Kerala High Court
Attukal Bhagavathy Temple Trust vs Corporation Of Thiruvananthapuram on 24 November, 2000
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Kurian Joseph, J.
1. The matter arises under the Kerala Municipality Act, 1994 (hereinafter referred to as 'the Act') and the issue raised is whether the two auditoriums, viz., 'Devi Auditorium' and 'Karthika Auditorium', of the petitioner are entitled for exemption from payment of property tax and profession tax under the relevant provisions of the Act. According to the petitioner, being a charitable trust, it is entitled for exemption as aforesaid even if the petitioner generates income by letting out the auditoriums for marriage purposes, in case such income is utilised for charitable purpose.
2. The learned Single Judge, after elaborately adverting to the various provisions, particularly S. 235 of the Act, observed that the two auditoriums being not places set apart exclusively for public worship are not entitled for exemption. The learned Single Judge also repelled the contention that the auditoriums should be treated at par with the choultries made mention of under S. 235(1)(c) of the Act since choultry means a shelter or resting place for travellers where they are fed and admittedly the auditoriums of the petitioner are not such places. Thus aggrieved, the petitioner has filed the present Writ Appeal.
3. Sri. S.Gopakumaran Nair, learned counsel for the appellant strenuously contended before us that the two auditoriums of the appellant-Trust are liable to be treated at par with choultries mentioned under S.235(1)(c) of the Act. It is the contention of the learned counsel that even assuming that the two auditoriums are not choultries, once it is proved that the income derived by the petitioner by letting out the auditoriums is also used for charitable purpose, such places are entitled for exemption from property tax and profession tax. In other words, according to the learned counsel, the purpose for which the income is used is the relevant consideration.
4. We are unable to agree with the above submission. It is pertinent to note in this context that under the Kerala Municipalities Act, 1960 under S. 101 dealing with exemption, there were various exemptions. S. 101 (1) of the said Act reads as follows:-
101. Exemption:-
(1) The following buildings and lands shall be exempt from the properly tax:-
(a) places set apart for public worship and either actually so used or used for no other purpose;
(b) buildings which are attached to places of public worship other than those used for residential purposes;
(c) choultries for the occupation of which no rent is charged and choultries the rent charged for the occupation of which is used exclusively for charitable purposes;
(cc) buildings used for educational purposes including hostels, public buildings and places used for the charitable purpose of sheltering the destitute or animals and libraries and playgrounds which are open to the public;
(d) lands and buildings or portions of lands and buildings exclusively occupied and used for public worship or by a society or body for a charitable purpose;
Provided that such society or body is supported wholly or in part by voluntary contributions and applies its profits, if any, or other income in promoting its objects and does not pay any dividend or bonus to its members.
Explanation:- "Charitable purpose" includes relief of the poor, education and medical relief but does not include a purpose which relates exclusively to religious teaching;
(e) such ancient monuments protected under the Ancient Monuments Preservation Act for the time being in force, or parts thereof, as are not used as residential quarters or as public offices:
(f) burial and burning grounds included in the book kept at the municipal office under S. 323;
(g) buildings or lands belonging to the municipal council;
(h) such property of Government not being buildings, as may from time to time be notified by the Government.
Explanation:- The exemption granted under this section shall not extend to residential quarters attached to schools and colleges not being hostels or to residential quarters attached to hospitals, dispensaries and libraries".
Thus it can be seen that on charitable considerations there was exemption for choultries where no rent was charged and choultries where rent was charged but such rent was used exclusively for charitable purposes, public buildings and places used for charitable purpose of sheltering the destitute or animals, lands and buildings exclusively occupied and used by a society or body for charitable purpose etc. The expression "charitable purpose" itself was defined as a purpose including relief to the poor, educational and medical relief but excluding exclusive religious teaching.
5. However, coming to the new Act, the Kerala Municipality Act, 1994, S. 235(1) dealing with exemptions provides as follows:-
"235. Exemption :-(1)The following buildings and lands shall be exempt from the property tax:
(a) places set apart for public worship, and either actually so used or used for no other purpose:
(b) buildings used exclusively for public worship:
(c) choultries for the occupation of which no rent is charged and choultries where the rent charged for the occupation is used exclusively for charitable purposes.
(d) buildings recognised by the Government or registered with the Municipality under this Act and owned and occupied by educational institutions and used only for teaching and libraries open to public:
(e) ancient monuments protected under the law relating to preservation of ancient monuments applicable to the State for the time being in force, or part thereof, as are not used as residential quarters or as public offices:
(f) burial and burning grounds included in the register kept at the office of the Municipality under S. 486.
(g) buildings or lands belonging to the Municipality;
(h) such property of Government not being buildings, as may from time to lime be notified by the Government; and
(i) public buildings and places used for charitable purposes of sheltering the destitutes or animals.
Explanation:- The exemption granted under the Section shall not extend to buildings and lands for which rent is realised by the owners thereof and to residential quarters attached to schools and colleges not being hostels or residential quarters attached to hospitals, dispensaries and libraries."
(The said Section has undergone a further charge in the recent amendment. However, since the same is not material for the purpose of this case, we are not referring to the same.)
6. It can be seen that there is a marked difference in the provisions of the old Act and the new Act in the matter of exemption from payment of property tax. While the predecessor Act clearly provided for exemption on the sole consideration of being a place used for charitable purpose, the same had been totally omitted in the new Act. On charitable consideration, the new Act provides for only two types of buildings and two types of charitable use, one under S. 235(1)(c) and the other under S. 235(1)(i). Clause (c) of S. 235(1) provides for choultries for the occupation of which no rent is charged and choultries where the rent charged for the occupation is used exclusively for charitable purposes, and Clause (i) of S. 235(1) contemplates public buildings and places used for charitable purposes of sheltering the destitutes or animals. Incidentally it may also be noted that from the Explanation to S. 235(1) it could also be inferred that exemption was contemplated for charitable hospitals, dispensaries and libraries except their residential quarters.
7. Whatever that may be, it has to be noted that it is not all charitable purposes which are exempted under S. 235 of the Act. The charitable use of a premises as choultry or as a place used for sheltering the destitutes or animals alone is liable for exemption. Thus, going by the present classification, the buildings of the appellant used as auditoriums do not qualify for exemption from profession tax or property tax.
8. The Writ Petition is liable to be dismissed for yet another obvious reason. Ext. P1 is the Scheme governing the appellant-Trust as approved by the District Court, Thiruvananthapuram in O.S. No. 1 of 1979. Going by the various provisions under the Scheme we are unable to find any provision therein declaring the Trust to be a charitable trust. May be, the income is used for charitable purposes. But there is no declaration as such in Ext. P1 Scheme that it is a charitable trust and its income is to be used only for charitable purposes. A Division Bench of this Court in the decision reported in I State of Kerala v. St. Gregarious Medical Mission 1992 (1) KLT 230) has clearly held that in order to ascertain the charitable nature of an institution, it has to be seen whether it is expressly provided so in the objects of the trust or society governing the institution. Ext. P1, as it stands today, does not contain such a clause. In that view of the matter also, it cannot be held that the two auditoriums of the appellant are entitled for exemption.
9. Sri. N.Nandakumara Menon, learned counsel appearing for the 1st respondent-Corporation submitted that the other buildings of the appellant used for temple purposes and the offices of the temple are exempted from payment of property tax and profession tax.
In such circumstances, we do not find any merit in the Writ Appeal and it is accordingly dismissed.