Demand for building tax had been resisted by the petitioner, which is a Devaswom. They had constructed a Sadyalayam and the Tahsildar, Cherthala (first respondent herein) had assessed the said structure under the Building Tax Act, as a building coming under the definitions given under the Act. Ext. P1 is the order. At that time, petitioner had preferred an Original Petition challenging the order, inter alia contending that the said officer had no jurisdiction to make an assessment, and in view of Section 3(2) of the Act, the question was to be exclusively decided by the Government. The learned Judge, therefore, accepting the objections, had directed reference of the issue to the Government.
2. The Government after consideration of the issue has passed Ext. P5 order and held that the building is not eligible for exemption from payment of building tax. This is now under challenge.
3. The learned counsel for the petitioner submits that the case was heard by one Officer, but orders have been passed by a different person and this is in violation of the principles of natural justice. Another contention is that facts highlighted before the Government had not been adverted to and the Government had proceeded on an erroneous assumption that the Devaswom is accepting rental for user of the Oottupura as if a commercial venture.
4. It is necessary to refer to the definition of building under S. 2(e) of the Act, which is to the following effect:
“building” means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure.”
Thus any structure qualifies for being considered as a building. An Oottupura (dining hall) is, therefore, a building.
5. The next issue is whether this structure is entitled for an exemption. Section 3 of the Act is the exemption clause. I may extract the section as a whole for an easy reference.
“(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; and
(b) buildings used principally for religious, charitable or educational purposes or as factories or workshops.
Explanation:— For the purposes of this sub-section, “charitable purpose” includes relief of the poor and free medical relief.
(2) If any question arises as to whether a building falls under sub-section (1) or under Section 3-A it shall be referred to the Government and the Government shall decide the question after giving the interested parties an opportunity to present their case.
(3) A decision of the Government under sub-section (2) shall be final and shall not be called in question in any Court of law.”
So as to become entitled for exemption, the building should principally be used for religious, charitable or educational purposes. Being an exemption, it has to get a very restrictive interpretation. The Oottupura is principally intended for persons to sit and dine. It may be in connection with rites of temples, or could be to house a gathering which might throng in connection with social functions. In any view, this cannot elevate the Oottupura to a position to hold that the building is used for religious purpose. Nor can it be considered as one constructed for charitable purpose. Buildings might be attached to Religious Institutions, for public to gather on religious or ceremonial occasions. Even if the congregation is in connection with a philanthropical feeding, the statute has not intended it to be exempted, as the word used is ‘principally used’. For example, if the building is used for housing the clergy, or for conducting occasional classes or discourses, by the above conduct alone, it does not get the label of a religious or charitable use. Even if actually there is no letting out, according to me if it is capable of being let out, the building is to be taken outside the field of exemption. According to the petitioner, the Oottupura is to be used for temple rituals and feasts in connection with festivals of the temple. Not on every day, there will be festivals in the temples. The averments show that the building does not satisfy the pre-conditions for exemption. Even though it may be appurtenant to or contiguous to the temple or place of worship, necessarily a distinction has to be drawn as between the structures of the temple, where religious rites are routinely carried out and the other construction which might be appendages or extensions. One of the safe yardsticks that could be employed for adjudging the claim might be an examination as to whether the structures, if constructed by a private enterprise would have enjoyed an aura of protection. In other words, all structures constructed by a religious institution may not be eligible to claim absolute exemption. An interpretation as suggested by the counsel would be too wide, and not envisaged by the statute. The Government has therefore, approached the issue with a dispassionate but realistic perception.
6. The objection of the petitioner that the matter was heard by one officer and orders have been passed by another person also is of no significance as the order indicates that the points that had been raised had been duly taken notice of. There was no deep or intricate question, which could have been attempted to be resolved only by a person who actually had occasion to hear the reference.
7. In the aforesaid circumstances, I decline jurisdiction and dismiss the Original Petition. But, taking note of the request of the petitioner, I am inclined to direct that the amounts that are due and payable will be permitted to be paid in six equal monthly instalments, the first instalment commencing from 1-10-2002.
Petition dismissed.
Comments