Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07-12-2007CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.4944 of 1998 Kanyakumari Medical Mission,C.S.I.Hospital, Neyyoor, rep. by its Treasurer,D.Sunil Prakash... Petitioner. Versus1.The Municipal Commissioner, Kuzhithurai Municipality, Kuzhithurai, Kanyakumari District.

The District Collector, Nagercoil, Kanyakumari District... Respondents.PRAYER: Petition filed under Article 226 of the Constitution of India, praying for a wit of certiorarified Mandamus, calling forthe records relating to the proceedings of the first respondent inR.O.C.No.1/97, dated 9.1.1998, demanding the petitioner to pay asum of Rs.50,400/- towards property tax for the buildings bearingDoorNos.25-64A in Ward No.14 of Kuzhithurai Municipality whereinthe School of Nursing, Marthandam and the hostel for the studentsare situate, quash the same and direct the respondents to refrainfrom demanding or collecting any property tax from the petitioner. For petitioner: Mr.V.SelvarajFor respondent : Mr.G.Munirathinam (R1) Mr.V.Manoharan Government Advocate (R2)

O R D E RHeard Mr.V.Selvaraj the learned counsel appearing for thepetitioner and Mr.G.Munirathinam the learned counsel appearing forthe first respondent and Mr.V.Manoharan, the learned GovernmentAdvocate appearing for the second respondent.2. The brief facts of the case necessary for the disposal ofthis writ petition, are as follows: https://hcservices.ecourts.gov.in/hcservices/ a) The London Missionary Society Corporation was foundedin the year 1928. As a registered body, the said Corporation hadbeen established to hold the properties belonging to the ProtestantChurch, formerly known as London Mission Church, the educationalinstitutions, the hospitals and other institutions founded by themissionaries. Later, the London Mission Church in India and otherproperties were divided into two entities, namely, the Church of North India and the Church of South India. The Church of SouthIndia controls 22 Dioceses.

One of the Dioceses under the controlof the Church of South India is the Kanyakumari Diocese. b) The missionaries who founded the London Mission Societyhad established several educational institutions, Hospitals, Orphanages and other institutions of a charitable nature. There are435 Churches under the Church of South India, Kanyakumari Diocese. There are many Colleges, Orphanages and other institutions of acharitable nature, being run under the control of the Church of South India, Kanyakumari Diocese. The Church of South India, Kanyakumari Diocese, is governed by its own constitution with itsoffice bearers elected once in three years. There are separateorgans under the diocese to administer the institutions under itscontrol. The hospitals are under the supervision and control of the Kanyakumari Medical Mission, one of the organs of the Church of South India, Kanyakumari Diocese. By G.O.Ms.No.751, Health and Family Welfare department, dated 3.6.93, the Government of TamilNadu permitted the Kanyakumari Medical Mission, CSI Hospital, Marthandam, to start a Diploma in Nursing Course, subject to thecondition that no capitation fee in any form should be collectedfrom the candidates.

The School of Nursing at Marthandam wasstarted during the academic year 1993 - 1994. The Nursing School isattached to the CSI hospital at Marthandam, which is recognised asa charitable institution. Another Nursing School attached to theCSI Hospital, Neyyoor, was started 40 years ago. No property taxwas demanded by the local authorities with regard to the hospitalsand other institutions. c) As per Section 83(c) of the Tamil Nadu DistrictMunicipalities Act, 1920, buildings used for educational purposesincluding hostels, shall be exempted from payment of property tax. However, the first respondent, in violation of the provisions ofthe State Act, is demanding payment of property tax for thebuilding in the occupation of the Nursing School at Marthandam. Even though the management of the Nursing School is not receivingany tution fees from the students, the first respondent has refusedto exempt the buildings used by the said school from the payment ofproperty tax by the impugned proceedings in Roc. No.1/97, dated9.1.1998.

In the counter affidavit filed on behalf of the firstrespondent, it has been stated that the Nursing School and the Hostels, attached to the CSI Hospital at Marthandam, had beenassessed for the purpose of levying property tax. As per Section 83(1)(c) of the Tamil Nadu District Municipalities Act, 1920, as https://hcservices.ecourts.gov.in/hcservices/ amended by the Tamil Nadu Act XVII, 1990, the words "Buildings usedfor educational purposes, including hostels" had been omitted. Eventhough the buildings used for educational purposes includinghostels had been originally exempted from payment of property tax, the exemption had been omitted after the amendment made in Section83(1)(c) of the Tamil Nadu District Municipalities Act, 1920.

The learned counsel appearing for the first respondent hadsubmitted that the Buildings and the hostels belonging to the Nursing school, excluding play grounds and open space used for thestudents were liable for the payment of property tax, as perG.O.Ms.94, Municipal Administration and Water Supply Department,18.3.1994.

The learned counsel appearing on behalf of the petitionerhad submitted that the Tamil Nadu Act XVII of 1990, amending SubClause (c) of Clause (1) of Section 83 of the Tamil Nadu DistrictMuncipalities Act, 1920, had never come into force, as it had notbeen notified. Therefore, the withdrawal of exemption granted tothe buildings and Hostels of the Nursing School, run by thepetitioner, is illegal and invalid in the eye of law.

The learned counsel appearing on behalf of the firstrespondent, while denying the claims made by the learned counselappearing for the petitioner, had placed before this court, aCircular in Roc. No.23698/93/R1, dated 15.7.1994, issued by theoffice of the Director of Municipal Administration, Chennai, readsas follows: "The Amendment Act No.42 of 1994 amending Section 83of the T.N.D.M. Act providing for exemption from propertytax for "buildings used for education purpose includinghostels attached thereto, public buildings and placesused for charitable purpose" has been published in theT.N.Govt. Gazettee Extraordinary on 30.6.94. theamendment has been given effect from 18.10.90. A copy ofthe Amendment Act is also enclosed for necessary action"

The learned counsel appearing on behalf of the firstrespondent had also submitted that in view of the Tamil NaduMunicipal Laws (Amendment) Act, 1994, sub clause (c) of clause (1)of Section 83 of the Tamil Nadu District Municipalities Act, 1920,has been restored to its original position, as it existed prior tothe enactment of the Tamil Nadu Act XVII, 1990.

It has also been submitted by the learned counsel appearingfor the first respondent that the impugned proceedings of the firstrespondent in Roc. No.1/97, dated 9.1.98, would not be enforcedagainst the petitioner in view of the enactment of the Tamil NaduMunicipal Laws (Amendment) Act, 1994. https://hcservices.ecourts.gov.in/hcservices/

At this stage of hearing of the writ petition, the learnedcounsel appearing on behalf of the petitioner had submitted thatthe petitioner had deposited 50% of the tax demanded by the firstrespondent, pursuant to the order of this Court, dated 17.8.98,made in W.M.P.No.7663 of 1998. In view of the submissions made bythe learned counsel appearing for the respondents, the amountdeposited by the petitioner is to be refunded by the respondents.