Rector/Manager, Don Bosco Technical Institute, Vaduthala, Kochi v. Corporation of Cochin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931** **WP(C).No. 2754 of 2005(C)** **-------------------------------------** **PETITIONER(S):** **----------------------** **THE RECTOR/MANAGER, DON BOSCO TECHNICAL INSTITUTE, VADUTHALA, KOCHI.** **BY ADV. MR.K.B.GANGESH** **RESPONDENT(S):** **------------------------** **THE CORPORATION OF COCHIN, REP. BY ITS SECRETARY, KOCHI.** **BY ADV. MR.A.K.SAITHU MOHAMMED .** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 2754/2005-C** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER DATED 19/11/1985 PASSED BY THE DIRECTORATE OF EMPLOYMENT & TRAINING, NEW DELHI.** **EXT.P2: COPY OF THE ORDER PASSED BY THE DIRECTOR OF TRAINING, TVM, DATED 21/10/1991.** **EXT.P3: COPY OF THE APPLICATION FOR EXEMPTION PREFERRED BY THE PETITIONER DATED 05/10/1995.** **EXT.P4: COPY OF THE LETTER DATED 28/11/1996 BY THE PETITIONER TO THE RESPONDENT.** **EXT.P5: COPY OF THE DEMAND NOTICE DATED 28/02/1997 ISSUED BY THE RESPONDENT.** **EXT.P6: COPY OF THE LETTER DATED 25/07/1998 FROM RESPONDENT GRANTING EXEMPTION.** **EXT.P7: COPY OF THE SPECIAL NOTICE OF DEMAND DATED 21/10/2004 ISSUED BY THE RESPONDENT.** **EXT.P8: COPY OF THE REPLY DATED 25/10/2004 PREFERRED BY THE PETITIONER TO THE RESPONDENT.** **EXT.P9: COPY OF THE NOTICE DATED 18/12/2004 ISSUED BY THE RESPONDENT.** ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **V.K.MOHANAN, J.** **---------------------------------------WPC. No.2754 OF 2005 ----------------------------------------** Dated, 16[th] the day of July, 2009 ## JUDGMENT The petitioner, who is the Rector/Manager of Don Bosco Technical Institute, Vaduthala, which is an educational institution, approached this Court with a prayer to issue a writ of certiorari quashing Exts.P7 and P9 demands for property tax issued by the respondent. It is also prayed for a declaration that the petitioner's building bearing No.46/342 A (renumbered as 46/381) is entitled for exemption from property tax under section 235(1)(d) of the Kerala Municipality Act, 1994. 2. Going by the averments of the petitioner, it appears that the petitioner is conducting an educational institution in the building in question. His claim is that the building can be exempted from building tax as envisaged by Section 235(1)(d) of the Kerala Municipality Act, 1994. According to the petitioner, he is the Manager of the Don Bosco Technical Institute, Vaduthala, wherein an I.T.C. is conducting which is recognized by the National Council for Vocational Training and the Department of Industrial training. According to the petitioner, as per Ext.P3 dated 5.10.95, he requested the respondent/Corporation for building tax WPC 2754/05 **-:2:-** exemption. As there was no response to Ext.P3, he preferred Ext.P4 with the same request. According to the petitioner, finally by Ext.P6 dated 25.7.98, exemption was granted, and thereafter, there was no demand for building tax. That being the position, by issuing Ext.P7 dated 21.10.2004, the petitioner was demanded to pay a sum of Rs.5,75,838/- as building tax including the arrears from the assessment year 1997-98 to 2004-2005. Aggrieved by Ext.P7, the petitioner preferred Ext.P8 reply stating that he is conducting an educational institution in the building and he legally entitled for exemption from building tax and also pointing out the fact that as per Ext.P6, the building was exempted from building tax. According to the petitioner, the Corporation finally issued Ext.P9 order overlooking the objection raised by him. It is the above order challenged in this writ petition. 3. I have heard the learned counsel for the petitioner as well as the learned Standing Counsel for the Corporation. 4. The learned counsel for the petitioner submitted that the policy of the legislation is crystal clear and by incorporating specific provision in the statute itself, the building wherein educational institutions are being conducted are exempted from paying tax and therefore, Ext.P7 and P9 are not justifiable. In WPC 2754/05 **-:3:-** support of his contention, the learned counsel placed reliance upon the decision of this Court in **Calicut Institute of Engg. & Technology v. Corporation of Calicut (1990(1) KLT 340).** **5.** On the other hand, the learned Standing Counsel for the Corporation submitted that exemption was granted in the year 1998 as per Ext.P6 in exercise of the powers of the Corporation vested under Section 235(4) of the Act and the above sub-section was subsequently deleted and therefore, at present the Corporation has no option other than to realise the building tax from the petitioner and it was in the above circumstances, Exts.P7 and P9 orders are issued. 6. I have carefully considered the contentions advanced by both the counsels and also perused the materials on record. 7. Admittedly, as evidenced by Ext.P9, the respondent has no dispute regarding the ground on which exemption sought by the petitioner. In Ext.P9, it is specifically stated that, on local inspection, pursuant to the objection raised by the petitioner against the demand notice, it was realised that in the building in question, an institution by name Don Bosco ITC is being conducted and about 280 students are getting training in the said institution. WPC 2754/05 **-:4:-** But the case of the respondent and the counsel appearing for the respondent is that the Kerala Municipalities Act 1994 was amended as per Act 14/99 by which sub-section 4 of Section 235 was deleted and therefore, according to the respondent, building tax can be realised with respect to the buildings even though the same were exempted from paying the building tax on the strength of erstwhile sub-section 4 of Section 235. Thus, according to the respondent, no exemption can be granted to the building of the petitioner in view of Section 235(1) of the Act. 8. The above contention is untenable, in view of Section 235((1)(d) of the Municipalities Act 1994, which reads as : “235. Exemption .- (1) The following buildings and lands shall be exempt from the property tax: (a) xx xx (b) xx xx ( c) xx xx (d) buildings recognized by the Government or registered with the Municipality under this Act and owned and occupied by educational institutions and used only for teaching and libraries open to public.” From a bare reading of the above section, it is obvious that by incorporating the above provision, the statute itself exempted the property from paying tax for the buildings, wherein educational WPC 2754/05 **-:5:-** institutions are housed. I have perused the erstwhile subsection 4 of Section 235. On a reading of the above sub-section, it can be seen that a general authority was given to the local body like Municipality and Corporation for giving exemption to any particular building in accordance with the decision of such local body. By deleting sub-section 4 from Section 235, that power was taken away. That does not mean that no exemption can be granted to the building wherein educational institutions are conducting. As long as Section 235(1)(d) is in force, and it is established that the educational institutions are being conducted in such building, certainly the owner of the building is entitled to get exemption from paying property tax. In the present case, as evidenced by Ext.P9, there is no dispute regarding the ground on which exemption sought by the petitioner. Therefore, the approach of the respondent cannot be legally approved. 9. The learned counsel for the respondent submitted that Ext.P9 order was issued after considering the objection raised by the petitioner and there is an appeal provision, but the petitioner did not challenge Ext.P9 by resorting the statutory remedy and therefore, the petitioner can be directed to file appeal against Ext.P9. WPC 2754/05 **-:6:-** 10. It is true, the petitioner can file appeal against Ext.P9 order. When there is no dispute regarding the ground on which exemption sought, and, when the Corporation has authority, even otherwise when the statute itself gives a right for exemption from payment of property tax on the ground enumerated therein, there is no meaning in relegating the petitioner to pursue his statutory remedy, particularly, when the appellate authority cannot go against the statute which referred and discussed above. 11. In the light of the above facts and circumstances, and the discussion, Ext.P7 and P9 are not legally sustainable and hence, the same are quashed. There will be a declaration to the effect that the petitioner is entitled to get exemption from paying building tax for the building No.46/381 as long as the building is being used for conducting educational institution. The writ petition is allowed accordingly. ## **V.K.MOHANAN, JUDGE** kvm/- WPC 2754/05 ## **-:7:-** **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** Dated:..