Allowed

DM Education and Research Foundation v. State of Kerala

Kerala HC1 Mar 2021WA/319/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ appeal filed by a charitable trust against an assessment order (Ext.P7) under the Kerala Building Tax Act. The order, issued by the Tahsildar without prior decision by the Chief Secretary regarding exemption, was set aside due to jurisdictional error.

What did the court decide?

Assessment order Ext.P7 set aside; liberty granted to second respondent to remit matter to first respondent for decision.

DM Education and Research Foundation Vs State of Kerala — Landlord and Tenant | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE S.V.BHATTI

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

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WA.No.319 OF 2021

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WRIT APPELLANT/WRIT PETITIONER:

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DM EDUCATION AND RESEARCH FOUNDATION A CHARITABLE AND EDUCATIONAL TRUST HAVING ITS REGISTERED OFFICE AT NASEERA NAGAR, MEPPADI P.O, WAYANAD DISTRICT - 673577. REPRESENTED BY ITS AUTHORIZED SIGNATORY AND LAW OFFICER, MR. ZALAZI KALLANGODAN.

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BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON SRI.P.PRIJITH SRI.R.GITHESH SHRI.HARIKRISHNAN S. SRI.AJAY BEN JOSE

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RESPONDENTS/RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695001.

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2 THE TAHSILDAR VYTHIRI, WAYANAD, PIN - 673576.

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OTHER PRESENT:

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SRI MOHAMMED RAFIQ -SR GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.319 of 2021 2

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JUDGMENT

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Dated this the 1st day of March 2021

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S.V.Bhatti, J.

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Writ Petitioner is the appellant.

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The learned Single Judge, through the judgment under appeal, declined to admit the writ petition on the ground that the petitioner has statutory remedy of appeal against Ext.P7 dated 10.6.2019 impugned in the writ petition. The circumstances necessary for disposing of the appeal are briefly stated thus:

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The petitioner claims to be a Charitable and Educational Trust registered through Document No.214 of 2010 of Kozhikode Sub Registry dated 4.8.2010. The petitioner claims to be fulfilling the aims and objects for which the Trust was established and continued to establish by doing several activities stated in the deed. The petitioner has been accepted as a charitable institution for the purpose of income tax and a certificate granting exemption under Section 80(5)(vi) of the Income Tax Act, 1961, Ext.P2 was issued and the same is subsisting as on date. Through Ext.P7, the second respondent assessed the petitioner under the Kerala Building Tax

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Act, 1975 and demanded a sum of Rs.1,52,38,800/-.

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The grievance of petitioner against Ext.P7 is that the petitioner, claiming the status of a charitable institution, prayed for exemption of levy of building tax for the area now assessed by second respondent in Ext.P7 assessment order. Firstly, the case of petitioner is not considered and secondly, the argument is that once an objection or plea that petitioner is entitled to exemption is introduced by the owner/assessee of a building, the second respondent, according to the dictum laid down by this Court in the judgments reported in Bhagyodayam Company, Kochi v State of Kerala¹ SH Medical Centre Hospital v State of Kerala² Clarist Medical Trust of the SH Province v Secretary to Govt.,

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Revenue Department³ must refer the matter to the first respondent and proceed subject to a decision taken in this behalf by the first respondent. Second respondent, firstly, did not exercise the jurisdiction in the manner provided by law and secondly, acted contrary to the ratio laid down by this Court in the decisions referred to above. Incidentally, it is argued that the

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1 2015(1) KLT 34 2 (2014) 11 SCC 381 3

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remedy of appeal under the circumstances is avoidable as order in Ext.P7 is illegal and contrary to the jurisdiction conferred on R-2.

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On 10.2.2021, at the request of Senior Government

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Pleader Mr.Rafeeque, we have granted time till date to enable to get instructions whether in the case on hand, the second respondent has forwarded the application of petitioner for decision to the first respondent or not.

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The Senior Government Pleader does not dispute the ratio laid down by this Court, its applicability to the case on hand, in the judgments referred to above and referring to the instructions received in this behalf, it is stated that Ext.P7 is issued independent of any decision made by the first respondent in this behalf.

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Keeping in perspective the above submissions, we are of the view that the petitioner ought not to be relegated to the remedy of appeal for there is jurisdictional error in determining and issuing Ext.P7 by the second respondent. Ext.P7 is issued contrary to the ratio laid down by this Court in the judgments referred to above. Hence the Writ Appeal is allowed. Ext.P7 is

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set aside.

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Second respondent is given liberty to act in accordance with law and make over the matter to first respondent for decision as laid down in the judgments referred to above.

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This Court has not examined the merits of the case viz. whether as a matter of fact the claim of the petitioner as a charitable trust or not. It is for the authorities to examine such

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plea by referring to the material and evidence placed by the petitioner in this behalf and decide the issue.

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Writ appeal is allowed with the above observations. No order as to costs.

Sd/-

S.V.BHATTI

JUDGE

Sd/-