Dr. J. Hareendran Nair v. State of Kerala and Tahsildar, Neyyattinkara

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938** ## **WP(C).No. 12029 of 2010 (C)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **DR.J.HAREENDRAN NAIR, MANAGING DIRECTOR, M/S.PANKAJA KASTHURI AYAURVEDA COLLEGE, KATTAKADA THIRUVANANTHAPURAM.** **BY ADVS.SMT.A.K.PREETHA SRI.ANIL NARAYANAN** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE THIRUVANANTHAPURAM.** ## **2. THE TAHSILDAR, NEYYATTINKARA.** ## **BY ADV. GOVERNMENT PLEADER SMT.LILLY K.T.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WPC NO.12029/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: TRUE COPY OF THE CERTIFICATE OF REGISTRATION UNDER THE TRAVANCORE-COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT, 1955.** **EXT.P2: TRUE COPY OF THE CONSENT OF AFFILIATION GRANTED BY THE UNIVERSITY OF KERALA DATED 12.4.2002.** **EXT.P3: TRUE COPY OF THE ORDER GRANTING PERMISSION FOR STARTING THE MEDICAL COLLEGE DATED 28.8.2002.** **EXT.P4: TRUE COPY OF THE STATUTORY REQUIREMENTS PRESCRIBED BY THE UNIVERSITY OF KERALA FOR AFFILIATION.** **EXT.P5: TRUE COPY OF THE GUIDELINES PERTAINING TO THE MINIUM STANDARDS AND REQUIREMENTS FOR AYURVEDA COLLEGES AND ATTACHED HOSPITALS.** **EXT.P6: TRUE COPY OF THE ORDER OF ASSESSMENT ISSUED BY THE 2ND RESPONDENT DATED 6.3.2008.** **EXT.P7: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE RDO, THIRUVANANTHAPURAM.** **EXT.P8: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC 24701/2008 DATED 29.8.2008.** **EXT.P9: TRUE COPY OF THE NOTICE DATED 15.11.2008 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.** **EXT.P10: TRUE COPY OF THE ORDER GO(RT) NO.894/2010/RD DATED 19.2.2010.** **EXT.P11: TRUE COPY OF THE ORDER OF ASSESSMENT PASSED BY THE 2ND RESPONDENT DATED 12.3.2010.** **EXT.P12: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** ## **//True Copy//** **PS to Judge** **Rp** ## **A.M. SHAFFIQUE, J.** ## ============= W.P. (C) No. 12029 of 2010 =================== Dated this, the 17[th] day of May, 2016 ## **J U D G M E N T** Petitioner challenges Ext.P10, an order passed by the Government declining exemption for the Ayurveda College from payment of building tax. The total area involved is 13957.83 M[2] . By Ext.P10 order, Government granted exemption for the following areas. “4. On verification of the connected records it is found that the following area of the building are eligible for exemption. |tion.|tion.|| |---|---|---| |Library-Class room area 2866.70 M2||| |Auditorium No.I|571.38 M2|| |Auditorium No.II|481.06 M2|| |**Total**|**3919.14 M2**|”| 2. It is the contention of the petitioner that in terms of Section 3(1)(b) of the Kerala Building Tax Act, 1975, exemption is available to educational institutions. Medical College, being an educational education, is entitled for exemption It is pointed out that in order to get affiliation for an Ayurveda Medical College, it has to comply with various statutory requirements. Ext.P5 is the ## W.P(C) No.12029/10 ## -:2:- application submitted before the competent authority wherein all the necessary requirements had been clearly specified. The entire building is utilised for the purpose of College and ancillary purposes. In so far as the building is principally used for a College, all ancillary purposes including its hospital and other facilities provided for proper functioning of the College have to be exempted. 3. This issue is covered by the Full Bench judgment of this Court in _**Unity Hospital (P) Ltd. v. State of Kerala**_ (2011 (1) KLT 236). Paras 6 and 7 are relevant, which read as under: _“6. The short question that arises for consideration is whether “educational purposes” referred to in the above Section has only a restricted meaning covering buildings, where students are imparted education; or whether it has a wider meaning covering hostel buildings owned by educational institutions to provide accommodation to students in the premises of the educational institutions. The Division Bench of this Court in the above referred judgment held that “educational purposes” cover only purposes which have integral, immediate and proximate connection to education. In the reference order, another Division Bench of which one of us is a member [CNR(J)], took the view that the above test laid down by the other_ ## W.P(C) No.12029/10 ## -:3:- _Division Bench in the earlier judgment is satisfied at least in respect of hostels run by nursing schools and medical educational institutions and probably mistake is there only in the conclusion drawn in that judgment. What we notice is that the Division Bench while deciding the matter did not consider the educational Regulations of the Medical Council of India and Nursing Council of India, which make it mandatory that in order to get approval for a medical college or a nursing college, hospital for patients and hostel facilities for students are mandatory. The State also does not controvert this position and in fact all the medical colleges and nursing colleges run in the State including those run by the Government have hospitals of their own or attached hospitals, and have hostels providing accommodation to all students. Except probably few students who hail from the areas very close to the colleges, all the nursing and medical students reside in the hostels attached to their colleges. The students of both medical and nursing colleges require clinical training in hospitals, and students in senior classes are deployed on a turn basis in hospitals. Unless accommodation is provided to the students in the college campus or nearby, it would not be possible for them, particularly for girls, to reach the hospitals attached to the medical and nursing colleges for duty at odd hours in the night. Therefore, the Medical Council of India and Nursing Council of India have made it mandatory for every medical college and nursing college to have hostel facilities, and_ ## W.P(C) No.12029/10 ## -:4:- _without such facility no medical or nursing college will get approval from the Medical Council or Nursing Council of India, and only on their approval, the medical educational institution can get affiliation to the University. So much so, in our view, the test laid down by the Division Bench i.e. integral, immediate and proximate connection of the hostel building with education, is squarely satisfied in the cases of hostels attached to nursing schools and other medical educational institutions which require compulsory hostel facility for students for their approval. We, therefore, hold that wherever hostel is compulsory for approval of a course study or an educational institution by the regulatory body as in the case of medical and nursing colleges, hostel building is an integral part of the educational institution, and so much so, accommodation to students provided in the hostel building is for educational purpose and therefore the hostel building qualifies for exemption from building tax. In view of the above finding, we are unable to agree with the conclusion drawn by the Division Bench i.e. denial of exemption to hostel building attached to the nursing school._ _7. The next question to be considered is whether hostel facility to students provided by other educational institutions, which are not compulsorily required under the educational regulations to provide accommodation to students, is an educational purpose qualifying the hostel buildings for tax_ -:5:- ## W.P(C) No.12029/10 _exemption. In this context, we have to necessarily consider the object and scope of the exemption clause provided in the statute. While learned counsel for the appellants have relied on S.235 of the Kerala Municipalities Act, which provides for exemption to buildings used for educational purposes including hostel buildings owned by the same educational institutions, learned Government Pleader has relied on the decision of the Supreme Court in Municipal Corporation of Delhi v. Children Book Trust, reported in (AIR 1992 SC 1456), where the Supreme Court held that school buildings are not entitled to exemption from municipal tax under the Delhi Municipal Corporation Act. On going through the judgment of the Supreme Court, we notice that the provision for exemption from property tax under the Delhi Municipal Corporation Act is not similar to the provisions of the Kerala Building Tax Act, and so much so, in our view, the decision cannot be applied while deciding the claim of exemption made by the appellants in these cases. Even though S.235 of the Kerala Municipalities Act specifically provides for property tax exemption for hostel buildings owned by the very same educational institutions, there is no specific exemption for hostel buildings in S.3(1)(b) of the Kerala Building Tax Act. Therefore, we have to examine whether “educational purposes” referred to in S.3(1)(b) has only restricted meaning or it has a wider meaning covering all buildings directly or indirectly catering to the needs of student community._ -:6:- ## W.P(C) No.12029/10 _In this context, we have to necessarily consider the general pattern of hostel facility provided by education institutions in the State. In the recent past, large number of educational institutions, particularly engineering colleges are established all over Kerala including remote areas and hill stations, where the students admitted are not from local area and they have to necessarily depend on hostel facility to be provided by the educational institution. In fact admissions to medical and engineering colleges are given on central allotment basis and hardly any student can get admission in a college near to his/her house. Therefore, necessarily, the students have to depend on hostel accommodation to pursue their studies. Colleges will not get students if they do not provide hostel accommodation to students near to the College. Therefore, hostel buildings are constructed by educational institutions to attract students to their institutions. Many educational institutions provide only basic facilities like building, electricity and water connections for hostels and in fact, students are running mess on sharing basis. So much so, the State's contention that hostels attached to educational institutions are commercial ventures intended to make profit, in our view, is unacceptable. In order to consider whether hostel provided by an educational institution is for educational purpose or not, we have to consider the consequences if such educational institution does not have hostel facility to provide accommodation to its students. Obviously,_ -:7:- ## W.P(C) No.12029/10 _such educational institutions have to source students locally, which may be possible only in the case of Schools. In fact, thousands of schools and colleges in the State do not have hostel facility because they depend on students from the local area only. However, wherever an educational institution has students from different parts of the State, and Non Resident Indians sending their children for studies in Kerala, necessarily the educational institution has to provide hostel facility to the students. In fact, without hostel facility, many educational institutions will not have required number of students to run it. We, therefore, feel accommodation is a necessary facility, which an educational institution is required to provide to it's students; and so long as the purpose of stay of students in the hostel is to study in the educational institution, the purpose of such building, which is used for accommodation of students, qualifies as educational purpose.”_ Having regard to the fact that the facilities provided by the College are also part of educational institution, the same cannot be denied exemption. Under such circumstances, this writ petition is liable to be allowed and accordingly, Ext.P10 is set aside. It is declared that the entire College which includes hospital and other facilities are entitled for exemption under Section 3(1)(b) of the Kerala Building W.P(C) No.12029/10 -:8:- Tax Act. The Tahsildar shall refund the amount deposited by the petitioner within a period of one month from the date of receipt of a copy of this judgment. Sd/- **A.M. SHAFFIQUE, JUDGE** Rp17/5/2016 _//True Copy//_ _PS to Judge_