IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WA.No. 2090 of 2007() --------------------- (AGAINST THE JUDGMENT IN W.P.(C) NO.15633 OF 2007) APPELLANT(S): PETITIONER IN WPC ----------------------- ALAPPUZHA ANANTHA NARAYANAPURAM THURAVOOR THIRUMALA DEVASWOM, REP. BY ITS PRESIDENT, SRI.RAJKUMAR KAMATH. BY ADV. SMT.R.RANJANIE RESPONDENT(S): --------------- 1. THASILDAR, AMBALAPPUZHA, TALUK OFFICE, AMBALAPPUZHA. 2. THE DEPUTY SECRETARY TO GOVERNMENT, REVENUE (SPECIAL CELL) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT,REVENUE (SPECIAL CELL) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.K.P.PRADEEP. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ------------------------------- W.A.No. 2090 of 2007 ------------------------------- Dated this the 13th day of July, 2010 J U D G M E N T J.Chelameswar, CJ. Aggrieved by the judgment, dated 5.7.2007, in W.P. (C) No.15633/2007, the unsuccessful petitioner therein preferred the present appeal. 2. The appellant is a Devaswom. The writ petition is filed challenging Ext.P4 order of the State of Kerala. The appellant constructed a building and claimed that such building is exempted from the operation of Kerala Building Tax Act, 1975. By Ext.P4 order, the claim of the appellant was rejected and hence the writ petition. A learned Judge of this Court, by the judgment under appeal, dismissed the writ petition. 3. The case of the appellant is that the building which is the subject matter of dispute in the present proceedings is constructed in Mullackal Village and the major activities that goes on in the building, as stated by the written arguments WA.No.2090 of 2007 2 submitted by the appellant before the Government, is as follows:- “The building is an auditorium and it is principally used by the Devaswom for the religious, charitable and educational purposes. The head of the Gowda Saraswatha Brahmin Community is His Holiness Sreemad Sudheendra Thirtha Swamiji. His Holiness, visits the temples very frequently and upon his visits, his public functions, Pravachans and other religious discourses are conducted in the auditorium. The auditorium is used for the various cultural and educational activities relating to the schools. The auditorium is also used for conducting wedding of the poor sections, belonging to the community. The petitioner Devaswom conducts samooha upanayanam once in a month, as a charitable activity for conducting Upanayanam of the male children of G.S.B. Community belonging to poor family. Samooha Upanayan is conducted in this auditorium. The petitioner Devaswom also conducts various poojas, Homams and other ceremonies in connection with the temples in this hall. All these activities are charitable activities including the cultural and educational activities relating to the school. The auditorium is not rented for any purposes. Even if some money is paid by any persons of the community while conducting these functions, the money so received is used as per the aims and objects of the Devaswom as embodied in the scheme.” WA.No.2090 of 2007 3 4. Section 3 of the Kerala Building Tax Act, 1975, declares as follows:- 3. Exemptions – (1) Nothing in this Act shall apply to- (a) buildings owned by the Government of Kerala or the Government of India or any local authority; and (b) buildings used principally for religious, charitable or educational purposes or as factories or workshops. Explanation - For the purpose of this sub- section, “charitable purpose” includes relief of the poor and free medical relief. (2) If any question arises as to whether a building falls under sub-section (1) or under Section 3A, it shall be referred to the government and the government shall decide the question after giving the interested parties an opportunity to present their case. (3) A decision of the Government under sub- section (2) shall be final and shall not be called in question in any Court of law. 5. The claim of the appellant is that in view of the language of sub-section (1)(b) of Section 3, the building in question is exempted from the operation of the Kerala Building Tax Act. Ext.P4 order does not disclose any application of mind WA.No.2090 of 2007 4 nor is there any finding of fact recorded on the various allegations made by the appellant regarding the nature and use of the building. As can be seen from the language of sub-section (1)(b) of Section 3 of the said Act, buildings which are used principally for religious, charitable or educational purposes are out of the purview of the above mentioned Act. To determine whether the particular building is used principally for a religious, charitable or educational purpose, necessarily, the State is required to reach a conclusion on the various factual assertions made by the claimant on the exemption. No such examination appears to have been conducted before passing the order in Ext.P4. 6. It appears from Ext.P4 that there was an earlier direction of this Court in W.P.(C) No.26099/2006 directing that appropriate opportunity be given to the claimant as it had earlier been held by the Deputy Tahsildar that the building was given for rent to marriages and other purposes. The learned Judge, by the judgment under appeal, recorded that Ext.P4 contains a finding WA.No.2090 of 2007 5 that the building in question is let out to rent for conducting marriages and other purposes. A reading of Ext.P4 order do not clearly indicate as to renting out of the building for marriages and other purposes as the pre-dominant activity of the appellant. It can be seen from Section 3 of the Kerala Building Tax Act that to be entitled for exemption under sub-section (1) (b), the building need not be exclusively used for the purposes specified in the said section, but the requirement of law is that the building must be principally used for any one of the purposes enumerated therein. In our opinion, the entire enquiry is misdirected, and therefore, we are of the view that the judgment under appeal is unsustainable. 7. Accordingly, the appeal is allowed, setting aside Ext.P4 order. Respondents are directed to conduct a fresh enquiry in the light of this judgment and pass an appropriate order, after giving an opportunity to the appellant to produce such evidence as the appellant desires and also affording an opportunity of being heard, in accordance with law. WA.No.2090 of 2007 6 We are informed that the during the pendency of the present writ appeal, pursuant to a conditional interim order, the appellant has paid an amount of Rs.50,000/- towards the demand of building tax. In view of our order, as above, we deem it appropriate to direct the respondents to retain the above mentioned amount during the pendency of the enquiry, indicated in our today's order, and on the completion of such enquiry, depending upon the result of the enquiry, the said amount shall either be appropriated by the respondents or refunded to the appellant. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. nj.