Rosary Hill Ashram v The State of Kerala and The Tahsildar, Mukundapuram Taluk

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934** ## **WP(C).No. 18827 of 2007 (N)** **----------------------------------------** **PETITIONER(S):** **-----------------------** **ROSARY HILL ASHRAM, KODUNGA, VELLIKULANGARA P.O., THRISSUR REP.BY FR.SUPERIOR K.P.XAVIER.** ## **BY ADV. SRI.P.NARAYANAN** **RESPONDENT(S):** **-------------------------** **1. THE STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, SECRETARIAT THIRUVANANTHAPURAM.** **2. THE TAHSILDAR,** **ASSESSING AUTHORITY, MUKUNDAPURAM TALUK.** **BY GOVERNMENT PLEADER SMT.LILLY K.T.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.18827/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **P1:- COPY OF THE ARGUMENT NOTE DTD. 21.11.04 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.** **P2:- COPY OF THE ORDER G.O.(RT) 1632/07/RD. DTD. 10.4.2007 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.** **P3:- COPY OF PERMANENT REGISTRATION NO.A10-3224/2001 ISSUED BY THE MANAGER, DIC, TRICHUR.** **P4:- SKETCH PLAN SHOWING ALL THE BUILDINGS OWNED BY THE PETITIONER.** **P5:- COPY OF THE CERTIFICATE ISSUED FROM THE ELECTRICITY OFFICE.** **P6:- COPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF MATATHUR GRAMAPANCHAYATH.** ## **RESPONDENT'S EXHIBITS:-** ## **NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **tss** ## **P.R.RAMACHANDRA MENON,J.** ========= = = = = = = = = **W.P.(C) No.18827 of 2007** = = = = = = = == = = = = = Dated this the 2[nd] day of April, 2012 ## J U D G M E N T Correctness and sustainability of Ext.P2 order passed by the first respondent/ Government, rejecting the claim for exemption under section 3 (1) (b) of the Kerala Building Tax Act, but for granting relief only in respect of a small extent, is the subject matter involved in this writ petition. 2. The petitioner is stated as a Charitable Society registered under the Travancore-Cochin, Literary, Scientific and Charitable Societies Registration Act and was functioning elsewhere, till it was set up at the particular spot after purchasing the property in 1996, where there was an old building. So as to suit to the nature of operation and requirements of the petitioner, some additional extension/construction works were pursued, effecting substantial variation to the old building. The petitioner also constructed a small industrial unit, manufacturing 'fruit **W.P.(C) No.18827 of 2007** 2 jams and syrups' and a 'farm house' as well. According to the petitioner, the building is principally being used for the purpose of religious and educational activities and that it consists of a chapel, library, reading rooms and such other facilities, to promote the education being imparted to the students who are coming to the petitioner's institutions for theological/religious studies. 3. On completion of the construction as aforesaid,the second respondent took steps to have the building assessed in terms of the Kerala Builiding Tax Act and a huge liability was mulcted upon the petitioner to an extent of Rs.1,43,700/-, without any regard to the objection from the part of the petitioner that it is entitled for exemption. This made the petitioner to approach this Court by filing W.P.(C)No.17960/01, which was disposed of directing the matter to be referred to the Government as provided under section 3(2) of the KBT Act. 4. It is stated that the petitioner preferred detailed 'notes of argument' before the first respondent, as borne by Ext.P1, in support of its claim . However, without ## **W.P.(C) No.18827 of 2007** 3 regard to the actual facts and figures, the first respondent passed Ext.P2 order dated 18-4-2007, whereby exemption has been granted with regard to a portion of 221.09 sq.m used as 'chapel' and another extent of 53.37 sq.m used for educational purpose. The claim in respect of the other areas was rejected; which made the petitioner to approach this Court, challenging the same. 5. The second respondent has filed a counter affidavit seeking to sustain Ext.P2. With regard to the actual facts and figures, it is stated that different types of building are there in the petitioner's premises and even according to the petitioner, the new construction has been effected as attached to the old building, besides the substantial repairs effected to the old building. The measurement of plinth area was taken in a proper manner and it was after considering all the points raised by the petitioner, that Ext. P2 order was passed by the Government allowing the claim to the extent, it was liable to be entertained, while rejecting the rest. 6. The learned Counsel for the petitioner submits that, **W.P.(C) No.18827 of 2007** 4 the first respondent has proceeded to split up the figures of different areas of the building, instead of treating the same as a 'building' and the 'principal use' . Only some portion, strictly confined to the educational area, and the area occupied by the chapel have been taken to be exempted, while charging the rest. The learned Counsel for the petitioner submits that, the very scheme of the statute is to grant exemption, if the 'building' is principally used for religious,educational or charitable purpose. The learned Counsel also submits that, an assessment reckoning separate areas in the building referring to the different uses, is not contemplated under the statute and if the building is principally used for the educational/religious purposes, the whole building is liable to be exempted. It is also brought to the notice of this Court that various other areas as referred to in Ext.P2 like library, hostel etc. do form part of the educational activities, and as such, the course pursued by the first respondent is quite wrong and unfounded. This however is sought to be rebutted by the learned Government Pleader, referring to Ext.P1 'notes of **W.P.(C) No.18827 of 2007** 5 arguments' submitted by the petitioner, wherein it has been conceded in paragraph 3 that the 'third building' is a library building, which is used by the public. The learned Government Pleader submits that the building admittedly being used for the benefit of the public, exemption sought for is not liable to be granted. 7. With regard to the exemption denied in respect of some other areas, the learned Counsel for the petitioner submits that, existence of a 'car porch' is well conceded in Ext.P2 itself. Same is the position with regard to the 'fire wood area' having an extent of 29 sq.m. Both these areas are even otherwise liable to be exempted, in view of the law declared by this Court as per the decision reported in **Subha Shchandra Babu vs. State of Kerala** ( **2006 (2) KLT 189)** . That apart, by virtue of the mandate under Section 3(1)(b) of the Kerala Building Tax Act, the building principally used for running a factory/workshop is liable to be exempted. In the premises of the petitioner, a 'factory building' is existing as a separate unit, as discernible from the Ext.P4 sketch produced along with the reply affidavit. ## **W.P.(C) No.18827 of 2007** 6 There is no case for the respondents that the said building, used as a factory is attached to the main building. True, the term 'factory' is not defined under the Kerala Building Tax Act. But the statute does not insist that, for providing exemption to such a building, it has to be a 'factory' as defined under the relevant provisions of the Factories Act, 1948. This is more so, in view of the fact that, even a 'workshop' is liable to be exempted, as per the very same provision. 8. This Court finds that there is considerable force in the submissions made by the learned Counsel for the petitioner and that there is some discrepancy/ inconsistency with regard to the figures borne out by the records, particularly as contained in Ext.P2 order and the position reflected from Ext.P4 sketch. The total figure of the different areas mentioned therein, does not tally with the actual extent, which is also a matter to be considered . 9. In the above facts and circumstances, this Court finds that the claim for exemption has to be reconsidered by the first respondent in the light of the above observations. **W.P.(C) No.18827 of 2007** 7 Ext.P2 is set aside and the first respondent is directed to reconsider the matter and pass appropriate orders, in accordance with the law, after hearing the petitioner, as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment The writ petition is disposed of accordingly. **P.R.RAMACHANDRA MENON** . JUDGE smm **W.P.(C) No.18827 of 2007** 8