JUDGMENT 1. - This writ petition is directed against the assessment order dated 5.10.2001 passed by the Assistant Director, Land and Building Tax Department, Kota, under the provisions of Rajasthan Land and Building Tax Act, 1964 (for short, hereinafter referred to as 'Act of 1964') raising demand of land and building tax under the said Act to the tune of Rs. 2,49,939/- vide Annexure-9 demand notice dated 11.1.2002 assessing the market value of the land and building of the assessee as on 1.4.2008. The assessee runs 'Sawan Phuhar Water Park at Bundi Road, Kota'. 2. Mr. Anant Kasliwal, learned counsel for the petitioner- assessee submitted that though the said Land and Building Tax Act, 1964 now survives on the statute book but vide the notifications dated 12.7.2004, 24.3.2005, quoted below, the levy of said tax has since been exempted in pursuance of the Budget Speech of Finance Minister, Government of Rajasthan, Dr. Pradhuman Singh, on 5.3.2003. The relevant extract of the Budget Speech and the Notifications are quoted below: Relevant Portion of Budget Speech: " 131- egksn; vkidks fofnr gS] jkT; ds 10 ftyksa ds uxjh; {ks=ksa esa Hkwfe ,oa Hkou dj ykxw gSA Hkwfe ,oa Hkou dj ds vfrfjDr] tulkekU; dks x'gdj] vucu ,lslesUV Hkh tek djkuk iM+rk gS ftlls uxjh; {ks=ksa esa jgus okys ukxfjdksa ij dj dk Hkkjh cks> iM+ jgk gSA bl dj ds cks> ls jkgr nsus ds fy, eSa fnukad 1-4-2003 ls Hkwfe ,oa Hkou dj lekIr djuk izLrkfor dj jgk gwaA iqjkus dj nkf;Roksa ds izdj.kksa dk fuiVkjk djus ds fy;s Hkh] ,d uohu dEiksft'ku Ldhe ykbZ tk;sxh] rkfd dj dh iqjkuh nsunkfj;ksa dk Hkh 'kh?kz fuiVkjk gks ldsA " Finance Department Tax Division Notification Jaipur, 12.7.2004 Sub: Complete Exemption Scheme-I S.O. 101. In exercise of the powers conferred under Section 21 of the Rajasthan Lands and Buildings Tax Act, 1964 (Act No., 18 of 1964), the State Government being of the opinion that it is expedient in the public interest to provide relief to the assessee in the tin-assessed cases related to industrial land or building or both in the manner and conditions given below, it is hereby notified- 1. that any Industrial land or building or both which has not been assessed up to financial year 2002-2003 is hereby exempted from complete tax, interest and penalty retrospectively. that any Industrial land or building or both which has not been assessed up to financial year 2002-2003 is hereby exempted from complete tax, interest and penalty retrospectively. Explanation.-"Industrial land or building" means any land or building as certified for industrial use, by RIICO or Industries Department of Government of Rajasthan. 2. that in case where any advance tax, interest or penalty has already been deposited shall not be refunded. [No. F.4(67)FD/Tax/2004-61] By Order of the Governor Sd/ (Ajitabh Sharma) Deputy Secretary to Government xxx xxx xxx Finance Department Tax Division Notification Jaipur, 12.7.2004 Sub: Complete Exemption Scheme-Ill S.O. 103. In exercise of the powers conferred under Section 21 of the Rajasthan Lands and Buildings Tax Act, 1964 (Act No. 18 of 1964), the State Government being of the opinion that it is expedient in the public interest to provide relief to the assessee in the un-assessed cases in which the annual tax liability does not exceed the limits and in the manner and conditions as mentioned below, it is hereby notified 1. that in case where any Residential, Industrial, commercial and Semi-Commercial land or building or both has already been assessed and the annual payable tax does not exceed Rs. 10,000/- in case of Residential and industrial and Rs. 5,000/- in case of Commercial and Semi-Commercial for any one of the financial year up to 2002-2003 is hereby exempted from tax, interest and penalty retrospectively, from the date of liability or for some of the years if any for which the tax has not been paid. 2. that in case where any tax, interest or penalty have already been deposited it shall not be refunded. [No. F.4(67)FD/Tax/2004-61] By Order of the Governor Sd/ (Ajitabh Sharma) Deputy Secretary to Government xxx xxx xxx Finance Department Tax Division Notification Jaipur, 24.3.2005 S.O. 432. In exercise of the powers conferred under Section 21 of the Rajasthan Lands and Buildings Tax Act, 1964 (Act No. 18 of 1964), the State Government being of the opinion that it is expedient in the public interest to provide relief to the assesses, in cases related to residential land or building or both, hereby notifies 1. That any residential land or building or both which has not been assessed upto the financial year 2002-2003 is hereby exempted retrospectively from complete liability of tax, interest and penalty. 2. That any residential land or building or both which has not been assessed upto the financial year 2002-2003 is hereby exempted retrospectively from complete liability of tax, interest and penalty. 2. That in case where any residential land and buildings or both has already been assessed and liability is due upto 2002-2003 is hereby exempted from tax, interest and penalty, retrospectively from the date of liability to 2002-2003 or for some of the years, if any, for which the tax has not been paid. Provided that any tax, interest or penalty already deposited, shall not be refunded. [No. F. 12(20)FD/Tax/2005-222] By Order of the Governor Sd/- (Ajitabh Sharma) Deputy Secretary to Government xxx xxx xxx 3. He also submitted that the past assessment records and land and building tax dues to be recovered for the past assessments orders already made prior to the said notifications, quoted above, have since been transferred to the respective Municipal Council(s)/Corporation(s), constituted under the provisions of the Rajasthan Municipalities Act, 1959 and now new Rajasthan Municipalities Act, 2009. 4. He further submitted that the petitioner had set up a Water Amusement Park in the name and style of M/s. Sawan Phuhar water Park, which is a tourism industry and the tourism industries having been notified by the State Government vide the Notification dated 4.3.1989 and under the Notification dated 27.5.1998, issued under the provisions of the Rajathan Lands and Buildings Tax Act, 1964, provided for slabs for rate of tax for such land and building, namely, the land and building valuing up to : 20 (Twenty) lacs, the rate of tax is "Nil", for next Rs. 6 (six) lacs the rate of tax is "1%" and the land building valuing up to 26 lacs the rate of tax is 1.5%, and therefore, the ex-parte assessment order passed against the petitioner without considering these Notifications, is liable to be quashed in the present writ petition. 5. He further submitted that the controversy involved in the present case is squarely covered by a decision of a coordinate bench of this Court is the case of Indus Hotel Corporation Ltd. v. The State of Rajasthan & Ors. reported in 2001(2) WLC (Raj.) 692 . He therefore, submitted that the present writ petition deserves to be allowed in those terms. 6. On the other hand, Mr. B.C. Chirania, learned counsel for the respondent- Municipal Corporation, Kota, and Mr. reported in 2001(2) WLC (Raj.) 692 . He therefore, submitted that the present writ petition deserves to be allowed in those terms. 6. On the other hand, Mr. B.C. Chirania, learned counsel for the respondent- Municipal Corporation, Kota, and Mr. Dinesh Yadav, Addl. Advocate General, submitted that the present writ petition is not maintainable as the petitioner has an efficacious alternative remedy by way of appeal against the impugned assessment order and without availing the same, the petitioner has approached this Court way of this writ petition and the same deserves to be dismissed. They also submitted that the exemption to the hotel and tourism related industries was only for a specific period under the Notification dated 4.3.1989, and therefore, this remained essentially a question of fact as to whether the petitioner's land and building is exempted by that notification or not. They also referred to Annexure-3, the order dated 13.3.1999 of the District Collector, Kota converting the land use in question for the purpose of Water Amusement Park, and not for setting up of an industry as such and, therefore, it cannot be presumed that the petitioner is- exempted under the aforesaid notification dated 4.3.1989. They, therefore, prayed the present writ petition deserves to be dismissed. 7. I have heard the learned counsels for the parties and perused the record. 8. In the present writ petition the notices were issued to the respondents by a coordinate bench of this Court vide order dated 4.4.2002 while granting status quo order. Later on, the writ petition was admitted by another coordinate bench of this Court vide order dated 24.2.2003 and the interim order was ordered to continue till further orders. 9. It is true that normally against the assessment order, writ jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked, and the assessee should first avail the regular remedy by way of appeal, however, the well settled legal. position is that the rule of alternative remedy is a rule of discretion; and there is no bar of jurisdiction for exercising of extraordinary jurisdiction under Article 226 of the Constitution of India even if such alternative remedy is available in law to the petitioner. position is that the rule of alternative remedy is a rule of discretion; and there is no bar of jurisdiction for exercising of extraordinary jurisdiction under Article 226 of the Constitution of India even if such alternative remedy is available in law to the petitioner. In the facts and circumstances of the present case, it appears that the impugned assessment order has been passed by the Assessing Authority ex-parte without giving a reasonable opportunity of hearing to the petitioner- assessee. Even if such assessment order is taken at its face value, the same lacks any foundation inasmuch as the same even does not refer to the state Government Notification dated 4.3.1989 and dated 27.5.1998, which beyond doubt were binding on the Assessing Authority and were applicable to the facts of the present case. The question as to whether the petitioner's unit was covered by that Notifications or not, was a question to be decided by the Assessing Authority on factual foundations. However, prima facie, it cannot be said that the Water Amusement Park is not a tourism industry and, therefore, not covered by the said notification dated 4.3.1989. 10. It is considered appropriate to reproduce here these two Notifications dated 4.3.1989 and 27.5.1998 in question, referred to above, herein below: "Notification dated 4.3.1989 Government of Rajasthan Industries (GRI) Department No.F. 12(4) IInd/85 Jaipur dated 4.3.1989 Notification The Governor of Rajasthan is pleased to declare tourism as an Industry in the State of Rajasthan with effect from the date of issue of this notification. A further notification regarding conditions of eligibility quantum of assistance, etc. to be provided to the tourism industry units will be issued separately. A further notification regarding conditions of eligibility quantum of assistance, etc. to be provided to the tourism industry units will be issued separately. Sd/ (Hari Mohan Mathur) Secretary to the Government xxx xxx xxx Notification dated 27.5.1998 Hkkx&4 ( x ) mi[k.M ( 1 ) jkT; ljdkj rFkk vU; jkT; izkf/kdkfj;ksa }kjk tkjh fd;s x;s dkuwuh vkns'k rFkk vf/klwpuk,a foRr foHkkx ( dj vuqHkkx ) vf/klwpuk t;iqj] 27-5-1998 ,l0vks0 60 jktLFkku Hkwfe ,oa Hkou dj vf/kfu;e] ( 1964 dk jkt vf/kfu;e la[;k 18 ) dh /kkjk 3 o 21 ds }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, jkT; ljdkj 1-4-1998 ls dj ns; vkS|ksfxd Hkwfe o Hkouksa ds cktkj ewY; ij dj njsa fuEukuqlkj r; djrh gS% vkS|ksfxd Hkwfe o Hkouksa ij% 1- Hkwfe ,oa Hkou cktkj ewY; ds izFke 20 yk[k ij 'kwU; 2- Hkwfe o Hkou cktkj ewY; ds vxys 6 yk[k ij 1 izfr'kr 3- Hkwfe o Hkou cktkj ewY; ds vxys 26 yk[k ls vf/kd ij 1-5 izfr'kr ijUrq ;g fd fnukad 1-4-1998 ls ns; dj ubZ vkS|ksfxd bZdkbZ;ksa ds lEcU/k esa muds okf.kfT;d mRiknu izkjEHk gksus dh frfFk ls vkxkeh pkj o"kZ ckn ns; gksxk] c'krsZa fd bu bZdkbZvksa ds }kjk okf.kfT;d mRiknu 21-3-2003 ls iwoZ vkjEHk dj fy;k tkos] ijUrq ;g vkSj Hkh fd fjDr vkS|ksfxd Hkw[k.M ij vf/klwpuk la[;k i08 ( 14 ) foRr@dj0vuq@97 fnukad 4-4-1997 ds vuqlkj gh dj ns; gksxkA uksV-& os vkS|ksfxd Hkwfe th jhdks }kjk vkS|ksfxd iz;kstukFkZ vFkok euksjatu ikdZ gsrq vkoafVr dh xbZ gS] dk ewY;kadu jhdks }kjk rRle; izo'Rr vkoaVu njksa ds vk/kkj ij fd;k tkosxkA jkT;iky dh vkKk ls ( fouksn diwj ) mi'kklu lfpo ( la[;k ,Q&17 ( 11 ) for dj&vuq@99 )" xxx xxx xxx 11. Once the Government of Rajasthan declared the tourism as an industry in the State of Rajasthan w.e.f. 4.3.1989, it cannot be presumed that the same would be a hallow exercise without giving its due benefit to the concerned tourism industries or such hotel units in the State. The notification issued under the Lands and Buildings Tax Act, 1964 on 27.5.1998 provides separate slabs of rate of tax w.e.f. 1.4.1998, quoted above, for industrial units; and accordingly, the land and building valued below Rs. 20 lacs are not even liable to be taxed under the said Act of 1964. The notification issued under the Lands and Buildings Tax Act, 1964 on 27.5.1998 provides separate slabs of rate of tax w.e.f. 1.4.1998, quoted above, for industrial units; and accordingly, the land and building valued below Rs. 20 lacs are not even liable to be taxed under the said Act of 1964. It is apparent from the perusal of the ex-parte assessment order under challenge before this Court that the same does not even refer to these two important and relevant notifications. The assessing authority, therefore, apparently has failed to apply its mind to these relevant aspects of the matter. 12. This Court in the case of Indus Hotel Corporation Ltd. (supra), wherein similar objection of availability of alternative remedy was raised by the counsel for the respondent and, so also, the writ petition was also filed against an assessment order itself, the learned Single Judge of this Court held as under: "I am of the opinion that in view of the fact that specific notification has been issued under the Land and Building Tax Act specifying separate rates for industrial building the condition that no separate notification has been issued for extending any benefit to tourism industry independently in pursuance of notification dated 4.3.1989, is of little relevance. It is to be noticed that word 'industry has not been defined under the Land & Building Tax Act, so as to deviate from its import in generic sense. In its generic sence tourism is to be treated as industry within Rajasthan is manifest from the notification dated 3.4.1989. It is true that by Annexure-2 notification dated 4.3.1989 no particular benefit has been extended to tourism as an industry except recognizing tourism as an industry. What benefits or exemptions or concessions are extended to any investment made in tourism industry will depend on term of various schemes and enactments but the fact remains that unless specified otherwise, whenever any reference in any enactment or notification relating to an industry in generic sense is made since the said notification, such reference to 'industry' ipso facto would include reference to any establishment forming part of tourism as an industry in view of notification dated 4.3.1989. The notification issued tinder Land and Building Tax Act on 27.5.1998 is a separate notification extending certain concessions in the matter of levy of tax under Land and Building Tax Act to each and every industry situated within the State of Rajasthan. That being so tourism being considered to be an industry any building forming part of the industry. of tourism will be subject to that notification. Moreover there is unmistakably clear evidence emanating from the contemporary documents in pursuance of which this exemption under Land and Building Tax has been issued that the notfication dated 27.5.1998 extends to tourism related project by treating it to be an industry and hotel building being tourism related project comes under its umbrella subject to fulfillment of other conditions. The Industrial Policy, 1998, a document published by the State of Rajasthan, contained specific Para 27 disclosing that tourism for the purpose of industrial Policy has been considered to be industry to provide its growth a positive thrust. Para 27 of the Industrial Policy reads as under: Para 27: "Government of Rajasthan vide Notification No. F. 12(4) Ind/l/85 dated 4.3.1989 have declared tourism as an industry. Several concessions including capital investment subsidy are being granted to the tourism projects. A special Committee headed by Principal Secretary Finance shall be set up to monitor the complete operationalization of Government's intent in this regard and to ensure that the declaration of tourism as an industry is fulfilled in letter and spirit. This Committee would also deal with the imperative of up-gradation of infrastructure, conservation of monuments, upkeep of museums etc. in order to give a further fillip to tourism industry. Other members of the Committee would be; (1) Secretary Tourism (2) Commissioner Industries (3) MD, RIJCO, (4) Commissioner Investment and NRIs (5) ED, RFC, (6) Member (T and D) of RSEB, and (7) Director Tourism who would be the member Secretary. This Committee would meet once in every two months." This makes it clear that the above document did intend to issue guideline under industrial Policy by considering tourism as an industry by making specific reference to earlier notification dated 3.4.1989 under this Policy statement in envisaging the incentives and concessions under various taxing statute has been dealt with separately. Para 28.7 deals with land and buildings. Para 28.7 deals with land and buildings. it is relevant to notice sub-paras (1) and (3) of Para 28.7 of the Industrial Policy which read as under: Para 28.7: LAND AND BUILDING TAX ACT: Para 28.7.1: "The exemption limit for industries in respect of Land and Buildings tax has been raised from Rs. 5 lakhs to Rs. 20 lakhs. This would also be applicable to tourism related projects.", Para 28.7.3: "New Industrial Units will be exempted from payment of Land and Buildings tax for a period of four years from the date of production." These two provisions made in the Industrial Policy, 1998 leave no room of doubt of that notification under Land and Buildings Tax Act on 27.5.1998 gives effect to declaration in Industrial Policy unequivocally which in terms is to extend the benefit of notification of such concession to the tourism related project also. There is no contention that hotel in question is not a tourist related project. Therefore, irresistible conclusion is that a hotel being a tourism related project for extending amenities to tourists and part of tourism activity, it cannot but be treated as an Industrial building governed by notification dated 27.5.1998 read with notification dated 4.3.1989 both in the matter of rates applicable to such buildings and if fulfills the other conditions namely commencement of commercial operation after 1.4.1998 but before 31.3.2003 is eligible for the exemption from tax for a period of four years. In view thereof this petition is allowed. The impugned, assessment order Annexure 9 and demand in pursuance thereof are quashed. These shall be no order as to costs." 13. It was also brought to the notice of the court that the Division Bench appeal of the State, being D.B.S.A.W. No. 599/2001, Assistant Director, L.B.T., Udaipur v. Indus Hotel Corp. Ltd. , also came to be dismissed by the Division Bench of this Court vide order dated -34.10.2001 against the aforesaid judgment of learned Single judge. The order dated 30.10.2001 of the Division Bench is also quoted herein below for ready reference:. "1. We have heard Mr. Sundeep Bhandawat, learned counsel for the Land and Building Tax Department and Mr. Rajendra Mehta, for the respondent-assessee Indus Hotel Corp. Ltd. 2. The order dated 30.10.2001 of the Division Bench is also quoted herein below for ready reference:. "1. We have heard Mr. Sundeep Bhandawat, learned counsel for the Land and Building Tax Department and Mr. Rajendra Mehta, for the respondent-assessee Indus Hotel Corp. Ltd. 2. The learned Single judge has referred to the industry policy with respect to the tourism and the-notifications and amendments made in the land and Building Tax Act found that the benefits have been extended to such tourism related projects also. The contentions is this special appeal is contrary to the declared policy of the state of Rajasthan. 3. We do not find any justifiable reason to interfere with the order of the learned Single judge. Special appeal is dismissed." 14. Accordingly, in view of aforesaid legal position binding on this Court, and the factual aspects mentioned in the impugned assessment order about the petitioner having a tourism related industry known as 'Sawan Phuhar Water Park' at Kota, this Court is satisfied that the impugned assessment order cannot be sustained and the objection of the learned counsel for the respondent-Municipal Corporation, Kota, about the alternative remedy, has also little force in view of binding precedent of this Court and the aforesaid Notifications issued by the State Government, which have not been even referred to in the impugned assessment order. The said objection, is therefore, overruled and as a consequence thereof, this writ petition is liable to be allowed. Moreover, since by subsequent Notification dated 12.7.2004 and 24.3.2005, quoted above, the liability to pay land and building tax for both industrial and residential land and buildings, have been exempted with retrospective effect, the impugned assessment order is liable to be quashed and no useful purpose would be served by remanding the case back to the assessing authority. 15. The writ petition is, accordingly, allowed and the impugned assessment order Annexure 7 dated 5.10.2001 and the consequential demand notice Annexure 9 dated 31.1.2002 are quashed. No costs. A copy of this order be sent to the concerned parties forthwith.Petition Allowed. *******