IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 8173 of 2008(W) --------------------------------------- PETITIONER: --------------------- EBENEZER GOSPEL HALL AND BIBLE INSTITUTE TRUST, POOZHIKKOLE P.O. MANNAR, KOTTAYAM, REP. BY ITS TRUSTEE ALEYAMMA CHACKO. BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY RESPONDENTS: ------------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE TAHSILDAR, TALUK OFFICE, VAIKOM. 4. VILLAGE OFFICER, KADUTHURUTHI. BY GOVERNMENT PLEADER SRI. MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.8173/2008 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE DTD. 4/07/2007 ISSUED BY KADUTHURUTHY PANCHAYATH. EXT.P2: COPY OF REPORT NO.B5 6247/2005/5/2/07 DTD. 19/02/2007 ISSUED BY THE VILLAGE OFFICER, KADUTHURUTHY, EXT.P3: COPY OF G.O.(RT) NO.1989/07/RD DTD. 8/05/2007. EXT.P4: COPY OF G.O.(RT) NO.4648/07/RD DTD.22/11/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ------------------------- W.P.(C).No.8173 of 2008 W ------------------------- Dated this the 11th day of June, 2008. JUDGMENT The petitioner, a religious trust, owns a building in which religious instructions are imparted to students of Pentecostal Mission. There are 52 students, who are taught in the said institution called “Ebenezer Gospel Hall and Bible Institute”. Instructions are imparted to students to enable them to get degrees in Theology, Diploma in Theology and Master of Divinity. There are two buildings in the compound used for religious and institutional purpose, according to the petitioner. The old double storied building numbered as KP/V.301 has a plinth area of 567.25 Sq.m. in the ground floor. It houses the library, principal's room, office room and reception. There are four class rooms in the building. The said building was exempted from payment of building tax and it is not, therefore, the subject matter of dispute in this case. 2. The petitioner also claimed exemption from payment of building tax in respect of the other building, which is having a plinth area of 949.94 sq.m. The Village W.P.(C).NO.8173/08 :: 2 :: Officer, Kaduthuruthy, on local inspection, submitted Ext.P2 report, which shows that 52 students are studying in the “Ebenezer Gospel Hall and Bible Institute” and teachers are staying in the said building. The ground floor of the building has a kitchen, dining hall, toilet and the first floor of the building houses the residential area of students and teachers. When an order of assessment was passed with regard to this building, the petitioner objected to the same and thereupon, the issue was referred to the Government in terms of Section 3 of the Building Tax Act. The Government issued Ext.P4 order in which they have declined the plea of exemption in relation to the building having a plinth area of 949.94 sq.m. Ext.P4 order has been challenged to the above extent in this writ petition. 3. A counter affidavit has been filed by the respondents supporting the stand of the Government. I heard learned counsel for the petitioner Sri.John Joseph Vettikkad and the learned Government Pleader Sri.Mathew George Vadakkel. W.P.(C).NO.8173/08 :: 3 :: 4. Learned counsel for the petitioner submits that the building in question is used as a residential quarters or a hostel for the students , who are studying or are imparted instructions in the institute. This is reported by the Tahsildar in Ext.P2. In fact, it is so found even in Ext.P4. If that be so, it must be treated as a building which is principally used for educational purposes and therefore, be exempted in terms of Section 3(1)(b) of the Act. He relies on the judgment of a Bench of this court in Mother Superior v. Government of Kerala {2008(1) KLT 446}. 5. Learned Government Pleader, on the other hand, submits that the decision of the Division Bench in Mother Superior's case will not apply to the present case. The Bench in Mother Superior's case was concerned with the exemption claimed by a convent. It was found that the activities that are going on in the convent are predominantly charitable and therefore, there should be no segregation. He further contends that in the case of a convent, by its very nature, the students who are imparted instructions therein are required to stay in the premises. W.P.(C).NO.8173/08 :: 4 :: They cannot stay outside and therefore, a provision for residence of such inmates was to be treated as an integral part of the institution as such. It is not so in the present case. There is no necessity for the students to stay in the institution. They can have a residence outside, it is contended. 6. The submission made by the learned Government Pleader, that a hostel for the inmates of the educational institution need not always qualify for exemption in terms of Section 3(1) of the Act, is correct. But, there is a vital difference in the present case. Instructions are imparted in religion, to 52 students, all of whom are inmates of the institution. Apparently, no fee is being collected from the students for this purpose. The building is used for their boarding and lodging as well. The hostel building or the building, which provides residence for the students and teachers, cannot always be considered as a building which will come under the category of “principally used for educational purpose”. In certain limited case, it may, for eg. unless the students are provided W.P.(C).NO.8173/08 :: 5 :: facility for boarding and lodging within the premises itself, instructions in the discipline cannot be imparted in a practical way and the provision to provide such facility will assume the characteristics of a hostel and therefore, ancillary to the educational purpose, which is being fulfilled in another part of the same premises. Even in such cases, if the Management collects fees from the students for the hostel facilities, the building used for hostel will not qualify itself as eligible for exemption in terms of Section 3(1)(b) of the Act. The Division Bench in Mother Superior's case was essentially concerned with a convent. The building where the residence is provided for students who aspire to be nuns, was found to be eligible for exemption essentially because of the nature of a convent. The inmates are not expected to pay fees during their period of stay. It is not clear whether the same principle would apply in the present case also. That is a matter on which the Government should bestow its attention. 7. I also take note of the fact that Ext.P4 was passed without hearing the petitioner. No doubt, going by W.P.(C).NO.8173/08 :: 6 :: Exts.P3 and P4, the Government purportedly only corrected an error while passing Ext.P4. But, I find from Ext.P4 that there has been a reconsideration of the issue as such. In such circumstances, a representative of the petitioner should have been heard before Ext.P4 was passed. 8. For all these reasons, I find that Ext.P4 is unsustainable insofar as it rejects the petitioner's claim for exemption from payment of Building Tax for a building, having a plinth area of 949.94 sq.m., which houses the residential area of the students and teachers who stay in the institution. The Government shall pass fresh orders, after hearing a representative of the petitioner, with specific reference to the question whether providing hostel facility, is indispensably an integral part of the curriculum that has been followed by the “Ebenezer Gospel Hall and Bible Institute” as such. If the Government comes to the conclusion that hostel facility will have to be necessarily provided in the institute and that the absence of such facility will affect the mode of functioning of the educational institution and also finds that no fees is being W.P.(C).NO.8173/08 :: 7 :: collected from the students by the petitioner institution, then the building in question would also qualify for exemption within the meaning of Section 3(1)(b) of the Act. Fresh orders, in this regard, shall be passed by the Government within a period of six months, after hearing a representative of the petitioner. Ext.P4 is quashed to the above extent. Writ petition is allowed to the extent indicated above. Sd/- (V.GIRI) JUDGE sk/ //true copy//