Kerala High Court
St.John The Baptist Church vs State Of Kerala on 13 September, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934
WP(C).No. 17180 of 2008 (T)
---------------------------
PETITIONER :
--------------------
ST.JOHN THE BAPTIST CHURCH,
KANJIRATHANAM P.O., MANJOOR, KOTTAYAM
REPRESENTED BY ITS TRUSTEE.
BY ADVS. SRI.SIBY MATHEW
SRI. PHILIP J. VETTICKATTU
RESPONDENT(S):
--------------------------
1. STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
REVENUE (SPECIAL CELL)
SECRETARIAT, TRIVANDRUM.
2. THE DISTRICT COLLECTOR, KOTTAYAM.
3. THE TAHSILDAR (ASSESSING AUTHORITY)
VAIKOM.
4. THE VILLAGE OFFICER, KOTHANALLOOR.
R1 TO R4 BY SR. GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 17180 of 2008 (T)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF DECISION TAKEN BY THE GENERAL BODY OF THE
PARISHIONERS.
EXT.P2 : COPY OF APPLICATION DT. 28.2.2001 SUBMITTED BY THE PETITIONER
BEFORE THE VILLAGE OFFICER.
EXT.P3 : COPY OF REPRESENTATION DT. 11.3.2007 FILED BY THE PETITIONER
BEFORE THE TAHSILDAR, VAIKOM.
EXT.P4 : COPY OF REPORT DT. 19-3-2007 PREPARED BY THE TAHSILDAR,
VAIKOM.
EXT.P5 : COPY OF REPRESENTATION DT. 12-11-2007 FILED BY THE PETITIONER
BEFORE THE GOVERNMENT.
EXT.P6 COPY OF ORDER NO. GO(RT) 10/08 DT. 2-1-08 PASSED BY THE
GOVERNMENT.
EXT.P7 COPY OF REVIEW APPLICATION DT. 21-1-2008 FILED BY THE
PETITIONER.
EXT.P8 COPY OF ORDER NO. 10531/08 DT. 23-5-08 PASSED BY THE
GOVERNMENT.
EXT.P9 COPY OF LETTER NO. B5-1103/07 DT. 18-1-08 ISSUED BY THE 2ND
RESPONDENT, TAHSILDAR, VAIKOM.
EXT.P10 AFFIDAVIT OF VICAR, ST. JOHN BAPTIST CHURCH.
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.S. TO JUDGE
Mn
ANTONY DOMINIC, J.
================
W.P.(C) NO. 17180 OF 2008
===================
Dated this the 13th day of September, 2012
J U D G M E N T
This writ petition is filed by St.John Baptist Church, Kanjirathanam P.O. As part of its centenary celebrations, utilising the contributions made by its parishioners, the Church constructed a centenary hall, described as "Centenary Prayer Hall". It appears that when building tax payable under the Kerala Building Tax Act, 1976 was demanded, the Church resisted the demand contending that the hall in question is a building used principally for religious purposes and therefore, is entitled to exemption under Section 3 of the Act.
2. The matter was referred to the Government for decision as provided in Section 3(2) of the Act. The Government after hearing the parties and considering the materials available, rejected the claim by Ext.P6 order on the ground that the building is used for commercial purposes and is not principally used for any religious purposes. Petitioner thereupon made a representation seeking review of the decision. That was also considered and rejected by Ext.P8 order of the Government. WPC.No.17180/08 :2 : Thereafter, the third respondent issued Ext.P9, enclosing an assessment order and demanding `1,42,200/-. It was in these circumstances, the writ petition has been filed contenting that the hall in question is eligible for exemption from the Building Tax and that therefore Exts.P6, P8 and P9 are illegal.
3. Section 3(1) of the Kerala Building Tax Act (hereinafter referred to as the Act for short) exempts buildings used principally for religious purposes from the levy of Building Tax. Section 3(2) provides that, if any question arises as to whether a building falls within any one of the categories included in Section 3 (1), the same shall be referred to the Government and that the Government shall decide the question after giving the interested parties an opportunity to present their case. It was in that manner that the issue came to be considered by the Government and decided by Ext.P6 order.
4. Section 3 of the Act provides for exemptions from the levy of tax under the Act and as per section 3(1)(b), buildings used "principally" for religious purposes are also eligible for the benefit. It is trite that statutory provisions providing for exemptions should be strictly construed and that the burden to WPC.No.17180/08 :3 : prove eligibility for the benefit of the section is entirely upon the person claiming exemption. The words of the statute are clear that only those buildings which are used "principally" for religious purposes are eligible for the benefit of exemption. The question therefore is, whether on the materials available, the petitioner has established that the principal use of the auditorium is religious.
5. According to the petitioner, by Ext.P1 resolution of the General Body of the parishioners, it has been resolved to give the auditorium free of charges for marriage receptions hosted by those who have contributed money for its construction and not to give it for the use of others. It is their case that in addition to such occasional free use, on Sundays, the auditorium is used for religious teaching and that on other days, it is given for prayer services, religious seminars, religious training programmes of various parish organisations like family union meetings, YMCA, YWCA. St.Vincent De Paul Society etc.,. It is contended that for these and other religious purposes for which the auditorium is used, the Church is not collecting any rent or other charges. On this basis, the petitioner contends that the principal use of the auditorium being religious, it is entitled to exemption as provided WPC.No.17180/08 :4 : under the Act.
6. To substantiate its contention that the auditorium is given free of charges for marriage receptions hosted by the parishioners who have made contribution towards the cost of construction and that it is not given to the use of anybody else, what is relied on by the petitioner is Ext.P1 resolution only. In my view, even if it is accepted that the claim is true, such use of the auditorium will not qualify to be a religious use. In Christian marriages, religious ceremonies in connection with the solemnization of marriage are held in Churches as part of Holy Mass performed by the priest. Once the religious functions are concluded, reception is hosted either in a parish hall or other places, depending upon the convenience, financial status and other considerations of the persons concerned. Such receptions, which have nothing spiritual, cannot be recognised as religious functions.
7. In fact, in the judgment in St. George Orthodox Church v. State of Kerala (2009(4) KLT 702), a Division Bench of this Court had occasion to consider a similar contention and it was held thus;
WPC.No.17180/08 :5 :
"The first contention raised by the appellant that the marriage reception held in the parish hall is a religious function, is unacceptable because marriage reception is not a religious ceremony though marriage held in the church is a religious ceremony. Appellants have no case that any marriage is conducted in the parish hall. On the other hand Christian marriages are conducted in the church and parish hall is let out to the parties only for the purpose of holding reception, which of course is held in connection with the marriage. Marriage takes place so frequently in church and most of the parties getting married in the church arrange marriage reception in the parish hall.
8. Even otherwise, I cannot accept the contention of the petitioner. Counter affidavit filed by the third respondent shows that he inspected the auditorium in question and made enquiries with the local people when he was told that it is usually given on rent for marriages and other functions of the local people. Admittedly, the plinth area of the auditorium is 947.25 square meters and the Church has provided 1000 chairs and 200 tables. If the auditorium is used only for the purposes as claimed by the Church, it is unlikely that it would have provided that much of tables and chairs. Not only that, if it is not generating any income, maintenance of the auditorium would have been an economic liability for this village parish. In such circumstances, the conclusions of the third respondent cannot be rejected as improbable.
WPC.No.17180/08 :6 :
9. As far as the contention that the auditorium is used for Sunday classes is concerned, such occasional use of the auditorium for classes held on Sundays will not qualify as its principal use. This question was raised before this Court in St.Mary's Church v. Tahsildar (2005(2) KLT 43) and it was held thus;
"4. It is pertinent to note that building tax exemption will be available to a building only when it is "principally"
used for the purposes mentioned in S.3(1)(b) of the Act. Of course, Sunday School run in all Churchs including the petitioner's is for imparting religious education to the parishioners which is a religious purpose. However, the very name of the school as Sunday School reveals beyond doubt that the school for imparting religious education works only on Sundays. On enquiry conducted by the Government through the Revenue Authorities, the Church authorities conceded that the building is rented out to marriage parties and for other functions to all sections of the society including members of other religious groups. Therefore, the admitted fact is that the building is used for imparting religious education on Sundays and on all other days the building is available for letting out to parties on rent. Out of 365 days in a year there are only 52 Sundays and use of the building for 52 days in the year cannot be termed as 'principal use of the building'. In the circumstance, while I hold that the Sunday School exists for religious purpose, I am not inclined to interfere with Ext.P5 order because the use of the building on Sundays cannot be termed as "principal use of the building". Principal use of the building in this case is commercial i.e., letting out on rent.
WPC.No.17180/08 :7 :
10. Above judgment was followed in the Division Bench judgment in St.George Orthodox Church's case (supra), where also, rejecting a similar plea, it was held thus;
"The Government Pleader pointed out that parish hall cannot be used to run Sunday classes because it is a hall whereas Sunday classes are held in groups of students which is usually conducted in class rooms. In any case, even if Sunday school is conducted on every Sunday, the maximum number of days of use of the parish hall is 52 days out of 365 days in any year. Therefore even if the parish hall is used for running Sunday classes, it cannot be said to be the predominant use. Such a view is taken by this Court in the decision reported in St.Mary's Church v. Tahsildar in (2005 (2) KLT 43). It is the settled position that building owned by the religious institutions or charitable institutions when let out on rent is assessable for building tax as the use is commercial purpose, no matter the income therefrom is used for religious or charitable purpose. In view of this position settled by several judgments of this court, we confirm the judgment of the Single Judge."
11. Now what remains is the contention that the hall is used for other religious purposes. Apart from this plea raised in the writ petition, there is total dearth of materials to substantiate this claim. In the absence of any material in this behalf, I am unable to accept this contention also.
12. Thus, the petitioner has not established that the principal use of the auditorium in question is religious purposes to qualify for exemption from the levy of building tax as provided under the Act. Therefore, I do not find anything illegal in the WPC.No.17180/08 :8 : impugned orders warranting interference by this Court.
13. At this stage, learned counsel for the petitioner sought an instalment facility to pay the amount due from them. Considering the request made, it is directed that the petitioner will be permitted to pay the amount due in 10 equal monthly instalments. The first instalment will be paid on or before 15/10/2012 and the subsequent instalments will be paid on or before the 15th of every succeeding month. If payment is made as above, recovery steps will not be initiated and in case of non payment, respondents will be free to recover the amount due in accordance with law.
Subject to the above, for the aforesaid reasons, the writ petition fails and is dismissed. No costs.
ANTONY DOMINIC, JUDGE Rp