The main legal point established in the judgment is that the primary purpose of a building's use, particularly for charitable purposes, should be the determining factor for exemption from building tax, even if some income is generated as long as it is not for profit.

Varghese Kalliath, J.

This is an appeal by the respondents in an Original Petition. It is against the judgment of a learned single Judge. The chief question that arises for consideration in this Writ Appeal is an important question as to the right of exemption in regard to the buildings of the petitioner in the Original Petition used as hospital buildings from the liability to pay building tax, under the Kerala Building Tax Act, 1975 (hereinafter referred to as the 'Act'). The facts of the case are fully set out in the well considered judgment. They can be summarised quite shortly for the purpose of this judgment.

2. Petitioner in the Original Petition is St. Gregorious Medical Mission, Parumala. It is an institution registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act (Act XII of 1955). Petitioner claimed exemption from the liability to pay building tax, under the Act. This was refused by the order, Ext. Pll. Petitioner challenged Ext. Pll order. The learned single judge allowed the Original Petition. Hence the respondents appeal.

3. From the facts narrated in the Original Petition, it is seen that the main object for which the Medical Mission is established is to function as a service wing of the Parumala Seminary. The relevant clauses of the memorandum of articles of association are extracted in the petition itself. In the judgment, it is stated that the memorandum of articles of association was produced at the time of hearing. Further it is seen that before the Government a copy of the memorandum of articles of association of the Medical Mission was produced among other documents. The learned single judge has referred to the relevant and important clauses in the judgment itself. Clause II reads thus:-

"The mission is instituted to function as a service-wing of the Seminary. The funds of the Mission shall not be used for purpose other than the objects of the mission. On no account shall the Mission operate for profit. Any excess in income over expenditure shall be used only for furtherance of the object of the Mission".

Sub-clause (ii) of clause IV makes it clear that one of the objects of the Mission is "To give free medical and general health services to the less privileged and poor, irrespective of community or caste according to the availability of funds". Sub-clause (vii) of clause IV repeats the fact that the Mission is founded to establish or to conduct nursing homes, orphanages destitute houses, homes for the aged and infirm and educational or training institutions for Doctors, Nurses, Midwives, Pharmacists, Dietitians, Laboratory Technicians, and others connected with or devoted to Medical and allied services and to render financial and other aids to such institutions or trainees in such institutions.

4. Under S.5 of the Act. it is provided that every building, the construction of which was completed on or after 1st day of April, 1973 and the capital value of which exceeds Rs. 75,000/- is liable to building tax at the rates specified in the schedule to the Act. S.3 of the Act deals with exemption from the application of the Act itself. It is provided that the Act shall not apply to buildings used principally for religious, charitable or educational purposes or as factories or workshops. Explanation to S.3 tells that "charitable purpose" includes relief of the poor and free medical relief. Clause 2 of S.3 gives power to the Government to decide the question as to whether the building falls under sub-section (1) of S.3. Further in clause 3 it is stated that the decision of the Government under sub-section (2) shall be final and shall not be called in question in any court of law.

5. When the petitioner was served with a notice for assessment of its building used for the purpose of hospital, the petitioner approached this Court by filing O.P.No. 2462 of 1976. This Court disposed of the Original Petition with a direction that the authority concerned should refer th