IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2754 of 2005(C)
1. THE RECTOR/MANAGER,
... Petitioner
Vs
1. THE CORPORATION OF COCHIN,
... Respondent
For Petitioner :SRI.K.B.GANGESH
For Respondent :SRI.A.K.SAITHU MOHAMMED
The Hon'ble MR. Justice V.K.MOHANAN
Dated :16/07/2009
O R D E R
V.K.MOHANAN, J.
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WPC. No.2754 OF 2005
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Dated, 16th 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
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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
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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.
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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
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institutions are housed. I have perused the erstwhile sub-
section 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.
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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/-
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V.K.MOHANAN, J.
O.P.No.
JUDGMENT
Dated:..