As the issue involved in all these writ petitions are the same, they are taken up together for consideration and disposed by this common judgment.
2. The petitioners in all the writ petitions are persons administering private educational institutions, which are said to be recognised by the Government for the purposes of the Kerala Education Act and Rules. The dispute in these writ petitions is against the levy of property tax, in terms of the Kerala Panchayath Raj Act, 1994, and the contention of the petitioners is that the provisions of Section 207 of the Kerala Panchayath Raj Act, 1994 clearly indicate that buildings, including hostels under the ownership and use of educational institutions recognised by Government, would be entitled for exemption from the levy of property tax. In the backdrop of this express provision in the statute, it is the contention of the petitioners that the Government order dated 01.01.2009, that contemplates a levy of property tax on educational institutions and hostels other than Government Schools and aided Schools, cannot withstand the test of legality since the said Government order, in effect, goes against the express provisions of the statute. It is on this ground that the demand notices issued by the respondent Panchayaths, demanding property tax in respect of the buildings owned by the institutions, have been impugned in the writ petitions.
3. Counter affidavits have been filed on behalf of the respondent Panchayath as also by the Government. In the counter affidavits the stand taken is that the provisions of Section 207 of the Kerala Panchayath RaJ Act, 1994, that grant exemption from tax to the persons enumerated thereunder, only grant exemption to buildings under the ownership and use of educational institutions that are recognised by Government and in that sense it applies only to those institutions that are run by the Government or receive aid from the Government and not to those institutions which are run by private bodies, without any aid from the Government. It is also pointed out that ultimately the grant of exemption is a policy matter and it would not be open to this Court to interfere with the Government order dated 01.01.2009 in exercise of its powers under Article 226 of the constitution.
4. I have heard Sri.K.B.Gangesh, the learned counsel appearing for the petitioners in all the writ petitions, Sri.M.I.Johnson, the learned Standing counsel appearing for the 2nd respondent Panchayath in W.P.(C) No.11799 of 2009, Sri.P.Prejith, the learned Standing counsel appearing for the 2nd respondent Panchayath in W.P.(C) No.14095 of 2009 and the learned Government Pleader appearing for the Government in all the writ petitions.
5. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I note that the statutory provisions under the Kerala Panchayath Raj Act, 1994, dealing with exemption from tax, has undergone amendments during the period when the writ petitions were pending before this Court. The relevant portion of Section 207 of the Kerala Panchayath Raj Act as is stood prior to 2009 read as follows:-
“207. Exemption from Tax, Cess, etc.- (1)The following buildings and lands shall be exempt from the tax, cess or duty leviable under Section 200, namely:-
(a). .........................
(b). ............................................
(C) [Buildings including hostels under the ownership and use of educational institutions recognised by Government, public buildings used for charitable purposes of providing shelter to destitutes and animals and libraries and playground open to public.]”
By an amendment in 2009, through Act 31 of 2009 which took effect from 07.10.2009, The relevant provision was amended to read as follows:-
“207. Exemption from Tax, Cess, etc.- (1) The following buildings and lands shall be exempted from property tax as may be levied under S.203 and service cess as may be levied under sub-section (2) of Section 200. namely:-
(a)..........................
(b)building exclusively used for educational purposes or allied purposes under the ownership of educational institutions owned by the Government, aided or functioning with the financial assistance of the Government and the hostel buildings wherein the students of the said institutions reside;”
It is pointed out that, thereafter, by the Kerala Panchayath Raj Act (3rd Amendment) Ordinance, 2012, there was a proposal to amend the provision further by inserting the following Clause after Clause (b) of Section 207:-
“(ba) buildings exclusively used for educational purposes upto the level of Higher Secondary under the ownership of educational institutions having the recognition of the Government and hostel buildings wherein the students of such institutions reside.”
It is not clear, however, as to whether this ordinance eventually resulted in an amendment to the Act or lapsed by efflux of time.
6. In the light of the amendments that have been brought about to Section 207 of the Kerala Panchayath Raj Act, 1994, It is apparent that the claim for exemption raised by the petitioners would have to be examined in the light of the provisions as they stood during the relevant period. Accordingly, it would have to be examined in the light of the statutory provisions as to whether the building could be said to be one that qualifies for the exemption as per the provisions as they stood during the relevant periods. This is an exercise that has to be done by the respondent Panchayath, after examining the facts applicable in each case. Since the demand notices, impugned in the writ petitions, do not contain any factual finding with regard to the nature of the buildings or their entitlement to exemption in terms of the statutory provision, I am of the view that these writ petitions can be disposed with the following directions:-
1. The petitioners shall submit self assessment statements, pertaining to the buildings owned by them and in respect of which they claim exemption from property tax. The said statement shall contain details with regard to the nature of the building and the basis on which the petitioner's claim exemption in terms of Section 207 of the Kerala Panchayath Raj Act,1994.
2. On receipt of the self assessment statements from the petitioners, the respondent Panchayaths shall forthwith proceed to determine the eligibility of the petitioners for the exemption claimed, by referring to the provisions of Section 207 applicable for the period in question, and pass reasoned orders stating whether the exemption claimed is granted or not.
3. The interim orders passed by this Court in the writ petitions will continue to operate in favour of the petitioners, pending the passing of final orders, by the respondent Panchayaths, on the claim for exemption made by the petitioners.
4. The petitioners shall file their self assessment statements within a period of three weeks from the date of receipt of a copy of this judgment and the respondent Panchayaths shall proceed to determine the petitioners' claim for exemption of within a period of one month thereafter, after affording the petitioners an opportunity of being heard prior to passing final orders in the matter.
With these directions, the writ petitions are disposed.
mns A.K.JAYASANKARAN NAMBIAR JUDGE