PALITANA MUNICIPALITY Vs. MAHARASHTRABHUVAN JAIN

JUDGEMENT

(1.) In all these Special Civil Applications, there are common facts and grounds of challenge to the action of respondent and as such the same are being disposed of by this common order. The learned counsel for the petitioner has made submissions in these matters with reference to the Special Civil Application No. 7055 of 1987 and as such, the facts of this case are to be briefly noticed.

(2.) The petitioner, Palitana Municipality, Palitana, by this Special Civil Application challenges the order dated 17th March, 1983 of the respondent No. 2, State of Gujarat, whereby it has granted exemption to the respondent No. 1-Trust, Maharashtrabhuvan Jain Dharmashala from payment of education cess under the provisions of the Gujarat Education Cess Act, 1962 (hereinafter referred to as the 'Act' ). The respondent No. 1 is a trust registered under the provisions of the Bombay Public Trust Act, 1950 (hereinafter referred to as the 'Act 1950'). The Trust owns the property at Palitana. The property is a Dharmashala which consists of number of rooms. The petitioner has come up with the case that the rooms are of the size of 10' x 10' and have attached 'Verandah' having 5 feet width. The rooms have been provided with all modern facilities. Some of the rooms on the ground floor are used as office premises. The Dharmashala also contains a kitchen, store room, and dining hall. It is urged by the petitioner that all the rooms in the Dharmashala are being utilised by the Trust for providing residential accommodation to the pilgrims and visitors to Palitana and the Trust is charging some rent, by whatever name it may be called, in lieu of providing residential accommodation therein and the said amount is nothing but a rent charged from them and the Trust does not provide any residential accommodation to anybody without charging anything. It is further case of the petitioner that there are number of such other Dharmashalas, owned by different Trusts, in the town of Palitana, out of which some are paying education cess regularly without raising any objection or protest. Some of the Trusts including the respondent No. 1-Trust however, had filed Special Civil Application No. 164 of 1986 before this Court challenging levy of education cess by the petitioner. Those Special Civil Applications were disposed of by this Court under the common order dated 8th April, 1986, wherein the petitioners of those petitions were directed to make appropriate applications to the respondent, State of Gujarat, claiming exemption from payment of education cess under the relevant Notification. This Court has further directed the State of Gujarat to decide these applications of the petitioners, therein, on merits after giving them an opportunity of being heard. Pursuant to the said directions of this Court, the respondent-Trust had made an application to the State of Gujarat claiming exemption from payment of education cess. This application was submitted by the respondent-Trust on 19th April, 1986. The petitioner replied to that application on 1st September, 1986. The respondent No. 2, vide its order dated 17th March, 1987, annexure 'D' granted exemption to the respondent-Trust from payment of education cess and hence this Special Civil Application by the petitioner before this Court.

(3.) The learned counsel for the petitioner, Shri A.J. Shastri contended that the Notification of the grant of exemption from the payment of education cess to the respondent was not laid before the State Legislature within the time as stipulated under Sec. 13 of the Act, and as such this Notification is of no effect and substance. It has next been contended that exemption from the payment of education cess could have been ordered, only where the State Government considers it necessary to do so in the public interest. There was no public interest in the matter, as well as nothing has been stated by the State Government in the order, impugned, how it was considered it to be in the public interest to grant exemption to the Trust from payment of education cess and as such, the order deserves to be set aside only on this ground. It is further urged by the learned counsel for the petitioner that the building or any portion thereof for which exemption is claimed by the respondent-Trust is not solely used for public purpose or for public charitable purpose. Here is a case where the trust is deriving rent for providing residential accommodation in Dharmashala to the pilgrims and visitors to Palitana and the amount which is received is not utilised solely for religious or charitable purposes. Lastly, it is submitted by the learned counsel for the petitioner that the respondent No. 1 has not given sufficient opportunity to the petitioner of being heard in the matter.