Kerala High Court
Jainamma Yohannan vs State Of Kerala on 22 May, 1995
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 24TH DAY OF MARCH 2011/3RD CHAITHRA 1933
WP(C). No.9427 of 2011 (C)
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PETITIONER(S):
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JAINAMMA YOHANNAN,
DIRECTOR & MANAGING TRUSTEE,
MAR GREGORIOS MEMORIAL CENTRAL PUBLIC SCHOOL,
KUZHIVILA, N.H.BYE PASS, KARIMANAL P.O.,
THIRUVANANTHAPURAM, PIN-695 083.
BY ADVS.SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHI
SMT.REENA THOMAS
SRI.L.RAM MOHAN
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY ITS
SECRETARY, GENERAL EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM-695 039.
2. CORPORATION OF THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY-695 001.
3. SECRETARY,
CORPORATION OFFICE, THIRUVANANTHAPURAM,
MUSEUM JUNCTION, THIRUVANANTHAPURAM-695 001.
BY GOVERNMENT PLEADER
BY SRI.P.K.MANOJKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-03-2011,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C). No.9427 of 2011 (C)
APPENDIX
PETITIONER'S EXHIBITS:-
P1:- COPY OF THE NOC DATED 22.5.1995 GRANTED TO THE MGM SCHOOL,
KOTTARAKKARA.
P2:- COPY OF THE APPLICATION FOR NOC FROM THE GOVERNMENT OF KERALA.
P2(A):- COPY OF THE CHALAN EVIDENCING THE PAYMENTS OF 25,000/- TOWARDS
FEE FOR NOC OF THE STATE GOVERNMENT.
P3:- COPY OF THE VISIT REPORT OF THE DEO.
P3(A):- COPY OF THE SURVEY REPORT OF THE DEO.
P4:- COPY OF THE ORDER DATED 7.11.2006 OF THE FIRST RESPONENT.
P5:- COPY OF G.O(P) NO.107/07/G.EDN DATED 13.6.2007.
P6:- COPY OF THE JUDGMENT DATED 14.9.2007 IN W.P.20529/07.
P7:- COPY OF THE ORDER DATED 29.10.2007 IN W.A NO.2497/2007.
P8:- COPY OF THE JUDGMENT DATED 15.12.2008 IN W.P(C) NO.32141 OF 2008.
P9:- COPY OF THE JUDGMENT DATED 10.12.08 IN W.P(C) NO.4805 OF 2008 OF THE
SINGLE BENCH.
P10:- COPY OF G.O(MS) NO.3/09 DATED 5.1.2009.
P11:- COPY OF THE JUDGMENT DATED 6.4.2009 IN W.P(C) NO.34910 OF 2007.
P12:- COPY OF THE G.O(MS) NO.244/99 DATED 30.09.09.
P13:- COPY OF THE G.O(MS) 70/2005/LAD DATED 11.3.2005.
P13(A):- LEGIBLE COPY OF EXT.P13.
P14:- COPY OF THE NOTICE DATED 8.12.2010.
P14(A):- COPY OF THE DEMAND NOTICE DATED NIL ISSUED BY THE SECOND
RESPONDENT DEMANDING AN AMOUNT OF 14,50,378/-.
P14(B):- COPY OF THE REPLY DATED 28.2.2011 SUBMITTED BY THE PETITIONER TO
EXT.P14(A).
P15:- COPY OF THE REPLY DATED 5.3.2011 SENT BY THE PETITIONER TO EXT.P14.
P16:- COPY OF THE REGISTRATION CERTIFICATE WITH CBSE.
P17:- COPY OF THE ORDER CONSTITUTING THE INSPECTION COMMITTEE.
P18:- COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF 1,00,000/-.
RESPONDENTS' EXHIBITS:- NIL
KRJ
/True Copy/
P.A to Judge
C.T.RAVIKUMAR, J.
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W.P(C) No.9427 of 2011
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Dated this the 24th day of March, 2011
JUDGMENT
The petitioner, who is the director and trustee of "Mar Gregorios Residential Public School" Kotarakara and "Mar Gregorios Memorial Central Public School", Kuzhivila PO, Thiruvananthapuram filed this writ petition mainly with the following prayers:-
"A. Declare that the non grant of exemption in Section 235 of the Kerala Municipality Act to the unaided schools is violative of Articles 14, 19(1)(g) and 21A of the Constitution of India.
B. Issue writ of Mandamus or such other appropriate writ or order commanding the Respondents not to insist the petitioner to pay the property tax on the ground that the same is not in the purview of Section 235 of the Kerala Municipality Act.
C. If for any reason prayers A to C cannot be granted as prayed for, declare that the Petitioner is entitled for exemption from the year 2005 as per Ext.P13 till the introduction of amended Section 235 Kerala Gazette notification No.15061/Leg/C1/2009/law dated 7.10.2009 and direct the Respondents 2 and 3 not to make any WP(C).9427/11 -:2:- demand for the said period regarding payment of the property tax as made in Ext.P14(a)."
2. Admittedly, among the two schools belonging to the petitioner, the school at Kotarakara stands affiliated to the CBSE in the year 1995 as per Exhibit P1. The school in question situates at Thiruvananthapuram, admittedly, was not so far been granted NOC or given affiliation to CBSE. Though the said school had applied for NOC to the State Government in the prescribed form, it is yet to obtain affiliation to CBSE.
3. The contention of the petitioner is that it got registered with the CBSE, as is obvious from Exhibit P17 and the security deposit was made with the CBSE, as is obvious from Exhibit P18. In short, the contention is that the petitioner has taken all steps for the purpose of getting registration with CBSE. However, NOC was not granted by the Government. I referred the above aspects specifically pleaded by the petitioner to show that even according to the petitioner, among the two schools belonging to him, only one stood affiliated to the WP(C).9427/11 -:3:- CBSE and the school in question which the one at Thiruvananthapuram is yet to obtain such affiliation.
4. Essentially, the question posts for consideration in this writ petition is whether, the petitioner is entitled to seek exemption from payment of the property tax. Exhibit P13(a) is the order issued by the State Government (Order No.G.O(MS)70/2005/LSGD dated 11.3.2000). Originally, the Government issued orders only granting exemption to the CBSE/ICSE schools situated only in the Panchayat areas. However, the same was extended as per Exhibit P13 to those CBSE/ICSE schools within the Municipal Corporation areas. That apart, the hostels and buildings used for imparting education were also under exemption from the purview of Section 235(1) of the Kerala Municipality Rules.
5. The contention of the petitioner is that the school belonging to the petitioner at Thiruvananthapuram is entitled to get exemption by virtue of Exhibit P13 and, therefore, the order by which it was WP(C).9427/11 -:4:- assessed to property tax by Exhibits P13, P13(a) and P15 are absolutely unsustainable. True that in this writ petition, the petitioner seeks for declaration that the non-grant of exemption in Section 235 of the Kerala Municipality Act to the unaided schools is violative of Articles 14, 19(1)(g) and 21A of the Constitution of India. The contention of the petitioner is that the said amendment came into force w.e.f 07.10.2009. Essentially the challenge in this writ petition is against Exhibits P14(a) and P15. Exhibit P14(a) is a notice issued to the petitioner on 8.12.2011. Earlier, the petitioner had claimed exemption from payment of property tax. It was in the said circumstances that the 2nd respondent issued Exhibit P14 notice. Admittedly, the petitioner was afforded with an opportunity of being heard pursuant to Exhibit P14 and it was only thereafter that the 2nd respondent issued Exhibit P14(a) requiring the petitioner to pay the property tax to the tune of 14,50,378/-, from the year 2005 onwards till date. On receipt of Exhibit P14(a), the petitioner filed Exhibit WP(C).9427/11 -:5:- P14(b) dated 28.2.2011 claiming that the petitioner's school is exempted from property tax as per G.O(MS) 70/2005 i.e. Exhibit P13
(a). After considering the said question, Exhibit P15 was issued and the claim of the petitioner was rejected on the ground that before the Secretary, the petitioner has failed to produce documents showing affiliation with the CBSE/ICSE. It was held therein that as long as the school in question remains unaffiliated to CBSE, exemption could not be granted. It is challenging Exhibits P14(a) and P15 and seeking certain consequential reliefs that this writ petition has been filed.
6. I have heard the learned counsel for the petitioners and also the learned standing counsel appearing for the respondents 1 and 2 and the learned Government Pleader. The learned standing counsel appearing for the respondents 2 and 3 submits that the source of power for the decision in Exhibits P14(a) and P15 is traceable to Section 233 of the Kerala Municipality Act and, therefore, an appeal WP(C).9427/11 -:6:- and a revision will lie against the said orders. The learned standing counsel also brought to my attention the provisions under Section 509 of the Kerala Municipality Act, 1994 (for short, the Act) which reads as follows:-
"An appeal against any notice or order of the Secretary on the levy of tax, may be preferred to the Standing Committee for Finance in the case of Town Panchayat or Municipal Council and to the Standing Committee for appeals on taxation in the case of Municipal Corporation."
Sub-section (8) of Section 509, reads thus:-
"Any person may prefer a revision petition to the tribunal within thirty days against the decision in an appeal filed before the Council or Standing Committee, as the casemay be, under sub-section (1) or sub-section (2), or against any order or notice issued by the Chairperson or Secretary on the basis of such decision."
7. It is thus abundantly clear that Section 509 of the Municipality Act provides for appeal and revision. There cannot be any dispute with respect to the position that as per Exhibit P14(a) the petitioner was assessed to property tax. In and vide the same, the petitioner was also required to pay the tax assessed prior to 11.2.2011. Any notice or order by the Secretary on the levy of tax is WP(C).9427/11 -:7:- appealable in view of the specific provision under Section 509(2) of the Act and thereafter, if necessary, in revision before the Tribunal. When that be the position, I find no reason to interfere with Exhibit P14(a) or Exhibit P15 as efficacious and statutory remedy of appeal is provided to redress the grievances. The rule of discretion also need not be exercised, especially in the light of the provisions under sub-section (11) of Section 509. It reads thus:-
"No appeal or revision shall be filed against the levy of tax, if he shown in the demand notice has not been paid."
It is thus obvious that an appeal will be entertained against Exhibit P14 or Exhibit P15 only on compliance with the provision under sub- section (11) of Section 509.
8. The contention of the petitioner is that the petitioner is not liable to be relegated to such remedies. It is contended that the entitlement of the petitioner for exemption is indisputable. The learned counsel appearing for the petitioner submitted that if only the petitioner challenges the correctness or legality of assessment made WP(C).9427/11 -:8:- as per Exhibit P14(a), it need be relegated to the statutory remedy. It is contended that in a case where the claim is for exemption, it will be against the interest of justice to relegate the party to resort to statutory remedy. Therefore, in essence the contention is that this writ petition is maintainable. As already noticed herein before, the contention of the petitioner is that in respect of the school belonging to the petitioner at Thiruvananthapuram, an application for affiliation has already been submitted and the procedural formalities for getting affiliation with CBSE were also already complied with. According to them, it is only the stand of the State Government that delays the affiliation with the CBSE. The learned counsel for the petitioner submits that after preventing the petitioner from getting affiliation with CBSE the respondents are seeking payment of tax citing the reason of non-affiliation. This, according to the petitioner, is not permissible in view of legal maxim "commodum ex injuria sua nemo haber debet". It means 'a man cannot be permitted to take undue or WP(C).9427/11 -:9:- unfair advantage of his own wrong to gain favourable interpretation of law. A bare perusal of the very principle would reveal that what is prevented or what is sought to be prevented is the attempt to gain undue or unfair advantage of one's own wrong. I am at a loss to understand under what circumstance, this Court could accept the contention based on the said principle in the facts and circumstances of the case. Admittedly, among the two schools belonging to the petitioner, he had already obtained affiliation in respect of one school, and, therefore, it is evident that if all statutory formalities have been complied with, there would be no impediment at all for getting affiliated with CBSE. There is a difference between a school which stood affiliated with the CBSE and a school that has applied for affiliation. Those schools which stood affiliated with CBSE form a different class altogether and, therefore, the petitioner cannot arbitrarily complain of discrimination. An intelligible differential has been applied for the purpose of classification of the schools viz., WP(C).9427/11 -:10:- those affiliated with CBSE and those which are not affiliated. I do not think that such a classification is impermissible, especially for the purpose of granting concession. It will be for the Government to extend benefits to any class. The petitioner could claim exemption only based on Exhibit P13. There is no other materials relied on by the petitioner for claiming the exemption. When the petitioner claims exemption based on Exhibit P13, necessarily he has to show and establish that the school in question falls within the purview of Exhibit P13 and thus, entitled to get exemption.
9. It is an admitted case of the petitioner that among the schools belonging to the petitioner, only one got affiliated with the CBSE and the school in question which is assessed to property tax is not affiliated to CBSE. Therefore, I am of the prima facie view that the petitioner has failed to show that he is entitled to get exemption rather concession as per Exhibit P13. For all these reasons, I am of the view that the petitioner can be set at liberty to avail the remedy of WP(C).9427/11 -:11:- statutory appeal to redress the grievances, if any, against Exhibit P14
(a) or Exhibit P15. In case of receipt of an appeal, untrammelled by the observations, the same shall be considered. It is made clear that if the petitioner is entitled to take any legal or factual contention to support the claim for exemption, the petitioner will be at liberty to take up such contentions, as well, in the appeal.
Sd/-
C.T.RAVIKUMAR JUDGE krj