIBIT P5**|**A TRUE COPY OF RECEIPTS ISSUED BY 3RD**| ||**RESPONDENT ACKNOWLEDGING THE REMITTANCE**| ||**OF BUILDING TAX BY THE PETITIONER SOCIETY**| ||**AND TRANSLATION OF THE SAME.**| |**EXHIBIT P6**|**A TRUE COPY OF RECEIPTS ACKNOWLEDGING THE**| ||**REMITTANCE OF LUXURY TAX BY THE**| ||**PETITIONER SOCIETY AND TRANSLATION OF THE**| ||**SAME.**| |**EXHIBIT P7**|**A TRUE COPY OF ASSESSMENT ORDER DATED**| ||**13.08.2002 ISSUED BY 2ND RESPONDENT AND**| ||**TRANSLATION OF THE SAME.**| |**EXHIBIT P8**|**A TRUE COPY OF RECEIPTS ISSUED BY 2ND**| ||**RESPONDENT ACKNOWLEDGING THE REMITTANCE**| ||**OF PROPERTY TAX BY THE PETITIONER SOCIETY**| ||**FROM 2002 TO 2016 AND TRANSLATION OF THE**| ||**SAME.**| |**EXHIBIT P9**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**16.08.2009 FILED BY THE PETITIONER**| ||**SOCIETY BEFORE 1ST RESPONDENT AND**| ||**TRANSLATION OF THE SAME.**| |**EXHIBIT P10**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**16.08.2009 FILED BY THE PETITIONER**| 9 **WP(C).No.10430 OF 2020(C)** ||**SOCIETY BEFORE THE 2ND RESPONDENT AND**| |---|---| ||**TRANSLATION OF THE SAME.**| |**EXHIBIT P11**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**09.12.2013 FILED BY THE PETITIONER**| ||**SOCIETY BEFORE THE 5TH RESPONDENT AND**| ||**TRANSLATION OF THE SAME.**| |**EXHIBIT P12**|**A TRUE COPY OF THE UNDATED REPRESENTATION**| ||**FILED BY THE PETITIONER SOCIETY BEFORE**| ||**THE 5TH RESPONDENT AND TRANSLATION OF THE**| ||**SAME.**| |**EXHIBIT P13**|**A TRUE COPY OF THE GO(RT) NO.3133/12/REV**| ||**DATED 04.06.2012 AND TRANSLATION OF THE**| ||**SAME.**|