Sec. 376 /506 of I.P.C. = Hymen intact - No external injuries - minor girl of 14 years studying 8th class - semen found on under wear and salavar - she deposed that he raped her - enough to bring the offence under sec. 376 but not under sec.376 /511 of I.P.C.- an attempt to rape - For reduction of sentence there is no strait jacket formula - in this case there are no ground to reduce the sentence - Appeal dismissed - High court order was confirmed = Parminder alias Ladka Pola .… Appellant Versus State of Delhi ….. Respondent = 2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41156

Sec. 376 /506 of I.P.C. = Hymen intact - No external injuries - minor girl of 14 years studying 8th class - semen found on under wear and salavar - she deposed that he raped her - enough to bring the offence under sec. 376 but not under sec.376 /511 of I.P.C.- an attempt to rape - For reduction of sentence there is no strait jacket formula - in this case there are no ground to reduce the sentence - Appeal dismissed - High court order was confirmed =
whether the High Court
        is right in coming to the conclusion that the appellant was  guilty
        under Section 376, IPC, for the offence  of  rape  or  
whether  the
        evidence on record in this case only made out an offence of attempt
        to rape under Section 376, IPC, read with  Section  511,  IPC.   =
RAPE or  AN ATTEMPT TO RAPE 
PW-15, the doctor who conducted  the  medical  examination  of  the
        prosecutrix on 31.01.2001, however, has stated that  there  was  no
        sign of injury on the prosecutrix and the hymen was  found  intact.
       
The High Court has considered this evidence and has held  that  the
        non-rupture of hymen is not sufficient to dislodge  the  theory  of
        rape and has relied on the following passage from Modi  in  Medical
        Jurisprudence and Toxicology (Twenty First Edition):

       “Thus, to constitute the offence of rape it  is  not  necessary  that
       there should be complete penetration of penis with emission of  semen
       and rupture of hymen.  Partial penetration of the  penis  within  the
       Labia majora or the vulva or pudenda  with  or  without  emission  of
       semen or even an attempt at penetration is quite sufficient  for  the
       purpose of the law.  It  is,  therefore,  quite  possible  to  commit
       legally the offence of rape  without  producing  any  injury  to  the
       genital or leaving any seminal stains.”

 In  State of Rajasthan vs. Vinod Kumar (supra), cited  on  behalf
        of the State, the accused-Vinod Kumar had  been  convicted  by  the
        trial court under Section 376, IPC, and sentenced  to  seven  years
        imprisonment.
The High Court, however,  reduced  the  sentence  to
        five years imprisonment  without  recording  adequate  and  special
        reasons for doing so.  
This Court held that the High  Court  failed
        to ensure compliance with the mandatory requirement of the  proviso
        to Section 376(1), IPC, to record  adequate  and  special  reasons.
        This Court, after considering the earlier decisions of this  Court,
        held:


       “23. Thus, the law on the issue can be summarised to the effect  that
       punishment  should  always  be  proportionate/  commensurate  to  the
       gravity of offence. Religion, race, caste, economic or social  status
       of the accused or victim are not the relevant factors for determining
       the quantum of punishment. The court has  to  decide  the  punishment
       after considering all aggravating  and  mitigating  factors  and  the
       circumstances in which the crime  has  been  committed.  Conduct  and
       state of mind of the accused and age of the sexually assaulted victim
       and the gravity of the criminal act  are  the  factors  of  paramount
       importance. The court must exercise its discretion  in  imposing  the
       punishment objectively considering the facts and circumstances of the
       case.


       24.  The power under the proviso is not to be  used  indiscriminately
       in a routine, casual and cavalier  manner  for  the  reason  that  an
       exception clause  requires  strict  interpretation.  The  legislature
       introduced the imposition of minimum sentence  by  amendment  in  IPC
       w.e.f. 25-12-1983, therefore, the courts are bound to  bear  in  mind
       the effect thereof. The court while exercising the discretion in  the
       exception clause has to record “exceptional reasons” for resorting to
       the proviso. Recording of such reasons is sine qua non  for  granting
       the extraordinary relief. What is adequate and special  would  depend
       upon several factors and no straitjacket formula can be laid down.”

Reduction of sentence

 It is, therefore, clear that what is adequate and  special  would
        depend upon several factors and on the facts of each  case  and  no
        straitjacket formula  has  been  laid  down  by  this  Court.   
The
        legislature, however, requires the Court to record the adequate and
        special reasons in any given case where the  punishment  less  than
        the minimum sentence of seven years is to be imposed.  
The  conduct
        of the accused at the time of commission of the  offence  of  rape,
        age of  the  prosecutrix  and  the  consequences  of  rape  on  the
        prosecutrix are some of the relevant factors which the Court should
        consider while considering the question of reducing the sentence to
        less than the minimum sentence.  
In the facts of the present  case,
        we find that the prosecutrix was a student of eighth class and  was
        about 14 years on 28.01.2001 and she was of a tender age.  
She  had
        gone to the house of the appellant looking for  her  friend  Babbo,
        the sister of the appellant.  
When she asked the  appellant  as  to
        where the sister of the accused was, he told her that  she  was  in
        the room and when she went inside the room, he  followed  her  into
        the room, bolted the room from inside and forcibly put her  on  the
        cot.  
The appellant then took out the salwar and the  underwear  of
        the prosecutrix and raped her.  
As a result of this  incident,  her
        parents stopped her from going to the school and asked her to study
        eighth class privately.  
Considering the age  of  the  prosecutrix,
        the conduct of the appellant and the consequences of  the  rape  on
        the prosecutrix, we do  not  think  that  there  are  adequate  and
        special reasons in this case to reduce the sentence  to  less  than
        the minimum sentence under Section 376(1), IPC.

    17.   In the result, we do not find any merit in  this  appeal  and  we
        accordingly dismiss the same.
2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name  =41156   
Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL No. 133 of 2006

Parminder alias Ladka Pola                              .… Appellant

                                   Versus

State of Delhi                                               ….. Respondent




                               J U D G M E N T

A. K. PATNAIK, J.


      This is an appeal by way of special leave under  Article  136  of  the
Constitution against the judgment dated 06.03.2003 of the Delhi  High  Court
in Criminal Appeal No. 696 of 2002 by which the conviction of the  appellant
under Sections 376 and 506 of the Indian Penal Code, 1860 (for short  ‘IPC’)
and the sentences imposed by the trial court  on  the  appellant  have  been
maintained.

Facts:

     2. The facts very briefly are that on 30.01.2001 at about 8.00 p.m., a
        young girl of about fourteen  years  accompanied  by  her  parents,
        lodged the First Information Report (for short ‘the FIR’) in Police
        Station, Khajoori Khas, Delhi, in which she stated as follows:
She
        was a student of Higher Secondary  School  and  residing  with  her
        parents  at  House  No.131,  Gali  No.12,  Khajoori  Khas,   Delhi.
       
Opposite to their house  was  the  house  of  Sardar  Jagir  Singh.
        Babbo, daughter of Sardar Jagir Singh, was her friend and she  used
        to visit the house  of  Sardar  Jagir  Singh  to  meet  Babbo.   
On
        28.01.2001 at about 8.30 p.m., the lights in the area went off  and
        as the generator at the house of Sardar Jagir  Singh  was  on,  the
        prosecutrix went to meet Babbo.
She enquired from  the  appellant,
        the son of Sardar Jagir Singh, as to whether Babbo was in the house
        and the appellant told her that Babbo was inside  the  room.  
When
        she entered inside the room, the appellant followed  her  into  the
        room, bolted the room from inside and forcibly put her on the  cot.
       
When she raised an alarm, the appellant slapped her.
He then  took
        out her salwar and underwear and raped her.
He also threatened her
        with death if she narrated the incident to anybody.  
Out  of  fear
        and shame, she did not narrate the incident to anybody, but in  the
        evening of 30.01.2001 she narrated the incident to her mother.

     3. On this statement of the girl  (hereinafter  referred  to  as  ‘the
        prosecutrix’),  a  case  under  Sections  376  and  506,  IPC,  was
        registered on 30.01.2001.  
The prosecutrix was  medically  examined
        on the same night.  
On examination of  the  X-rays  report  of  the
        prosecutrix, the doctor opined that  her  age  was  above  fourteen
        years but below sixteen years.  
Her clothes and vaginal  swab  were
        sent to the Central Forensic Science Laboratory (for short  ‘CFSL’)
        for analysis and as per the report from CFSL, human semen and blood
        was detected on the underwear of the prosecutrix, but no semen  was
        detected in the vaginal swab.  
After investigation, a  charge-sheet
        was filed against the  appellant  under  Sections  342/354/376/506,
        IPC.
Charges, however, were framed only  under  Sections  376  and
        506, IPC, and as the appellant pleaded not guilty,  the  trial  was
        conducted.
At  the  trial,  as  many  as  fifteen  witnesses  were
        examined on behalf of the prosecution  including  the  prosecutrix.
        After considering the evidence on record, the trial court convicted
        the appellant under Sections 376 and 506,  IPC.  
For  the  offence
        under Section  376,  IPC,  the  trial  court  imposed  the  minimum
        sentence of  seven  years  rigorous  imprisonment  and  a  fine  of
        Rs.5,000/-, in default, rigorous imprisonment for one year and  for
        the offence under Section 506,  IPC,  the  trial  court  imposed  a
        sentence of two years imprisonment and a fine of Rs.5,000/-  and in
        default, a rigorous imprisonment of six months.   The  trial  court
        further directed that  the  sentences  were  to  run  concurrently.
        Aggrieved, the appellant filed Criminal Appeal No.696  of  2002  in
        the High Court, but by the impugned judgment  the  High  Court  has
        dismissed the appeal.

Contentions of the parties:

     4. At the hearing of this appeal, Mr. Jana Kalyan Das, learned counsel
        for the appellant, submitted that at most this is a case of attempt
        to rape and not rape and hence the appellant should be held  guilty
        under Sections 376/511, IPC, and not under Section  376,  IPC.   He
        referred to the evidence of the prosecutrix (PW-1) as well  as  the
        medical evidence to support his submission that no offence of  rape
        as such has been  committed  of  the  prosecutrix.   
He  cited  the
        decision of this Court in Narender Kumar v. State  (NCT  of  Delhi)
        [(2012 (7) SCC 171] for the proposition that  even  in  a  case  of
        rape, the onus is always on the prosecution to prove  affirmatively
        each ingredient of the offence it seeks to establish and such  onus
        never shifts and it is no part  of  the  duty  of  the  defence  to
        explain as to how and why in a  rape  case  the  victim  and  other
        witnesses have falsely implicated the accused.  He  submitted  that
        in the event this Court finds that the appellant is guilty  of  the
        attempt to rape and not rape,  he  will  be  liable  for  half  the
        sentence provided for rape as will be clear from Section 511, IPC.

     5. Mr. Das next submitted that the appellant  while  in  jail  custody
        studied and passed Class 10 examination and has  also  appeared  in
        Class 12 examination as  a  candidate  from  Central  Jail,  Tihar,
        Delhi, and has been released on bail after undergoing  three  years
        and nine months of sentence  and  has  thereafter  got  married  on
        16.08.2007.  He further submitted that on  28.06.2008,  a  daughter
        has been born to him who is studying in lower  K.G.  Class  and  on
        13.06.2012, a second daughter has been born to him, who is  on  the
        lap of her mother.   The  appellant  has  filed  on  12.02.2013  an
        affidavit stating all  these  facts.   He  submitted  that  as  the
        appellant is the sole bread earner of the family and has been doing
        odd jobs in Delhi to earn a living for the family, his family  will
        suffer immensely if he is to undergo imprisonment for the remaining
        period out of the seven years imprisonment imposed on  him  by  the
        court.  He submitted that under the proviso to Section 376(1), IPC,
        the court may, for adequate and special reasons to be mentioned  in
        the judgment, impose a sentence of imprisonment for a term of  less
        than seven years.  He submitted that on the facts and circumstances
        stated above, this Court should reduce the sentence  in  this  case
        imposed on the appellant to the period already  undergone  so  that
        his family does not suffer.
In  support  of  this  submission,  he
        cited the decisions of this Court in State of  Rajasthan  vs.  N.K.
        The Accused [(2000) 5 SCC 30], Sukhwinder Singh vs. State of Punjab
        [(2000) 9 SCC 204] and Baldev Singh and Others vs. State of  Punjab
        [(2011) 13 SCC 705]
     6. In  reply,  learned  counsel  for  the  State,  Mr.  Rakesh  Khanna
        submitted  that  the  prosecution  has  discharged  its   onus   in
        establishing  beyond  reasonable  doubt  that  the  appellant   has
        committed rape on the prosecutrix.  He relied on the evidence of PW-
        1 as well as the report of the CFSL to show that it was not a  case
        of only attempt to commit rape by the appellant.  He submitted that
        the High Court was, therefore, right in coming  to  the  conclusion
        that the appellant had committed rape on the prosecutrix.

     7. On the question of sentence, Mr. Khanna submitted that  this  is  a
        case where an offence has been committed on a minor girl and it  is
        evident from the statement of prosecutrix (PW-1) that on account of
        the rape, her parents stopped her from going to school and she  had
        to study 8th Class privately.  He submitted  that  considering  the
        serious nature of the sexual offence committed by the appellant  on
        a minor girl, this is not a fit case in  which  this  Court  should
        invoke the proviso to Section 376(1), IPC and  reduce  the  minimum
        sentence of seven years for the offence  of  rape  as  provided  in
        Section 376(1),  IPC,  to  the  period  already  undergone  by  the
        appellant.  
He cited the decisions of this Court in State of Madhya
        Pradesh vs. Bablu Natt [(2009) 2 SCC 272] and  State  of  Rajasthan
        vs. Vinod Kumar [(2012) 6 SCC  770]  in  which  this  Court,  after
        considering the language used in the  proviso  to  Section  376(1),
        IPC, has set aside the orders of the High Court imposing  sentences
        less than the minimum sentence of seven  years  in  cases  of  rape
        under Section 376, IPC.

Findings of the Court:
     8. The first question that we have to decide is
whether the High Court
        is right in coming to the conclusion that the appellant was  guilty
        under Section 376, IPC, for the offence  of  rape  or  
whether  the
        evidence on record in this case only made out an offence of attempt
        to rape under Section 376, IPC, read with  Section  511,  IPC.   
We
        find that the High Court while coming to the  conclusion  that  the
        appellant was guilty of the offence of rape under Section 376, IPC,
        has considered the evidence of the prosecutrix (PW-1), the  medical
        evidence and the report of CFSL. 
The prosecutrix  has  stated  that
        the appellant pushed her on the cot,  put  off  her  underwear  and
        salwar and forcibly raped her.  
The salwar  and  underwear  of  the
        prosecutrix, which she was wearing at the time  of  incident,  were
        sent to CFSL for analysis and after examination the CFSL had  found
        in its report dated 30.04.2001 that there was human semen and blood
        on the underwear of the prosecutrix referred to in  the  report  as
        Exhibit 4(B).  
Hence, there is corroboration of  the  testimony  of
        the prosecutrix that rape was committed on her.

     9. PW-15, the doctor who conducted  the  medical  examination  of  the
        prosecutrix on 31.01.2001, however, has stated that  there  was  no
        sign of injury on the prosecutrix and the hymen was  found  intact.
       
The High Court has considered this evidence and has held  that  the
        non-rupture of hymen is not sufficient to dislodge  the  theory  of
        rape and has relied on the following passage from Modi  in  Medical
        Jurisprudence and Toxicology (Twenty First Edition):

       “Thus, to constitute the offence of rape it  is  not  necessary  that
       there should be complete penetration of penis with emission of  semen
       and rupture of hymen.  Partial penetration of the  penis  within  the
       Labia majora or the vulva or pudenda  with  or  without  emission  of
       semen or even an attempt at penetration is quite sufficient  for  the
       purpose of the law.  It  is,  therefore,  quite  possible  to  commit
       legally the offence of rape  without  producing  any  injury  to  the
       genital or leaving any seminal stains.”



Section 375, IPC, defines the offence  of  ‘rape’  and  the  Explanation  to
Section 375, IPC, states that penetration is sufficient  to  constitute  the
sexual intercourse necessary  to  the  offence  of  rape.  
This  Court  has
accordingly held in Wahid Khan v. State of Madhya Pradesh [(2010) 2  SCC  9]
that even the slightest penetration is sufficient to make out an offence  of
rape and depth of penetration is immaterial.  In the  aforesaid  case,  this
Court  has  relied  on  the  very  same  passage  from   Modi   in   Medical
Jurisprudence and Toxicology (Twenty Second Edition) quoted above.   In  the
present case, even though the hymen of the prosecutrix was not ruptured  the
High Court has held that there was penetration which has caused bleeding  in
the private parts of the prosecutrix as would be evident from the fact  that
the underwear of the prosecutrix was stained by blood.   In  our  considered
opinion, the High Court was right in holding the  appellant  guilty  of  the
offence of rape and there is no merit  in  the  contention  of  the  learned
counsel for the appellant that there was only an attempt  to  rape  and  not
rape by the appellant.

    10. The next question that we have to consider  is  whether  the  Court
        should invoke the proviso to Section  376(1),  IPC,  and  impose  a
        sentence of imprisonment for a term of less  than  seven  years  in
        this case.  The proviso to Section 376(1), IPC, as it  stood  prior
        to its amendment in the year 2013 expressly states that  the  Court
        may impose a sentence of imprisonment for a term of less than seven
        years in an offence under Section 376(1), IPC,  “for  adequate  and
        special reasons to be mentioned  in  the  judgment”.   We  may  now
        consider the cases cited by the learned counsel for the parties  in
        which this Court has considered whether or not the  proviso  should
        be invoked to reduce the sentence to less than the minimum sentence
        in cases of rape.

    11.   In State of Rajasthan vs. N.K. The Accused (supra), cited by  the
        learned counsel for  the  appellant,  this  Court  found  that  the
        accused had committed rape on the prosecutrix  who  was  a  married
        woman.  This Court found that that the incident  was  of  the  year
        1993 and the accused was  taken  into  custody  by  the  police  on
        03.11.1993 and he was not allowed bail and during trial and  during
        hearing of the appeal, he remained in  jail  and  it  was  only  on
        11.10.1995 when the High Court acquitted him of the charge that  he
        was released from jail.  This Court held that  though  the  accused
        had remained in jail for a little less than two  years  and  taking
        into consideration the period of remission for which he would  have
        been entitled as well as the time which has elapsed from  the  date
        of commission of the offence, the accused should not be  sent  back
        to jail and reduced the sentence to the period already undergone by
        him.

    12.   In Sukhwinder Singh vs. State of Punjab  (supra),  cited  by  the
        learned counsel for  the  appellant,  this  Court  found  that  the
        prosecutrix was a consenting party to the act of sexual intercourse
        and that she had willingly left her parents’ house to be  with  the
        appellant but she was found to be “not more than sixteen  years  of
        age” and on that account, the High Court had upheld the  conviction
        of the appellant.  This Court held  that  as  the  prosecutrix  had
        since got married and she did not want the matter to be carried any
        further and wanted to lead a happy and healthy  married  life  with
        her husband and had filed a compromise  petition  to  that  effect,
        there were adequate and special reasons to reduce the  sentence  to
        the period already undergone by the accused.

    13.  In Baldev Singh and Others vs. State of Punjab (supra),  cited  by
        the learned counsel for the appellant, the accused was found guilty
        of gang rape under Section 376(2)(g), IPC, for  which  the  minimum
        sentence was ten  years  rigorous  imprisonment.   The  proviso  to
        Section 376(2), IPC,  however,  stated  that  the  Court  may,  for
        adequate and special reasons  to  be  mentioned  in  the  judgment,
        impose a sentence of imprisonment of either description for a  term
        of less than ten years.  This Court held on the facts of  the  case
        that as the incident happened in the year 1997 and as  the  parties
        have themselves entered into a compromise, the sentence be  reduced
        to the period already undergone in view of the proviso  to  Section
        376(2)(g), IPC.

    14.  In State of Madhya Pradesh vs. Bablu Natt (supra),  cited  by  the
        learned counsel for the State, this Court, on the other  hand,  did
        not find good and adequate reasons to reduce the sentence  to  less
        than the minimum sentence of seven years under Section 376(1), IPC,
        because of the fact that the prosecutrix was a minor and  had  been
        subjected to rape and was compelled to live for several  days  with
        the accused at Chhatarpur and set aside the judgment  of  the  High
        Court insofar as it imposed a sentence of less than seven years.

    15.   In  State of Rajasthan vs. Vinod Kumar (supra), cited  on  behalf
        of the State, the accused-Vinod Kumar had  been  convicted  by  the
        trial court under Section 376, IPC, and sentenced  to  seven  years
        imprisonment.
The High Court, however,  reduced  the  sentence  to
        five years imprisonment  without  recording  adequate  and  special
        reasons for doing so.  
This Court held that the High  Court  failed
        to ensure compliance with the mandatory requirement of the  proviso
        to Section 376(1), IPC, to record  adequate  and  special  reasons.
        This Court, after considering the earlier decisions of this  Court,
        held:


       “23. Thus, the law on the issue can be summarised to the effect  that
       punishment  should  always  be  proportionate/  commensurate  to  the
       gravity of offence. Religion, race, caste, economic or social  status
       of the accused or victim are not the relevant factors for determining
       the quantum of punishment. The court has  to  decide  the  punishment
       after considering all aggravating  and  mitigating  factors  and  the
       circumstances in which the crime  has  been  committed.  Conduct  and
       state of mind of the accused and age of the sexually assaulted victim
       and the gravity of the criminal act  are  the  factors  of  paramount
       importance. The court must exercise its discretion  in  imposing  the
       punishment objectively considering the facts and circumstances of the
       case.


       24.  The power under the proviso is not to be  used  indiscriminately
       in a routine, casual and cavalier  manner  for  the  reason  that  an
       exception clause  requires  strict  interpretation.  The  legislature
       introduced the imposition of minimum sentence  by  amendment  in  IPC
       w.e.f. 25-12-1983, therefore, the courts are bound to  bear  in  mind
       the effect thereof. The court while exercising the discretion in  the
       exception clause has to record “exceptional reasons” for resorting to
       the proviso. Recording of such reasons is sine qua non  for  granting
       the extraordinary relief. What is adequate and special  would  depend
       upon several factors and no straitjacket formula can be laid down.”


    16.   It is, therefore, clear that what is adequate and  special  would
        depend upon several factors and on the facts of each  case  and  no
        straitjacket formula  has  been  laid  down  by  this  Court.   
The
        legislature, however, requires the Court to record the adequate and
        special reasons in any given case where the  punishment  less  than
        the minimum sentence of seven years is to be imposed.  
The  conduct
        of the accused at the time of commission of the  offence  of  rape,
        age of  the  prosecutrix  and  the  consequences  of  rape  on  the
        prosecutrix are some of the relevant factors which the Court should
        consider while considering the question of reducing the sentence to
        less than the minimum sentence.  
In the facts of the present  case,
        we find that the prosecutrix was a student of eighth class and  was
        about 14 years on 28.01.2001 and she was of a tender age.  
She  had
        gone to the house of the appellant looking for  her  friend  Babbo,
        the sister of the appellant.  
When she asked the  appellant  as  to
        where the sister of the accused was, he told her that  she  was  in
        the room and when she went inside the room, he  followed  her  into
        the room, bolted the room from inside and forcibly put her  on  the
        cot.  
The appellant then took out the salwar and the  underwear  of
        the prosecutrix and raped her.  
As a result of this  incident,  her
        parents stopped her from going to the school and asked her to study
        eighth class privately.  
Considering the age  of  the  prosecutrix,
        the conduct of the appellant and the consequences of  the  rape  on
        the prosecutrix, we do  not  think  that  there  are  adequate  and
        special reasons in this case to reduce the sentence  to  less  than
        the minimum sentence under Section 376(1), IPC.

    17.   In the result, we do not find any merit in  this  appeal  and  we
        accordingly dismiss the same.

                                                               .……………………….J.
                                                           (A. K. Patnaik)


                                                               ………………………..J.
                                                           (Gyan Sudha
Misra)
New Delhi,
January 16, 2014.

Kerala Building Tax Act, 1975 Sections 9(2) and 9(4) = ‘charitable purpose’ as per Section 3(1)(b) of the Act in order to hold it exempt from paying building tax? - Since the appellant failed to prove that the entire building has been used for charitable purpose by rendering free medical aid to the needy, poor people of society not entitled for exemption of building tax - High court rightly confirmed the same - Apex court dismissed the civil appeal = SH MEDICAL CENTRE HOSPITAL ……….APPELLANT Versus STATE OF KERALA & ORS. ………RESPONDENTS = 2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41155

Kerala Building Tax Act,  1975 Sections  9(2)  and  9(4) = ‘charitable purpose’ as per Section 3(1)(b) of the Act in order to hold it exempt from paying building tax? - Since the appellant failed to prove that the entire building  has been used for charitable purpose by rendering free  medical  aid  to  the needy, poor people of society not entitled for exemption of building tax - High court rightly confirmed the same - Apex court dismissed the civil appeal = 

  On 16.10.1995 the  respondent  passed  an
      order exempting the appellant from assessment  of  building  tax.  The
      said exemption was  in  connection  with  the  main  building  of  the
      hospital.


      6.   On  16.07.2003,  the  then   Tehsildar,   Kottayam   called   the
      representatives of the appellant to ascertain as to 
whether  exemption
      is available to the appellant under the Kerala Building Tax Act,  1975
      (hereinafter referred to as “the Act”).
A person from  the  office  of
      the Tehsildar, Kottayam visited the appellant hospital and stated that
      the appellant is liable to pay building tax.


      7. Thereafter, the appellant filed a detailed  representation  stating
      that since it  is  a  charitable  institution  engaged  in  charitable
      activities, the appellant has to be exempted from paying building tax.

On 27.02.2004, the appellant received a demand  notice  purportedly
      issued by the Assessing Authority by which the appellant was  assessed
      to building tax under Sections  9(2)  and  9(4)  of  the  Act  wherein
      building tax was assessed at  an  amount  of  [pic]24,77,700/-  for  a
      plinth area of 14826.63 Sq. meters to be paid by the appellant.

 i. Whether the application of income derived from  a  building  for
           charitable purpose is sufficient to hold that a building is used
           ‘principally’ for ‘charitable purpose’ as per Section 3(1)(b) of
           the Act in order to hold it exempt from paying building tax?


       ii. Whether the Kerala High  Court  has  correctly  interpreted  the
           ‘Explanation’ clause to  Section  3(1)  in  the  cases  referred
           (supra) to hold that charitable purpose means solely ‘relief  of
           the poor and free medical relief’?


      iii. What order?
the  fact
   that the institution is set up for charitable purposes as stated  in  its
   Memorandum of Association  cannot  be  enough  to  hold  that  income  is
   necessarily applied for charitable purposes, especially in the  light  of
   the fact that the patients who can afford to pay for it are being charged
   for medical services.
 Now we will examine the question of what ‘charitable purpose’  means.
   The Oxford English Dictionary defines ‘charitable’ as “of or relating  to
   the assistance of those in need”. 
In the present case, it can  be  argued
   that all medical services relate to the assistance of those in need. This
   is a valid interpretation but cannot be accepted for the purposes of tax.
   If these medical services in the present case were being offered free  to
   a majority of the patients rather than a minority of patients,  then  the
   conclusion could have been reached that  the  buildings  are  principally
   used  for  charitable  purposes. 
 Further,  an  amount  of  approximately
               [pic]28,00,000/- of the expenses are towards ‘social work and
   charities’ as per the income and Expenditure Accounts  provided,  whereas
   ‘free medical aid’ is around            [pic]60,00,000/-  for  the  years
   2004-05. 
It is not clearly mentioned what ‘social work and charities’ is.
   Furthermore, an exemption is provided for that area in which free medical
   aid is provided by the appellant-hospital. 
The appellant has not produced
   cogent material evidence before the  competent  authority  or  the  State
   government or before the High Court to show that the entire building  has
   been used for charitable purpose by rendering free  medical  aid  to  the
   needy, poor people of society. 
The fact is that the details furnished  in
   the documents produced would go to show that the  appellant  hospital  is
   earning money by charging from patients and therefore the  claim  of  the
   appellant that the entire area taxed is used for  charitable  purpose  is
   not reflected in the documents produced.  
Hence, we are not  inclined  to
   interfere  with  the  impugned  orders.  The  High  Court  has  correctly
   interpreted the ‘Explanation’ clause to Section 3(1) of the Act  to  hold
   that ‘charitable purpose’ means ‘relief of  the  poor  and  free  medical
   relief’.


   19. The tax herein is on the ‘building’. 
The society already  has  income
   tax exemption and the question here  is  whether  the  building  is  used
   principally for ‘charitable purpose’.  
Only  the  building  utilized  for
   providing free medical aid  can  be  said  to  be  used  principally  for
   charitable purpose and it will go against the letter of the law to  grant
   building tax exemption for all the buildings of the hospital irrespective
   of what it is used for simply on the ground that the  overall  object  of
   the hospital is charity although it  is  being  predominantly  run  on  a
   chargeable basis. In this case, the  building  used  for  providing  free
   medical aid must be exempted from paying building tax.


   20. In view of the foregoing, we uphold the judgment of  the  High  Court
   and dismiss the appeal of the appellant-hospital, but without costs.  The
   order dated 16.7.2009 of this Court granting stay shall stand vacated.


2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name  =41155                               
                  Non-Reportable




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 665 OF 2014
                  (Arising out of SLP(C) NO. 13735 OF 2009)




    SH MEDICAL CENTRE HOSPITAL               ……….APPELLANT


                                   Versus


    STATE OF KERALA & ORS.                   ………RESPONDENTS









                               J U D G M E N T



      V.Gopala Gowda, J.

            Leave granted.

      2.    The present appeal arises out of the judgment  and  order  dated
      13th March, 2009 passed by the High Court of Kerala  at  Ernakulam  in
      W.A. No. 362 of 2007 whereby the High Court dismissed the writ  appeal
      of the appellant holding that the appellant-hospital is  not  entitled
      to building tax exemption relying on the judgment of the  Kerala  High
      Court in Medical Trust Hospital v. State of Kerala[1].  The  appellant
      had filed writ petition No.605 of 2007 before the High Court of Kerala
      which dismissed the same by order dated 23.01.2007  on the ground that
      the building of the appellant is not used principally  for  charitable
      purposes, pursuant to which the above said writ appeal was filed which
      was also dismissed. Hence, this appeal.


      3. The facts of the case in brief are stated hereunder:
            SH Medical Centre is a charitable institution  registered  under
      the Travancore Cochin Literary, Scientific  and  Charitable  Societies
      Registration  Act,  1955.  
This  institution  manages  the  appellant
      hospital which is managed by nuns of the Christian religious faith who
      have renounced their worldly existence to  serve  humanity  to  render
      charitable services like free treatment to patients belonging  to  the
      lower strata of the society and charges nominal amount  for  treatment
      from those who can afford such treatment.


      4. The Memorandum of the SH Medical Center states that the  object  of
      the institution is purely philanthropic purposes and  not  profit.
It
      states that the members of the society are not entitled to  any  share
      in the net proceeds of the society and in case the society is wound up
      the assets of the society shall not go to any of the members and shall
      go to any other charitable trust, society or institution with  similar
      objects or to the Government.


      5. The appellant started constructing buildings to house the hospital.
      Several buildings were constructed from 1987-1988 to 2002-2003 for the
      functioning of the hospital. 
On 16.10.1995 the  respondent  passed  an
      order exempting the appellant from assessment  of  building  tax.  The
      said exemption was  in  connection  with  the  main  building  of  the
      hospital.


      6.   On  16.07.2003,  the  then   Tehsildar,   Kottayam   called   the
      representatives of the appellant to ascertain as to 
whether  exemption
      is available to the appellant under the Kerala Building Tax Act,  1975
      (hereinafter referred to as “the Act”).
A person from  the  office  of
      the Tehsildar, Kottayam visited the appellant hospital and stated that
      the appellant is liable to pay building tax.


      7. Thereafter, the appellant filed a detailed  representation  stating
      that since it  is  a  charitable  institution  engaged  in  charitable
      activities, the appellant has to be exempted from paying building tax.


      8. On 27.02.2004, the appellant received a demand  notice  purportedly
      issued by the Assessing Authority by which the appellant was  assessed
      to building tax under Sections  9(2)  and  9(4)  of  the  Act  wherein
      building tax was assessed at  an  amount  of  [pic]24,77,700/-  for  a
      plinth area of 14826.63 Sq. meters to be paid by the appellant.


      9. Aggrieved by the aforesaid orders dated 27.02.2004,  the  appellant
      filed Writ Petition(C)No. 9968  of  2004  before  the  High  Court  of
      Kerala.
          By an order dated 02.04.2004, the learned single Judge of the High
      Court disposed  of  the  writ  petition  directing  the  Tehsildar  to
      reconsider the assessment in the light of the judgments  of  the  High
      Court but rejected the request of the appellant  to  refer  the  issue
      relating to exemption to the Government under Section 3(2) of the Act.
      Against this rejection order the appellant filed a Writ Appeal No. 875
      of 2004 before the High Court. The Division Bench of  the  High  Court
      disposed of the  writ  appeal  with  a  direction  to  the  Tehsildar,
      Kottayam to refer the matter to the  Government  for  deciding  as  to
      whether the building is entitled to  get  exemption  from  payment  of
      building tax under Section 3(1) (b) of the Act.


      10. By an order dated 01.11.2006, the Government  of  Kerala  rejected
      the contention of the appellant that they are  entitled  to  exemption
      under the Act as free medical service is given only in the plinth area
      of 448.40 Sq. mtrs. in the  third  floor  of  the  main  building  and
      therefore only the said portion is exempt from paying building tax.


      11. Aggrieved by the aforesaid  order,  the  appellant  filed  a  Writ
      Petition (C) No. 605 of 2007 before the High Court  praying  to  quash
      the  orders  dated  01.11.2006  and  27.02.2004  and  to  declare  the
      appellant to be  a  charitable  institution  under  the  Act.  In  the
      petition the appellant had annexed the audited income and  expenditure
      account of the hospital as well as balance sheet for the years 2002 to
      2005.


      12. The learned single Judge of the  High  Court  dismissed  the  writ
      petition on the ground that the building of the appellant is not  used
      principally for charitable purposes.  
To arrive at the said conclusion
      the learned single Judge took into account the  gross  income  of  the
      appellant and compared the gross income vis-a-vis the amount spent  on
      free medical aid and social work.
Aggrieved by the aforesaid order the
      appellant filed a Writ Appeal No. 362  of  2007  before  the  Division
      Bench of the High Court. By an order dated  13.03.2009,  the  Division
      Bench of the High Court dismissed the writ appeal by  relying  on  two
      Division Bench decisions of  the  High  Court  in  (1)  Medical  Trust
      Hospital (supra) and (2) Thirurangadi Muslim  Orphanage  Committee  v.
      The Government of Kerala [W.P. (C) No. 4426 of 2009(B)] and held  that
      as long as the appellant is a hospital run on chargeable basis  it  is
      not entitled to exemption.


      13. Both the single Judge as well as the Division Bench  of  the  High
      Court interpreted the ‘Explanation’ Clause of Section 3(1) of the  Act
      to hold that the buildings were not used principally for a  charitable
      purpose as the medical services were not rendered free  of  charge  to
      all patients, but only to those who could not afford it. The rest were
      charged a nominal fee for services at the Hospital.
The explanation to
      Section 3 of the Act reads as under :
                 “For the purposes of this sub-section, “charitable purpose”
                 includes relief of the poor and free medical aid.”


      The High Court, mainly relying on the Medical Trust case  (supra)  has
      held that since it has already been held by the Kerala High Court that
      charitable purpose means rendering medical relief ‘free of charge’  as
      per the  Explanation  clause  to  Section  3(1)(a)  of  the  Act,  the
      appellant was not entitled to exemption from paying  building  tax  as
      they were charging nominal charges from patients who could  afford  it
      and was giving free services to those who could not.


      14. The matter is in appeal before us. The  learned  counsel  for  the
      appellant, Mr.Senthil Jagadeeshan  has  contended  that  the  Division
      Bench has erred in relying upon the judgments  in  the  Medical  Trust
      case and the Thirurangadi Muslim Orphanage Committee case  (supra)  as
      the said judgments were rendered in the facts of those  cases  and  no
      proposition of law has been laid down in the said decisions that if  a
      hospital is run on chargeable basis it is not entitled  to  exemption.
      Further, it was contended that in the  case  of  State  of  Kerala  v.
      Gregorious Medical Mission[2],
it was held that  the  fact  that  some
      amount is collected from the patients will not be sufficient reason to
      hold that the building can be excluded from the beneficial  provisions
      contained in Section 3 of the Act if the hospital is intended for  the
      relief of the sick without  any  motive  for  making  profit.
It  was
      submitted that a perusal of the Memorandum of Association as  well  as
      the Rules and Regulations of the appellant hospital clearly shows that
      it has been set up  solely  for  philanthropic  purposes  without  any
      profit motive, and it also clearly states that  in  case  the  society
      running the hospital is wound up, the assets of the hospital shall  go
      to any other charitable society  having  similar  objects  or  to  the
      Government.
The counsel for the  appellant  has  urged  before  us  to
      consider that for any hospital to be  able  to  provide  free  medical
      relief to poor patients, some income would have to be generated and it
      would otherwise be virtually impossible for any hospital to  undertake
      free medical service.
The counsel then went on to refer to the  Income
      and Expenditure Account of the appellant hospital which shows that 
for
      the  years  2002-03,2003-04  and  2004-05,  the  appellant  has  spent
      [pic]75.12 lakhs, [pic]78.39 lakhs and [pic]88.33  lakhs  respectively
      for providing free medical services and  for  charity.  
For  the  said
      years, the net income of the  appellant  hospital  has  been  [pic]4.2
      lakhs, [pic]5.37 lakhs and [pic]8.33 lakhs  respectively  and
 it  was
      submitted that the High Court ought to have compared the amount  spent
      for free medical services vis-a-vis net income and  not  gross  income
      which was what was done to hold that  the  buildings  were  not  ‘used
      principally’ for the charitable  purpose  as  required  under  Section
      3(1)(b) of the Act. By doing this, it was contended that  the  various
      expenses for running the hospital were ignored.


      15. The  respondents,  on  the  other  hand,  through  learned  senior
      counsel, Mr. Jogy Scaria, have contended that  the  appellant  is  not
      entitled for exemption from paying building tax  as  the  hospital  is
      making profit and hence cannot be considered a charitable institution.
      It was submitted  that  from  the  perusal  of  the  accounts  of  the
      hospital,  it  is  evident  that  the  hospital  authorities  are  not
      rendering any medical service free of cost and are making  profit  and
      is not running under ’no loss no profit’ basis as claimed. The purpose
      for which  the  building  is  used  is  the  only  relevant  fact  for
      determining whether the appellant is exempt from paying  building  tax
      and simply because the income derived from it is used  for  charitable
      purpose, it cannot be exempted from paying building tax.
The  counsel
      for the respondents relied on the Medical Trust case (supra) in  order
      to show that charitable purpose means free medical relief as  held  in
      that case, and since the  appellant  is  not  providing  free  medical
      relief for all and is instead charging a nominal fee for those who can
      afford it, it cannot claim exemption from building tax.


      16. We have heard the learned counsel for both the parties and perused
      the evidence on record  and  examined  the  rival  legal  and  factual
      contentions. The following questions would arise for consideration :
        i. Whether the application of income derived from  a  building  for
           charitable purpose is sufficient to hold that a building is used
           ‘principally’ for ‘charitable purpose’ as per Section 3(1)(b) of
           the Act in order to hold it exempt from paying building tax?


       ii. Whether the Kerala High  Court  has  correctly  interpreted  the
           ‘Explanation’ clause to  Section  3(1)  in  the  cases  referred
           (supra) to hold that charitable purpose means solely ‘relief  of
           the poor and free medical relief’?


      iii. What order?




  17. Answer to Question Nos. i & ii:

      In our considered view, the High Court was correct in holding that the
   application of income derived from a  building  for  charitable  purposes
   does not amount to the building being ‘principally used’  for  charitable
   purpose.
In the present case, if we have to rule against the High Court’s
   judgment, it will be necessary to have  more  evidence  with  respect  to
   details such as what the nominal charges are for patients who can  afford
   it and the number of patients offered free  medical  care  vis-a-vis  the
   number of patients who pay for the services.
The argument that the income
   is applied for charitable purposes can be accepted only if  it  is  known
   what portion of the income goes into charity i.e. free medical  services.
   Does the percentage of patients receiving free medical services  increase
   every year?
If we hold that the income derived from a building is applied
   for charitable purposes then that has to be clearly proved, and
the  fact
   that the institution is set up for charitable purposes as stated  in  its
   Memorandum of Association  cannot  be  enough  to  hold  that  income  is
   necessarily applied for charitable purposes, especially in the  light  of
   the fact that the patients who can afford to pay for it are being charged
   for medical services.


   18. Now we will examine the question of what ‘charitable purpose’  means.
   The Oxford English Dictionary defines ‘charitable’ as “of or relating  to
   the assistance of those in need”. 
In the present case, it can  be  argued
   that all medical services relate to the assistance of those in need. This
   is a valid interpretation but cannot be accepted for the purposes of tax.
   If these medical services in the present case were being offered free  to
   a majority of the patients rather than a minority of patients,  then  the
   conclusion could have been reached that  the  buildings  are  principally
   used  for  charitable  purposes. 
 Further,  an  amount  of  approximately
               [pic]28,00,000/- of the expenses are towards ‘social work and
   charities’ as per the income and Expenditure Accounts  provided,  whereas
   ‘free medical aid’ is around            [pic]60,00,000/-  for  the  years
   2004-05. 
It is not clearly mentioned what ‘social work and charities’ is.
   Furthermore, an exemption is provided for that area in which free medical
   aid is provided by the appellant-hospital. 
The appellant has not produced
   cogent material evidence before the  competent  authority  or  the  State
   government or before the High Court to show that the entire building  has
   been used for charitable purpose by rendering free  medical  aid  to  the
   needy, poor people of society. 
The fact is that the details furnished  in
   the documents produced would go to show that the  appellant  hospital  is
   earning money by charging from patients and therefore the  claim  of  the
   appellant that the entire area taxed is used for  charitable  purpose  is
   not reflected in the documents produced.  
Hence, we are not  inclined  to
   interfere  with  the  impugned  orders.  The  High  Court  has  correctly
   interpreted the ‘Explanation’ clause to Section 3(1) of the Act  to  hold
   that ‘charitable purpose’ means ‘relief of  the  poor  and  free  medical
   relief’.


   19. The tax herein is on the ‘building’.
The society already  has  income
   tax exemption and the question here  is  whether  the  building  is  used
   principally for ‘charitable purpose’.  
Only  the  building  utilized  for
   providing free medical aid  can  be  said  to  be  used  principally  for
   charitable purpose and it will go against the letter of the law to  grant
   building tax exemption for all the buildings of the hospital irrespective
   of what it is used for simply on the ground that the  overall  object  of
   the hospital is charity although it  is  being  predominantly  run  on  a
   chargeable basis. In this case, the  building  used  for  providing  free
   medical aid must be exempted from paying building tax.


   20. In view of the foregoing, we uphold the judgment of  the  High  Court
   and dismiss the appeal of the appellant-hospital, but without costs.  The
   order dated 16.7.2009 of this Court granting stay shall stand vacated.



                                ………………………………………………………………………J.
                                [SUDHANSU JYOTI MUKHOPADHAYA]


                                     ………………………………………………………………………J.
                                      [V. GOPALA GOWDA]
      New Delhi,
      January 16, 2014.










                           -----------------------
      [1]    2004 (2) KLT 139
      [2]    (1992) 1 KLT 230

                           -----------------------
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