South Indian Assemblies of God (Malayalam District Council) v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` MONDAY, THE 15[TH] DAY OF JULY 2024 / 24TH ASHADHA, 1946 ``` ``` WP(C) NO. 40586 OF 2018 ``` ## **`PETITIONER:`** ``` SOUTH INDIAN ASSEMBLIES OF GOD (MALAYALAM DISTRICT COUNCIL), ``` ``` A SOCIETY REGISTERED UNDER THE TRAVANCORE COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT 1955 HAVING ITS REGISTERED OFFICE AT PUNALUR, KOLLAM AND REPRESENTED BY ITS SECRETARY REVEREND DR.T.V.PAULOSE, SON OF THOMAS, AGED 53 YEARS, PUNALUR.P.O., KOLLAM, PIN-691305. ``` ``` BY ADVS. V.SURESH SRI.R.HARIKRISHNAN (H-308) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM PIN-695001.`** - **`2 DISTRICT COLLECTOR, COLLECTORATE, KOLLAM.`** - **`3 REVENUE DIVISIONAL OFFICER PUNALUR, KOLLAM DISTRICT, PIN-691305.`** - **`4 TAHASILDAR TALUK OFFICE, PUNALUR KOLLAM PIN-691035.`** - **`5 VILLAGE OFFICER PUNALUR, KOLLAM, PIN-691035.`** ``` SMT.THUSHARA JAMES, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 40586 OF 2018 2 ``` ## **`JUDGMENT`** The petitioner claims to be a religious denomination. It owns a building situated in property bearing Survey Nos.381/3, 381/4, 381/3/1, 381/4/1 of Punalur Village. According to the petitioner, the building is used principally for religious and charitable purposes and is therefore entitled to the benefit under Section 3(1)(b) of the of the Kerala Building Tax Act, 1975 (hereinafter referred to as ‘1975 Act’). The claim of the petitioner for exemption under Section 3(1)(b) of the 1975 Act for an area of 924.50 sq.m. has accepted by the Government by Ext.P1 order dated 30.1.2007. On the basis that additional constructions were made over and above the aforesaid area of 924.50 sq.m., fresh notices were issued to the petitioner under the provisions of the 1975 Act and Ext.P2 Demand Notice was issued for the area found in excess of the area covered by Ext.P1 order of exemption. It appears that the petitioner took up a contention that since the entirety of the building including the additional area was used principally for religious and charitable purposes, the exemption granted by Ext.P1 order should continue for the additional area also. However, that contention of the petitioner was rejected as can be seen from Ext.P8 order ``` WP(C) NO. 40586 OF 2018 3 ``` dated 19.9.2018. 2. The learned counsel appearing for the petitioner would submit that the issue raised in the writ petition is squarely covered in favour of the petitioner by the judgment of the Supreme Court in **Government of Kerala v. Mother Superior Adoration Convent** [2021 (2) KLT 270 (SC)] wherein it was held that even a residential building connected to building which is principally used for religious activities is also entitled to exemption under Section 3(1)(b) of the 1975 Act. It is submitted that in the facts of the present case the Government has already exempted 924.50 sq.m. finding that the said area is entitled to exemption under Section 3(1)(b) of the 1975 Act and any addition or alteration to that area will also be entitled to exemption automatically without the matter being further referred to Government for consideration of the claim for exemption. It is submitted that any other interpretation would lead to an anomalous situation where one part of a building used principally for religious and charitable purposes would be exempted by virtue of Ext.P1 order while another part would not be so exempted. It is submitted that unless the authorities have any case that the additional area is put to some other use, the benefit of the exemption granted by Ext.P1 cannot be taken ``` WP(C) NO. 40586 OF 2018 4 ``` away. It is submitted that the Assessing Authority has no jurisdiction to question the exemption granted by Ext.P1 and therefore the impugned orders are liable to be set aside. The learned counsel also placed reliance on the judgment of this Court in **India Bible College and Seminary v. State of Kerala** [2022 (7) KHC 693] to contend that when the entire building is being used for religious purposes, the authorities would not be justified in denying exemption to certain portions of the building. 3. The learned Senior Government Pleader appearing for the respondents submitted that the petitioner is not entitled to any relief in the present writ petition. It is pointed out from the counter affidavit filed by the 4[th] respondent that the exemption granted by Ext.P1 order has not been touched in the order of assessment/demand issued to the petitioner. It is submitted that after exemption was granted to a building having an extent of 924.50 sq.m.by Ext.P1 order, additional constructions have been effected and the demand for building tax is only in respect of the additional area. It is pointed out that the petitioner did not even raise a claim for the issue to be referred to the Government and instead relied on Ext.P1 which finds that 924.50 sq.m. alone was entitled to exemption from payment of building tax. It is submitted that when additional areas are constructed and the ``` WP(C) NO. 40586 OF 2018 5 ``` Assessing Authorities find that such area is not used for religious purposes, or for charitable activities as contended by the petitioner, it is open to authorities to proceed to determine the building tax payable in respect of the said area notwithstanding the issuance of Ext.P1 order. It is submitted that the law laid down by this Court in **India Bible College** (supra) is not applicable to the facts and circumstances of this case. It is submitted that, in that case a claim for exemption had been raised in respect of the entirety of the building and the Government granted exemption only in respect of certain portions finding that areas such as kitchen, dining hall, staff quarters, car porch etc cannot be granted such exemption. It is submitted that in the facts of the present case, there is not even a claim for exemption under Section 3(1)(b) of the Act in respect of the additional area constructed and the Assessing Authority therefore did not refer the issue to the Government for its consideration. 4. Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader, I am of the opinion that the petitioner is not entitled to any relief principally on the ground that it is for the petitioner to challenge the order by availing the alternate remedies available under the ``` WP(C) NO. 40586 OF 2018 6 ``` 1975 Act. It does not appear from the facts of the present case that the petitioner had raised a claim for exemption for the additional area under the provisions of the 1975 Act. The petitioner had only claimed that by virtue of Ext.P1 order, the exemption should continue for the additional area also. This is certainly not a matter that can be considered by this Court in a writ petition under Article 226 of the Constitution of India. Ext.P1 order extends only to an area of 924.50 sq.m. If the petitioner had a case that additional areas constructed were also entitled to exemption under Section 3(1)(b) of the Act, it was for the petitioner to have raised such contention before the Assessing Authority at the time when the assessment was pending. Though a reading of Ext.P8 suggests that such a claim was later made by the petitioner, the Assessing Authority was functuous officio and could not have passed any order thereafter referring the matter to the Government for consideration as provided under Section 3(2) of the 1975 Act. It is settled law that if the petitioner wishes to raise a claim for the additional area also, the petitioner can do so at the appellate stage as well. Therefore, without going to the question as to whether the petitioner is entitled to exemption of the additional area constructed and permitting the petitioner to raise the claim ``` WP(C) NO. 40586 OF 2018 7 ``` before the Appellate Authority, this writ petition will stand dismissed. Since this writ petition has been pending before this Court from 14.12.2018 till today, it is directed that if the petitioner files an appeal before the Appellate Authority within a period of two weeks from the date of receipt of a certified copy of this judgment, the said appeal shall be decided as if it is filed in time. ``` Sd/- ``` ``` GOPINATH P. JUDGE ``` Sru ``` WP(C) NO. 40586 OF 2018 8 ``` ## **`APPENDIX OF WP(C) 40586/2018`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF ORDER NO.1401/07/REV.DATED`**| ||**`30/1/2007 PASSED BY THE REVENUE DEPARTMENT.`**| |**`EXHIBIT P1(a)`**|**`ENGLISH TRANSLATION OF EXT.P1.`**| |**`EXHIBIT P2`**|**`TRUE COPY OF DEMAND NOTICE NO.B11-4331/2016`**| ||**`DATED 02/05/2017 ISSUED BY THE 4TH`**| ||**`RESPONDENT.`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE NOTICE NO.B11-4331/2016`**| ||**`DATED 3.5.2017 ISSUED BY THE 4TH RESPONDENT.`**| |**`EXHIBIT P3(a)`**|**`ENGLISH TRANSLATION OF EXT.P3 .`**| |**`EXHIBIT P4`**|**`TRUE COPY OF ORDER NO.B11-4331/2016 DATED`**| ||**`4/8/2017 PASSED BY THE 4TH RESPONDENT.`**| |**`EXHIBIT P4(a)`**|**`ENGLISH TRANSLATION OF EXT.P4.`**| |**`EXHIBIT P5`**|**`TRUE COPY OF FILE NO.REV SCI/215/2017 RED`**| ||**`DATED 01/09/2018 PASSED BY THE 1ST`**| ||**`RESPONDENT.`**| |**`EXHIBIT P5(a)`**|**`ENGLISH TRANSLATION OF EXT.P5.`**| |**`EXHIBIT P6`**|**`TRUE COPY OF DEMAND NOTICE NO.B11-4331/2016`**| ||**`DATED 17/09/2018 PASSED BY THE 4TH`**| ||**`RESPONDENT.`**| |**`EXHIBIT P7`**|**`TRUE COPY OF FILE NO REV SC1/215/2015 REV`**| ||**`DATED 25/10/2018 PASSED BY THE 1ST`**| ||**`RESPONDENT.`**| |**`EXHIBIT P7(a)`**|**`ENGLISH TRANSLATION OF EXT.P7`**| |**`EXHIBIT P8`**|**`TRUE COPY OF THE ORDER DATED 19/09/2018`**| ||**`PASSED BY THE 4TH RESPONDENT.`**| |**`EXHIBIT P8(a)`**|**`ENGLISH TRANSLATION OF EXT.P8`**|