IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 26100 of 2010(J) -------------------------- PETITIONER(S): --------------- MARTHOMA SYRIAN CHURCH OF MALABAR, REPRESENTED BY THE SABHA SECRETARY, (PRESENTLY VERY REV.K.S.MATHEW) SABHA OFFICE, SCS COMPLEX, THIRUVALLA-1. BY ADV. SRI.H.RAMANAN SRI.ALEX N.MATHEW (KOLLAM) SRI.JAMES JOSE RESPONDENT(S): --------------- 1. THE TAHSILDAR, THIRUVALLA, TALUK OFFICE, THIRUVALLA-689 101. 2. THE REVENUE DIVISIONAL OFFICER, THIRUVALLA-689 101. 3. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------------ WP(C) NO. 26100 OF 2010 -------------------------------------------- Dated this the 31st day of August, 2010 JUDGMENT The petitioner, a Christian Church, is challenging the assessment made against them under the Kerala Building Tax Act, 1975, with respect to a building constructed namely; “Mar Irenaeus Episcopal Silver Jubilee Memorial Home”, which admittedly is being used as Bishops' residence and Retreat. 2. According to the petitioner, the building in question is liable to be exempted under Section 3(1)(b) of the Act, being used principally for religious purposes. However, such a claim for exemption was not put forth before the assessing authority, inspite of receipt of a notice. Contention of the petitioner was that there was no proper notice issued before finalising the assessment, in compliance with the mandatory requirements contained in the Act. It is noticed that the assessment under Ext.P2 was taken up in appeal before the second respondent, which culminated in Ext.P4 order. With respect to contention regarding eligibility for exemption, the second respondent observed that, the building in question could not be considered as a building used for religious purposes because it is used only for residence of the Bishop. According to the petitioner such an observation has no basis on the facts of the case. It is a building owned by 2 WP(C) No. 26100/2010 the church and it is being used as a Retreat centre along with facility provided for residence of the Bishop. Therefore it is principally used for religious purpose is the contention. 3. However, a larger question raised is that, the authority competent to decide the disputed question regarding eligibility for exemption, is not the second respondent but only the State Government. As per Section 3(2) of the Act, if any question arises as to whether any building falls under sub Section 1 of Section 3, it shall be referred for decision of the Government, and the Government have to take a decision after affording an opportunity of hearing to the interested parties. It is contended that in view of the said provision whenever a claim is raised seeking exemption, and if the authority is not convinced of such claim, the matter need be referred for decision of the Government. In the case at hand, it is evident that the claim was raised before the appellate authority. The appellate authority had taken a decision on the claim without referring the matter to the Government, as provided under Section 3(2) of the Act. Hence it is clear that the decision taken by the second respondent lacks from jurisdiction, is the contention. I am inclined to accept the said contention and to direct reference of the matter for decision of the Government. 4. Under the above circumstances, Exts.P2 and P4 orders, 3 WP(C) No. 26100/2010 imposing liability for payment of Building Tax, are hereby quashed. The first respondent is directed to refer the dispute regarding the claim for exemption, for decision of the Government as provided under Section 3(2), if any such reference is received the competent authority in the Government shall take a decision thereof, after affording an opportunity of hearing to the petitioner, at the earliest at any rate, within two months from the date of receipt of such reference. 5. It is submitted that the petitioner had already paid the amounts assessed under Ext.P2. Needless to say that appropriation of that amount will be made subject to final outcome of the reference made as directed above. 6. There is a further grievance raised by the petitioner that steps are being pursued for assessment of luxury tax, under Section 5A of the Act. Since the matter is being referred from decision of the Government, I direct that the proceedings for collection of luxury tax also shall be kept in abeyance till the outcome of the decision by the State Government. C.K. ABDUL REHIM JUDGE dnc