Calcutta Municipal Corporation v. Kaushalya Khatri
2001-09-14
Hrishikesh Banerji, Tarun Chatterjee
body2001
DigiLaw.ai
JUDGMENT T. Chatterjee, J.: The Calcutta Municipal Corporation Authorities (In short 'C.M.C.') issued a notice on the writ petitioners/respondents proposing the annual valuation at Rs. 6,83,320/- to the writ petitioners/respondents for the first quarter of 1993-94 in respect of Flat No.6, first floor of premises No. 8/1A, Sri William Jones Sarani formerly known as Middleton Row, Calcutta - 700 071. The writ petitioners/ respondents raised an objection to the proposed annual valuation. In spite of such objection being raised the valuation arrived at by the Valuation Officer at Rs. 6,83,320/- of the said premises was confirmed. Against the aforesaid order the writ petitioners/ respondents have filed an appeal before the Municipal Assessment Tribunal which is still now pending. It is not in dispute that the appeal was not entertained by the Tribunal as the consolidated rate in respect of the premises in question determined on the basis of the above valuation under section 188 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the Act") was not deposited. It is also not in dispute that after pendency of the appeal against the aforesaid order of valuation for about 4 years before the Tribunal the writ petitioners/ .respondents moved a writ application challenging the valuation of the premises in question which has been fixed at Rs. 6,83,320/- and affirmed by the Valuation Officer of the Calcutta Municipal Authorities on the ground that the said order was not speaking and reasoned order nor the Valuation Officer, while arriving at such valuation had at all applied his mind. The learned Judge by the judgment under appeal disposed of the writ application by remanding the case back to the Tribunal for appropriate decision. fulfilment of the conditions as indicated in the order under appeal. For the proper disposal of this appeal we have a feel that the conditions that were imposed by the learned Judge on the writ petitioners/respondents in the impugned order should be reproduced here which runs as under: "Over and above, in his usual fairness Mr. Bhattacharya had contended that no amount has since been paid on account of enhanced assessment although it is not disputed by the writ petitioner that he was liable to pay at least for the admitted period from 2nd quarter 1994-95 till 1st quarter 1997-98.
Bhattacharya had contended that no amount has since been paid on account of enhanced assessment although it is not disputed by the writ petitioner that he was liable to pay at least for the admitted period from 2nd quarter 1994-95 till 1st quarter 1997-98. Accordingly, a direction was made while disposing of the writ application by the learned trial Judge that if the writ petitioner deposited within one month from date the tax assessed in terms of the notice contained in Annexure 'B' for the period from 2nd quarter 1994-95 till 1st quarter 1997-98 and filed an undertaking that he will deposit the arrear tax for the period till the date of decision by the Tribunal within three months from its decision as may be determined by it unless otherwise ordered by any other forum within the said period, in the event, the appeal may be entertained and determined in accordance with law after giving an opportunity to the writ petitioner within a period of three months from the date of the said order of the trial Court. The learned trial Judge also kept all the points open to be adjudicated in accordance with law before the Tribunal which shall decide the question according to its own wisdom and discretion without being influenced by any observation made in his order." 2. As noted herein-earlier the aforesaid order of the .learned trial Judge is now under challenge before us. We have heard Mr. Das Adhikary, the learned Counsel appearing on behalf of the C.M.C. and Mr. Mihir Bhattacharjee, the learned Counsel appearing on behalf of the writ petitioners/respondents. Mr. Das Adhikary appearing on behalf of the C.M.C. at the first instance urged before us that in view of the admitted fact that there has been a statutory remedy under the Act to the writ petitioners/respondents by way of an appeal before the Municipal Assessment Tribunal and as such a remedy has already been availed of by the writ petitioners/respondents, the question of entertaining the writ application against the original order of the Hearing Officer fixing the annual valuation of the premises in question at Rs. 6,83,320/- could not arise at all. It was further urged by Mr.
6,83,320/- could not arise at all. It was further urged by Mr. Das Adhikary that the writ jurisdiction of this Court was invoked by the writ petitioners/respondents against the said order of the Hearing Officer only on the ground that although an appeal has been preferred against the said order, the writ petitioners/ respondents before getting any decision in the appeal have to deposit the taxes at the new rate i.e. to say on the valuation arrived at by the Hearing Officer. Mr. Das Adhikary, therefore, argued that the writ petitioners/respondents only for the purpose of avoiding deposit of taxes in terms of section 189(6) of the Act at the new rate had invoked the writ jurisdiction of this court which is not permissible in law. Mr. Das Adhikary further contended that in view of the admitted fact that the learned trial Judge himself directed the writ petitioners/respondents to contest the appeal filed by them against the order of the Hearing Officer on deposit of certain amount, it could not now be said by the writ petitioners/respondents without filing any cross objection that the writ petition was entertainable by the writ court as the writ petitioners having already availed of a statutory remedy under the Act by filing an appeal were not entitled to invoke the writ jurisdiction of this Court. 3. These submissions of Mr. Das Adhikary were hotly contested by Mr. Bhattacharjee, appearing on behalf of the writ petitioners/ respondents. According to Mr. Bhattacharjee, since the order rejecting the objection regarding fixing of the annual valuation of the premises in question was not a speaking order and the said order was passed without application of mind by the Hearing Officer, it was open to the writ petitioners/respondents to challenge the said order in the writ jurisdiction of this court without availing the opportunity of filing an appeal against that order or even after filing an appeal before the appellate authority. For this purpose, Mr. Bhattacharjee had drawn our attention to the order itself of the Hearing Officer and after showing the order of the Hearing Officer it was argued by Mr. Bhattacharjee that the order of the Hearing Officer rejecting the objection of the writ petitioners/respondents on the fact of it was not a speaking order nor it was passed after due application of mind. It was further argued by Mr.
Bhattacharjee that the order of the Hearing Officer rejecting the objection of the writ petitioners/respondents on the fact of it was not a speaking order nor it was passed after due application of mind. It was further argued by Mr. Bhattacherjee that although an appeal has been filed against the order of valuation, in view of section 189(6) of the Act such an appeal cannot be entertained by the Tribunal until consolidated rate is deposited and continued to be deposited by the writ petitioners/respondents, in the eye of law it cannot be held that an appeal has been filed and pending for adjudication. Accordingly Mr. Bhattacharjee contended that since in the eye of law no appeal was pending it cannot be said to be pending it cannot be said that it cannot be entertained by the Tribunal until and unless the provisions of section 189(6) of the Act are complied with, it was open to the writ petitioners/respondents to move the writ court against challenging the order of valuation which was confirmed by the Hearing Officer. We have carefully considered the rival submissions made on behalf of the parties. After hearing the learned Counsel for the parties on the aforesaid questions as noted herein-earlier, we are of the view that the arguments of Mr. Das Adhikary in the facts and circumstances of the case and on the law now settled by various decisions of the Supreme Court as well as of this court must be accepted as, in our view, it was not open to the writ petitioners/respondents to invoke the writ jurisdiction of this Court in view of the statutory appeal provided in the Act and after filing an appeal against the said order. Chapter XII of the Act also deals with powers of taxation and consolidated rates. Under section 171 of the Act power has been confirmed on the Corporation authorities to determine consolidate rate on the annual valuation of lands and buildings in Calcutta. Section 174 of the Act deals with determination of the annual valuation. Under section 186 of the Act powers have been conferred on the owner of the building to file objection to the annual value of the land and building as entered in the Assessment List to the Municipal Corporation before the date fixed in the notice under section 184 or 185.
Under section 186 of the Act powers have been conferred on the owner of the building to file objection to the annual value of the land and building as entered in the Assessment List to the Municipal Corporation before the date fixed in the notice under section 184 or 185. Section 188 of the Act says that the objection filed under section 186 shall be entered in a register maintained for the purpose in such manner as may be prescribed. After the objection is heard and disposed of, the order in that behalf shall be recorded in the register maintained under sub-section (1) of section 188 with the date and a copy of the order shall be supplied within 30 days thereof to the person filing the objection in such form and manner as may be prescribed. Section 189 of the Act relates to an appeal which can be filed against the determination of the annual valuation. Since we are very much concerned with section 189(6) of the Act in this case, we prefer to quote the said section which runs as under:- "S. 189(6)- No appeal under this section shall be entertained unless the consolidated rate in respect of any land or building for the period ending on the date of presentation of the appeal on the valuation determined under section 188 has been deposited (in the office of the Corporation) and the appeal shall abate unless such consolidate rate is continued to be deposited till the appeal is finally disposed of." 4. From a plain reading of sub-section (6) of section 189 of the Act it appears to us that no appeal under this section shall be entertained unless the consolidated rate in respect of any land or building on the valuation determined under section 188 of the Act has been deposited in the office of the Corporation. It is also evident from this sub-section that the appeal itself shall abate unless consolidated rate is continued to be deposited till the appeal is finally disposed of. One thing must be considered on the question of entertain ability of the appeal by the appellate authority without depositing the amount determined for payment of taxes on the annual valuation of the land or building in question. To answer this question must consider the word 'entertained' used in subsection (6) of section 189 of the Act.
One thing must be considered on the question of entertain ability of the appeal by the appellate authority without depositing the amount determined for payment of taxes on the annual valuation of the land or building in question. To answer this question must consider the word 'entertained' used in subsection (6) of section 189 of the Act. The interpretation of the word 'entertained' was made by the Apex Court of our country in the case of Hindusthan Commercial Bank vs. Punnu Sahu, AIR 1970 SC 1384 . In the said decision, the Supreme Court at paragraph 4 observed as follows:- "It is the contention of the appellant that the expression 'entertain' found in the proviso refers to the initiation of the proceedings and not to the stage when the court takes up the application for consideration. This contention was rejected by the High Court relying on the decision of that court in Kundan Lal vs. Jagan Nath Sharma, AIR 1962 All 547 . The same view had been taken by the said High Court in Dhoom Chand Jain vs. Chamanlal Gupta, AIR 1962 All 543 and Haji Rahim Bux and Sons vs. Firm Samiullah and Sons, AIR 1953 All 320 and again in Mahauir Singh vs. Gauri Shankar, AIR 1964 All 289 . These decisions have interpreted the expression 'entertain' as meaning of adjudicate upon or 'proceed to consider on merits'. This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. vs. Asst. Commr. Sales Tax Kanpur, AIR 1968 SC 488 . We are bound by that decision and as such we are unable to accept the contention of the appellate that Cl. (b) of the proviso did not apply to the present proceedings." (Emphasis added) 5. The interpretation of the word 'entertained' was also under consideration by this Court in the case of C.S. Baid vs. Corporation of Calcutta and Ors., 88 CWN 89. In that decision, Chittotosh Mukherjee J. (As His Lordship then was) was considering the right to appeal under section 183(1) of the Calcutta Municipal Act, 1951. The word 'entertained' was considered by His Lordship at paragraph 19 of page 101 of the aforesaid decision, which runs as under: "The other expression 'entertained' in the context of sub-section (3A) of section 183 of the Act clearly carries a meaning different from that of the word 'presented'.
The word 'entertained' was considered by His Lordship at paragraph 19 of page 101 of the aforesaid decision, which runs as under: "The other expression 'entertained' in the context of sub-section (3A) of section 183 of the Act clearly carries a meaning different from that of the word 'presented'. In the context the word 'entertained' means' to admit for consideration'. In other words, the said expression 'entertained' in section 183(3) means to decide or to dispose of on merits. Unless an appellant complies with the conditions of section 183(3A) of the Act, his appeal against an order under section 182(2) of the Act would not be decided on merits." 6. It is true that the aforesaid decision was rendered under the old Act of 1951 but the interpretation made in the Single Bench decision of this Court relating to the interpretation of the word 'entertained' was approved by the Division Bench of this Court while entertaining an appeal under the Act (1980 Act) in the case of Md. Farooque vs. State of West Bengal, AIR 1995 Ca198. In Paragraphs 32 and 33 of the said decision, the Division Bench of this Court observed as follows :- "32. The provision of the Calcutta Municipal Act of 1951, which were identical with the impugned provisions of 1980 Act, were considered for their being onerous unreasonable and harsh, in Gillanders, Arbithnot & Co. ( 1986(1) CHN 262 ) (supra) and were found not to be suffering from any of these (page 277). This question was also considered in Chatter Singh Baid vs. Corporation of Calcutta, AIR 1984 Ca1283. In Gillanders case the Bench was hearing an appeal against Chatter Singh decision also and affirmed the decision. 33. In Shyam Kishore ( AIR 1992 SC 2279 ) the decision in Chatter Singh (AIR 1984 Ca1283) was noticed but the Supreme Court did not comment on its correctness, nor has any proposition been laid down as may affect the ratio in Chatter Singh or Gillanders Arbithnot ( 1986 (1) CHN 262 )." 7. The word 'entertained' was again considered in a Supreme Court decision reported in AIR 1992 SC 2279 (Shyam Kishore vs. Municipal Corporation of Delhi). In that decision, the Supreme Court was considering the provisions regarding payment of taxes and assessment proceedings under the Delhi Municipal Corporation Act, 1957.
The word 'entertained' was again considered in a Supreme Court decision reported in AIR 1992 SC 2279 (Shyam Kishore vs. Municipal Corporation of Delhi). In that decision, the Supreme Court was considering the provisions regarding payment of taxes and assessment proceedings under the Delhi Municipal Corporation Act, 1957. While considering the entertainability of an appeal under the Delhi Municipal Corporation Act, the Supreme Court held that section 170(b) is intra ulres and the appeal can be admitted or entertained but only cannot be heard or disposed of without pre-deposit of disputed tax. The Supreme Court held in that decision that the Appellate Authority can adjourn the hearing of the appeal for giving time to deposit tax. But it cannot stay recovery of tax till disposal of the appeal. In paragraph 41 of the said decision, the Supreme Court made the following observations:- "This apart, an assessee may not be able to deposit the tax while filing the appeal but may be able to pay it up within a short time, or at any rate, before the appeal comes on for hearing in the normal course. There is no reason to construe the provision so rigidly as to disable him from doing this Again, when an appeal comes on for hearing; the appellate Judge, in appropriate cases, where he feels there is some great hardship or injustice involved, may be inclined to adjourn the appeal for sometime to enable the assessee to pay up the tax. Through it will not be expedient or proper to encourage adjournment of an appeal, where it is ripe for hearing otherwise, only on this ground and as a matter of course, an interpretation which leaves some room for the exercise of a judicial discretion in this regard, where the equities of the case deserve it, may not be inappropriate. The appellate Judge's incidental and ancillary powers should not be curtailed except to the extent specifically precluded by the statute. We see nothing wrong in interpreting the provision as permitting the appellate authority to adjourn the hearing of the appeal thus giving time to the assessee to pay the tax or even specifically granting time or instalments to enable the assessee to deposit the disputed tax where the case merits it, so long as it does not unduly interfere with the appellate Court's calender of hearings.
His powers however, should stop short of staying the recovery of the tax till the disposal of the appeal. We say this because it is one thing for the Judge to adjourn the hearing leaving it to the assessee to pay up the tax before the adjourned date or permitting the assessee to pay up the tax, if he can, in accordance with his directions before the appeal is heard. In doing so, he does not and cannot injunct the department from recovering the tax, if they wish to do so. He is only giving a chance to the assessee to pay up the tax if he wants the appeal to be heard. It is, however, a totally different thing for the Judge to stay the recovery till the disposal of the appeal; that would result in modifying the language of the proviso to read no appeal shall be disposed of until the tax is paid. Short of this however, there is no reason to restrict the powers unduly all he has to do is to ensure that the entire tax in dispute is paid up by the time the appeal is actually heard on its merits. We would, therefore, read clause(b) of section 170 only as a bar to the hearing of the appeal and its disposal on merits and not as a bar to the entertainment of the appeal itself." (Emphasis added) 8. In this decision of the Supreme Court, it was also held that the Writ Court should not invoke its writ jurisdiction in view of the availability of an alternative remedy by way of an appeal under section 189 of the Act. In paragraph 42 of this decision, the Supreme Court observed as follows:- "If the provision is interpreted in the manner above suggested, one can steer clear of all problems of constitutional validity. The contention on behalf of the Corporation to read the provision rigidly and seek to soften the rigour by reference to the availability of a recourse to the High Courts by way of a petition under Articles 226 and 227 in certain situation and the departmental instructions referred to earlier does not appear to be a satisfactory solution. The departmental instructions may not always be followed and the resort to Articles 226 and 227 should be discouraged when there is an alternative remedy.
The departmental instructions may not always be followed and the resort to Articles 226 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the statute itself. The construction of the section approved by us above vesta in the appellate authority a power to deal with the appeal otherwise than by way of final disposal even if the disputed tax is not paid. It enables the authority to exercise a judicial discretion to allow the payment of the disputed tax even after the appeal is filed but, no doubt, before the appeal is taken up for actual hearing. The interpretation will greatly ameliorate the genuine grievances of, and hardships faced by, the assessee in the payment of the tax as determined. Though an assessee may not be able to acquire an absolute stay of the tax until the dispute is resolved, he will certainly be able to get breathing time to pay up the same where his case deserves it. If this interpretation is placed on the provision, no question of un constitutionality can at all arise." 9. If we apply the aforesaid principles laid down by the Supreme Court in the context of our Act, we cannot have any hesitation in our mind that section 189(6) of the Act clearly bars the hearing of the appeal and its disposal on merits but not as a bar to the entertain-ability of the appeal itself. In this connection, Mr. Bhattacharyya appearing on behalf of the writ petitioner/respondent had drawn our attention to a Single Bench decision of this Court in the case of Surendra Enterprises Pvt. Ltd. vs. The Calcutta Municipal Corpn. & Ors., 98 CWN 1116. Relying on this decision, Mr. Bhattacharyya contended that the provisions of sections 189(5) and 189(6) of the Act required deposit of consolidated rates on the enhanced rate as the pre-condition of filing an appeal and so long as appeal is not disposed of, the writ petitioner has to go on depositing the consolidated rates and taxes as determined by the authorities. Mr. Bhattacharyya has submitted that in this case admittedly the pre-deposit has not been made and accordingly, there is no appeal in the eye of law because the appeal cannot be entertained by the Tribunal on the ground that pre-condition for filing of the appeal has not been fulfilled. Accordingly, Mr.
Mr. Bhattacharyya has submitted that in this case admittedly the pre-deposit has not been made and accordingly, there is no appeal in the eye of law because the appeal cannot be entertained by the Tribunal on the ground that pre-condition for filing of the appeal has not been fulfilled. Accordingly, Mr. Bhattacharyya submitted that since there was no alternative remedy, it was open to the writ petitioner/respondent to move the writ application against the annual valuation determined by the Hearing Officer. In any view of the matter, it is well known that where the language of an enactment is plain and clear upon its face and by itself susceptible to only by one meaning, then ordinarily that meaning would have to be given by the Court. In such a case the task of interpretation can hardly be said to arise. (See AIR 1977 SC 2328 , Union of India vs. Sankal Chand). In the case of Links Advertisers vs. Bangalore Municipality, AIR 1977 SC 1646 , the Supreme Court has clearly held that the meaning of the words used in a particular statute has to be construed with reference to the context and not in isolation nor it is possible to lay down any rule of universal application in such a matter. Drawing inspiration from the aforesaid two decisions of the Supreme Court, it is thus clear to us that the word 'entertained' used in section 189(6) of the Act should get a harmonious construction and plain dictionary meaning of the same. In any view of the matter, in view of the aforesaid decisions mentioned hereinabove, we are of the view that section 189(6) of the Act which has used the word 'entertained' would mean hearing of the appeal and disposing of the appeal. In this connection, we may readily refer to section 197 of the Act. Section 197 of the Act deals with payment of consolidated rate in case of objection or appeal. It clearly says that when an objection to a valuation has been made under section 186, the consolidated rate shall, pending the determination of the objection under section 188, be payable on the previous valuation in the usual manner.
Section 197 of the Act deals with payment of consolidated rate in case of objection or appeal. It clearly says that when an objection to a valuation has been made under section 186, the consolidated rate shall, pending the determination of the objection under section 188, be payable on the previous valuation in the usual manner. (2) If, after the objection has been determined under section 188, the previous valuation is altered, or after the appeal has been disposed of under section 189, the valuation decided under section 188 is altered, then- (a) any sum paid or deposited under section 189 in excess shall be refunded or allowed to be set-off against any present or future demand of the Corporation under this Act, and (b) any deficiency shall be deemed to be an arrear of the consolidated rate and shall be payable and recoverable as such: Provided that- (i) if any premises have, for the purposes of valuation under section 179 or section 180, been for the first time valued or sub-divided or amalgamated with any other premises and an objection to the valuation thereof has been made under section 186, then the consolidated rate shall, pending the final determination of the objection, be paid on such valuation; and (ii) if, when such objection has been finally determined, such valuation is reduced, and if the consolidated rate has already been paid thereon, then the sum paid in excess shall be refunded or allowed to be set-off against any present or future demand of the Corporation under this Act. 10. On a conjoint reading of section 189 and particularly sections 189(6) and 197(2) of the Act, it is thus clear that if the valuation decided under section 188 is altered in appeal, then any sum paid or deposited already under section 189 in excess shall be refunded or allowed to be set-off against any present or future demand of the Corporation under the Act. Therefore, there cannot be any difficulty for us to hold that in the event the writ petitioner/ respondent is entitled to refund of the amount paid or deposited in excess in terms of section 189(6) of the Act the writ petitioner/respondent is protected by such provision under section 197(2) of the Act if deposits are made on the annual valuation determined by the Hearing Officer. Accordingly, we are unable to agree with Mr.
Accordingly, we are unable to agree with Mr. Bhattacharyya that the alternative remedy by way of appeal cannot stand in the way of the writ petitioner from moving this application against the original order of the Hearing Officer. Mr. Bhattacharyya, appearing on behalf of the assessee had drawn our attention to a Division Bench decision of this Court in the case of Calcutta Municipal Corporation vs. Paresh R. Kampani, 1998 (2) CLJ 87 and submitted that when the Hearing Officer dispose of such objection without a reasoned order, it was open to such an assessee to challenge the said order without availing of the alternative remedy by filing an appeal under the Act. This law is well settled. But in the facts and circumstances of this case, we are unable to follow the aforesaid decision of the Division Bench of this Court. In that case, no appeal was preferred against the order of the Hearing Officer. Without filing an appeal the order of the Hearing Officer as regards valuation of the premises in question was challenged to this Court under Article 226 of the Constitution. On the other hand, in the present case admittedly the writ petitioner filed an application which was allowed to be kept pending without payment of any rates and taxes for about four years. After the lapse of four years one fine morning the writ petitioner thought it fit to move the writ court under Article 226 of the Constitution in which the writ petitioner sought to challenge the order of the Hearing Officer only on the ground that while passing the order, the Hearing Officer had not passed any reasoned order. We could have understood that as soon as the order was passed by the Hearing Officer, the writ petition was moved and then the question of entertaining the writ application against such an order at that stage could only arise. In any view of the matter, a Division Bench of this Court in the case of Calcutta Municipal Corporation and Ors. vs. Sitaram Charity Trust,1998(2) CLJ 246, has hold that the appeal was not entertain able before the Appellate Authority against the assessment of annual valuation of the premises under section 189(6) of the Act unless regular payment of consolidated rate is deposited with the Authorities. In this connection, we may readily refer the impugned order which is now under challenge before us.
In this connection, we may readily refer the impugned order which is now under challenge before us. "Over and above, in his usual fairness, Mr. Bhattacharyya had contended that no amount has since been paid on account of enhanced assessment though it is not disputed that the petitioner was liable to pay at least for the admitted period from 2nd quarter 1994-95 till 1st quarter 1997-98. In such circumstances, if the petitioner deposits within one month from date the tax assessed in terms of the notice contained in Annexure 'B' for the period 2nd quarter 1994-95 till 1st quarter 1997-98 and files an undertaking that he will deposit the arrear tax for the period till the date of decision by the Tribunal within 3 months from its decision as may be determined by it, unless otherwise ordered by any other forum within the said period, in that event, his appeal may be entertained and determined in accordance with law after giving an opportunity to the petitioner within a period of three months from this date. I have kept all points open to be adjudicated in accordance with law before the Tribunal which shall decide the question according to its own wisdom and discretion without being influenced by any observation made in this order. The Tribunal shall decide the question on merit without dismissing the appeal on the ground of technicality or limitations whatsoever." 11. From the impugned order itself, therefore, it is clear that the learned trial Judge even after holding that in view of section 189(6) of the Act, no appeal could be entertained, directed disposal of the appeal on deposit of certain amount by the writ petitioner/respondent. Therefore, the trial Court by the impugned order has in fact hold that appeal itself should be disposed of instead of entertaining the writ application. While doing so, the trial Court has directed certain payment to be made for disposal of the appeal. Therefore, we are of the view that the learned trial Judge himself found that instead of entertaining the writ application direction should be made by him to dispose of the appeal on deposit of certain amount, that is to say the trial Court held that in view of the alternative remedy by way of an appeal, the writ petition should not be entertained.
This finding of the learned Judge has been accepted and no appeal has been preferred against such a judgment by the writ petitioner/respondent and considering the fact that the writ petition was moved after about 4 years from the date of filing the appeal, we are of the view that the learned trial Judge had no jurisdiction in view of section 189(6) of the Act and in view of the discussions made hereinabove to direct the disposal of the appeal on deposit of certain amount which would be in total disregard of the provisions under section 189(6) of the Act. Accordingly, the portion of the order of the Trial Court directing disposal of the appeal now pending before the Appellate Authority against the impugned valuation of the premises in question is set aside and the writ petition is dismissed. It is however, made clear that in the event the amount of consolidated rate fixed by the Hearing Officer is deposited in terms of section 189(6) of the Act within two months from the date of communication of this order and the writ petitioner continues to deposit the consolidated rate as fixed by the Hearing Officer, the Appellate Authority shall decide the appeal within a month from the date of such deposit after giving hearing to the parties and after passing a reasoned order in accordance with law. 12. For the reasons aforesaid, the appeal is allowed to the extent indicated above and the impugned order is set aside to the extent indicated above. 13. Before parting with this order, it is our duty to consider one of the judgments reported in AIR 1990 SC 2205 , State of West Bengal vs. Atul Krishna Shaw, cited by Mr. Bhattacharyya in support of his contention that when the Appellate Authority had based its judgment on no evidence on record or the said judgment is vitiated by conjectures and surmises, it was open to the High Court to interfere with such finding of the Appellate Authority although it was found in the said decision that the Appellate Authority while deciding an appeal had no authority to appreciate the evidence on record and record its own finding of fact. This is not a case of alternative remedy. It is true that Mr. Bhattacharyya sought to argue this question on the basis of the order of the Hearing Officer.
This is not a case of alternative remedy. It is true that Mr. Bhattacharyya sought to argue this question on the basis of the order of the Hearing Officer. In view of the admitted fact that appeal has already been preferred against the said order of the Hearing Officer which was kept pending about 4 years before the writ petition was moved, we do not find any reason to set aside the order of the Hearing Officer by going into the question whether the order of the Hearing Officer was based on no evidence or the order of the Hearing Officer was a reasoned order on consideration of the materials on record. Accordingly, the above decision reported in AIR 1990 SC 2205 (supra) has no manner of application to the present case. 14. In view of our discussions made hereinabove we are of the view that similar is the position in respect of the other decision of the Supreme Court in the case of Woolcombers of India vs. Their Workers Union, AIR 1973 SC 2758 , which in our opinion, has no manner of application to the facts and circumstances of this case. No other point was raised by wither of the learned lawyers appearing for the parties. There will be no order as to costs. Appeal allowed. Hrishikesh Banerji, J.: I agree.