R.K. Agrawal, J.
1. Taxes, which one pays is a small price for civilisation. Various taxes imposed by the local self-Government, commonly known as municipal taxes, are meant for providing better civic amenities in the local area. The irony is that most of us do not want to pay taxes whether it is the general tax or the municipal tax, thus, affecting the development of our country. The moment there is a move to impose a new tax or more people are to be brought in the tax net, it meets with a stiff resistance at every level from all and sundry. Those who are well off and can afford, engage the services of the experts in the field to forestall such an attempt by adopting legal means. The foregone conclusion is that the imposition of new taxes or bringing more people in the tax net, whether it is general taxes or municipal taxes, gets delayed resulting in immense benefit to such persons. Some people even do not take a lesson from the failure of their attempt and it appears that the proverb once bitten twice shy is not meant for them. Undeterred by the failure, they still stick to their belief that they are not liable to pay the tax and to see the long cherished belief fructify into reality, once again explore all the avenues even if they have to approach the Courts of law, not hesitating to take a ground to reopen the well established legal position which has held the field for decades. Present writ petition is one such example.
2. In the year 1987, the Municipal Board, Mawana, had sought to impose house tax and water tax on the buildings existing on the petitioner's factory premises consequent upon the State Government's notification dated 16.4.1987, extending the municipal limits. The petitioner challenged the said notification by means of a writ petition and got it stayed in so far as it related to it by this Court, as a result of which the liability to pay the municipal taxes remained in abeyance. The writ petition was ultimately dismissed by this Court on 29.9.2005. The Special Leave Petition filed by the petitioner has also been dismissed by the Hon'ble Supreme Court vide order dated 14.11.2005 on the ground that High Court should not have entertained the writ petition in the first place given the disputed questions of fact involved and granted liberty to the petitioner to raise all the issues in any other appropriate forum. After the decision on the objections and finalisation of the assessments and consequential issuance of bills of demand, the petitioner still nurtured the belief that it is not liable to pay the municipal taxes and, therefore, has again approached this Court raising almost all the pleas which has been raised earlier plus an additional plea of vires of a statutory provision, which additional plea can only be gone into by the High Court and not by the statutory authorities.
3. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s Mawana Sugar Limited, seek the following reliefs :-
(i) To issue a writ, order or direction in the nature of writ of certiorari quashing the impugned Bills No. 2332 and 2333 both dated 29.10.2005 (Annexure VIII and IX respectively to the writ petition) issued by the respondent No. 3.
(ii) To issue a writ, order or direction in the nature of writ of mandamus declaring the provision of Section 161(b) of the U.P. Municipalities Act, 1916 as ultra vires to Article 14 and 19(1)(g) of the Constitution of India.
(iii) To issue a writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and
(iv) To award the cost of the petition to the petitioner.
4. Briefly stated, the facts giving rise to the present petition are as follows:-
According to the petitioner, it is a company incorporated under the provisions of the Indian Companies Act, 1916. It has its registered office at 6th Floor, Kirti Mahal, 19, Rajendra Place, New Delhi. It is engaged in the manufacture of white crystal sugar by vacuum pan process and has its factory and works at village Mawana in the district of Meerut. According to the petitioner, the factory was established in the year 1949, which was outside the municipal limits of the Municipal Board, Mawana and, therefore, tax, octroi, duty and other levies imposed by the Municipal Board, Mawana was not applicable to its factory. The Government of Uttar Pradesh, by notification dated 16.4.1987, extended the existing limit of the Municipal Board of Mawana by including the area upon which the petitioner's factory was situate. As a follow up action, the Municipal Board, Mawana, issued notices dated 23.4.1987 and 8.5.1987 imposing house tax and water tax upon the petitioner in respect of the factory building, staff quarters and other constructions existing in the petitioner's premises. The notices were for the period 1987-91. The petitioner filed its various objections dated 8.5.1987, 21.5.1987, 1.7.1987 and 2.7.1987. After filing of the objections, the petitioner approached this Court by challenging the validity of the notification dated 16.4.1987 by filing Civil Misc. Writ Petition No. 24313 of 1987 in which the petitioner had claimed the following reliefs :-
a) That a writ of mandamus be issued commanding the respondent No. 1 to produce the relevant files and records before this Hon'ble Court for its perusal;
b) That a suitable writ, order or direction be issued holding that the provisions of Section 4 of the Act have not been complied with;
c) That a suitable writ be issued quashing the notification dated 12.6.1986 under Section 4 of the Act and notification dated 16.4.1987 issued under Section 3(1)(d) of the Act to the extent of the inclusion of the petitioner's factory (Annexure 1);
d) That a suitable writ, order or direction be issued quashing the demands of house tax and water tax;
e) That a suitable writ, order or direction be issued restraining the Municipal Board from levying octroi from vehicles bringing material to the factory;
f) That any other writ, order or direction which the Hon'ble Court deems fit and proper in the circumstances of the case be issued;
g) That costs be awarded.
5. This Court while entertaining the writ petition on 8.7.1987 has been pleased to pass an interim order by which the operation of the notification dated 16.4.1987 insofar as it related to the area belonging to the petitioner, was stayed. After the exchange of the pleadings between the parties, the writ petition was finally heard and vide judgment and order dated 29.9.2005 this Court had dismissed the writ petition with costs assessed at Rs. 5,100/-. Feeling aggrieved by the judgment and order dated 29.9.2005 passed by this Court in the aforementioned writ petition, the petitioner preferred a Special Leave Petition being Petition for Special Leave to Appeal (C) No. 22437 of 2005, which was dismissed by the Apex Court, vide order dated 14.11.2005 with the following observations:-
I.A.No.2 is dismissed as withdrawn.
We are of the opinion that the High Court should not have entertained the writ petition in the first place given the disputed questions of fact involved. We, therefore, dispose of the special leave petition leaving the question of law open and granting liberty to the petitioner to raise the issue in any other appropriate forum as it may be advised.
6. It appears that after the dismissal of the earlier writ petition preferred by the petitioner on 29.9.2005, the Nagar Palika Parishad, (the erstwhile Municipal Board whose nomenclature has been changed) Mawana, issued a notice on 18.10.2005 calling upon the petitioner to appear before it on 22.10.2005 for finalisation of the assessment for the period 21.4.1987 to 31.3.2004. The petitioner immediately filed an application on 22.10.2005 stating therein that the petitioner had preferred a special leave petition against the order of this Court dated 29.9.2005 and sought adjournment for a period of six weeks. The request for adjournment was not accepted whereupon the petitioner submitted its objections dated 24.10.2005 calling upon it to provide the basis of fixation of annual value and the basis and the details of the properties which are being subjected to tax. The petitioner also invited the attention of the Nagar Palika Parishad to the fact that its objection dated 22.4.1987 with respect to the provisional assessment made in the year 1987 were also pending. According to the petitioner, without the disposal of the pending objections and without providing the details as required in the letter dated 24.10.2005, the respondent No. 3 had issued two bills No. 2332 and 2333, both dated 29.10.2005, finalising and imposing the house tax and water tax for the period 1987 to March, 2005, raising a total demand of Rs. 95,53,568/-. The two bills are under challenge in the present writ petition.
7. The writ petition was got prepared on 23.11.2005 and was presented before the Court on the same day. When it was taken up by the Court on 30.11.2005, the petitioner filed an application seeking amendment of the writ petition on the ground that the Nagar Palika Parishad, Mawana, Meerut had passed an order on 24.10.2005 rejecting the petitioners objections. The order dated 24.10.2005 has also been challenged seeking the following relief: -
ii(a) To issue a suitable writ, order or direction in the nature of writ of certiorari quashing the order dated 24.10.2005 (Annexure -10 to the writ petition).
8. In the application for amendment it has been stated by the petitioner that the recital in the letter dated 25.11.2005 to the effect that the petitioner's Executive (Legal), Sri Lokesh Kumar (who has affirmed the affidavit filed in support of the amendment application) was informed of the dismissal of the objections vide order dated 24.10.2005, is false and incorrect as no such information was ever given. To substantiate the aforesaid plea, it has been stated by the petitioner that the date of the hearing was fixed on 24.10.2005 and Sri Lokesh Kumar presented himself before the respondent No. 3, at 3 P.M. and filed objections. If it had already been rejected by the order dated 24.10.2005 then there was no occasion for the said respondent to call the petitioner for the hearing on the said date. Certain other allegations have been made to establish that the order dated 24.10.2005 was not sent alongwith the bills.
9. We have heard Sri S.P. Gupta, learned Senior Counsel, assisted by Sri Yashwant Verma, learned Advocate, on behalf of the petitioner; the learned Standing Counsel who appears for the respondent No. 1 and Sri Ravi Kiran Jain, learned Senior Counsel, assisted by Sri Ajai Rajendra, learned Advocate, on behalf of the respondent Nos. 2 and 3, on the question of admission of the writ petition.
10. Sri Jain, learned Senior Counsel, appearing for the Nagur Palika Parishad has raised a preliminary objection regarding the maintainability of the present petition under Article 226 of the Constitution of India on the ground of availability of the alternative remedy by way of an appeal under Section 160 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the Act').
11. Sri Gupta, learned Senior Counsel, submitted that even though under Section 160 of the Act an appeal lies against an order of assessment yet in view of the provisions of clause (b) of Section 161 of the Act, the appeal even if it is filed by the petitioner, cannot be heard and determined unless the petitioner has deposited the entire amount of tax assessed which condition, according to him, is onerous rendering the right of appeal to be nugatory. Relying heavily upon a decision of the Apex Court in the case of Mardia Chemicals Limited and Ors. v. Union of India and Ors. : AIR2004SC2371 , he submitted that the provision of clause (b) of Section 161 of the Act are ultra vires to Articles 14 and 19(1)(g) of the Constitution of India as it is arbitrary and provides an unreasonable restrictions on the right of the petitioner.
12. He further submitted that as the vires of clause (b) of Section 161 of the Act has been challenged by the petitioner, the petitioner cannot be relegated to avail of the alternative remedy. He also referred to an unreported decision of this Court in Civil Misc. Writ Petition No. 1398 of 2004 ITC Ltd. and Anr. v. State of U.P. and Ors. , decided on 4.10.2004, where this Court while considering the imposition of huge house tax and water tax, had held that if the orders have been passed without affording opportunity of hearing as contemplated under the law, the right of appeal is not an efficacious alternative remedy and the Court, on this ground, should not refuse to exercise the jurisdiction under Article 226 of the Constitution of India.
13. Sri Gupta, learned Senior Counsel, further submitted that in the present petition, the petitioner is not raising any question relating to the notices issued under Sections 3 and 4 of the Act by which the municipal limit of the Nagar Palika Parishad, Mawana, has been extended by including the area in which the petitioner's factor. premises etc. are situated. He, however, submitted that the provisions of taxation already existing would not automatically apply to the newly included areas and the procedure provided under Sections 131 to 135 of the Act has necessarily to be followed as it is mandatory in nature. In support of his aforesaid plea, he has relied upon a decision of the Apex Court in the case of Visakhapatnam Municipality v. Kandregula Nukaraju and Ors. : [1976]1SCR544 .
14. He submitted that as fresh taxes were to be imposed upon the petitioner, it was entitled to file an objection as provided under Sub-section (2) of Section 143 read with Section 141 of the Act. In the present case, according to him, the provision of Section 143(2) of the Act has not been complied with and, therefore, the assessment and demand of house tax and water tax is wholly illegal. According to him, it was incumbent upon the Nagar Palika Parishad to give a public notice of a date for inviting objections and also to supply /provide materials on the basis of which the assessment were proposed to be made so as to enable the petitioner to file the objections in the right perspective. He referred to a decision of the Apex Court in the case of Dewan Singh v. State of Haryana and Anr. : (1976)IILLJ321SC .
15. Relying upon a decision of the Apex Court in the case of Supdt. of Taxes, Dhubri and Ors. v. Onkarmal Nathmal Trust : AIR1975SC2065 , he further submitted that merely because this Court had stayed the operation of the notification dated 16.4.1987 which order remained in operation till 29.9.2005, i.e., for a period of about 18 years, adverse inference against the petitioner should not be drawn and the equity is in its favour.
16. Sri Jain, learned Senior Counsel, appearing for the Nagar Palika Parishad, submitted that against the impugned bills dated29.10.2005 and the order dated 24.10.2005 rejecting the petitioner's objections, the petitioner has a right of appeal under Section 160 of the Act and, therefore, the petitioner should be relegated to avail the alternative remedy of appeal. According to him, merely to get over the bar of alternative remedy, the petitioner has challenged the vires of Section 161(b) of the Act, which has already been upheld by this Court more than 20 years back in the case of S.P. Kochhar v. Chief Judicial Magistrate, Dehra Dun and Ors. 1985 UPLBEC 284. He, thus, submitted that the provision of clause (b) of Section 161 of the Act having been held to be valid as far back as in the year 1985, this Court should not entertain the present writ petition in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India regarding the merits of the assessment and the demand of the house tax and water tax.
17. Referring in extenso the judgment and order dated 29.9.2005 of this Court, he submitted that this Court had repelled all the contentions raised by the petitioner. The petitioner has enjoyed the benefit of the interim order passed by this Court on 8.7.1987 by which the notification has been stayed and for a long period of 18 years, the Nagar Palika Parishad had been deprived of its lawful amount of house tax and water tax, which order was vacated by the dismissal of the writ petition on 29.9.2005 without any success before the Apex Court, Thus, the petitioner is not entitled for any indulgence from this Court.
18. According to him, the petitioner had made a false statement in the writ petition that without deciding the objections filed by it on 24.10.2005, two bills of demands have been raised whereas the fact of the matter is that immediately after the filing of the writ petition on 23.11.2005 when this false statement made in the writ petition came to the notice of the Nagar Palika Parishad, Mawana, the authority had pointed out, vide letter dated 25.11.2005, that the petitioner's representative had already been informed about the order dated 24.10.2005 rejecting the objections on that very day, which order was also sent alongwith the bills. However, another copy is being sent again. Thus, the petitioner is guilty of concealment and the writ petition is liable to be thrown out on this ground alone. The petitioner had been afforded full opportunity of hearing and if the petitioner feels that the assessment and the tax imposed is excessive, it is always open to the petitioner to get it corrected in appeal where all question of fact and law are to be gone into. He, thus, submitted that this Court should decline to exercise its jurisdiction under Article 226 of the Constitution of India and relegate the petitioner to avail the alternative remedy of appeal.
19. Sri Gupta, learned Senior Counsel, in rejoinder, submitted that, for the first time, the notice, after the dismissal of the writ petition on 29.9.2005, was issued on 18.10.2005 fixing 22.10.2005 calling upon the petitioner to show cause regarding the assessment of house tax and water tax, more particularly, in any event for the year 2.3.1987 to 31.3.2004. The date was fixed for 22.10.2005 which was later adjourned to 24.10.2005. The petitioner's representative, Sri Lokesh Kumar had appeared before the authority on that day at 3 P.M. and had filed its objection. The order was not passed in the presence of the petitioner's representative, Sri Lokesh Kumar nor he was ever informed about the passing of the order. He, thus, submitted that admittedly there was no opportunity given to the petitioner in respect of the assessment and demand of house tax and water tax for the year 1.4.2004 to 31.3.2005 and, therefore, this Court should entertain the writ petition and quash the assessment as also the bills of demand.
20. Having given our anxious consideration to the various pleas raised by learned counsel for the parties, we find that where the vires of a statute has been challenged, the Court cannot refuse to entertain the writ petition under Article 226 of the Constitution of India on the ground of availability of efficacious, speedy alternative remedy inasmuch as it is well settled that the validity of a statute cannot be gone into by the authority constituted under the statute itself. (See K.S. Venkataraman and Co. (P) Ltd. v. State of Madras (1966) 17 STC 418; Alpha Chem and Anr. v. State of U.P. and Ors. 1991 Suppl. (1) SCC 518 and Union of India v. Ahmedabad Electric Co. Ltd. and Ors. : 2003ECR274(SC) )
21. The Apex Court in the case of Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. : AIR2003SC2120 , has held that in appropriate cases, inspite of the availability of alternative remedy, the High Court may exercise its writ jurisdiction at least in three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
22. Reliance placed by the learned Senior Counsel for the petitioner upon the decision of the Apex Court in the case of Mardia Chemicals Ltd. (supra) is wholly misplaced. In the aforesaid case, the various provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Securitisation Act') including the provisions of Sections 13 and 17, came up for consideration. Under Sub-section (2) of Section 13 of the Securitisation Act the secured creditor was empowered to require the borrower under the security agreement, by notice in writing, to discharge his full liability within 60 days from the date of notice failing which the secured creditor was entitled to exercise all or any of the rights under Sub-section (4). Sub-section (4) of Section 13 of the Securitisation Act provided for the various measures which the secured creditor can take recourse to recover his secured debt. Section 17 of the Securitisation Act provided for filing of an appeal to the Debts Recovery Tribunal within 45 days of any action taken against the borrower under Sub-section (4) of Section 13 of the Securitisation Act. Sub-section (2) of Section 17 of the Securitisation Act provided that the appeal shall not be entertained by the Debt Recovery Tribunal unless the borrower has deposited 75% of the amount, claimed in the notice, referred to in Sub-section (2) of Section 13 of the Securitisation Act, is deposited. However, the proviso to Sub-section (2) of Section 13 empowers the Debt Recovery Tribunal, for reasons to be recorded in writing, to waive or reduce the amount to be deposited under this section. The Apex Court while distinguishing the cases cited on behalf of the respondent relating to requirement of pre-deposit of any amount at the time of filing of an appeal, has held as follows :-
60. The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 15% of the demand, at the initial proceeding itself sounds unreasonable and oppressive, more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some case property is also sold. Requirement of deposit of such a heavy amount on the basis of a one-sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce the amount, does not cure the inherent infirmity leaning one-sidedly in favour of the party, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the authority concerned. Placed in a situation as indicted above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.
61. In the case of Seth Nand Lal v. State of Haryana 1980 Supp SCC 574, while considering the question of validity of pre-deposit before availing the right of appeal the Court held: (SCC p.590, para 22)
Right of appeal is a creature of the statute and while granting the right the legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.
(emphasis supplied)
While making the said observation this Court referred to the decision in the case of Anant Mills Co. Ltd. v. State of Gujarat : [1975]3SCR220 In both the above noted decisions this Court had negated the plea raised against pre-deposit but in the case of Seth Nand Lal it was found that the condition was not so onerous since the amount sought to be deposited was meagre and that too was confined to the land holding tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus by the prescribed authority (emphasis supplied) after leaving the permissible area to the appellant. In the above circumstances it was found that even in the absence of a provision conferring discretion on the Appellate Authority to waive or reduce the amount of pre-deposit, it was considered to be valid, for the two reasons indicated above. The facts of the case in hand are just otherwise.
62. As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the court of the first instance under the Code of Civil Procedure. No doubt, in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act.
63. Yet another justification which has been sought to be given for the requirement of deposit is that the secured assets which may be taken possession of or sold may fall short of the dues, therefore such a deposit may be necessary. We find no merit in this submission too. In such an eventuality recourse may have to be taken to Sub-section (10) of section 13 where a petition may have to be filed before the Tribunal for the purpose of making up for the shortfall.
23. It has held that the position of the appeal under Section 17 of the Securitisation Act is that of a suit in the Court of first instance under the Code of Civil Procedure. It has held that the condition of pre-deposit is bad, rendering the remedy illusory on the following grounds:-
64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that: (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii) there is no determination of the amount due as yet, (iii) the secured assets or their management with transferable interest is already taken over and under control of the secured creditor, (iv) no special reason for double security in respect of an amount yet to be determined and settled, (v) 75% of the amount claimed by no means would be a meagre amount, and (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, Sub-section (2) of section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution.
24. Thus, the Apex Court has held the requirement of pre-deposit of 75% of the amount under Sub-section (2) of Section 17 of the 12 Securitisation Act onerous, oppressive, unreasonable and arbitrary by treating the right of appeal as that of a suit, i.e., where the respective stand of both the parties are to be decided for the first time. Sri Gupta is not right in drawing the analogy between Sections 160 and 161 of the Act with Section 17 of the Securitisation Act as the adjudication of the annual value/assessment and levy of tax is done by authorities under the provisions of the Act and thereafter an appeal has been provided under Section 160 of the Act. The Apex Court itself had drawn a distinction regarding the requirement of pre-deposit of any amount at the first instance and at the time of appeal.
25. It may be mentioned here that this Court in the case of S.P. Kochhar (supra), Hon'ble Mr. Justice N.D. Ojha, as his Lordship then was, delivering the judgment of the Division Bench, while upholding the vires of clause (b) of Section 161 of the Act, has held as follows:-
Since the right of appeal is a creature of statute an appeal would lie only if this right has been conferred by the statute and subject to such conditions as the legislature in its wisdom may prescribe in regard to the maintainability of the appeal. When conditions precedent are prescribed by the legislature in an enactment for the maintainability of an appeal the right of appeal is created only subject to the fulfillment of those conditions precedent. Since no one has an inherent right of appeal recourse to the statutory right of appeal can obviously be taken subject to the fulfillment of the condition precedent laid down in this behalf by the legislature concerned. In this connection it may be pointed out that it is not the U.P. Municipalities Act alone but there are various other enactments wherein the legislature in its wisdom has considered it appropriate to make a direction for the deposit of the amount determined by the trial authority before an appeal may successfully be pursued. To illustrate reference may be made to the third proviso to Section 30(1) of the Workmen Compensation Act, 1927, which contemplates that no appeal by an employer under clause (a) of Sub-section (1) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Likewise in the Payment of Wages Act, 1936, Sub-section (1-A) was inserted in Section 17 of the said Act which deals with appeal by Section 15 of the Act No. 53 of 1964 with effect from 1st February, 1965 to the following effect:-
(1-A) No appeal under clause (a) of Sub-section (1) shall lie unless the memorandum of appeal is accompanied by a certificate by the authority to the effect that the appellant has deposited the amount payable under the direction appealed against. Since the provision contained in this behalf is within the legislative competence of the legislature and does not violate any of the conditions laid down in Article 13 of the Constitution nor is in violation of any provision contained in Part III of the Constitution, the said provision cannot be held to be ultra vires. The Courts obviously are not entitled to go into the wisdom of the legislature in imposing the condition of the amount claimed from the appellant being deposited by him in the municipal office before his appeal is heard and determined.
26. Even otherwise, we find that the condition of pre-deposit at the time of filing of appeal under various statutes has been held to he valid by the Apex Court (See Anant Mills Co. Ltd. v. State of Gujarat : [1975]3SCR220 ; Seth Nand Lal v. State of Haryana 1980 Supp. SCC 574; Vijay Prakash D. Mehta v. Collector of Customs (Preventive) : [1989]175ITR540(SC) ; and Shyam Kishore v. Municipal Corporation of Delhi : AIR1992SC2279 . No doubt in the case of Seth Nand Lal (supra) the Apex Court while considering the question of validity of pre-deposit before availing of the right of appeal, has observed that the right of appeal is a creature of a statute and while granting the right, the Legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restriction rendering the right almost illusory but the Apex Court had found that the condition was not so onerous as the amount sought to be deposited was meagre and that too was confined to the land holding tax payable in respect of the disputed area, i.e. the area or part thereof which is declared surplus by the prescribed authority after leaving the permissible area to the appellant.
27. It may be mentioned here that even though the demand of house tax and water tax comes to approximately Rs. 95.53.568/- but it relates to 18 years and when the amount of tax is considered for one year, it is to be only about Rs. 5,00,000/- which cannot be said to be such a huge amount which the petitioner, which is running a sugar factory since 1949, cannot deposit while filing the appeal as required under clause (b) of Section 161 of the Act.
28. We are therefore, of the considered opinion that the condition of pre-deposit of the entire amount as provided under clause (b) of Section 161 of the Act is neither onerous nor impose any unreasonable. restriction on the petitioner's right to prefer the appeal. We are in respectful and complete agreement with the view taken by the Division Bench in the case of S.P. Kochhar (supra) which was decided more than 20 years ago. Thus, the challenge to the vires of the provision of clause (b) of Section 161 of the Act has no merits and is accordingly rejected.
29. So far as the challenge to the merits of the assessment and the bills of demand is concerned, we find that under Section 160 of the Act the petitioner has a right to file an appeal against the assessment as also the order rejecting the objections against the assessment and the demands raised pursuant thereto.
30. The Constitution Bench of the Apex Court in the case of State of M.P. v. Bhailal Bhai : [1964]6SCR261 , has held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T. Veluswami Thevar v. G. Raja Nainar : AIR1959SC422 , Municipal Council, Khurai v. Kamal Kumar : [1965]2SCR653 , Siliguri Municipality v. Amalendu Das : [1984]146ITR624(SC) , S.T. Muthusami v. K. Natarajan : [1988]2SCR759 , Rajasthan SRTC v. Krishna Kant : (1995)IILLJ728SC , Kerala SEB v. Kurien E. Kalathil : AIR2000SC2573 , A. Venkatasubbiah Naidu, v. Chellappan : AIR2000SC3032 , L.L. Sudhakar Reddy v. State of A.P. : AIR2001SC3205 , Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra : AIR2001SC3982 , Pratap Singh v. State of Haryana : AIR2002SC3385 , and GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72.
31. In G. Veerappa Pillai v. Raman & Raman Ltd. : [1952]1SCR583 , CCE v. Dunlop India Ltd. : 1985ECR4(SC) , Ramendra Kishore Biswas v. State of Tripura : (1999)IILLJ192SC , Shivgonda Anna Patil v. State of Maharashtra : AIR1999SC2281 , C.A. Abraham v. ITO : [1961]41ITR425(SC) , Titaghur Paper Mills Co. Ltd. v. State of Orissa : [1983]142ITR663(SC) , H.B. Gandhi v. Gopi Nath and Sons 1992 Supp (2) SCC 312, Whirlpool Corporation v. Registrar of Trade Marks : AIR1999SC22 , Tin Plate Co. of India Ltd. v. State of Bihar : AIR1999SC74 , Sheela Devi v. Jaspal Singh : AIR1999SC2859 , and Punjab National Bank v. O.C. Krishnan : AIR2001SC3208 , the Apex Court has held that where hierarchy of appeals is, provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
32. At this juncture, it would be appropriate to take note of the few expressions in R. v. Hillington, London Borough Council (1974) 2 All ER 643, which seek to bring out the position well. Lord Widgery, C.J. stated in this case: (ALL ER pp.648f-649b)
It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.
* * *The statutory system of appeals is more effective and more convenient than application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the Secretary of state can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these whereas of course an appeal for certiorari is limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order.
* * *An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used. I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law.
33. After all the above discussion, the following observations of Roskil, L.J. In Hanson v. Church Commrs. 1978 QB 823, may not be welcomed but it should not be forgotten also:-
There are a number of shoals and very little safe water in the unchartered seas which divide the line between prerogative orders and statutory appeals, and I do not propose to plunge into those seas...
34. Recently, the Apex Court in the case of U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. (2005) 8 SCC 264, has taken the similar view.
35. There cannot be any dispute regarding the principle laid down by this Court in the case of ITC Ltd. (supra).
36. Even otherwise, we find that in the earlier writ petition being Civil Misc. Writ Petition No. 24313 of 1987, the petitioner has raised almost all the pleas and grounds which have been raised in the present writ petition except for the development subsequent to 18.10.2005, viz., not providing materials on the basis of which the assessments sought to be made. This Court had dismissed the said writ petition on 29.9.2005 and the Apex Court in its order dated 14.11.2005 while dismissing the Special Leave Petition had observed that the High Court should not have entertained the writ petition in the first place given the disputed question of fact involved ( underlining by us ). It has further left the question of law open and granted liberty to the petitioner to raise the issue in any appropriate forum as may be advised (underlined by us). Thus, the Apex Court has categorically held that the writ petition should not have been entertained in the first place and further, the petitioner has to raise the issue in any other appropriate forum which necessarily mean any forum other than the High Court. Thus, the petitioner should be relegated to avail the alternative remedy by filing an appeal under Section 160 of the Act.
37. So far the plea that the materials have not been supplied or proper opportunity has not been given, we are not going into this question at all as these are all the question of fact which has to be adjudicated by the authority constituted under Section 160 of the Act while deciding the appeal where the said authority can go into all the questions of fact and law. In this view of the matter, it will not be appropriate for us to express our opinion on the various issues raised by the learned Senior Counsel for the petitioner and the decisions relied upon by him.
38. So far as the plea raised by the petitioner that the order dated 24.10.2005 had not been served upon the petitioner alongwith the bills or the petitioner's representative was not informed about the said order as claimed by the Nagar Palika Parishad, we are not going into these questions as they involve investigation into question of fact, which can, more appropriately, be gone into by the appellate authority in the appeal, if any, preferred by the petitioner.
39. In view of the foregoing discussions, we decline to entertain the writ petition under our extraordinary jurisdiction under Article 226 of the Constitution of India as an equally efficacious, speedy, alternative remedy is available to the petitioner by way of filing an appeal under Section 160 of the Act.
40. The writ petition is accordingly dismissed in limine with costs which we assess of Rs. 10,000/- payable to the respondent Nos. 2 and 3.