IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WP(C).No. 25718 of 2008(J) ---------------------------------------------- PETITIONER: ------------------ VICTORY SOAPS AND COSMETIC PVT. LTD. KINFRA PARK, MYSORE ROAD, P.O. CHUNDALE- WAYANAD: 673 123, REP. BY ITS CHAIRMAN. BY ADV. SRI.SIVAN MADATHIL RESPONDENTS: ---------------------- 1. THE SECRETARY, KALPETTA MUNICIPALITY, WAYANAD DISTRICT. 2. THE THAHSILDAR,ASSESSING AUTHORITY VYTHIRI VILLAGE,KALPETTA-WAYANAD. 3. THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR CIVIL LINE-WAYANAD. 4. KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION, (KINFRA), SMALL INDUSTRIES PARK, KALPETTA-REPRESENTED BY ITS MANAGING DIRECTOR, KINFRA HOUSE ANNEX, T.C. 9/2585, ELANKON GARDEN, VELLAYAMBALAM,THIRUVANANTHAPURAM. R2 & R3 BY GOVERNMENT PLEADER SHRI BEJOY CHANDRAN. R4 BY ADV. SHRI E.K. NANDAKUMAR, SC. ` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 25718 OF 2008 J -------------------------------------- Dated this the 2nd September, 2008 JUDGMENT The Writ Petition is filed seeking the following reliefs: "i) Declare that petitioner company's factory set up in the Industrial Park, Plot No.16, in Survey No.266/3 Part in KINFRA industrial area is exempted from levying Building Tax by the Municipality. ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 and 2 not to proceed with the levying of building tax on petitioner's building/shed situated in No.Plot No.16, in Survey No.266/3 part in KINFRA industrial area. iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to adjudicate the appeal/review petition filed by the petitioner as per Ext.P9 within a time frame as stipulated by this Court pending disposal of the Writ Petition." 2. Case of the petitioner, in brief, is as follows: Petitioner Company has entered into an agreement with WPC. 25718/08 J 2 the Kerala Industrial Infrastructure Development Corporation (KINFRA) for setting up a soap and cosmetic manufacturing unit. Ext.P1 is the Certificate of Incorporation. Petitioner put up a building for running the industrial unit. Ext.P3 which is the acknowledgment, shows that the petitioner has got clearance for setting up the unit from the Government of Kerala for Micro, Small or Medium Enterprises. Petitioner Company received a notice proposing to assess the petitioner to building tax (Ext.P5). The Chairman was present, it is stated, and he explained that the Company may not be assessed to building tax, as the industrial area shall be exempted from obtaining building permit. Petitioner also referred, it is stated, to Section 3 of the Kerala Building Tax Act. The said communication is produced as Ext.P6 dated 15.1.2008. It is without considering the same that by Ext.P7 petitioner has been assessed. Petitioner again submitted Ext.P8 reply and the petitioner has also preferred an Appeal purporting to be under Section 11/13 of the Building Tax Act before the District Collector. WPC. 25718/08 J 3 3. I heard the learned counsel appearing for the petitioner and also the learned Government Pleader. Learned Government Pleader was directed to get instructions in the matter. He points out that before the assessment was made, the petitioner has indeed filed Ext.P6 dated 15.1.2008 and he further submits that it appears that, a doubt came to be entertained as to whether the petitioner Company as a small scale unit qualifies as a factory and since it does not employ ten workers under the Factories Act. He further submits that the assessment came to be passed at any rate, without referring the matter to the Government. But, he further submits that in respect of the buildings in the industrial area including the petitioner has now been referred by the assessing authority. The assessing authority becomes functus officio after the order is passed. In the case of the petitioner, if the Tahsildar had a doubt, it was his bounden duty to refer the matter to the Government and it could not have passed an order of assessment. Accordingly, Ext.P7 is quashed and there will be a direction to the second respondent to refer the matter WPC. 25718/08 J 4 relating to the petitioner to the Government under Section 3(3) within a period of two weeks of receipt of a copy of this Judgment, and the Government of Kerala will consider the same and take a decision thereon in accordance with law, after affording an opportunity of hearing to the petitioner, within a period of two months from the date of receipt of the reference from the second respondent. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. //True Copy// PS to Judge