C. P. Vincent v. Government of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934** **WP(C).No. 37155 of 2009 (L) ---------------------------** **PETITIONER(S): -------------** **C.P.VINCENT,S/O.C.V.PAILY, CHOLLAMADATHIL,AVOLY.P.O,MUVATTUPUZHA.** **BY ADVS. SRI.V.M.KURIAN SRI. MATHEW B. KURIAN SRI. K.T. THOMAS** **RESPONDENT(S):** **--------------** **1. GOVERNMENT OF KERALA,REPRESENTD BY SECRETARY TO GOVERNMENT,REVENUE(SPECIAL) DEPARTMENT THIRUVANANTHAPURAM.** **2. THE REVENUE DIVISIONAL OFFICER, MUVATTPUZHA.** ## **3. THE TAHSILDAR,MUVATTUPUZHA.** **BY GOVERNMENT PLEADER SRI. RINNY STEPHEN CHAMAPARAMBIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 37155 of 2009 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE LATEST OF MERIT CERTIFICATE DATED 04.11.2009 ISSUED BY MARUTI SUZUKI.** - **P2: COPY OF LICENCE FOR THE YEAR 2009-2010.** - **P3: COPY OF THE ORDER DATED 09.08.2007 WITH PERMIT NO.E-94/2007.** - **P4: COPY OF THE LAYOUT PLAN SUBMITTED FOR APPROVAL BEFORE THE DIRECTOR OF FACTORIES AND BOILERS, ERNAKULAM.** - **P5: COPY OF THE ORDER DATED 02.03.2009 ISSUED BY THE GOVERNMENT.** - **P6: COPY OF ASSESSMENT ORDER DATED 26.03.2009 ISSUED BY THE 3RD RESPONDENT.** - **P7: COPY OF THE APPEAL PETITION DATED 20.04.2009 FILED BEFORE THE 2ND RESPONDENT.** - **P8: COPY OF THE ORDER DATED 13.09.2009 ISSUED BY 2ND RESPONDENT REJECTING THE APPEAL.** ## **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** **ds** ## **ANTONY DOMINIC, J** ........................................ W.P.(C).37155/2009 .............................................. Dated this the 4[th] day of December, 2012 ## **JUDGMENT** Petitioner is an Ex-service man. He constructed a three storied building having a total plinth area of 1563.38 sq.mtrs. According to the petitioner, first and second floor which are used for residential purposes, is having a total plinth area of 340.48 sq.mtrs and the ground floor is having a plinth area of 1222.58 sq.mtrs. 2. In the ground floor of the building, petitioner is conducting an Automobile workshop and service station. Ext.P2 is the licence obtained from the Municipality. Ext.P3 is the permit issued by the Joint Director of Factories and Boilers exercising powers under the Factories Act, 1948, and Ext.P4 is the lay out plan of the ground floor. 3. When pre-assessment notice under the Kerala Building Tax Act (in short 'the Act') was issued, 2 ## **W.P.(C).37155/09** petitioner claimed that the ground floor of the building being a Factory, is liable to be exempted from the levy of tax under the Act. In terms of the provisions contained under Section 2 of the Act, the claim raised by the petitioner was referred to the Government for its decision. Government finally passed Ext.P5 order whereby 710.74 sq.mtrs in the ground floor was exempted treating it as a Factory. Thereafter, the Tahsildar passed Ext.P6 assessment order in respect of the balance area of the building treating it as an “other building”. That order was confirmed by the RDO by dismissing Ext.P7 appeal as per Ext.P8 order. It is in these circumstances the writ petition is filed. 4. The first question that arises for consideration is whether the Government was justified in confining exemption under Section 3 (1)(b) of the Act to the actual area of the ground **W.P.(C).37155/09** 3 floor which was used as a Factory or workshop. As already stated, according to the petitioner, the plinth area of the ground floor of the building is 1222.58 sq.mtrs. Out of this area, only 710.74 sq.mtrs has been exempted. According to the petitioner, remaining area of the ground floor is used as customers' launch, vehicle passage, computer room, Manager room and reception. Case of the petitioner is that this area is also liable to be exempted as part and parcel of the Factory which has already been exempted by Ext.P5 order. 5. Admittedly, the workshop of the petitioner has been recognized as a Factory as provided under Section 3(1)(b) of the Act and the entitlement of the petitioner for exemption in respect of that area is also upheld by the Government in Ext.P5. In fact, a similar issue has been decided by this Court in favour of a similar claimant in the judgment in **K.V.R.Auto Cars (P) Ltd. v. State of** **W.P.(C).37155/09** 4 **Kerala (2010 (3) KLT, 26)** . Therefore, all that remains to be resolved in this writ petition is whether the area which is used as customers' launch, vehicle passage, computer room, Manager's room and reception are also liable to be exempted. 6. Respondents have no case that the customer launch, computer room etc., mentioned above are not used in connection with the petitioner's Factory. When business in the nature of the one that is conducted by the petitioner, it is bound to have Manager and customers for whose accommodation, sufficient space should be provided in the Factory itself. Similarly, Factory also should have sufficient space for keeping computers and other equipments. Therefore the areas earmarked for these provisions are part and parcel of the Factory and are also integrally connected with the Factory and its activities. Consequently, when the area occupied by the Factory is assessed, the areas 5 ## **W.P.(C).37155/09** utilised for providing these facilities should also be taken into account. If that be so, when the Factory's entitlement for exemption is recognized, that should necessarily include the areas occupied or earmarked for the aforesaid facilities also. Therefore, I am of the view that the Government was wrong in having confined exemption only to the actual area used by the petitioner for its workshop purpose alone. On the other hand, Government should have included the space utilised by the petitioner for the aforesaid facilities also while reckoning the area of the Factory. Therefore, the Government should not have confined the area of exemption to 710.74 sq.mtrs as ordered in Ext.P5. Accordingly, Ext.P5 to the extent exemption is confined to 710.74 sq.mtrs is quashed. 7. The 3[rd] respondent will measure the area of the ground floor of the building which is used for the workshop, customers launch, vehicle passage, ## **W.P.(C).37155/09** 6 computer room, Manager room and reception. Thereafter 3[rd] respondent will make a report to the 1[st] respondent. On receipt thereof 1[st] respondent will issue notice to the petitioner and pass fresh orders in the matter duly taking note of the findings in this judgment also. 8. As a necessary consequence of the above, Ext.P6 and P8 also will have to be quashed. It also needs to be clarified that Ext.P6 order of assessment shows that the remaining portion, including first and second floor, has been classified as “other building” as provided in the schedule to the Act and tax has been assessed on that basis. It is the specific case of the petitioner that the first and second floor of the building is used exclusively for residential purpose. If that be so, that part of the building which is used for residential purpose should be treated as a residential building and tax should be 7 ## **W.P.(C).37155/09** assessed on that basis alone. This position has been clarified by this Court in **Sukumaran v. Tahsildar (1999 (2) KLT 373)** and **Jameela v. Tahsildar (2003 (3) KLT 979)** . Therefore, once the 1[st] respondent passes orders as directed above, it is for the 3[rd] respondent to pass fresh assessment order in respect of the remaining area of the building, after verifying the correctness of the claim made by the petitioner by conducting an inspection of the 1[st] and 2[nd] floor of the building in question. Writ petition is disposed of as above. ## **Sd/- ANTONY DOMINIC, JUDGE** mrcs /true copy/ sd/- P.A. To Judge