STATE OF KERALA Vs. JOSEPH D CUNHA

JUDGEMENT

(1.) The appellants before us are the State of Kerala and its officials. The respondent herein was the writ petitioner who was aggrieved by issuance of Ext.P11 order passed by the 1st respondent in the writ petition denying exemption to the establishment of the respondent-assessee which came to be allowed by the learned Single Judge by virtue of the judgment impugned before us.

(2.) It is not in dispute that the respondent-assessee is running an ice factory after obtaining licence issued by the Director of Industries and Commerce. It is also not in dispute that the plinth area of the building of the assessee where the ice factory is functioning is 264.47 square metres. According to the writ petitioner, denial of exemption by the Government was wrong as except number of employees in the factory being less than the required number under Section 2(m) of the Factories Act, all other components of 'factory' as also 'manufacturing process' required under the Factories Act were in existence, therefore, he challenged rejection of exemption before the learned Single Judge. The learned Single Judge while considering the issue opined that the establishment in question being a small scale industry and when the intention of the Legislature was not to deny such benefit to the small scale industries, the exemption deserves to be granted to the establishment of the respondent- assessee. It is not in dispute that the claim of exemption came to be rejected by the Government only on the ground that required minimum numbers of workers were not employed in the establishment, therefore, the establishment cannot be considered as a 'factory' in order to extend the benefit of exemption contemplated under Section 3 (1) (b) of the Kerala Building Tax Act, 1975 (for short 'the Act').

(3.) The entire issue revolves round whether the establishment of the respondent-assessee can be considered as a 'factory' and whether the said consideration must be with reference to the definition of 'factory' under Section 2 (m) of the Factories Act, 1948. Section 2(m) of the Factories Act defines the term 'factory' as under: