Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945 WP(C) NO. 34910 OF 2011 PETITIONER: ST.JOSEPH HOSPITAL, ANCHAL, KOLLAM, REPRESENTED BY ITS DIRECTOR. BY ADVS. SRI.SIBY MATHEW SRI.B.PREMNATH E SRI.PHILIP J.VETTICKATTU RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT (RC) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695039. 2 THE ANCHAL GRAMA PANCHAYAT ANCHAL.P.O., KOLLAM-691306 REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.RASHEED C.NOORANAD SMT.ANITHA M.N. EKM SRI.RASHEED C.NOORANAD SMT.DEEPA NARAYANAN -SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 24th day of May, 2023 This writ petition is filed challenging Ext.P14 order passed by the Government rejecting the request made by the petitioner for exemption from property tax under Section 207(2) of the Kerala Panchayat Raj Act, 1994. It is submitted by the learned counsel for the petitioner that the petitioner is a hospital run by a registered charitable society under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955. The building of the hospital is used only for the said purpose and that free treatment is provided to several needy members of the society. It is submitted that no profit is intended or made by the society and that only the running charges and the improvements of the hospital are carried out from the income generated. It is submitted that when Ext.P8 demand was served, the petitioner had submitted objections and the amount of property tax was reduced to Rs.27,361 per half year. The petitioner thereafter filed Ext.P10 representation claiming exemption under
Section 207(2) which was declined by Ext.P12. The petitioner had approached this Court filing W.P.(C).No.417/2004 which was disposed of by Ext.P13 judgment directing a reconsideration of the matter. It is
submitted by the learned counsel for the petitioner that Ext.P14 order
has been passed considering the claim of the petitioner as if it is an application for exemption under Section 207(1)(c) and the claim has
been rejected. Though the petitioner had specifically sought an order
under Section 207(2), the said aspect was not considered by the Government. It is submitted that the specific directions contained in Ext.P13 judgment have therefore been flouted by the Government while passing Ext.P14 order.
2. The learned counsel for the petitioner places reliance on a
decision of this Court in Fr.Jose Thenpillil v. Karukutty Grama Panchayat [2014 (3) KLT 916] to contend that the considerations for rendering an order under Section 207(1) and its various sub clauses and Section 207(2) are completely distinct and different and that the Government is free to pass an order under Section 207(2) even in a case where none of the requirement of clauses (a) to (j) of sub-section
(1) of Section 207 are met. It is submitted that this aspect of the matter has not been considered by the Government at all while passing Ext.P14 order in spite of specific directions by this Court in Ext.P13
judgment.
3. The learned Government Pleader submits that the entire
representation submitted by the petitioner proceeded on the basis that the petitioner is a charitable institution running a hospital providing treatment free of cost and that it is only in the prayer portion of Ext.P10 that Section 207(2) is mentioned. The learned Government Pleader also places reliance on a decision of a Division Bench of this Court in Medical Trust Hospital v. State of Kerala and others [2004 KHC 1072] to contend that, in the grant of exemption rendered under the Kerala Building Tax Act, 1975, the word ‘principally used’ has to be considered in its proper perspective and it is only where the charity aspect is considerable that an exemption can be granted under Section 207(1)(c).
4. Having considered the contentions advanced, I notice that the petitioner had specifically submitted a representation seeking
exemption under Section 207(2) of the Kerala Panchayat Raj Act. When the said representation was rejected by Ext.P12, the petitioner had approached this Court and Ext.P13 judgment had been rendered. This Court had specifically found that the nature of exemption under sub-section (1) of Section 207 and the power under Section 207(2) are
distinct and different. This Court had therefore quashed Ext.P12 order
and directed the specific consideration of the matter with reference to Section 207(2). It is apparent from the impugned order that the said specific issue has not been considered by the respondents while passing Ext.P14 also. Ext.P14 proceeds on the assumption that the exemption sought for by the petitioner is under Section 207(1)(c).
5. The learned counsel for the petitioner further contends that
several hospitals which are functioning in a manner identical to the petitioner's institution have been granted exemption from property tax by the Government under Section 207(2). If that be so, I am of the opinion that the issue requires a reconsideration at the hands of the Government. However, to enable a proper reconsideration and in view of the efflux of time since Ext.P14 is an order rendered on 16.11.2011,
I am of the opinion that it is for the petitioner to approach the Government afresh with a fresh representation pointing out the factual aspects of the matter including any orders passed in respect of similarly situated establishments and raising a specific claim under Section 207(2). If such representation is filed before the Government by the petitioner within two months from the date of receipt of a copy of this judgment, the same shall be taken up, considered and appropriate orders passed thereon by the Government, after hearing the petitioner also, within a period of four months thereafter.
This writ petition is ordered accordingly. Sd/- ANU SIVARAMAN JUDGE NP APPENDIX OF WP(C) 34910/2011 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF CERTIFICATE DATED 30-3-1999 ISSUED BY THE DISTRICT MEDICAL OFFICER OF HEALTH, KOLLAM, TO THE PETITIONER Exhibit P2 TRUE COPY OF CERTIFICATES DT. 2-3-1985 & 18-1- 1993 ISSUED BY THE 2ND RESPONDENT TO THE Exhibit P3 TRUE COPY OF GOVERNMENT ORDER DT.14-2-72 Exhibit P4 TRUE COPY OF REGISTRATION CERTIFICATE DATED 7- 10-1992 ISSUED UNDER ACT XII OF 1955 Exhibit P5 TRUE COPY OF TRUST DEED DATED 23-5-2001 THE ASST. COMMISSIONER OF INCOME TAX TO THE Exhibit P6 TRUE COPY OF LETTER DATED 3-3-1995 ISSUED BY THE ASST. COMMISSIONER OF INCOME TAX TO THE Exhibit P7 TRUE COPY OF AUDITOR’S REPORT OF THE PETITIONER HOSPITAL FOR THE YEAR 2001-2002 Exhibit P8 TRUE COPY OF BILL DATED 25-3-2002 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P9 TRUE COPY OF BILL DATED 25-3-2002 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P10 TRUE COPY OF REPRESENTATION DATED 12-9-02 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Exhibit P11 TRUE COPY OF JUDGMENT DATED 20-3-2003 IN O.P. NO.29086/2002 PASSED BY THIS HON’BLE COURT Exhibit P12 TRUE COPY OF ORDER DATED 29-9-2003 ISSUED BY THE 1ST RESPONDENT Exhibit P13 TRUE COPY OF JUDGMENT DATED 18-3-2011 IN W.P.(C) NO.417/2004 OF THIS HON’BLE COURT Exhibit P14 TRUE COPY OF ORDER DATED 16-11-2011 OF 1ST RESPONDENT REJECTING THE REQUEST OF THE RESPONDENTS’ EXHIBITS: NIL