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2017 DIGILAW 183 (KER)

PRATHEESH v. VS STATE OF KERALA

2017-01-24

DEVAN RAMACHANDRAN, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Thottathil B. Radhakrishnan, J. 1. These writ appeals are against a common judgment rendered in two writ petitions, which were heard and decided in one go. 2. Heard the learned counsel for the appellants who are the writ petitioners. 3. A public charitable trust was created and it was given affiliation to run an educational institution. Calicut University had fixed norms of recognition and it is submitted that the said trust runs a course in MBA and may be other allied branches. 4. The writ petitioners are individuals. Though it could be pointed out that they are among the trustees of the aforenoted trust, buildings were put up in lands belonging to them as individuals, after obtaining building permit in the name of those individuals. Those buildings are put to use as special residence (hostel). Assessment proceedings under the Kerala Building Tax At, 1975, 'Act', for short, were concluded as regards those buildings. The appellants paid the first installment under those assessments. They, thereafter, claimed that the buildings are residential accommodations for students and, hence, form part of the educational institution which is being run by the trust, as aforenoted. This plea did not prompt the authorities to refer the matter to the Government. 5. In the writ petitions, it was noted by the learned single Judge through para 6 of the impugned judgment that the fact of the matter remains that even in the returns filed under the Act, the appellants did not claim any exemption and the column in the prescribed form to that effect was left blank. The learned counsel for the appellants submitted that erroneous bona fide payment of tax does not deprive a person from contending that no tax was leviable. We do not have to go into that contention for the simple reason that the case in hand can be decided even on the basis of admitted facts. 6. The aforesaid position notwithstanding, the learned counsel for the appellants argued that being a claim for exemption, the matter should have been referred to the Government and the question of exemption is cognizable only at the hands of the Government. At the first blush, this argument may appear to be appealing. 6. The aforesaid position notwithstanding, the learned counsel for the appellants argued that being a claim for exemption, the matter should have been referred to the Government and the question of exemption is cognizable only at the hands of the Government. At the first blush, this argument may appear to be appealing. But, on a deeper consideration we fail to understand why this plea should be accepted through an intra court appeal, that too in writ jurisdiction under Article 226 of the Constitution of India. We say this because, as has already been noted above, the fact of the matter remains that the educational institution is run by a registered trust, which alone is the educational agency to which affiliation has been granted by Calicut University. The mere fact that the appellants are individuals who are trustees of that public charitable trust does not give any right for them to claim that the buildings belong to the said trust. It is the settled position of law that a registered trust is a legal entity and juristic person entitled to hold property by itself. There is no principle relating to that institution which would recognise the assets or the private properties of the different trustees to be accounted for as assets of the trust, unless of course in exceptionally exceptional circumstances, such recourse may be taken as against the trustees when cases of siphoning of trust property etc. are established. Therefore, we cannot but hold that the appellants are ineligible to identify themselves as the educational institution. Hence, the appellants are not entitled to seek exemption from the provisions of the Act. 7. All the aforesaid apart, the appellants/petitioners do not have a case that they do not generate income from the utility of the structures which are said to be used as hostels. This means that the very foundation of the claim for exemption in terms of the Act would be wholly unsustainable. 8. For the aforesaid reasons, we do not find our way to interfere with the impugned common judgment rendered by the learned single Judge. Therefore, these intra-court appeals under Section 5 of the Kerala High Court Act, 1958 fail. In the result, these writ appeals are dismissed.