Kerala High Court
Bharat Sanchar Nigam Limited vs The State Of Kerala
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933
WP(C).No. 27704 of 2008 (W)
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PETITIONER:
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BHARAT SANCHAR NIGAM LIMITED,
REPRESENTED BY ITS ASSISTANT GENERAL MANAGER (MM),
OFFICE OF THE GENERAL MANAGER TELECOM DISTRICT,
KOLLAM.
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.T.RAMPRASAD UNNI
SRI.M.JAMES ANTONY
RESPONDENTS:
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1. THE STATE OF KERALA,
REPRESENTED BY HE CHIEF SECRETARY,
GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
REVENUE (SPECIAL CELL ) DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.
3. THE DISTRICT COLLECTOR, KOLLAM.
4. THE REVENUE DIVISIONAL OFFICER,
KOLLAM.
5. THE TAHSILDAR, PATHANAPURAM TALUK,
PUNALUR.
BY GOVERNMENT PLEADER SMT.LILLY K.T
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MG
WP(C).No. 27704 of 2008 (W)
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APPENDIX
EXT.P1:- COPY OF NOTICE DATED 26.04.2005 ISSUED BY R5.
EXT.P2:- COPY OF REPLY DATED 20.05.2005 SENT BY THE PETITIONER.
EXT.P3:- COPY OF LETTER DATED 10.01.07 BY THE PETITIONER.
EXT.P4:- COPY OF COMMUNICATION DATED 15.03.07 BY R5.
EXT.P5:- COPY OF DEMAND NOTICE DATED 17.03.2006 BY R5.
EXT.P6:- COPY OF LETTER DATED 20.09.07 BY THE PETITIONER.
EXT.P7:- COPY OF OFFICE MEMORANDUM DATED 30.09.2000 ISSUED BY THE
GOVERNMENT OF INDIA.
EXT.P8:- COPY OF JUDGEMENT DATED 01.12.07 IN W.P(C)NO.32930 OF 2007.
EXT.P9:- COPY OF ARGUMENT NOTE DATED 25.04.2008 SUBMITTED BY HE
PETITIONER ALONG WITH ANNEXURES.
EXT.P10:- COPY OF ORDER DATED 11.12.2007 ISSUED BY THE BSNL, NEW DELHI.
EXT.P11:- COPY OF G.O(RT)NO.2442/08/R DATED 24.07.2008 ISSUED BY R1.
EXT.P12:- COPY OF JUDGEMENT DATED 21.07.2005 IN W.P.(C)NO.17887 OF 2005.
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
MG
P.R.RAMACHANDRA MENON,J.
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W.P.(C) No. 27704 of 2008
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Dated this the 5th day of March, 2012
J U D G M E N T
Rejection of the application for exemption under Section 3(1)(a) of the Kerala Building Tax Act by passing Ext.P11 order, in respect of the building belonging to the petitioner Company is the subject matter involved.
2. The petitioner Company is a fully owned Government of India undertaking, brought into existence with effect from 1-10-2000. At the time of formation of the Company, all the existing buildings and fixtures which originally belonged to the Central government came to be transferred and vested with the petitioner.
3. The case of the petitioner is that the building in this case was originally constructed as early as in the year 1975 and the petitioner, to meet the requirements and the need of the hour, effected some additional constructions by constructing the 'second floor' in the year 2000. On W.P.(C) No. 27704 of 2008 2 completing the construction as aforesaid, the fifth respondent took steps to assess the building under the provisions of the Kerala Building Tax Act and issued Ext.P1 assessment order, fixing the total liability as Rs.1,17,000/- which was directed to be satisfied in the manner given therein.
4. According to the petitioner, the building actually belonged to the Central Government and by virtue of the mandate under Article 285 of the Constitution of India, no tax liability could have been there, at the instance of the State. That apart, there is a specific exclusion clause, as given under Section 3(1) of the Kerala Building Tax Act, which exempts the buildings owned by the Central Government as well as the State Government. Even though the said fact was pointed out to the assessing authority as per Exts.P2 and P3, the same was not properly dealt with and the request was declined as per Ext.P4 .
5. The petitioner approached this Court by filing W.P(C)No.32930 of 2007 contending that, once a claim for exemption is raised under Section 3 (1) of the Act, the W.P.(C) No. 27704 of 2008 3 matter has to be referred to the Government for decision under Section 3(2), the Government being the competent authority. Accordingly, the writ petition was disposed of, directing the concerned respondent to have the matter referred to the Government, simultaneously directing the Government as per Ext.P8 judgment, to consider the claim and to pass appropriate orders.
6. Based on Ext.P8 judgment, the matter was considered by the Government, who passed Ext.P11 order dated 24/7/2008, observing that the contention raised by the petitioner did not have any merits. Reliance was also sought to be placed on the judgment dated 21/7/2005 in W.P(C) No.17887 of 2005 (Ext.P12 herein), whereby it was held by this Court that the buildings constructed by the petitioner are not liable for any exemption, as the petitioner is nothing but a Company incorporated under the relevant provisions of the Companies Act, though it is a Government Company under Section 617 of the Companies Act. The petitioner is aggrieved of Ext.P11 and hence is before this Court.
W.P.(C) No. 27704 of 2008 4
7. The learned Counsel for the petitioner submits that the course pursued by the respondents is per se wrong and illegal, being contrary to the stipulations under Article 285 and also Section 3(1) of the Act. The question whether the building belonging to the petitioner could be characterised as a 'Government building' and whether the petitioner is entitled to have the protection of Article 285 stands already answered against the petitioner as per Ext.P12. There is no case for the petitioner that the said verdict has been subjected to challenge or the same has been varied, modified or set aside in any manner and hence it has to be reasonably presumed that the same has become final. Even otherwise, this Court does not find any reason to disagree and the point is answered against the petitioner.
8. Coming to the scope of Section 3(1) the Act, it reads as follows.
Exemptions : 1) Nothing in this Act shall apply to
a) Buildings owned by the Government of Kerala or the Government of India or any local authority
b) Buildings used principally for religious, charitable or educational purposes or as factories or workshops"
From the above, it is clear that the statute provides for W.P.(C) No. 27704 of 2008 5 exemption only in respect of the buildings belonging to the Central Government, State Government and the Local authority. The provision does not speak about any such exemption in respect of the buildings owned by autonomous bodies or separate entities like the Companies owned by the State or Central Government as in the instant case. The provision of law has to be read and understood as it is, which cannot be widened by reading something more into it, in view of binding judicial precedents. For this reason also, the finding and reasoning given by the Government in Ext.P11 order, declining the exemption sought for, is perfectly valid and not assailable under any circumstances.
9. The next point to be considered is whether the petitioner is justified in saying that the construction effected by the petitioner is only in respect of the 'second floor' put up on an existing building and as such, it could not have been assessed by the respondents taking the whole building together, but ought to have confined the assessment to the 'second floor' alone. Such a contention has been raised by the petitioner stating that the building W.P.(C) No. 27704 of 2008 6 was very much there in existence and there is no case that the same has been demolished by the petitioner, so as to effect any new construction. The construction effected admittedly being only in respect of the 'second floor', the other two floors, construction of which was completed by the Central Government way back in the year 1975, are stated as not liable to be touched by the respondents.
10. In this context the observations made by the first respondent in Ext.P11 are very much relevant. Paragraph 5 of Ext.P11 in this regard is extracted below "The whole building of the BSNL, Anchal, Kollam is liable to be assessed under building tax. Since extension and major repairs was done in the building in the year 20-05-2002. By invoking Section 5(4) of Kerala Building Tax Act, it is held that the building owned by BSNL situated in survey Nos.21/1-66,23/27-2,21/1-5,21/1-65 in Anchal Village, Kollam District having a total plinth area of 800.08 sq.m is not eligible for exemption from Kerala Building Tax under section 3(1) (a) of Kerala Building Tax Act."
From the above, it is clear that the petitioner, though have constructed only the 'second floor' to the existing building, it remains a fact that major repairs were done in the existing building as well attracting the circumstance as contemplated under statute for imposing the tax liability. W.P.(C) No. 27704 of 2008 7 There is no averment for the petitioner anywhere in the writ petition, that the above observation made by the first respondent in Ext.P11 as to the major repairs effected in the other floor is not correct. Nor is there any such case in any of the proceedings filed before the concerned respondent at any point of time . It is also relevant to note in this context that the case projected by the petitioner as given in Ext.P12 judgment dated 21-7-2005 was only with regard to the prayer to have the liability confined to the reconstructed extent of 255 sq.m, completed by the petitioner on 20/5/2002, sparing the remaining extent of 544 sq.m effected by the Central Government way back in the year 1975. Nothing else was pleaded or prayed for in Ext.P2. Similar is the prayer in Ext.P6 request dated 20-9-2007 as well. This being the position, this Court finds that the pleadings and prayers as raised in the present writ petition run contrary to or much in excess of Exts.P2 and P6 and hence it is not liable to be entertained .
11. The learned Counsel for the petitioner made a reference to clause 9 of Ext.P7 Office Memorandum dated W.P.(C) No. 27704 of 2008 8 30-9-2000 issued by the Government of India and also on Ext.P10, to contend that the transfer of the property is not complete and that the proceedings are still to be finalised and as such the construction effected by the Government or which came to to the hands of petitioner could not have been taken to be assessed by the respondents, treating the same as that of the petitioner Company . This Court finds it difficult to accept the said proposition, in so far as the admitted case of the petitioner is that the petitioner Company effected the additional construction in respect of the 'second floor' in the year 2000. In other words, there is no case that the amount spent for effecting the construction came from the hands of the Central Government and the necessary funds were arranged and satisfied by none other than the petitioner Company itself. Same is the position with regard to the major repairs effected in respect of the ground floor and first floor as well. No approved plan or any statement of accounts in connection with the construction has been produced before this Court, to take a different view.
W.P.(C) No. 27704 of 2008 9
12. When the matter came up for consideration before this Court on 18/9/2008, an interim stay was granted on condition that the petitioner satisfied a sum of Rs. 30,000/- within three weeks, which is stated as complied with. If the said amount has been paid by the petitioner, the petitioner would be liable only for the balance amount and the recovery steps, if any, shall stand confined to the said extent.
In the above circumstance this Court finds that there is absolutely no merit in the writ petition. Interference is declined and the writ petition is dismissed accordingly.
P.R.RAMACHANDRA MENON.
JUDGE smm W.P.(C) No. 27704 of 2008 10