IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 WP(C).No. 25140 of 2008(P) -------------------------- PETITIONER(S): --------------- PAZHAYA THIRUMALA DEVASWOM, THIRUMALA DEVASWOM, (OLD THIRUMALA) MULLACKAL, ALAPPUZHA. REP.BY ITS PRESIDENT SRI.N.GOPINATH PRABHU. BY ADV. SMT.R.RANJINI RESPONDENT(S): --------------- 1. TAHSILDAR, AMBALAPPUZHA, TALUK OFFICE, AMBALAPPUZHA. 2. THE DISTRICT COLLECTOR, ALAPPUZHA. 3. THE DEPUTY SECRETARY TO GOVERNMENT, REVENUE (SPECIAL CELL) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REP.BY.SECRETARY TO GOVERNMENT, REVENUE (SPECIAL CELL), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. MR.BOBBY JOHN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.25140/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF BYELAWS OF THE COMMITTEE. P2 : COY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE R1 DATED 05/02/2008. P3 : COPY OF DOCUMENTS PRODUCED BEFORE R3. P4 : COPY OF ORDER DATED 04/07/2008. P5 : COPY OF DEMAND NOTICE DATED 24/07/2008. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & K.VINOD CHANDRAN, JJ. .................................................................... WP(C) No.25140 of 2008 .................................................................... Dated this the 14th day of November, 2011. J U D G M E N T Ramachandran Nair, J. This Writ Petition is filed challenging the order of the Government declining to grant building tax exemption for the auditorium owned by the petitioner, which is a Devaswom under the control of Gowda Saraswatha Brahmin community. 2. We have heard learned counsel for the petitioner and learned Government Pleader for the respondents and have also gone through the report submitted by the Tahsildar, Ambalappuzha. 3. The main contention raised by the petitioner is that the petitioner being a Devaswom is a religious cum charitable institution and so much so, the auditorium owned by it is entitled to building tax exemption under Section 3(1)(b) of the Kerala Building Tax Act, 1975. Learned Government Pleader WP(C) No.25140/2008 2 on the other hand contended that on enquiry, it was found that the auditorium was let out for conducting marriages, meetings on rental basis, and so much so, the building is primarily used for commercial purposes attracting building tax. He has also relied on the report submitted by the Tahsildar stating that the Building is let out on rent for various purposes like marriages, meetings etc, and the letting out is to persons even outside the community of the petitioner. 4. After hearing both sides and after going through the documents, orders and report submitted by the Tahsildar, what we notice is the question raised is covered by large number of judgments of this Court including a Full Bench judgment, wherein this Court has taken a consistent view that building tax exemption is not based on the objective of the organisation, which owns the building, but with reference to the nature of use of the Building. In order to qualify for exemption, the Building should be principally used for religious or charitable purposes defined under the Act. Since WP(C) No.25140/2008 3 the ownership is not the criteria and nature of use is the basis for granting exemption, a building can be granted exemption only when it is used for religious purposes or for charitable purposes or as a workshop or factory. In this case, the petitioner has stated that the Building is used for religious purposes i.e. to hold religious rituals and functions like group upanayana, religious discourses etc. for the members of the community. However, these are not routine use and the Building is such that it is fit to hold meetings and used for conducting marriages. Even though the petitioner does not concede renting out on commercial lines, the petitioner concedes the position that those who take the building on rent are paying donations and not rent. We do not think there is any significance as to whether the rent is accounted as donation or not for treating the use of the Building as commercial. So long as the building is not used predominantly for religious or charitable purposes, which exclude renting out, there is no scope for granting building WP(C) No.25140/2008 4 tax exemption. In view of the factual position stated above and in view of the decision of the Full Bench of this Court in Unity Hospital (P) Ltd. v. State of Kerala, reported in 2011 (1) KLT 236 and the decision of the Division Bench in St.George Orthodox Church v. State of Kerala, reported in 2009(4) KLT 702, we dismiss the WP(C) filed by the petitioner confirming the demand of tax. However, having regard to the fact that the petitioner is a Devaswom, we direct the Tahsildar to waive default interest, provided the entire demand of tax is paid on or before 30/11/2011. This WP(C) is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (K.VINOD CHANDRAN, JUDGE) jg