IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 WP(C).No. 19205 of 2009(U) -------------------------- PETITIONER: --------------- HAZRATH SYED MUHAMMED ARIFUDDIN JILANI ALIAS SYED NOORULLAH SHA CHISTHEE QUARDI NOORI, S/O.HASRATH SYED AHMED MOHIYUDHEEN JILANI SYED NAGERI SHAH JISTHI KADIRI BY REP.P OF ATTORNEY HOLDER THADATHIL SULAIMAN,AGED 55 YEARS,S/O.T.MUHAMMED SAHIB MELUMURI AMSOM,MUTHUR DESOM,PONANI TALUK,MALAPPURAM. BY ADV. SRI.NIRMAL. S RESPONDENTS: --------------- 1. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, (SPECIAL CELL), SECRETARIAT, TRIVANDRUM. 2. THE TAHSILDAR, PONANI TALUK, MALAPPURAM DISTRICT. 3. REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER ADV. MR. P.K. BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 19205 OF 2009 ......................................................................... Dated this the 15th July, 2009 J U D G M E N T The issue involved in this Writ Petition is whether the building, which is a part of the 'Wakf property' and is being administered by the petitioner in his capacity as 'Muthavalli', is entitled to be exempted from the purview of the liability under the Kerala Building Tax Act, by virtue of the enabling provision under Section 3(1)(b) of the Act, since the income from the building is stated as being used for charitable purpose. 2. The case of the petitioner is that the assessment in respect of the building under the Act was completed earlier by the second respondent, but subsequently, the matter was referred to the third respondent, who in turn referred the matter to the first respondent for clarification, as provided under Section 3(2) of the Act. The first respondent answered the position against the petitioner, without giving an opportunity of hearing, which in turn was subjected to challenge before this Court, whereupon, the impugned order was set aside and the matter W.P.(C) No. 19205 OF 2009 2 was directed to be reconsidered after hearing the petitioner. It was accordingly that the matter was reconsidered by the first respondent, leading to Ext. P7, holding that the building in question, which is a three storeyed structure having a plinth area of 900 Sq. M., is being used for commercial purpose; that the rooms are being rented out and that it is not principally being used for any religious, charitable or educational purposes, so as to attract exemption provided under Section 3(1)(b) of the Act. 3. The case of the petitioner is that the income generated from letting out the building is being used for charitable purposes. This contention is negated by the respondents, clearly observing that exemption under Section 3(1)(b) is to be granted on the basis of 'use of the building' and not on the basis of ownership or 'use of income'. The finding and reasoning as given in Ext.P7 are in turn subjected to challenge in the present Writ Petition. 4. The learned Counsel for the petitioner contends that the building in question, which forms part of the Wakf property, is liable to be treated as used for charitable purpose, especially W.P.(C) No. 19205 OF 2009 3 since the income generated therefrom is being utilised for charitable purpose, viz., in running an School at Hyderabad. The factum of running an School at Hyderabad, appointing necessary Staff and Teachers and providing such other infrastructure is sought to be highlighted with reference to Ext.P6 statement of accounts, showing the payment of salary and such other expenses in this regard. However, this document does not show that the expenses met by the petitioner in running the School at Hyderabad is by virtue of the income generated from letting out the building in question. That apart, no other legally acceptable evidence has been let in, along with the present Writ Petition, to persuade this Court to accept the version put forth by the petitioner. The learned Counsel for the petitioner submits that by virtue of the decision rendered by this Court in State of Kerala vs. St. Gregorious Medical Mission (1992 (1) KLT 230) if the income generated from the concerned building is used for any charitable purpose, exemption in respect of the building can be sought for. 5. The learned Government Pleader for the respondents submits that the decision sought to be relied on from the part of W.P.(C) No. 19205 OF 2009 4 the petitioner, as above, stands entirely on a different footing, particularly in view of the black and white difference with regard to the facts and circumstances involved. The above assertion is sought to be substantiated with reference to the decision rendered in Jacob vs. Tahsildar ( 1988 (2) KLT 854) (rendered by a learned Single Judge who was a party to the judgment rendered in the decision in 1992 (1) KLT 230), which clearly shows that the idea and understanding of the petitioner is quite wrong and misconceived. 6. The issue came up for further consideration before this Court in W.P.(C)No.15583 of 2003 (Medical Trust Hospital vs. State of Kerala [2004(2) KLT 139]), wherein a definite finding was rendered by this Court holding that even if the building is owned by a charitable organisation, exemption from building tax will be available, only if the building is principally used for charitable purposes. The above position was reiterated by this Court in St. Mary's Church v. Tahsildar [2005 (2) KLT 43] observing that the application of income earned from building for religious and charitable purpose does not entitle the building for exemption; making it clear that exemption will be W.P.(C) No. 19205 OF 2009 5 available under Section 3(1) of the Building Tax Act only if the building as such is principally used for the purposes referred to therein. 7. It is also relevant to note in this context that the above decisions, viz., 1992 (1) KLT 230 (rendered by a Division Bench) and 2004(2) KLT 139 ( rendered by a Single Bench) were subjected to scrutiny by another Division Bench of this Court in the decision in Thirurangadi Muslim Orphanage Committee vs. Government of Kerala and Another [2007 (2) KHC 822]. After considering the facts and circumstances and the relevant provisions of law, the issue was answered against the assessee and in favour of the Revenue. 8. This being the position, it is no more open to entertain the claim put forth in the present Writ Petition. As such, the Writ Petition fails. No interference is called for and the Writ Petition is dismissed accordingly. 9. The learned Counsel for the petitioner submits that the petitioner is not in a position to satisfy the liability fixed by Ext. P2 in a lump sum and that some breathing time might be given in this regard. Considering the facts and circumstances, the W.P.(C) No. 19205 OF 2009 6 petitioner is permitted to clear the liability cast under Exts.P2 and P2 (a), by way of six equal monthly installments, the first of which shall be effected on or before the 10th of August, 2009, to be followed by similar installments to be effected on or before the 10th of the succeeding months. It is made clear that if any default is committed by the petitioner in clearing the liability as above, the respondents will be at liberty to proceed with further steps for realisation of the entire amount in a lump sum. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk