Dm Education And Research Foundation vs State Of Kerala And Ors

S.V. Bhatti, J

Writ Petitioner is the appellant.

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:

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

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., 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 remedy of appeal under the circumstances is avoidable as order in Ext.P7 is illegal and contrary to the jurisdiction

conferred on R-2.

On 10.2.2021, at the request of Senior Government 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.

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.

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 set aside.

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.

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

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