M/S Prudential Rubber Pvt. Ltd. v. The State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** ## **WP(C).No.1686 OF 2020(I)** ## **PETITIONER/S:** **M/S PRUDENTIAL RUBBER PVT. LTD., REPRESENTED BY THE DIRECTOR, PAULOSE VARGHESE, S/O GEORGE VARGHESE, AGED 32, REGISTERED OFFICE, MIDAS MARKETING BUILDING , MARIYATHURUTHU P.O.KOTTAYAM** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE**| ||**(SPECIAL CELL) DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION, KOTTAYAM-686 001.**| |**3**|**THE REVENUE DIVISIONAL OFFICER,**| ||**CIVIL STATION, KOTTAYAM-686 001.**| |**4**|**THE TAHASILDAR,**| ||**TALUK OFFICE, KOTTAYAM-686 001.**| ## **R1 TO R4 BY SMT.THUSHARA JAMES, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J. ========================= WP(C).No.1686 OF 2020** **========================= Dated this the 30[th] day of January, 2020** ## **JUDGMENT** The prayers in the Writ Petition are as follows: _“i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P5, P7 and P8 and quash the same as illegal._ _ii) Declare that the building constructed by the petitioner for housing and accommodating migrant workers being one constructed for fulfilling statutory requirement is fulle exempted under Sec.3(1)(b) of the Kerala Building Tax Act._ _iii) Issue a writ of mandamus or any other appropriate writ order or direction directing the Government to reconsider Ext.P5 in the light of the principles laid down by the Hon'ble Court in 2009(1) KLT 992 and 1995(1) KLT SN 29._ _And_ _iv) Grant such other reliefs, which this Hon'ble Court deems fit and proper to grant considering the facts and circumstances of the case.”_ **WP(C).No.1686 OF 2020 3** 2. Heard Sri.C.S.Manilal, learned counsel for the petitioner and Dr.Tushara James, learned Government Pleader for the respondents. 3. The factual aspects projected in this Writ Petition are as follows: _“The 4[th] respondent Tahsildar proceeded to assess the building. The petitioner raised a question of exemption U/s3(1) (b) of the Kerala Building Tax Act, since the building in question is part and parcel of the factory and hence exempted. The 4[th] respondent Tahsildar who prima facie found that the building is entitled for exemption under Sec.3(1)(b) being a factory referred the matter to the Government under Sec.3(2) of the Act. It may be noted that in Ext.P3 building permit itself it is stated that the building sought to be constructed is within the land belongs to the factory and is intrinsically connected with the factory activities. Before the Government, the petitioner made written submission based on the decision of the court in the case in_ _**Kitex Garments Ltd. v. State of Kerala [2009 (1) KLT 992]** . The sister concern of the petitioner obtained exemption for similar purposes in respect of factory building. So also Ext.P10 order of the Deputy Labour Commissioner exempting_ ## **WP(C).No.1686 OF 2020 4** _the building from the Cess being a factory also was pointed out. The Government by Ext.P5 without specifying any reason directed to assess the Building as residential without answering the points raised in the Written submission by a cryptic order. The order was not served on the petitioner also. Now based on the order, the revised assessment and demand notice Exts.P7 and P8 are issued.”_ 4. It is in the light of these averments, petitioner has filed the aforementioned Writ Petition with the aforementioned prayers. 5. The impugned Ext.P5 rejection order passed by the 1[st] respondent government in the revenue department reads as follows: _" ._ സ�ചനകള�ല�ക� ത�ങള�ട� ശ� കണ�ക�ന� ക�ട�ക� ഗ�ർട�ന�� ����ട�ഡ _vs._ ലകരള �ല��" _[2009(1) KLT 992]_ എന ലകസ�ൽ ബഹ� ലക��ത� ടത�ഴ���ള�കടള ത��സ�പ�ക�നത�ന� ല)ണ� ഉപല-�ഗ�ക�ന ടകട��ങൾക ന�ക�ത�-�ള)�ന� അർഹത-�ട�2ന" പര��ർ��ച�ട�ളളത�ന�ൽ ഫ�ക�റ�ല-�ട അന�ബന�ച" ന�ർമ�ച�ട�ളള ക9�ർലടഴസ�-� ഉപല-�ഗ�ക�ന ടകട��ങടള ത��സ)�ഭ�ഗ<�ൽ ഉൾടപ��<� ടകട�� ന�ക�ത� _._ ഈ��ക�)�നത�ടണന )�)ര> അറ�-�ക�ന� ത���ക" ഫ-��കൾ ഇലത�ട��പ> ��ക�ന� _.”_ **WP(C).No.1686 OF 2020 5** 6. This court while dealing with the similar issue has rendered Ext.P6 judgment dated 24.02.2009 in the case in Kitex Garments Ltd. v. State of Kerala [2009(1) KLT 992], Clause (b) of Sub Section (1) of Section 3 of the Kerala Land Tax Act reads as follows: _“3.Exemptions:-(1) Nothing in this Act shall apply to-_ _xx xx xx_ _(b) buildings used principally for religious, charitable or educational purposes or as factories or workshops.”_ _S.2(m) of the Factories Act defines 'factory' as:_ _“(m) “factory” means any premises including the precincts thereof-_ _(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or_ _(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on.”_ ## **WP(C).No.1686 OF 2020 6** 7. This court considered the issue in paragraph 6 of the judgment in Kitex Garments Ltd. supra as to whether any building attached to a factory is also eligible for exemption under Section 3. It was noted that, as per Section 42 of the Factories Act, in every factory adequate and suitable facilities for washing for the use of workers thereon are to be provided by the owner of the factory, and Section 43 of the Factories Act, a factory is mandatorily provides that, employer is liable to provide places for keeping the clothes not worn during working hours and for drying of wet clothing. Section 44 of the Factories Act further provides that, in every factory, the owner of the factory is liable to provide suitable arrangements for sitting for all workers obliged to work in a standing position so that the workers can take advantage of opportunities for rest, which may occur in the course of their work. Section 46 of the Factories Act further requires, in factories where more than 250 workers are ordinarily employed, the employer is liable to provide a canteen. Section 47 thereof further stipulates, the shelters, rest rooms and lunch rooms are ## **WP(C).No.1686 OF 2020 7** mandatorily to be provided by the owner of the factory, and under Section 48 thereof, in every factory where more than 30 women workers are ordinarily employed, suitable room or rooms for the use of children under the age of six years of such women are liable to be provided. 8. After considering various matters, this court held in paragraph 6 of the judgment in Kitex Garments Ltd. Supra that, for the purpose of Section 3 of the Kerala Building Tax Act, the definition of 'factory' has to be read in conjunction with Sections 42 to 48 of the Factories Act, and that the owner of the factory is statutorily liable to provide building for the above purposes, failing which the occupier of the factory is liable for penal consequence, and the buildings provided fr those purposes would also form part of the factory. This is all the more so since the wording used in S.3(b) of the Kerala Building Tax Act is, buildings used 'principally' as factories. Therefore this court has categorically held that the building provided by the owner of the factory, which satisfies the statutory requirements under Sections 42 to 48 of ## **WP(C).No.1686 OF 2020 8** the Factories Act are also eligible for exemption under Section 3(1)(b) of the Kerala Land Tax Act. 9. Petitioner has a specific case that the above said buildings in question for which the exemption is sought under the provisions of Section 3(1)(b) of the Kerala Land Tax Act are buildings primarily provided by the petitioner to meet the mandatory requirements of the Factories Act. Therefore, it would qualify for exemption in terms of Section 3(1)(b), in view of the judgment of this court in Kitex Garments Supra. 10. Further, learned counsel for the petitioner pointed out that, Ext.P3 building permit issued by Pallickathodu Grama Panchayat on 06.05.2009 would also show that the above said buildings are provided by the petitioner to meet the above said statutory and mandatory requirements, and therefore, the said buildings are fully qualified for exemption under Section 3(1)(b) of the Kerala Land Tax Act. Further, learned counsel for the petitioner pointed out that, the sister concern of the petitioner establishment has already secured exemption under Section 3(1)(b) of the Kerala Land Tax Act as shown in Ext.P9 G.O.(Rt) ## **WP(C).No.1686 OF 2020 9** No.225/2010/RD dated 19.01.2010, issued by the 1[st] respondent Government of Kerala in the Revenue Department. 11. A reading of Ext.P4 impugned order would show that the 1[st] respondent Government has gone of on its tangent altogether and has misunderstood the principles in the judgment in Kitex Garments Ltd. Supra and has even rendered the whole in Ext.P5 order and has not dealt with the crucial and relevant aspect as to the contentions of the petitioner that the above said buildings are maintained by him primarily for meeting the statutory and mandatory requirements of the Factories Act. Such a relevant consideration has been duly dealt with by the 1[st] respondent Government in Ext.P9 G.O. issued in the similar circumstances. 12. After hearing both sides and after consideration of the pleadings and materials on record, this court has no hesitation to hold that Ext.P5 order is vitiated by unreasonableness and for not taking into account all relevant aspect of the matter and also taking into consideration irrelevant aspects, and therefore, the matter ## **WP(C).No.1686 OF 2020 10** warrants for remits and the impugned Ext.P5 order will stand set aside and the request of the petitioner for exemption as made out in the petition dated 26.05.2015, and further petition dated 18.04.2018 and Ext.P4 dated 30.05.2016 will stand remitted to the 1[st] respondent for consideration and to take a decision afresh. 13. The petitioner may file any additional written submission in the matter along with any additional materials, and the same shall be submitted by the petitioner along with certified copy of the judgment to the 1[st] respondent within a period of two weeks from the date of receipt of this judgment. Thereafter, the 1[st] respondent will issue notice of hearing to the petitioner will afford an opportunity of hearing to the petitioner through an authorised counsel if any, and then will advert to the authorised counsel of the petitioner as noted herein above, and shall also take into consideration Ext.P9 G.O.(Rt)No.225/2010/RD dated 19.01.2010, and then may take a decision on the plea of the petitioner to grant exemption under Section 3(1)(b) of the Kerala Land Tax Act. The entire proceedings in this regard may be duly **WP(C).No.1686 OF 2020 11** communicated to the 1[st] respondent within three months from the date of service of a copy of this judgment. 14. Since Ext.P5 has already been set aside by this court and the matter has been remitted to the 1[st] respondent, impugned orders Exts.P7 and P8 which have been rendered for the enforcement of impugned Ext.P5 order, will have no independent existence for the similar reasons that the basic order Ext.P5 has been set aside by this court, and further it is ordered that Exts.P7 and P8 orders will stand quashed. The writ petition is disposed of accordingly. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **uu** **WP(C).No.1686 OF 2020 12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LICENSE ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS DATED 31.10.2017** **EXHIBIT P2 TRUE COPY OF THE LIST OF MIGRANT LABOUERRS IN PRUDENTIAL RUBBER P LTD** - **EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT OBTAINED FROM THE PALLICKATHODU GRAMA PANCHAYATH DATED 6.5.2009** - **EXHIBIT P4 TRUE COPY OF THE WRITTEN SUBMISSION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 30.5.2016** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.6.2018 OF THE 1ST RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE DECISION OF THIS HON'BLE COURT REPORT4ED IN 2009 (1) KLT 992 EXHIBIT P7 TRUE COPY OF THE REVISED ASSESSMENT ORDER ISSUED BY THE 4TH RESPONDENT DATED 7.1.2020** **EXHIBIT P8 TRUE COPY OF THE DEMAND NOTICE UNDER SEC 15(3) DATED 7.1.2020** **EXHIBIT P9 TRUE COPY OF THE EXEMPTION ORDER DATED 19.1.2010** **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 27.6.2014 ISSUED BY THE REGIONAL JOINT LABOUR COMMISSIONER TO THE DEPUTY LABOUR OFFICER, KOTTAYAM WITH ENGLISH TRANSLATION**