H.L. Dattu, C.J.

The question for consideration is, whether the building owned by the petitioner is eligible for exemption from payment of tax under the provisions of Kerala Building Tax Act and the Rules framed thereunder.

2. Petitioner is running a Nursing School in the ground and first floor of a building. The second and third floors of the building are used as hostel. The Tahsildar, Thalassery Taluk, Thalassery had issued Notice No.C-4/23220/03 dated 211.2003, calling upon the petitioner to file details regarding the construction of new building for the purpose of fixing the Building Tax/Property Tax under the provisions of the Kerala Building Tax Act and the Rules framed thereunder. After receipt of the notice, the petitioner had filed a detailed reply dated 112.2003 and in that it was stated, apart from others, that the Nursing School building has four floors, the ground floor accommodates the Principals and Vice Principals Offices, visitors room, library, dining hall, kitchen etc; first floor is used as class rooms, staff room, laboratory hall etc; second and third floors are used for the stay of Nursing students. Hence the whole building is used fully for educational purpose as Nursing School. In conclusion, it was claimed that the building is exempted under Section 3(1)(b) of the Act, and therefore, requested the Tahsildar who had initiated proceedings to assess the Building Tax under the Act, to refer the question of exemption to the State Government as envisaged under Section 3(2) of the Act. On such reference, the State Government has passed Ext.P6 order dated 28.7.2006 and in that it has stated, that, since the petitioner is using second and third floors to accommodate nursing school students by collecting Rs.12,000/-from each student as annual fee and mess fee as per dividing system, it is not entitled for exemption under the Act to the second and third floor of the building. However, exemption was granted to the ground and first floor which are exclusively used for educational purpose. The operative portion of the order is as under:

"In these circumstances, Government order that the ground and first floor of the building of BKJM School of Nursing owned by Josgiri Hospital, Thalassery are exempted from Building Tax under Section 3(1)(b) of the KBT Act, 1976. The second and third floors of the building which are used as the hostel for students will be assessed for building tax."

3. The petitioner, being aggrieved by Ext.P6 order passed by the State Government, has, called in question the correctness or otherwise of the said order by filing this petition before this Court. The prayers in the writ petition are:-

"(i) a writ of certiorari to quash that part of Ext.P6 order which reject the exemption in respect of IInd and IIIrd floors of the petitioners building while retaining that part of Ext.P6 which grants exemption for to ground and 1st floors;

(ii) writ of mandamus to command respondent to grant exemption to the area of the building occupied by the Nursing Students Hostels and staff quarters and other areas in the building which is essential for the running of the nursing school;

(iii) to award cost of this petition."

4. The respondents have filed their counter affidavit justifying the impugned order in the same lines as is done by the State Government.

5. At the time of hearing of the petition, the petitioners learned counsel has relied on the observations made by the learned Single Judge of this Court in the case of Sree Gokulam Educational and Medical Trust vs. Tahsildar, 2006 (4) KLT 108, wherein the learned Single Judge has taken the view, that, the building is to be treated as part of educational institution, if it is principally used for educational purposes and such building is liable to be exempted. Per contra, learned Government Pleader has relied on the decision of the Division Bench of this Court in the case of Mother Superior, St.Marys Carmalite Convent vs. Principal Secretary to Govern