Kerala High Court
The Fact Limited vs Vadavukode Puthencruz Grama Panchayat on 5 November, 2021
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
WP(C) NO. 17360 OF 2010
PETITIONER:
THE FERTILISERS AND CHEMICALS TRAVANCORE LIMITED,
UDYOGAMANDAL-683 501,, REPRESENTED BY ITS GENERAL
MANAGER.
BY ADVS.
SRI.E.K.NANDAKUMAR
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.A.K.JAYASANKAR NAMBIAR
SRI.K.JOHN MATHAI
RESPONDENTS:
1 VADAVUKODE PUTHENCRUZ GRAMA PANCHAYAT
PUTHENCRUZ P.O.-682 308, REPRESENTED BY ITS SPECIAL
GRADE SECRETARY.
2 STATE OF KERALA REPRESENTED BY
ITS SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM.
BY ADVS.
SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R2
S.SREEKUMAR (SR.)& SRI.P.PRIJITH FOR R1
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.17360 of 2010 2
CR
JUDGMENT
Dated this the day of November, 2021 Petitioner is a Government of India undertaking, having factories within the jurisdiction of the 1st respondent - Vadavucode Puthencruz Grama Panchayat. Petitioner was issued with demand notices claiming licence fees by the Grama Panchayat during the year 1997 - 1998 under the provisions of the Kerala Panchayat Raj Act 1994( hereinafter called Act 1994), and attendant Rules 1996. According to the petitioner, petitioner has filed O.P.No.19220 of 2007, challenging the decision of the first respondent Grama Panchayat to levy license fees under the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trade & Factories) Rules, 1996, hereinafter called, "Rules, 1996", against the financial year 1997-1998, which was dismissed by a Division Bench of this Court as per Ext.P1 common judgment dated 18.8.2007. Thereafter, the first respondent demanded for payment of license fee in arrears, which according to the petitioner, is a demand barred by Section 243 of the Act 1994. Thereupon, petitioner filed Ext.P11 appeal before the Committee of the first respondent Panchayat challenging the demand and the appeal was rejected by Ext.P12. Exhibit P12 was challenged before the Standing Committee for Finance of the 1st respondent Grama Panchayat and the said appeal was also rejected by Ext.P13.
W.P.(C) No.17360 of 2010 3
2. Being aggrieved, R.P.No.129 of 2009 was filed before the Tribunal for Local Self Government Institutions and the Tribunal came to a conclusion that the appeal filed before the Standing Committee was not maintainable and dismissed the revision on that basis without going into the merits of the matter. The order dated 25.2.2010 in R.P.No.129 of 2009 is under challenge in this Writ Petition.
3. It is further submitted by the petitioner that vide Exhibit P5 notification dated 28.4.2006, the entire area under the occupation of the petitioner has been declared as an industrial area by the Government of Kerala. According to the petitioner, by virtue of this notification, the 1 st respondent has absolutely no authority or jurisdiction to demand the payment of licence fee as the Kerala Panchayat Raj Act does not apply to industrial areas of the State by virtue of Section 1(2) of the Act.
4. In the aforesaid background, the following arguments are advanced by the learned Senior Counsel for the petitioner; various demand notices issued by the 1 st respondent is unwarranted, opposed to law, unsustainable and therefore, liable to be set aside; that the demand notices cover periods in respect of which no demand can be made at this point of time in view of the provisions contained in the Kerala Panchayat Raj Act and the Rules framed thereunder; that in view of Ext P.5 Notification, the 1st respondent has absolutely no authority to demand any license fee from the petitioner; that the calculation of D & O license fee payable shown in the demand notice is incorrect; the demand of license fee in respect of machinery W.P.(C) No.17360 of 2010 4 in excess of 200 HP is calculated as per schedule III of the D&O License Rules. The proviso to rule 18 of the Rules, 1996 indicates that fees leviable in respect of machinery given by electricity and covered by schedule 3 shall not exceed the fees leviable, where the machinery is not driven by Electricity, which is provided in Schedule IV. Therefore, the maximum fee in respect of the horse power in excess of 200 HP, is only the fees specified in Schedule IV of the said rules and not those specified in Schedule III. Even if it is assumed that the D&O licence fee is payable, such payments can only be in respect of amounts, which are authorized by the rules and not the amounts, now demanded, which is contrary to rules.
5. According to the petitioner, the Government of Kerala, Industries Department - the 2nd respondent, has notified 442 hectares of land owned and occupied by the petitioner as an 'Industrial Area'. The Kerala Panchayat Raj Act, 1994 is not applicable to industrial areas by virtue of section 1(2) of the Act, 1994. The petitioner is, therefore, not liable to take any licence from the respondent Panchayat including the licence under the Rules, 1996 and at any rate, the demands made for the period after Exhibit P5 is unsustainable. According to the petitioner, petitioner has not been intimated of the basis of the levy of licence fee and hence, the demand made by the respondent is unsustainable and liable to be set aside.
6. It is also contended that the Panchayat has made further unilateral revision in the license fee from the year 2003 to 2004, for which no notice has W.P.(C) No.17360 of 2010 5 been issued to the petitioner and the procedure prescribed in the Act and Rules had not been followed. Therefore, according to the petitioner, this enhancement is unsustainable, and all amounts legally due to the Panchayat towards license fee have already been remitted by the petitioner and no further amount is due towards license fee or interest.
7.It is further submitted that the Tribunal ought to have held that the issuance of the demand notice was illegal and unsustainable and set aside the same since the demand was made with respect to an area notified as an industrial area by the State Government. The demand for arrears of license fee from 1997 - 1998 upto 2007 - 2008 is also untenable in as much as the same is barred by the period of limitation prescribed under Section 243 of the Kerala Panchayat Raj Act. It is in this background, the instant writ petition is filed by the petitioner .
8. Panchayat has not filed any counter affidavit in the writ petition since according to the learned counsel for the Panchayat, the subject issue raised by the petitioner absolutely revolves around the provisions of the Act, the rules and the questions of law arising thereto and therefore there is no requirement for filing of a counter .
9. I have heard learned Senior Counsel for the petitioner Sri.E.K.Nandakumar, assisted by Smt.Ramola Nayanpally, Sri.P.Prijith.P., learned counsel appearing for the Grama Panchayat and learned Senior Government Pleader Sri.K.P.Harish appearing for the State Government and perused the W.P.(C) No.17360 of 2010 6 pleadings and materials on record.
10. The paramount contention advanced by learned Senior Counsel for the petitioner is that the calculation of licence fee as per Rules, 1996 in the demand notice is not correct since the demand in respect of the machinery in excess of 200 Horsepower is calculated as per Schedule III of the Rules, 1996. It was also argued that the proviso to rule 18 of the Rules, 1996, indicates that the fees leviable in respect of machinery driven by electricity and covered by Schedule III, shall not exceed the fees leviable, where the machinery is not driven by electricity, which is provided in Schedule IV. Therefore, according to the learned Senior Counsel, the maximum fee in respect of the Horse Power in excess of 200 H.P is only the fees specified in Schedule IV of the said Rules and not specified in Schedule III.
11. The learned Senior Counsel also invited my attention to judgment of a learned Single Judge of this court in Bharat Petroleum Corporation Limited v. State of Kerala and Others [2015 (1) KHC 769], wherein the licence fee under section 232 of Act, 1996 r/w rule 7 of Rules, 1996 and the permit fee under section 233 r/w rules 17 of Rules, 1996 were considered. According to the learned Senior Counsel, in the said case the learned Single Judge has taken a definite view that rule 18 of the Rules, 1996 provides that the fee that may be charged for granting licence or for renewal of licence for one year under section 232 of the Act, 1994, shall not exceed the maximum specified in Schedule III, where the machinery or manufacturing plant is operated by electricity. It was also found that the provisions W.P.(C) No.17360 of 2010 7 of rules 18 & 21 are to be read in conjunction with rule 7.
12. It was further contended by learned Senior Counsel that in Exhibit P1 judgment in O.P.No.19220 of 1997 dated 18 th August, 2007, the Division Bench of this Court has not considered the issue with respect to the payment of licence fee under section 232 r/w. Rules 7 & 18 and therefore, the findings rendered in the judgment though filed by the petitioner itself challenging the demand raised for the financial year 1997-1998, would not bind this Court to take an independent decision on the basis of the judgment rendered by the learned Single Judge of this court in Bharat Petroleum Corporation Ltd. (supra).
13. Per contra, learned counsel appearing for the Panchayat has invited my attention to Exhibit P1 judgment of a Division Bench of this Court in OP. NO.19220 of 1997 dated 18th August 2007, and submitted that the issue is squarely covered by the Division Bench judgment and has specifically invited my attention to paragraph 21 of the said judgment wherein the Division Bench considered rules 7, 12, 15, 17 and 18 and schedules I and 11 of Rules 1996 and Sections 232 and 233 of the Act 1994 . That apart it is contended that the demand raised by the Panchayat upto the year 2005-2006 is in accordance with law and the limitation prescribed under section 243 to recover the amount within a period of 3 years would not apply since in the writ petition leading to Exhibit P1 judgment of the Division Bench of this Court stay of recovery was granted.
W.P.(C) No.17360 of 2010 8
14. Be that as it may, it is fairly conceded by learned counsel for the Panchayat Sri Prijith that, even though the Panchayat has raised the demand after the period of 2005 - 2006, the said demand may not legally be sustainable for the reason that the State Government has issued Exhibit P5 order dated 28.4.2006 bearing No.G.o.(MS) 48/2006/ID, wherein the property of an extent of 442 hectares in possession of the petitioner company was notified as an industrial area. So also learned counsel submitted that even though the ground of limitation is taken by the petitioner as a primary ground in the writ petition, the petitioner being a Government of India undertaking, is not expected to cling on to such technicalities to nonsuit the demand of a Grama Panchayat, which was and is providing all amenities and facilities to the company so as to enable it to carry on its business activities smoothly and efficiently.
15. Learned counsel for Grama Panchayat has also invited my attention to the judgment of a learned Single Judge in Plant Manager, Indian Oil Corporation Ltd. v. Secretary, Thenhipalam Grama Panchayat [2010 (3) KHC 195 = 2010(3)KLT 300], wherein the very same question was considered in regard to the licence fee for running LPG Bottling Plant and held that machinery actually used in the manufacturing process and machinery, which is required to be installed for the purpose of ensuring safety and also for uninterrupted supply of power has to be considered for fixing the licence fee. Learned counsel further submitted that the case put forth in that writ petition that the Indian Oil W.P.(C) No.17360 of 2010 9 Corporation Ltd., was not bound to pay the enhanced licence fee stipulated as per the Rules, 1996, was found not to be in accordance with law. That apart it was held therein that even if limitation is raised as a ground as provided under section 243 of Act, 1994, the Panchayat can always impose a condition for renewal of licence to the effect that arrears of licence fee has to be paid.
16. Anyhow, the demand raised by the Panchayat therein was found to be in accordance with law. Learned counsel has also invited my attention to the factual circumstances discussed therein in respect of section 232 of Act, 1994, rule 7, 18 & 19 of Rules, 1996 and the Schedule thereto. Therefore, according to the learned counsel for the Grama Panchayat learned counsel has not made out any case for interference by this Court.
17. I have evaluated the rival submissions made across the Bar. Section 232 of Act, 1994 is the basic provision under the Act, 1994 dealing with a licence and sub-section (1) thereto clearly specifies that the Village Panchayat may notify that no place in the Panchayat area shall be used for any of the purposes specified in the Rules made in this behalf being purposes which in the opinion of Government, are likely to be offensive or dangerous to human life or health or property, without a licence issued by the Secretary and except in accordance with the conditions specified in such licence. Section 233 of Act, 1994 deals with permission for the construction of factories and the installation of machinery and sub-section (1) thereto stipulates that no person shall without the permission of the Village W.P.(C) No.17360 of 2010 10 Panchayat and except in accordance with the conditions specified in such permission,--
(a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power or
(b) install in any premises any machinery or manufacturing plant driven by any powers as aforesaid, not being machinery or manufacturing plant exempted by the provisions of this Act or the rules made thereunder.
18. There are other provisions therein guiding the manner in which the application for permission to establish is to be submitted and considered by the Secretary/ Panchayat etc., which are not relevant to decide the issue at hand.The State Government has introduced the Rules, 1996 in exercise of the powers conferred by sections 232, 233 and 234 of the Kerala Panchayat Raj Act, 1994 r/w. Section 254 of the Act. Rule 7 deals with fee for licence which reads thus:
" The Village Panchayat may for every licence issued by the President, levy amounts not exceeding the rates mentioned in Schedule II."
19. Rule 18 prescribes the maximum fee for the place where machinery or manufacturing plant operated by electricity is used, which stipulates that "the fee that may be charged for granting licence or for the renewal of licence for one year under section 232 for the place where any machinery or manufacturing plant operated by electricity, is used shall not exceed the maximum specified in Schedule II1 appended to these Rules. Provided that where any such licence is granted or renewed for a period that is less than one year, the total fee that may be charged W.P.(C) No.17360 of 2010 11 for the same place for any year in respect of the same machinery or manufacturing plant shall not exceed the fee that may be charged for granting or renewing licence for one year: Provided further that the fee that may be charged under this rule shall not exceed the fee charged for the installation of any machinery or manufacturing plant having the same horse power operated by means other than that of electricity."
20. Whereas rule 17 deals with machinery operated by electricity, which specifies that " the fee that may be charged for granting permission under section 233 for installing on a land in machinery or manufacturing plant operated by electricity shall not exceed the maximum specified in Schedule III appended to these rules. Provided that the fee that may be charged under this rule shall not exceed the fee charged for the installation of any machinery or manufacturing plant with the same horsepower, operated by any means other than electricity."
21. Rule 19 deals with additional fee, which specifies that the maximum fee specified in Schedule III appended to these rules shall be applicable only for the application submitted in due time. In the case of belated applications an additional fee of 25 percent of the fee for licence payable under the Schedule may be charged. Rules 20 and 21 deal with machinery operated by power other than electricity for granting permission under section 233 and the maximum fee for the machinery or manufacturing plant operated by power other than electricity under section 232 respectively. Schedule II as it existed then and until it was amended as W.P.(C) No.17360 of 2010 12 per G.O.(P) 80/2017 is framed under rule 7, wherein the maximum fees which may be fixed towards the licence fee annually is provided. Schedule III framed under Rules 18 & 19 prescribes the maximum fee that may be levied in accordance with the capacity of the machinery in horse power. Schedule II fixes the licence fee on the basis of an average daily turnover whereas Schedule III has fixed the maximum fee that may be levied on the capacity of the machine in horsepower. Also it is clear from the phraseology employed in the above discussed rules that each of the rules deal with different aspects for the levy of license fees . To put it otherwise, though may be a repetition, for providing clarity that is required. Rule 7 deals with fee for license ie. license fee for issuing the license for the functioning of the establishment as such after installation, which is levied on the basis of Section 232 of Act 1994, which is different from the fee prescribed for prior permission for the construction of factories and the installation of machinery taken care of under Section 233 of Act 1994 r/w rule 17 of the Rules 1996 . Rule 18 of the Rule 1996 is a levy of fee under Section 232 of Act 1994 for the place where the machinery where any machinery or manufacturing plant operated by electricity is used, which shall not exceed the maximum fee specified in Schedule 111. The second proviso to rule 18 in fact deals with a different levy ie. a levy of license fee for the installation of any machinery or manufacturing plant, which shall not exceed the fee charged for the installation of machinery or manufacturing plant having the same horsepower operated by means other than that of electricity, which is guided by W.P.(C) No.17360 of 2010 13 rule 21 of the Rule 1996, ie. the maximum specified in Schedule iv of the rules. That is to say the license fee governed by Section 232 and 234 of Act 1994 would take in the levy prescribed under rules 7 and 18 and the schedule II, III and IV of the Rules 1996 and the extend of fee is dependent on the turn over, the place, the machinery and the installation, however subject to a maximum fee prescribed under schedule II, III and IV. In my considered opinion, the issue in respect of the levy of licence fee and the implications of the relevant provisions discussed above was considered by the Division Bench of this Court in Exhibit P1 judgment in O.P.No.19220/1997 dated 18th August, 2007, which was disposed of along with other connected writ petitions. Paragraph 21 is relevant in the context which reads thus:
"21. The State Government in exercise of its powers conferred by Sections 232, 233 and 234 of the Kerala Panchayat Raj Act, 1994 read with Section 254 of the Act has framed the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 ("Rules" for short). Rule 3 authorises the State Government, that for the purposes of Section 232, the matters which in the opinion of the State Government are likely to be offensive or dangerous to human life, health or property by specifying the same in Rule 4 provides for the First Schedule appended to the Rules. Rule 4 provides for publication of notification regarding dangerous and offensive trades. Rule 5 provides for filing of application for grant of licence for the use of places notified in Rule 4 of the Rules. Rule 7 provides for levy or licence fee. Under this rule, the Village Panchayat may for every licence issued by the President levy amounts not exceeding the rates mentioned in Schedule II. Rule 12 W.P.(C) No.17360 of 2010 14 provides for filing of application for constructing or 'establishing factory, workshop or workplace wherein steam power or other power is to be used. Under Rule 15, the Secretary of the Village Panchayat is authorised to enter any factory, workshop or workplace. Rule 17 speaks of levy of licence fee for granting permission under Section 233 for installing on a land any machinery or manufacturing plant operated by electricity and the same shall not exceed the maximum specified in Schedule Ill appended to the Rules. Rule 18 provides for levy of maximum fee for the place where machinery or manufacturing plant operated by electricity is used and the same shall not exceed the maximum specified in Schedule Ill appended to the Rules. Rule 20 provides for the fee that may be charged for granting permission under Section 233 of the Act for the installation on any land, any machinery or manufacturing plant operated by any power other than electricity and the same shall not exceed the maximum specified in Schedule Ill appended to the Rules. Rule 21 of the Rules provides for levy of maximum fee for granting or renewing licence for one year under Section 232 for the place where the machinery or manufacturing plant operated other than electricity is used, and the same shall not exceed the maximum specified in Schedule IV appended to these rules."
22. The said findings are extracted since learned Senior Counsel for petitioner has advanced an argument that the question raised in the writ petition at hand was not considered by the Division Bench, which is apparently not correct . So also the judgment of the learned Single Judge in Plant Manager, Indian Oil Corporation Limited (supra), in my view, is clearly guiding the issue. Paragraphs 5 & 6of the said judgment read thus:
"5. Though the respondent Panchayat has been served, till date the Panchayat has not filed a counter affidavit. The Kerala Panchayat Raj (Issue of Licence to W.P.(C) No.17360 of 2010 15 Dangerous and Offensive Trades and Factories) Rules, 1996 came into force on 18.1.1996. R.7 thereof enables the respondent Panchayat to levy licence fee based on the daily turnover at the rate stipulated in Schedule II thereof. In the instant case, the licence fee demanded from the petitioner is Rs.4,000/-, which is based on the fact that the turnover per day is in excess of Rs.1,00,000/-. The petitioner has not pleaded or proved with reference to any cogent material that the average daily turnover is below Rs.1,00,000/-. As a matter of fact in Ext.P12 application dated 7.11.2001 it is admitted that the daily turnover is Rs.30,00,000/-. If that be so, it can be safely presumed that the daily turnover during the period from 1996-97 to 2001-2002 was in excess of Rs.1,00,000/-. The demand under R.7 is therefore perfectly legal. R.18 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 stipulates that the fee that may be charged for granting licence or for the renewal of licence for one year under S.232 of the Kerala Panchayat Raj Act for the place where any machinery or manufacturing plant operated by electricity is used shall not exceed the maximum specified in Schedule III appended to the said rules. R.19 thereof stipulates that the maximum fee specified in Schedule III to the said rules shall be applicable only for the application submitted in due time and that in the case of belated applications an additional fee of 25 percent of the fee for licence payable under the Schedule may be charged. Rules 18 and 19 are extracted for easy reference:
"18. Maximum fee for the place where machinery or W.P.(C) No.17360 of 2010 16 manufacturing plant operated by electricity is used.- The fee that may be charged for granting licence or for the renewal of licence for one year under Section 232 for the place where any machinery or manufacturing plant operated by electricity, is used shall not exceed the maximum specified in Schedule III appended to these rules:
Provided that where any such licence is granted or renewed for a period that is less than one year, the total fee that may be charged for the same place for any year in respect of the same machinery or manufacturing plant shall not exceed the fee that may be charged for granting or renewing licence for one year: Provided further that the fee that may be charged under this rule shall not exceed the fee charged for the installation of any machinery or manufacturing plant having the same horse power operated by means other than that of electricity. (emphasis supplied)
19. Additional Fee.-- The maximum fee specified in Schedule III appended to these rules shall be applicable only for the application submitted in due time. In the case of belated applications an additional fee of 25 per cent of the fee for licence payable under the Schedule may be charged."
6. The petitioner does not dispute the fact that the total installed capacity of the machinery installed in the bottling plant is 1865 HP. The contention of the petitioner is that for the purpose of computation of the licence fee, the fire pumps and diesel generating sets cannot be taken into account as they are not used in the manufacturing process. In other words, the contention is that licence fee can be levied only for machinery having an installed capacity of 432 HP which alone is used in the manufacturing process and that the fire pumps, 3 in number (732 HP) and diesel generating sets, 3 in number (701 HP) cannot be reckoned for the purpose of computation of licence fee. In my opinion, there is no merit in the said contention. The fire pumps are the integral part of the establishment of the petitioner. Without fire pumps, the petitioner cannot run W.P.(C) No.17360 of 2010 17 the bottling plant. It also needs diesel generating sets to supply power when the supply of power by the Electricity Board is disrupted. Without such safety and backup measures, the petitioner cannot run the bottling plant. R.18 does not stipulate that fee can be charged only for the machinery actually used in the manufacturing process. R.18 empowers the local authority to charge licence fee under S.232 of the Panchayat Raj Act for the place where any machinery or manufacturing plant operated by electricity is used. It does not stipulate that the electricity used should be supplied by the Kerala State Electricity Board and cannot be self generated power. R.18 of Schedule III of the aforesaid rules also does not draw a distinction between the machinery actually used in the manufacturing process and machinery which is required to be installed for the purpose of ensuring safety and also for uninterrupted supply of power. The petitioner does not dispute the fact that the total installed capacity of the machinery is 1865 HP. If that be so, the levy of licence fee at the rate of Rs.18,650/- per annum is perfectly in order. The petitioner had not admittedly renewed the licence after 31.3.1995. Therefore, the Panchayat is in my opinion justified in levying additional fee at the rate of 25% of the licence fee payable. In the instant case, the total licence fee payable is Rs.18,650/- + Rs.4,000/- = 22,650/- per year. 25% of that amount namely Rs.5,662/- is demanded as late fee. It is thus evident that the demand made by the Panchayat in Ext.P11 is perfectly in order and in accordance with the provisions contained in the rules. The contention of the petitioner that they are liable to pay only Rs.15,560/- towards licence fee and penalty for the period from 1996-1997 to 2001-2002 cannot therefore be sustained".
23. Therefore I have no doubt in my mind that the issue raised is squarely covered by Exhibit P1 Division Bench Judgment and the judgment of the learned Single Judge in the Plant Manager Indian Oil Corporation (Supra). In that W.P.(C) No.17360 of 2010 18 view of the matter the judgment of the learned Single Judge in Bharat Petroleum Corporation (supra) relied upon by the petitioner has no binding force . So also it is an admitted fact that the petitioner has not submitted the application on time in contemplation of the rules and therefore , the Panchayat was at liberty to impose an additional fee of 25% as per rule 19 of the Rules 1996 .
24. Now the next question to be considered is regarding the limitation raised by the Petitioner . It is true, as per section 243 of Act, 1994, a period of three years limitation is prescribed, but fact remains the writ petition leading to Ext.P1 judgment was pending before this Court from the year 1997 to August, 2007 and admittedly there was a stay of proceedings against the collection of license fee. In that view of the matter and also bearing in mind that petitioner is a Government of India undertaking, is not expected to raise such technical grounds to nonsuit the Grama Panchayat from recovering its due amounts so as to provide adequate facilities to the petitioner and other establishments functioning in the area.
25. Therefore, the contention raised by the petitioner relying upon section 243 of Act, 1994 cannot be sustained under law. That apart the Tribunal for Local Self Government Institutions was right in dismissing the revision filed by the petitioner, without going into the merits of the matter, because there in no provision under the act 1994 or the rules of the tribunal to prefer a revision against an order passed by the taxes standing committee of the Panchayat in an incompetent 2nd appeal filed by the petitioner . This I say because petitioner has W.P.(C) No.17360 of 2010 19 preferred an appeal against the order of the Secretary of the Grama Panchayat raising the demand before the Committee of the Panchayat, which was dismissed by it, and if the petitioner was aggrieved by it, it ought to have preferred a revision against the said order as per law before the Tribunal, instead it filed an appeal again before the Standing Committee for which there is no provision. Therefore the order passed by the Standing Committee on merits dismissing the appeal was an illegal one rendered without any authority of law. Held so, the petitioner is not entitled to succeed on that ground also .
26. However, it is seen from Ext.P2 that the Panchayat has raised the demand for licence fee from 1997 - 1998 to 2007 - 2008. I am also informed that, for the subsequent periods also, the Panchayat has raised a claim for licence fee, but fact remains as per Ext.P5 order issued by the State Government dated 28.4.2006, the property possessed by the petitioner measuring 442 hectares is declared as an industrial area. Learned Senior counsel for the petitioner submitted that the licence fee for the period 2006- 2007 was paid in order to avoid any unnecessary financial burden. It is clear from Ext.P5 that after the issuance of the Government Order dated 28.4.2006, the Panchayat cannot claim any licence fee since sub-section (2) of section 1 of Act, 1994 makes it clear the Act, 1994, extends to whole of the State of Kerala, except the areas which are within the limits of the Cantonments, Nagar Panchayats, Municipal councils, Municipal Corporations and areas specified as industrial township under the proviso to clause (1) of Article 243Q of the W.P.(C) No.17360 of 2010 20 Constitution of India and [areas declared as industrial areas under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (5 of 2000) of the State]. Though "Industrial Area" in sub- section (2) was introduced only on and w.e.f. 14.6.2010 as per amendment act 34 of 2014, the State Government by exercising its powers under Article 162 of the Constitution of India has apparently notified the area of the petitioner company as an "Industrial Area", and therefore, consequent to Ext.P5 order dated 28.4.2006 issued by the State Government, the Panchayat is not entitled to claim any fee from the petitioner establishment thereafter. Considering the factual and legal circumstances discussed above, I am of the considered opinion that the petitioner is not entitled to get the demand for the licence fee up to the financial year 2005- 2006, quashed. Even Though a faint allegation is made by the petitioner that the quantification in the demand is not proper, it is not supported by any cogent and material evidence, and therefore the Panchayat is entitled to get the benefit of the presumption available under Section 114 (e) of the Indian Evidence Act 1872, being an official act. Therefore, the said prayer is declined, however I hold that the licence fee claimed by the Panchayat after 28.4.2006 is totally illegal and arbitrary in view of Ext.P5 G.O. dated 28.4.2006 read along with sub-section (2) of section 1 of Act, 1994. However, learned counsel for the Panchayat submitted that the petitioner is not entitled to get adjustment of the licence fee paid for the year 2006-2007 since it is already paid without protest. Admittedly, after 28.4.2006, the W.P.(C) No.17360 of 2010 21 Grama Panchayat is not entitled to impose any licence fee against the petitioner, and so the fee collected after 28.04 2006 is nothing but unjust enrichment, which cannot be permitted under law. Therefore, after adjusting the licence fee from 1.4.2006 to 28.4.2006, the balance may be adjusted against any licence fee or any other amount if due from the petitioner in accordance with law. However, if there is no such amount remaining for such adjustment, petitioner is entitled to make a suitable claim for the aforesaid period before the Grama Panchayat and if any such claim is raised, it shall be considered by the Panchayat in accordance with law and repay it at the earliest .
Writ petition is disposed of accordingly.
Sd/-
SHAJI P. CHALY,
smv JUDGE
W.P.(C) No.17360 of 2010 22
PPENDIX OF WP(C) 17360/2010
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMMON JUDGMENT DATED
18.08.07 IN O.P. NO . 19220 OF 1997 (O.P.
19498/97 WAS ALSO DISPOSED OF BY THIS
JUDGMENT).
Exhibit P2 TRUE COPY OF THE LETTER DATED 24.12.2007
ISSUED BY THE FIRST RESPONDENT.
Exhibit P3 TRUE COPY OF THE LETTER (REPLY) DATED
15.1.2008 ISSUED BY THE PETITIONER.
Exhibit P4 TRUE COPY OF THE LETTER DATED 30.10.2008
ISSUED BY THE FIRST RESPONDENT TO THE
PETITIONER.
Exhibit P5 TRUE COPY OF THE NOTIFICATION DATED 28.4.2006
ISSUED BY THE 2ND RESPONDENT.
Exhibit P6 TRUE COPY OF THE NOTICE DATED 6.3.2008 ISSUED
BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED
23.3.2009 ISSUED BY THE FIRST RESPONDENT TO
THE PETITIONER.
Exhibit P8 TRUE COPY OF THE REPLY DATED 9.4.2008
SUBMITTED BY THE PETITIONER TO THE 1ST
RESPONDENT.
Exhibit P9 TRUE COPY OF THE POST CARD DATED 29.4.2008
DEMANDING ARREARS OF LICENSE FEE ISSUED BY
THE 1ST RESPONDENT.
Exhibit P10 TRUE COPY OF THE REPLY DATED 8.5.2008
SUBMITTED BY THE PETITIONER TO THE 1ST
RESPONDENT.
Exhibit P11 TRUE COPY OF THE APPEAL WITHOUT IN ANNEXURES
DATED 23.4.2009 FILED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
Exhibit P12 TRUE COPY OF THE ORDER DATED 25.7.2009 PASSED
W.P.(C) No.17360 of 2010 23
BY THE SECRETARY OF THE 1ST RESPONDENT.
Exhibit P13 TRUE COPY OF THE ORDER DATED 16.10.2009
PASSED BY THE SPECIAL GRADE SECRETARY OF THE
1ST RESPONDENT.
Exhibit P14 TRUE COPY OF REVISION PETITION NO. 129 OF
2009 FILED BY THE PETITIONER BEFORE THE
TRIBUNAL DATED 18.11.2009.
Exhibit P15 TRUE COPY OF THE ORDER DATED 25.2.2010 IN
REVISION PETITION NO. 129 OF 2009 PASSED BY
THE TRIBUNAL.
Exhibit P16 TRUE COPY OF THE ORDER DATED 31.7.2012 IN
R.P. NO. 37/2012.