Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 PETITIONER: THE MANAGER / PRIOR, CHRIST NAGAR CENTRAL SCHOOL, A CMI EDUCATIONAL INSTITUTION, KOWDIAR P.O., THIRUVANANTHAPURAM, PIN - BY ADVS. R.S.KALKURA M.S.KALESH HARISH GOPINATH H.KIRAN P.I.NAJUMAL HUSSAIN NEENU VIMALKUMAR SILPA S. RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 DEPARTMENT OF EDUCATION, REPRESENTED BY THE PRINCIPAL SECRETARY , SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM, PIN - 695033 4 CENTRAL BOARD OF SECONDARY EDUCATION, REPRESENTED BY ITS SECRETARY, SHIKSHA KENDRA, 2, COMMUNITY CENTRE, PREET VIHAR VIKAS MARG, NEW DELHI, PIN - 110092 BY ADVS. SUMAN CHAKRAVARTHY NIRMAL.S
OTHER PRESENT: SMT. K.R. DEEPA -SPL.GP ( LSGD) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner, who is the manager / prior of Christ Nagar Central School run by Carmelites of Mary Immaculate (CMI) educational institution has approached this court impugning the Exts.P2 and P3 notices for arrears of property tax at Rs. 61,12,848/- with applicable penalty from the second half of 2010-2011 and second half of 2023-2024. The second notice dated 17.01.2024, demanding tax arrears of Rs.23,54,329/-,plus applicable penalty from 2010-2011 second half period to 2023-2024 second half period, in respect of two buildings of the petitioner institution.
2. The petitioner has challenged the levy and demand of
property tax on their two buildings prior to 01.04.2023, when amendments to Section 235(ba) of the Kerala Municipality Act, 1994 was brought in force, withdrawing the concession / exemption granted earlier to recognize the educational institution from payment of property tax under the said provisions.
3. The issue concerned in this writ petition is covered by the
judgment of this court in W.P (C) No. 22014 of 2023, Kerala
Recognized School Management Association and anothers v. State of Kerala and others , wherein it has been held that a recognized institution will liable to pay property tax only with effect from 01.04.2023, and the demand of the property tax in respect of the recognized educational institutions prior to 01.04.2023 cannot be made and the same would be ultra-virus the then existing provision, prior to 01.04.2023. Paragraphs 5 and 6 of the said judgment which are relevant are extracted hereunder:-
“5. In view of the amendment brought in to Sections 207(1)(ba) and 235(ba) of the Panchayat Raj Act and the Municipality Act, respectively, as mentioned above, the petitioners would be liable to pay property tax with effect from 1.4.2023 on their buildings/properties, unless the said provisions are set aside or declared unconstitutional.
6. Whether the institutions of the petitioners are
recognised or not is a question of fact, which can be verified by the Municipality/Panchayat concerned. However, if the petitioners' institutions are recognized, they are not liable to pay property tax before 1.4.2023 with respect to such buildings/properties.”
4.Whether the petitioner’s institution was recognized prior to 01.04.2023 is the question of facts and evidence. In view thereof, the impugned levy of demand of property tax is quashed and the matter has been remitted back to the Corporation, Thiruvananthapuram. The Corporation shall issue a show cause notice to the petitioner to provide an opportunity to submit relevant documents / proof of the petitioner’s institution recognizing before 01.04.2023. 5.It is made clear that if the petitioner is in possession of the necessary evidence / documents when the petitioner’s educational institution was recognized for the period for which the tax has been demanded before 01.04.2023, the petitioner would not liable to pay the tax prior to 01.04.2023. If the petitioner fails to produce the relevant documents / evidence of their recognition prior to 01.04.2023, the Corporation will be free to issue a fresh demand notice prior to 01.04.2023. with the aforesaid direction and observations, the writ petition is disposed of as above. Sd/- DINESH KUMAR SINGH JUDGE SJ APPENDIX OF WP(C) 4576/2024 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE LETTER OF AUTHORITY DATED 04.05.2023 ISSUED BY THE PROVINCIAL CMI TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE NOTICE DATED
17.01.2024 IN RESPECT OF BUILDING BEARING NO. 25/3882 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER WITH EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 17.01.2024 IN RESPECT OF BUILDING BEARING NO. 25/3883 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER WITH RESPONDENT ANNEXURES ANNEXURE R3(A) A TRUE COPY OF THE CIRCULAR NO.49590/RC2/2011/LSGD DATED 12.04.2012 ANNEXURE R3(C) A TRUE COPY OF THE GAZETTE NOTIFICATION OF ACT 18 OF 2023 DATED 28.03.2023 ANNEXURE R3(B) A TRUE COPY OF THE COMMUNICATION NO.2234/RC2/2014/LSGD DATED 16.07.2014 OF THE PRINCIPAL SECRETARY LSGD (RC) DEPARTMENT TO THE SECRETARY, THIRUVANANTHAPURAM CORPORATION WITH