Kerala High Court
Jublee Mission Medical College And vs Government Of Kerala on 24 November, 2008
Author: K.M.Joseph
Bench: K.M.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16423 of 2008(E)
1. JUBLEE MISSION MEDICAL COLLEGE AND
... Petitioner
Vs
1. GOVERNMENT OF KERALA, REPRESENTED
... Respondent
2. THE DISTRICTO COLLECTOR, THRISSUR.
3. THE TAHSILDAR, THRISSUR.
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
Dated :24/11/2008
O R D E R
K.M. JOSEPH, J.
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W.P.(C) No. 16423 OF 2008 E
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Dated this the 24th day of November, 2008
J U D G M E N T
Petitioner challenges Ext.P6 to the extent of declining exemption to the portion of the building from payment of building tax. Declaration is sought that the buildings under assessment are principally used for educational purposes and hence entitled to get total exemption from payment of building tax under section 3(1)(b) of the Kerala Building Tax Act. Alternate prayer is to dispose of Ext.P9.
2. Briefly put the case of the petitioner as follows:
Petitioner is the Director of Jubilee Mission Medical College and Research Institute, Thrissur. The Catholic Arch Diocese of Thrissur has decided to expand the Jubilee Mission Hospital as a super specialty hospital with facilities for medical education and research. As a result of that, a Trust was established and it is known as Jubilee Mission Hospital Trust. Clause (b) of the objects of the Trust reads as follows:
"To plan and execute activities designed to promote medical and paramedical education and WPC.16423/08 : 2 : services by establishing medical colleges, nursing colleges and other institutions for education in the field of medicine, and conducting educational courses, providing scholarship, establishing endowments, running hostels, centres of holistic healing etc."
Ext.P1 is the Trust deed. It is a charitable institution as evident from Ext.P2 certification of registration by the Commissioner of Income Tax, Cochin. The Medical Council of India granted permission for starting MBBS course. Students were admitted. There are at present 500 students. Ext.P3 is the copy of letter of intent. Affiliation was continued and Ext.P4 is the latest provisional affiliation. Petitioner submitted returns as per the directions of the Tahsildar. The District Collector had collected a report from the Tahsildar. The 1st respondent invited the petitioner for a personal hearing in the matter vide Ext.P5 dated 9.8.2006. One Smt.H.Zubeida, Additional Secretary was authorised to hear the petitioner. It is the case of the petitioner that the officer was satisfied with the contentions and the points raised by the petitioner. However, Ext.P6 dated 28.4.2008 has been issued by which only a portion of the building is granted exemption. Ext.P8 WPC.16423/08 : 3 : is relied on as requirements to be fulfilled by the applicant colleges in connection with starting of medical college as per the Indian Medical Council Act, 1956. Ext.P9 is the review petition filed by the petitioner.
3. A counter affidavit has been filed producing Ext.R1(a). In the counter affidavit, it is, inter alia, stated that total plinth area of the building is 76185.65 sq. m. and of the same 35541.97 sq.m. is exclusively used for educational purpose and it is also exempted. It is stated that from the income and expenditure statement prepared by the college authorities it is seen that the total income for the year ended 31.3.2005 is Rs.12,71,24,571/- of which hostel income is Rs.25,20,221/- and library collection is Rs.1,50,000/-. Income from Jubilee Mission Hospital is stated to be Rs.5,09,00,000/-. Reply affidavit has been filed reiterating reference to Exts.P3 and P8. It is also stated that the entire building is to be exempted since the hospital as well as the other portion of the building used for hostel is constructed as per Ext.P8 requirements of the Medical Council of India and hence exclusive use of the above building is for educational purpose. Petitioner has also produced Ext.P12 Balance Sheet as on 31.3.2005 to WPC.16423/08 : 4 : show that expenditure exceeds income.
4. I heard learned counsel for the petitioner Sri.Julian Xavier J. and learned Government Pleader. Learned counsel for the petitioner would submit that the person who heard the petitioner did not decide the matter. In this connection, he refers to Ext.P5. One Smt.Zubeida was to hear the matter. She heard the petitioner and the order is passed by another person. Secondly, it is contended that having regard to Exts.P3 and P8, the entire building should be exempted. According to him, hostel facilities are provided in the building constructed which is the subject matter of the writ petition, in order to fulfill the criteria as laid down in Ext.P8. The petitioner also filed a review petition, it is pointed out.
5. Per contra, learned Government Pleader would point out that it may be true that the person who heard the petitioner did not decide the matter. He submits that the entire matter was before the government and the successor took a decision in the matter with reference to the materials available. He draws support from a Bench decision of this court reported in Administrator, Josgiri Hospital, Thalasserry Vs. Government of Kerala and WPC.16423/08 : 5 : another [2008 (3) KHC 612]. It is pointed out that the said judgment establishes the principle that hostels cannot be granted exemption under section 3(b) of the Building Tax Act
6. Regarding the first contention that the person who heard did not decide the matter, there is no dispute about this fact. What is pressed before me is that it is the theory of institutional hearing. I may have been persuaded to accept the contention of the petitioner but a bench decision appears to occupy the field and not much purpose will be served by again remitting it back.
7. The Division Bench in the decision reported in 2008 (3) KHC 612 was considering the question in the context of a nursing school. Therein the second and third floors of the building were used as hostels. It is in the context of the said facts that the Division Bench proceeded to take the view as follows:
" 26. In our considered view, the activities which are integral, immediate and proximate to the education of students would come within the meaning of the expression 'educational purpose' under section 3(1) (b) of the Act and does not include dormitory, boarding house and hostels. In the instant case, the petitioner is using the third and fourth floor primarily as hostels for nursing WPC.16423/08 : 6 : students by collecting fees from each student as annual fees and mess fee and therefore, it cannot be said that the entire building is used for educational purpose and therefore, the third and the fourth floor of the building is not exempt from taxation under the provisions of the Kerala Building Tax Act, 1975. Accordingly, the writ petition is liable to be rejected and we do so. In the facts and circumstances of the case, the parties are directed to bear their own costs."
8. No doubt, learned counsel for the petitioner made an attempt to distinguish the said decision by pointing out that unlike the facts of this case where under Ext.P3 read with Ext.P8 there was no requirement as such enjoining the maintaining of hostels. He points out that clause 13 of Ext.P8 would show that under the Medical Council norms the hostel for boys and girls has to be constructed and therefore it must be treated as educational purpose. Learned counsel for petitioner submits that the claim of the petitioner for exemption is u/s 3(b) of the Building Tax Act considering the building as educational and not as charitable. He also points out that regarding the measurement of the building he does not raise any dispute. Therefore, there is no need for any factual investigation and what remains is only the legal issue WPC.16423/08 : 7 : which is raised. It may be true that going by Exts.P3 and P8, the petitioner is expected to establish or construct building for housing the hostels for the boys and girls. But, the question is whether those buildings are to be exempted. Section 3(b) of the Act only provides exemption for building used principally for educational purposes. The fact that there may be a requirement under the Medical Council Regulation for running the medical college that the petitioner has to set up hostels may not be the same thing as saying that the hostels are used principally for educational purpose. At any rate, having regard to the bench decision as aforesaid, I do not think that the petitioner may be entitled to reliefs. Accordingly, writ petition fails and it is dismissed.
Sd/-
(K.M.JOSEPH, JUDGE) aks