VIJAYAWADA MUNICIPALITY Vs. SAMPAT KUMAR VILAS

JUDGEMENT

(1.) This second appeal is preferred by the Vijayawada Municipality repre. sented by its Commissioner against the judgment and decree of the Subordinate Judge Vijayawada in As. No. 196/61 setting aside the decree and judgment of the District Munsif, Vijayawada in O. S. No. 163/61. The appellant is the plaintiff. The Municipality laid action against the respondent/defendant Sampatkumar Vilas Gudivada Pullayya Choultry rpresented by Trustee Gudivada Anjaneyulu for declaration that the defendant is not a Choultry within the meaning of Section 83(b) of the Madras District Municipalities Act and the decree in O.S 364/59 on the file of the District Munsifs Court, Vijayawada will not preclude the plaintiff from assessing the defendant institution to property tax. The action was resisted by the defandant-Choultry on the ground that it laid action in O S. 364/59 against the Municipality for declaration that the in. ititution is exempt from taxation under Section b3(b) of the Madras Distric Municipalities Act and for a permanent injunction restraining the Muni pality from collecting tax and that suit was decreed in its favour and there for it operates as res judicata precluding the present acti on by the plaintiff. The trial court although framed an issue whether the defendant is n longer a Choultry within the meaning of Section 83(b) of the Madras District Municipality Act no specific finding was given by it. The court of first instince on the two main issues framed by it, found that the previous suit is no bar to foe present action brought by the plan iff and that there is no evidence to show as to how the income is being used for charitable purposes this much it svident that the portion of the building which was once a choultry is not being used as such", and dismissed the suit of the plaintiff, ft is against this decree that the defendant preferred an appeal and the First Additional Subordiate Judge, Vijaywada reversed the decree without giving a finding as to how the income from the choultry is being utilised. Section 83(1) of the Madras District Municipalities Act, reads- The following buildings and land shall be exempt from the propert (a) xx xx (b) choultries for the occupation of which no rent is charged and choultries the rent charged for the occupation of which is used exclusively for. karitable purposcs. Therefore if a building does not satisfy the two conditions in clause (b) it is not entitled to exemption. Before deciding the question whether it ientitled to exemption or not. it has to be fouud that the choultry in questior does not charge any rent for occupation of persons and if it charges any ren for occupation, the rent realised is used exclusively for charitable purposes Though the finding of fact is reversed by the lower appellate Court it has no given any finding whether the income derived from the choultry is being use for charitable purposes, as required under Section 83(l)(b) of the Madras District 'Municipalities Act. All that the lower appellate court said in para 10 of its judgment is that the decision in the earlier suit has become final and "there is no change in circumstances". Change in circumstances cannot be construed or understood as a finding regarding the manner in which the income derived by the defendant choultry is being utilised. Since the findings of fact are reversed by the lower appellate court without giving reasons for reversing the findings and as it has not given a finding as to whether the income is used for charitable purposes, it is necessary that a finding should be called for in this regard. The lower appellate Court therefore, within a month from the date of the receipt of this order, will give a finding on the question whether the rent collected by the defendant choultry for its occupation is used exclusively for charitable purposes. The finding will be given by lower appellate court in the evidence already on record. The lower appellate Court will however give an opportunity to both sides to address arguments Time for filing objections 7 days after the receipt of the finding. Post this appeal after the objections are filed. In pursuance of the aforesaid order, the First Additional Subordinate Judge, Vijayawada submitted the following Finding: the Honourable High Court of And hra Pradesh has called for a finding from this court on the question "whether the rent collected by the defendant cholultry for its occupation is used exclusively for charitable purposes. In the plaint, it is stated that the Municipality has come to know that the defendant institution is being let-out for shops and that the defendant institution is not a choultry within the meaning of Sec.83(b) of the Madras DC. Municipalities Act. Excepting one hall and rear kitchen, the rest of the building has been let out for shops for an income of Rs. 182/-. As the character of the building has been changed, the plaintiff has assessed it to property tax under the Municipal Act.

(2.) P.W.I, the clerk of the Vijayawada Municipality has deposed in his evidence that the friont portion of the choultry consists of several godowns which are rented out for shops to six persons and the total rent is Rs. 185/-. In the cross examination, the witness has said that the choultry and shops form one building.

(3.) In the written statement, the defendant institution has stated that the question cannot be railed that the defendant is collecting the rents from in tenant as already this was decided in O.S. 364/59. The Municipality is aware of the fact that the front portions are let out and it was so stated in the previous suit and that the back portions are given free of rent for charitable purposes. Thus the two requirements under Section 83 (1) (b) of the Dt. Municipalities Act are fully satisfied. The defendant institution till this day is called as choultry and the Hindu Charitable Religious Charitable Endowments (Admn. Department) framed a draft scheme for it and it is being controlled and supervised as a charitable institution. Sri Gudivada Pullaiah who constructed and founded the institution named it as choultry and in the trust, he made mention that neither the trustees nor the Secretary should spend money for any other purpose than to utilise the same for the public choultry. The choultry is one unit and not different units. D.W.I has borne testimony that the front portion has been rented to shop keepers. There are 6 rooms besides shops in the interior portion. It has got 6 rooms which are being used for the stay of the piligrims free of rent. The shops are given for rent for the maintenance and repairs of the choultry. There is no other property endowment except the rent from the shops. In his cross examination, he stated that he gets Rs. 178.50 by way of rents on shops.