T.T. Joy v. Tahsildar, Taluk Office, Muvattupuzha and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936** ## **WP(C).NO. 33784 OF 2007 (V)** **----------------------------** ## **PETITIONER(S):** **--------------** **T.T. JOY, THEKKUMMOOTTIL HOUSE, PIRAVOM P.O.** **BY ADVS.SRI.K.SURENDRA MOHAN SRI.K.PAUL KURIAKOSE** ## **RESPONDENT(S):** - **---------------** ## **1. THE TAHSILDAR,** ## **TALUK OFFICE, MUVATTUPUZHA.** ## **2. THE STATE OF KERALA,** - **REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **BY GOVERNMENT PLEADER SMT.K.T.LILLY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 33784 OF 2007 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: PHOTOSTAT TRUE COPY OF CERTIFICATE OF PERMANENT REGISTRATION OF THE PETITIONERS UNIT DATED 11.1.1992** ## **EXT.P2:PHOTOSTAT TRUE COPY OF PETITIONER'S LICENSE DATED 19.01.2005** **EXT.P3:PHOTOSTAT TRUE COPY OF LETTER DATED 16.2.2005 FROM THE ASST.DISTRICT INDUSTRIES OFFICER TO THE ASST.EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, PIRAVOM** **EXT.P4: PHOTOSTAT TRUE COPY OF PETITIONER'S OBJECTIONS DATED 16.2.2005** **EXT.P5:PHOTOSTAT TRUE COPY OF ORDER OF ASSESSMENT DATED 5.2.2005 OF THE 1ST RESPONDENT** **EXT.P6: PHOTOSTAT TRUE COPY OF DEMAND NOTICE DATED 5.3.2005 OF THE 1ST RESPONDENT** **EXT.P7: PHOTOSTAT TRUE COPY OF INTERIM ORDER DATED 28.3.2005 OF THE HIGH COURT OF KERALA, ERNAKULAM IN W.P(C).NO.9950/2005** **EXT.P8:PHOTOSTAT TRUE COPY OF PETITIONER'S CLAIM FOR EXEMPTION DATED 29.4.2005 BEFORE THE 1ST RESPONDENT** **EXT.P9: PHOTOSTAT TRUE COPY OF JUDGMENT DATED 24.5.2006 OF THE HON'BLE HIGH COURT IN W.P(C).NO.9950/2005** **EXT.P10: PHOTOSTAT TRUE COPY OF THE ORDER G.O.(RT) NO.2631/07/RD DATED 26.6.2007 UNDER THE KERALA BUILDING TAX ACT, 1975** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C).No.33784 of 2007 **.............................................................** Dated this the 2[nd] day of December, 2014 ## **J U D G M E N T** The petitioner is the proprietor of small scale industrial unit engaged in the manufacture of washing powder and other cleaning products. The petitioner claimed an exemption under the Kerala Building Tax Act, 1975, in respect of the building put up by him for housing the Factory where the manufacturing activity was carried on. The assessing authority however, issued a notice proposing to assess the petitioner to building tax by denying the claim for exemption. When Ext.P5 assessment order and Ext.P6 demand notice was issued to the petitioner, he approached this Court through W.P.(C).No.9950 of 2005, which was disposed by directing the Tahsildar to forward the petitioner's claim for exemption to the 2[nd] respondent for its decision. The demands made against the petitioner were also stayed pending the out come of the claim for exemption before the 2[nd] respondent. It is stated that the 2[nd] respondent thereafter went into the matter and by Ext.P10 order rejected the claim for exemption preferred by the petitioner. In Ext.P10 order, the stand of the Government is that the building put up by the petitioner does not satisfy the definition of factory under Section 2(m) of the Factories Act, 1948 and hence would not qualify as a factory for the purposes of exemption under Section 3(1)(b) of 2 W.P.(C).No.33784 of 2007 the Kerala Building Tax Act, 1975. Ext.P10 order of the Government is impugned in the writ petition, inter alia, on the ground that the provisions of Section 3(1)(b) do not refer to factory as defined under the Factories Act and, therefore, it is the general meaning of the word factory that must prevail for the purposes of exemption. In the alternative, it is contended that the building could be categorised as a workshop for the purposes of exemption and the Government had to examine the matter from that angle as well. It is also pointed out that, by virtue of the provisions of Section 85 of the Factories Act, 1948, the State Government is empowered to declare, by Notification in the official Gazette, that all or any of the provisions of the Factories Act, 1948, shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on, notwithstanding that the number of persons employed therein is less than what is contemplated under Section 2(m) of the Act or the persons working therein are not employed as the owner thereof but working with the permission of or under the agreement with such owner provided that the manufacturing process is not being carried on by the owner only with the aid of his family. The said provision also makes it clear that once a place is so declared, it shall be deemed to be a factory for the purposes of the Act and the owner shall be deemed to be the occupier and any person working 3 W.P.(C).No.33784 of 2007 therein a worker for the purposes of the said Act. It is the contention of the petitioner that even if the Government was of the view that a factory, for the purposes of exemption under the building tax, had to satisfy the definition of factory under the Factories Act then, it had to tak in even a deemed factory in terms of Section 85 of the Factories Act. The petitioner would place reliance on notification SRO 1679/93, issued by the State Government to indicate that units engaged in the manufacture of basic chemicals and chemical products have also been included under the schedule to the said Notification issued by the State Government. 2. I have heard Sri.K.Paul Kuriakose, the learned counsel for the petitioner appearing on behalf of the petitioner and Smt.K.T.Lilly, the learned Government Pleader appearing on behalf of the respondents. 3. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that in Ext.P10 order that is impugned in the writ petition, the Government has taken a stand that while considering a claim for exemption under the Kerala building Tax Act in respect of a factory, the factory would have to comply with the definition of 4 W.P.(C).No.33784 of 2007 factory under Section 2(m) of the Factories Act, 1948. By virtue of the Division Bench decision of this Court in **State of Kerala v. Joseph D'Cunha (2013 (4) KLT 279),** it is no doubt open to the Government to confine the exemption under Section 3(1) (b) of the Kerala Building Tax Act to only such buildings as are principally used as a factory, and which answer to the description of factory under the Factories Act, 1948. In the case at hand, however, the petitioner refers to a Notification issued by the State Government in exercise of its powers under Section 85 of the Factories Act, 1948, which would indicate that there could be certain units that are engaged in manufacturing activities which could also be considered as deemed factories for the purposes of Factories Act 1948. If the petitioner is able to establish, with reference to material available with him, that his building would come within the definition of a deemed factory in terms of the Notification of the State Government referred to above, then it follows that there is no scope for excluding the petitioners building from the purview of the exemption contemplated under Section 3 (1) (b) of the Act, solely on the ground that the building does not answer to the description of Factory as defined under Section 2(m) of the Factories Act, 1948. That apart, the petitioner also has a contention that the building would also fall within the ambit of the term workshop under Section 3 of the Kerala building Tax Act. This is yet another 5 W.P.(C).No.33784 of 2007 aspect that has to be examined by the Government while considering the case of the petitioner for exemption. To enable the 2[nd] respondent to have a fresh look into the matter, and consider the claim of the petitioner for exemption in respect of the building put up by him, I quash Ext.P10 order and direct the 2[nd] respondent to consider the matter afresh in the light of the observations made in this judgment and after considering the material produced by the petitioner to substantiate his claim for exemption. The 2[nd] respondent shall pass fresh orders, after hearing the petitioner, within a period of three months from the date of receipt of a copy of this judgment. Ext.P5 assessment order and Ext.P6 demand notice shall not be enforced against the petitioner till such time as the Government passes fresh orders, as directed in the judgment. The writ petition is disposed as above. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns W.P.(C).No.33784 of 2007 6