Partly allowed

Bodygear International (P) Ltd. v. Kadungallur Grama Panchayath

Kerala HC2 Sept 2016WP(C)/5716/2009

Case brief

AI extract

What is this about?

Petitioners challenged tax and licence demands by Kadungallur Grama Panchayat, arguing their industrial area falls under Section 1(2) exemption. The Court quashed the demands pending a review of the 2014 amendment expanding Panchayat jurisdiction.

What did the court decide?

Demand for tax and direction to obtain licence are quashed, subject to the right of the Panchayat to invoke jurisdiction under the amended Act 34 of 2014.

Bodygear International (P) Ltd. Vs Kadungallur… — Municipal and Town Planning | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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FRIDAY, THE 2ND DAY OF SEPTEMBER 2016/11TH BHADRA, 1938

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WP(C).No. 5716 of 2009 (H)

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PETITIONER(S) :

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BODYGEAR INTERNATIONAL (P) LTD., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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PANANGHAT POLYMER PACKING (P) LTD., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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JEEYES CONCRETE BLOCKS, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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DURACOAT PAINTS (P) LTD., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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DAMODAR INDUSTRIES, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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SPECTRUM REAGENTS & CHEMICALS, BINANIPURAM P.O, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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M/S. ARJUNA NATURAL EXTRACTS LTD., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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THAMARACHALLIL POLYMERS, BINANIPURAM P.O., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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M/S. UNIPACK (INDIA) PVT. LTD., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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INDUSTRIAL REAGENTS AND CHEMICALS, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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..2/-

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..2..

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WP(C).No. 5716 of 2009 (H)

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11. JAISON INDUSTRIES, BINANIPURAM P.O, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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12. CHRIST WOOD & METALS CRAFTS INDUSTRIES, BINANIPURAM P.O., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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13. M/S.CHILTON REFRIGERATION'S (P) LTD., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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14. YOMAN BONE & ALLIED PRODUCTS, BINANIPURAM P.O, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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15. POWER CONTROLS,

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INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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16. MAC FIELD BEVERAGES INDIA (P) LTD., BINANIPURAM P.O, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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17. KINGSTON PLASTICS PVT. LTD., BINANIPURAM P.O., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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18. P.K.V & SONS, BINANIPURAM P.O., INDUSTRIAL DEVELOPMENT AREA, EDAYAR, MUPPATHADOM, ALUVA.

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BY ADVS. SRI.JOY C. PAUL SRI.DOMINIC JOHNSON

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RESPONDENT(S) :

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KADUNGALLUR GRAMA PANCHAYAT, KADUNGALLUR, REP. BY ITS SECRETARY.

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BY ADVS. SRI.P.V.BALAKRISHNAN SRI.DINESH MATHEW J.MURICKEN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-09-2016, ALONG WITH W.P(C).NO. 12816 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 5716 of 2009 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT. P1(A): TRUE COPY OF THE NOTICE ISSUED TO THE 1ST PETITIONER. EXT. P1(B): TRUE COPY OF THE NOTICE ISSUED TO THE 2ND PETITIONER. EXT. P1(C): TRUE COPY OF THE NOTICE ISSUED TO THE 2ND PETITIONER. EXT. P1(D): TRUE COPY OF THE NOTICE ISSUED TO THE 3RD PETITIONER. EXT. P1(E): TRUE COPY OF THE NOTICE ISSUED TO THE 4TH PETITIONER. EXT. P1(F): TRUE COPY OF THE NOTICE ISSUED TO THE 5TH PETITIONER. EXT. P1(G): TRUE COPY OF THE NOTICE ISSUED TO THE 6TH PETITIONER. EXT. P1(H): TRUE COPY OF THE NOTICE ISSUED TO THE 7TH PETITIONER. EXT. P1(I): TRUE COPY OF THE NOTICE ISSUED TO THE 7TH PETITIONER. EXT. P1(J): TRUE COPY OF THE NOTICE ISSUED TO THE 8TH PETITIONER. EXT. P1(K): TRUE COPY OF THE NOTICE ISSUED TO THE 8TH PETITIONER. EXT. P1(L): TRUE COPY OF THE NOTICE ISSUED TO THE 9TH PETITIONER. EXT. P1(M): TRUE COPY OF THE NOTICE ISSUED TO THE 9TH PETITIONER. EXT. P1(N): TRUE COPY OF THE NOTICE ISSUED TO THE 10TH PETITIONER. EXT. P1(O): TRUE COPY OF THE NOTICE ISSUED TO THE 10TH PETITIONER. EXT. P1(P): TRUE COPY OF THE NOTICE ISSUED TO THE 11TH PETITIONER. EXT. P1(Q): TRUE COPY OF THE NOTICE ISSUED TO THE 12TH PETITIONER. EXT. P1(R): TRUE COPY OF THE NOTICE ISSUED TO THE 13TH PETITIONER. EXT. P1(S): TRUE COPY OF THE NOTICE ISSUED TO THE 13TH PETITIONER. EXT. P1(T): TRUE COPY OF THE NOTICE ISSUED TO THE 14TH PETITIONER. EXT. P1(U): TRUE COPY OF THE NOTICE ISSUED TO THE 15TH PETITIONER. EXT. P1(V): TRUE COPY OF THE NOTICE ISSUED TO THE 16TH PETITIONER. EXT. P1(W): TRUE COPY OF THE NOTICE ISSUED TO THE 17TH PETITIONER. EXT. P1(X): TRUE COPY OF THE NOTICE ISSUED TO THE 18TH PETITIONER.

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WP(C).No. 5716 of 2009 (H)

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EXT. P2: TRUE COPY OF THE ORDER DATED 05.07.1994. EXT. P3: TRUE COPY OF THE CIRCULAR DATED 16.04.2007.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

A.M.SHAFFIQUE, J

*** * * * * * * * * * * *** W.P.C.Nos.5716 & 12816 of 2009, 18790, 18852, 20000 & 20075 of 2011, 7161 & 11104 of 2012 and 18284 of 2013

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Dated this the 2^nd day of September 2016

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J U D G M E N T

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These writ petitions have been filed challenging the demand for tax as well as the direction issued by the Panchayat calling upon the petitioners to obtain licence for setting up/continue the existing industries.

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The main contention urged by the petitioners is in respect of the applicability of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act') in respect of the industries within the industrial areas of the State. It is stated that though the Act is extended to the whole of the State of Kerala, in view of Section 1(2) of the Act, areas which are within the limits of Cantonments, Nagar Panchayats, Municipal Councils, Municipal Corporations and the industrial areas of the State have been exempted from the area of operation of the Panchayat. This position has been declared by a Division Bench of this Court in

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W.P.C.No.5716/2009

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& conn.cases 2

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Pepsico India Holdings Pvt. Ltd. v. State of Kerala [2007(2) KLT 835] . In so far as the petitioners' establishments are all situated within the industrial area, it is apparent that the Act has no application and Panchayat cannot invoke their powers into the industrial areas where the units have been set up by the petitioners. Therefore, the contention of the petitioners that the demand for tax as well as the demand for taking licence for such institutions is not covered by the provisions of the Act.

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It is pointed out that Section 1(2) of the Act has been amended by the Kerala Panchayat Raj Amendment Act, 2014 by Act 34 of 2014 by which Section 1 has been amended in the following manner:

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“1. Short Title and

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Commencement .- (1) This Act may be called the Kerala Panchayat Raj (Amendment) Act, 2014.

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(2) Section 3 of this Act shall be deemed to have come into force on the 17^th day of May, 2010, Sections 2, 4, 7 and 8 shall be deemed to have come into force on the 14^th day of June, 2010 and the remaining sections shall be deemed to have come into force on the 28^th day of October, 2013.

W.P.C.No.5716/2009

& conn.cases

Amendment of Section 1.- In sub-section (2) of Section 1 of the Kerala Panchayat Raj Act, 1994 (13 of 1994) (hereinafter referred to as the principal Act),-

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(a) for the words “Industrial areas”, the words, figures and letters “areas specified as industrial township under the proviso to clause (1) of Article 243Q of the Constitution and areas declared as industrial areas under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (5 of 2000)” shall be substituted;

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(b) after the existing proviso, the following proviso shall be inserted, namely:-

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“Provided further that the provisions of Chapter XIX of this Act shall extend to the areas declared as industrial areas under the Kerala Industrial Single Window clearance Boards and Industrial Township Area Development Act, 1999.”

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By virtue of the aforesaid amendment, for the words “Industrial areas” the following has been incorporated. “Areas specified as industrial township under the proviso to Clause (1) of Article 243Q of the Constitution and areas declared as industrial

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W.P.C.No.5716/2009

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& conn.cases 4

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areas under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (5 of 2000)” . This amendment is made effective from 14/06/2010. In other words, other than the areas specified above, all other areas will come under the provisions of the Act, effective from 14/06/2010. It is also contended by the learned counsel appearing for the petitioners that separate writ petitions had been filed challenging the amended provision especially in regard to the retrospectivity of the said provision with effect from 14/06/2010 and this Court had stayed collection of amounts with reference to the demands made prior to the amendment coming into effect, that is from 14/06/2010 onwards till the date of amendment i.e. 23/12/2014.

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Having regard to the aforesaid submissions, I am of the view that these writ petitions can be disposed of as under:

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i) Any demand for tax or for obtaining licence against the petitioners is hereby quashed, however, without prejudice to the right of the Panchayat to invoke their jurisdiction on the basis of the Act 34 of 2014.

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W.P.C.No.5716/2009 & conn.cases 5

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ii) It is made clear that, in respect of the areas which come under Section 1(2) of the amended provision, the Panchayat shall have no jurisdiction in the matter.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

Bodygear International (P) Ltd. v. Kadungallur Grama Panchayath

Case brief

What is this about?

What did the court decide?

Bodygear International (P) Ltd. v. Kadungallur Grama Panchayath

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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