High Court of KeralaSingle Judge2012-06-04Writ petition dismissed; interference declined;...

St. Vincent Diabetic Research Centre, Irinjalakuda v State of Kerala and Others

Case / Petition Number:WP(C).No.12751/2012-T

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon
Judgment Date: 2012-06-04
Court Decision / Holding: The writ petition is dismissed; interference is declined. The court holds that the action is barred by delay and there is no merit in reviving the stale cause-of-action under Article 226.
Final Disposition: Writ petition dismissed; interference declined; petitioner’s challenge to Exts. P4, P5, P8 denied.

Parties to the Case

Appellants / Petitioners

St. Vincent Diabetic Research Centre, Irinjalakuda, represented by its Administrator

Respondents

The State of Kerala, rep. the Secretary, Revenue Department, Government of Kerala, Thiruvananthapuram
Tahsildar, Assessing Authority, Mukundapuram, Irinjalakuda
The Village Officer, Madavanassery Village, Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• Sri J. Julian Xavier
• Sri Firoz K. Robin

Counsels for Respondents

• Sri Shoba Annamma Eapen (Sr. Government Pleader)

Case Synopsis & Summary

The Kerala High Court deals with a writ petition challenging the liability under the Kerala Building Tax Act, filed by St. Vincent Diabetic Research Centre, Irinjalakuda, a hospital claiming charitable activity. The petitioner contends that the building constructed by it is exempt from building tax under Section 3(1)(b) of the Act, and relies on Ext. P2 (dated 14.03.1997) as well as Exts. P3, P6 in the context of Ext. P5 (13.09.2001) demand issued by the Tahsildar. It is argued that Ext. P7 shows the matter was forwarded to the Minister for Revenue and Ext. P8 indicated that if there was a grievance, the petitioner should approach the appellate authority; Ext. P9 (30-04-2012) was filed before the first respondent seeking exemption under Section 3(1)(b). The respondent State maintains the assessment order under Section 5, finalized in 2001 (Ext. P4) with Ext. P5 demand, and asserts the petitioner did not pursue the matter timely; Ext. P8 advised going to appellate authority. The court notes the absence of proof that Ext. P2 was filed before Ext. P4, and that the petitioner slept on its rights for a decade before renewing the petition. Relying on Ravindranath Bose v. Union of India (AIR 1970 SC 470) to reject revival of a stale cause of action, the court dismisses the writ petition, declines interference, and refuses relief sought.

Provisions of Law Cited

Kerala Building Tax Act, Section 5Kerala Building Tax Act, Section 3(1)(b)Kerala Building Tax Act, Section 3(2)Kerala Municipality Act, 1994, Section 281(2)Constitution of India, Article 226

Legal Doctrines & Maxims

Stale cause of action
Discretionary jurisdiction under Article 226 should not be invoked to revive old/ stale actions (Ravindranath Bose v. Union of India, AIR 1970 SC 470)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that its hospital, being charitable, is entitled to exemption under Section 3(1)(b) of the Kerala Building Tax Act. It relies on Exts. P2 (1997), P3, P6 and the communication Ext. P7 regarding forwarding to the Revenue Minister, with Ext. P8 directing recourse to appellate remedies. It seeks directions to refer Ext. P2 to the 1st respondent and to stay recovery per Exts. P4 and P5, while considering Ext. P9. The petitioner asserts that the authorities frustrated its attempts to secure exemption for a long period, and that the delay should be excused by due process and the humanitarian nature of the institution.

Contentions of Respondents

The State contends that the assessment under Section 5 was finalized in 2001 (Ext. P4) with demand (Ext. P5). It asserts lack of proof that Ext. P2 was filed, and notes that Ext. P8 instructed pursuing appellate remedies, which the petitioner ignored for a decade. The respondents argue that the remedy under Article 226 is discretionary and cannot revive a stale cause of action. They emphasize that the petitioner did not pursue the administrative remedy timely and that invoking writ jurisdiction in 2012 is improper.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ravindranath Bose v. Union of India	AIR 1970 SC 470	Positive	Cited to support the proposition that the discretionary jurisdiction under Article 226 cannot be invoked to revive a stale cause of action; representation cannot stretch back the cause of action.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934** ## **WP(C).No. 12751 of 2012 (T)** **---------------------------------------** **PETITIONER:** ## **-------------------** **ST.VINCENT DIABETIC RESEARCH CENTRE, IRINJALAKUDA, REP. BY ITS ADMINISTRATOR.** **BY ADVS.SRI.J.JULIAN XAVIER, SRI.FIROZ K.ROBIN.** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA, REP.THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN- 695 001.** **2. TAHSILDAR, ASSESSING AUTHORITY),** **MUKUNDAPURAM, IRINJALAKUDA, PIN- 680 121.** **3. THE VILLAGE OFFICER, MADAVANASSERY VILLAGE, THRISSUR DISTRICT, PIN- 680 121.** ## **BY SR. GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.12751/2012-T:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE REGISTRATION CERTIFICATE UNDER THE TRAVANCORE COCHIN LITERARILY SCIENTIFIC CHARITABLE SOCIETIES ACT ISSUED BY THE REGISTRAR OF SOCIETIES, THRISSUR.** **EXT.P2: A TRUE COPY OF THE REPRESENTATION DATED 14-03-1997 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE ORDER OF THE ASSESSMENT DATED 9-06-1998. EXT.P4: TRUE COPY OF THE ORDER OF THE ASSESSMENT DATED 13-09-2001 ISSUED BY THE 2[ND] RESPONDENT. EXT.P5: TRUE COPY OF THE NOTICE OF DEMAND DATED 13-09-2001 ISSUED BY THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE REPRESENTATION DATED 8-10-2001 FILED BY THE PETITIONER BEFORE MINISTER FOR REVENUE. EXT.P7: TRUE COPY OF THE LETTER DTD. 09/10/2011 FROM THE OFFICE OF THE MINISTER FOR REVENUE. EXT.P8: TRUE COPY OF THE LETTER DATED 17-09-2002. EXT.P9: TRUE COPY OF THE REPRESENTATION DATED 30-04-2012. EXT.P9(A) TRUE COPY OF THE POSTAL RECEIPT.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON J.** ~~~~~~~~~~~~~~~~~~~~~~~ W.P(C) No. 12751 of 2012 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 4[th] day of June, 2012 ## **JUDGMENT** The liability fixed upon the shoulders of the petitioner vide Ext. P4 assessment order dated 13.09.2001 by the second respondent under Section 5 of the Kerala Building Tax Act (hereinafter referred to as 'Act') followed by the consequential demand by way of Exts. P5 of the same date and the rejection of Ext. P6 claim for exemption by the Government as per Ext. P8 order dated 06.09.2002/17.09.2002 are under challenge in this writ petition. 2. The case of the petitioner is that, the petitioner's hospital is principally engaged in charitable activities and hence the building constructed is eligible for exemption under Section 3 (1) (b) of the Act. The grievance of the petitioner is that, though the petitioner had filed an application in this regard, a copy of which has been produced as Ext. P2 dated _W.P.(C) No. 12751 of 2012_ : 2 : 14.03.1997, was not considered by the second respondent. Reference is also made to Ext. P3 representation dated 09.06.1998 and the subsequent representations, particularly, Ext. P6 dated 08.10.2001 preferred in view of Ext. P5 demand dated 13.09.2001 issued by the 3[rd] respondent. It is stated that eventhough the petitioner was let known that Ext. P6 representation preferred by the petitioner was forwarded to the concerned authority vide Ext P7, nothing transpired in the positive and later, the petitioner was informed as per Ext. P8 communication dated '06.09.2002'/17.09.2002, that the petitioner had to approach the concerned appellate authority under the Statute, if there was any grievance with regard to the assessment order passed by the assessing authority/Tahasildar. 3. Admittedly, the petitioner did not pursue the matter thereafter for a decade and thereafter preferred Ext.P9 representation dated 30[th] April, 2012 before the first respondent with regard to the claim for exemption under _W.P.(C) No. 12751 of 2012_ : 3 : ## Section 3 (1) (b). This writ petition has been filed seeking for the reliefs as given below : “i. To call for the records connected with the case leading to Exts. P4, P5, P8 and quash the same by issuing a writ of certiorari. ii. To issue a writ of Mandamus directing the 2nd respondent to refer the claim of the petitioner as per Ext. P2 that the building is liable to get exemption under Section 3 (1) (b) of the Kerala Building Tax Act, to the 1st respondent. iii. To issue a writ of mandamus or any other appropriate writ or order, directing the 1st respondent to consider and pass appropriate orders on Exts. P6 and P9 keeping in abeyance all further proceedings for recovery pursuant to Exts. P4 and P5. iv. To award cost for theses proceedings. v. To grant such other relief's that may be deemed just and proper by this Hon'ble Court 4. Heard the learned Government Pleader as well. 5. The learned counsel for the petitioner submits that the petitioner will be satisfied, if a direction is given to the first respondent to consider Ext. P9 and pass appropriate orders _W.P.(C) No. 12751 of 2012_ : 4 : therein. But this Court does not find it as a fit case to give such a direction, for the fact that the case projected by the petitioner is only in respect of 'stale cause of action'. The fact that the assessment proceedings were finalized as early as in the year, 2001 vide Ext. P4. dated 13.09.2001 is admitted. Absolutely no proof has been produced to show the filing of Ext. P2 representation before the assessing authority. Ext. P3 is a representation preferred before the Government, seeking for exemption from Property Tax under Section 281 (2) of the Kerala Municipality Act, 1994. Eventhough the petitioner had filed Ext. P6 representation dated 08.10.2001 before the Minister for Revenue, the petitioner was let known vide Ext. P8 dated 06.09.2002/17.09.2002 that the assessing authority had already finalized the proceedings and if at all the petitioner wanted to pursue the matter, he could do so, by approaching the appellate authority. Still the petitioner did not do anything in this regard for a decade and has turned up only after 10 years by filing Ext. P9 representation, to revive _W.P.(C) No. 12751 of 2012_ : 5 : the stale cause. 6. True, there is a provision under the Kerala Building Tax Act, which says that, if any claim for exemption is sought for under Section 3 (1) (b), it is for the concerned authority to have it forwarded to the Government for decision under Section 3 (2). On going by the materials on record, the petitioner has not substantiated the filing of Ext. P2 before the assessing authority, prior to passing Ext. P4 assessment order (or even thereafter) and no proof of filing the same has been produced before this Court. Despite the alleged filing of Ext. P2 in 1997, the petitioner did not approach this Court even after passing Ext. P4 assessment order. 7. As mentioned herein before, the petitioner was alerted of the position, when he filed Ext. P6, by sending Ext. P8 communication as early as on '06.09.2002'/17.09.2002. Then also, the petitioner did not find it fit to move this Court. The petitioner was simply sleeping on an armed chair and the discretionary remedy available under Article 226 of the _W.P.(C) No. 12751 of 2012_ : 6 : Constitution of India shall not be exercised in such circumstances, as explained by the Apex Court in **Ravindranath Bose Vs Union of India (AIR 1970 SC 470).** It has also been held by the Apex Court that filing of a representation will not stretch back the cause to an anterior date, nor can it keep the original cause of action alive, so as to suit to the convenience of the petitioner. In the said circumstances, this Court finds that, the writ petition is in respect of 'stale cause of action' and is devoid of any merit. Interference is declined and the writ petition is dismissed accordingly. Sd/- **P. R. RAMACHANDRA MENON, (JUDGE)** kmd