High Court of KeralaSingle JudgeWrit petition disposed of with Ext. P15 set asi...
Jose Mathew v. State of Kerala and Others
Case / Petition Number:WP(C).No.38072/2016
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- P. V. Kunhikrishnan
- Judgment Date
- 2023-03-02
- Court Decision / Holding
- Ext. P15 set aside. The 1st respondent to reconsider the matter under Ext. P13’s directions after inspecting the premises, hearing the petitioner, and issuing fresh orders within two months from receipt of this judgment. The petitioner to furnish certified copies of this judgment and the writ petition for compliance.
- Final Disposition
- Writ petition disposed of with Ext. P15 set aside and directions to re-adjudicate in accordance with Ext. P13 after inspection and hearing, to be completed within two months.
Parties to the Case
Appellants / Petitioners
- Jose Mathew
Respondents
- State of Kerala
- District Collector, Kottayam
- Revenue Divisional Officer, Kottayam
- Tahsildar, Vaikom
- Village Officer, Muthuchira
- General Manager, District Industries Centre, Kottayam
Legal Representation & Advocates
Counsels for Petitioners
- • G. Chandrasekhar
- • Sijo George
- • K. R. Michael
Counsels for Respondents
- • Smt. Reshmitha R., GP
Case Synopsis & Summary
This writ petition challenges the validity and computation of building tax on the petitioner’s premises, claimed to be used for manufacturing processes. The petitioner, Jose Mathew, seeks a certiorari to quash Ext. P5 and P8 orders and a mandamus to reassess the building tax, with exemption of 2000 sq. mtr used for manufacturing as per Ext. P3. The court’s background shows that Ext. P15 was issued following directions in Ext. P13 judgment, but the court notes that Ext. P15 was passed without proper validation of the factory status and without inspecting the premises. The critical legal question is whether the petitioner’s building qualifies as a factory under the Factory Act, which would warrant exemption from building tax under the Kerala Building Tax Act. The court references Dream World Water Park v. Tahsildar to emphasize that exemption hinges on the building satisfying the Factory definition under the Factories Act, 1948, and that the assessing authority must consider the nature of the building and activities performed. The judgment sets aside Ext. P15, directing the 1st respondent to inspect the premises, hear the petitioner, and decide afresh in light of Ext. P13’s principles within two months. The petitioner’s position was that the building’s use constitutes manufacturing activity; the government pleader argues otherwise, contending the building is not principally a workshop.
Provisions of Law Cited
Kerala Building Tax Act, Sec. 2(e)Kerala Building Tax Act, Sec. 3(1)(b)Factories Act, 1948 – Definition of 'Factory'
Legal Doctrines & Maxims
- Definition of 'Factory' under the Factories Act, 1948 determines eligibility for building tax exemption
- Judicial approach requiring examination of the building and its activities under the Factory definition
- Inspection and opportunity of hearing are prerequisite to a valid reconsideration of tax orders
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioner’s counsel argued that Ext. P15 was issued in disregard of Ext. P13’s directions and failed to assess whether the building qualifies as a factory under the Factories Act. The petitioner contends that the building is principally used for manufacturing processes (cutting, polishing, engraving, molding of tiles and marbles) and thus should be exempt from building tax under the Act, provided the factory definition is met. Ext. P5 and P8 were quashed by Ext. P13’s principles, and the petitioner seeks proper reassessment based on factory status.
Contentions of Respondents
The respondents’ counsel submitted that Ext. P15 was issued following Ext. P13 and that there was no basis to grant exemption, as the building was not shown to be principally a workshop or to carry out productive manufacturing processes. The Government pleader argued that the building’s use does not satisfy the factory definition, and the assessment should proceed as per the established rules without exemption.
Cited Precedents (2)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Dream World Water Park v. Tahsildar, Mukundapuram Taluk and Others | 2013 (4) KLJ 572 | Positive | Cited to require assessment of exemption from building tax based on the Factory definition under the Factories Act; the court relies on this principle to direct reconsideration. |
| Hon'ble High Court in WP(C)15582/2015 | WP(C)15582/2015 | Positive | Referenced as a controlling precedent, directing conformity with the 2015 judgment; the present order follows that line of reasoning. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`**
## **`THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944`**
## **`WP(C) NO. 38072 OF 2016`**
## **`PETITIONER:`**
```
JOSE MATHEW
AGED 58,S/O. MATHEW,
PROPRIETOR, ROYAL MARBLES ANDGRANITES,
MAIN ROAD, MUTTUCHIRA,VAIKOM, KOTTAYAM.
BY ADVS.
G.CHANDRASEKHAR
SIJO GEORGE
K.R.MICHAEL
```
## **`RESPONDENTS:`**
|`1`|`STATE OF KERALA`|
|---|---|
||`REPRESENTED BY ITS PRINCIPAL SECRETARY TO`|
||`GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT`|
||`SECRETARIAT,THIRUVANANTHAPURAM.`|
|`2`|`DISTRICT COLLECTOR`|
||`KOTTAYAM.`|
|`3`|`THE REVENUE DIVISIONAL OFFICER`|
||`KOTTAYAM.`|
|`4`|`THE TAHSILDAR`|
||`TALUK OFFICE, VAIKOM, KOTTAYAM.`|
|`5`|`THE VILLAGE OFFICER`|
||`MUTHUCHIRA VILLAGE, MUTTUCHIRA, KOTTAYAM.`|
|`6`|`GENERAL MANAGER`|
||`DISTRICT INDUSTRIES CENTRE, KOTTAYAM.`|
||`BY ADVS.SMT.RESHMITHA.R, GP`|
```
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
```
WP(C).No.38072/2016
**2**
## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.38072 of 2016**
**---------------------------------------------Dated this the 02[nd] day of March, 2023**
## **JUDGMENT**
This writ petition is filed with following prayers:
- i. To issue a writ of certiorari calling for records relating to Ext P5, P8 and P1 and quash the same.
- ii. To issue a writ of mandamus, order or direction directing the 1[st] respondent to reassess the building tax and after proper investigation and enquiry.
iii. To issue a writ of mandamus, order or direction directing the 1[st] respondent to exempt the premises, 2000 sq. mtr is used for manufacturing process as stated in Ext P3 used as a factory, being an industrial unit of the petitioner, from payment of building tax as it is involved in the activity of manufacturing process.
iv. To issue a writ of mandamus, order or direction directing the 1[st] respondent to exempt the property of the petitioner from the assessment of building tax since it does not comes within the parameters laid down in the definition of building in Section 2 (e) of the Kerala Building Tax Act.
WP(C).No.38072/2016
**3**
v. Issue such other relief that this Hon'ble Court may deem fit and proper in acts and circumstances of the case.
**==> picture [36 x 12] intentionally omitted <==**
2. Petitioner is challenging Ext.P15 order passed by the 1[st] respondent, which is passed based on the directions issued by this Court in Ext.P13 judgment. The grievance of the petitioner is that the 1[st] respondent has not considered the specific directions in Ext.P13 judgment and ignoring those directions, Ext.P15 order is passed. Hence this writ petition.
3. Heard the learned counsel for the petitioner and Adv. Reshmitha R., the learned Government Pleader.
4. The counsel for the petitioner reiterated the contentions raised in the writ petition. Adv.Reshmitha R. submitted that the petitioner has not even produced the basic documents to show that a factory is functioning in the building. Therefore it is submitted that there is no basis in the submission of the counsel for the petitioner that the petitioner is entitled exemption.
5. This Court considered the contentions of the
WP(C).No.38072/2016
**4**
petitioner and the Government Pleader. Ext.P15 is an order passed based on Ext.P13 judgment. It will be better to extract the relevant portion of Ext.P13 judgment:
“3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that by the decision of this Court in **Dream World Water Park v. Tahsildar, Mukundapuram Taluk and Others** [2013 (4) KLJ 572], it has been held that, for the purposes of exemption from assessment to building tax on the ground that the building is a Factory, the building has to satisfy the definition of Factory as contemplated under the Factories Act. Accordingly, the 1[st] respondent ought to have considered the nature of the building, and the activities conducted therein by the petitioner, in the light of the definition of “Factory” under the Factories Act, 1948. Inasmuch as this has not been done by the 1[st] respondent in Ext.P5 or Ext.P8 orders, I quash Exts.P5 and P8 orders and direct the 1[st] respondent to consider the matter in the light of the principles laid down in the aforementioned judgment of this Court, and by taking into account the definition of “Factory” under the Factories Act 1948. The 1[st] respondent shall pass fresh orders as directed, within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioner. The demand of building tax on the petitioner shall be made afresh only after the 1 st respondent passes orders as
WP(C).No.38072/2016
**5**
directed. Ext.P7 order of assessment and Ext.P10 demand notice are also quashed, leaving it open to the official respondents to pass a fresh assessment order and issue a consequential demand notice, after obtaining the order of the 1[st] respondent on the application for exemption filed by the petitioner.
The writ petition is disposed as above.”
6. On a perusal of Ext.P13 judgment it is clear that this Court directed the 1[st] respondent to consider the nature of building and the activities conducted therein by the petitioner in the light of the definition of factory under the Factories Act, 1958. The relevant portion of Ext.P15 is extracted hereunder:
“2) The petitioner was afforded an opportunity of hearing and during the hearing the petitioner submitted that the building was principally used for manufacturing process like cutting, polishing, engraving, molding of tiles and marbles and that the above activities did come within the definition of factory and hence eligible for building tax exemption under section 3(1)(b) of Kerala Building Tax Act.
3) Government have examined the matter in detail and found that no productive/manufacturing process is carried out here in the disputed building and the activities are according to the Customer's choice and
WP(C).No.38072/2016
**6**
demand. Hence the building is not principally a workshop.
4) With reference to the judgment dated 28.09.2015 im WP(C) 15582/15, Government are reiterating the stand already taken and found no fresh ground to allow the request of the petitioner and is rejected thereby complying with the judgment dated 28.09.2015 of Hon'ble High Court in WP(C) 15582/15.”
7. It is true that the 1[st] respondent passed the order after giving an opportunity of hearing to the petitioner. But without inspecting the building in dispute, I am of the considered opinion that the directions in Ext.P13 judgment cannot be complied with properly. Therefore the 1[st] respondent has to inspect the building through a competent officer and should get a report before complying the directions issued by this Court in Ext.P13 judgment. The copy of the report should be given to the petitioner and thereafter giving an opportunity of hearing to the petitioner should reconsider the matter.
8. Therefore, without expressing any opinion on merit, Ext.P15 can be set aside. The 1[st] respondent can decide the
WP(C).No.38072/2016
**7**
matter conducting an inspection in the building in question through a competent officer with notice to the petitioner and conduct a hearing.
Therefore, this writ petition is disposed of in the following manner:
1. Ext.P15 is set aside.
2. The 1[st] respondent is directed to reconsider the matter in the light of the directions in Ext.P13 judgment after inspecting the premises of the petitioner and also after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.
3. The petitioner will produce certified a copy of this judgment along with a copy of the writ petition before the 1[st] respondent for compliance.
sd/-
JV
**P.V.KUNHIKRISHNAN JUDGE**
WP(C).No.38072/2016
**8**
## **`APPENDIX OF WP(C) 38072/2016`**
|`PETITIONER`|`EXHIBITS`|
|---|---|
|`P1`|`TRUE COPY OF THE CERTIFICATE OF`|
||`REGISTRATION DATED 28/06/2007 ISSUED BY`|
||`THE COMEMRCIAL TAX OFFICER, VAIKOM`|
|`P2`|`TRUE COPY OF THE CERTIFICATE DATED`|
||`11/07/2008 ISSUED BY THE DEPARTMENT OF`|
||`INDUSTRIES, GOVERNMENT OF KERALA`|
|`P3`|`TRUE COPY OF THE CERTIFICATE DATED`|
||`14/03/2013 ISSUED BY THE DISTRICT`|
||`INDUSTRIES CENTRE, KOTTAYAM`|
|`P4`|`TRUE COPY OF THE REQUEST DATED`|
||`19/12/2012 FILED BY THE PETITIONER`|
||`BEFORE THE 4TH RESPONDENT`|
|`P5`|`TRUE COPY OF THE ORDER DATED 27/08/2013`|
||`OF THE IST RESPONDENT`|
|`P6`|`TRUE COPY OF THE REGISTER OF WAGES`|
|`P7`|`TRUE COPY OF THE NOTICE OF DEMAND DATED`|
||`28/10/2013 AND ORDER OF ASSESSMENT OF`|
||`BUILDING TAX`|
|`P8`|`TRUE COPY OF THE ORDER DATED 30/08/2014`|
||`OF THE IST RESPONDENT`|
|`P9`|`TRUE COPY OF THE NOTICE DATED`|
||`06/12/2014 OF THE 4TH RESPONDENT`|
|`P10`|`TRUE COPY OF THE NOTICE DATED`|
||`04/05/2015 ISSUED BY THE TAHSILDAR (RR)`|
|`P11`|`TRUE COPY OF THE ORDER DATED 27/05/2015`|
||`IN W.P(C)15582/2015`|
|`P12`|`TRUE COPY OF THE RECEIPT DATED`|
||`25/06/2015 OF KADUTHURUTHY VILLAGE`|
|`P13`|`TRUE COPY OF THE JUDGMENT IN`|
||`W.P(C)15582/2015`|
|`P14`|`TRUE COPY OF THE NOTICE DATED`|
||`05/12/2015 ISSUED BY THE GOVERNMENT OF`|
||`KERALA (ISSUED BY THE IST RESPONDENT)`|
|`P15`|`TRUE COPY OF THE ORDER DATED 05/08/2016`|
||`ISSUED BY THE GOVERNMENT OF KERALA`|
||`(ISSUED BY THE IST RESPONDENT)`|