Dilip Kumar Seth, J.
1. An assessment made sometimes in July, 1996 in respect of the concerned premises has since been challenged in this writ petition on the ground that the assessment is ex facie bad. Mr. Mihirlal Bhattacharya, learned Advocate appearing on behalf of the petitioner, points out that the assessment was sought to be made from the 1st — quarter 1993-94 and 2nd quarter 1993-94 at Rs. 6,83,320/-. Relying on Annexure ‘A’, he points out that on 13th August, 1996, a notice was issued intimating the petitioner that the valuation of premises was Rs. 51,250/- with effect from 4th quarter 1990-91. Mr. Bhattacharya very fairly concedes that, that was in effect a revision of the valuation under Section 180 on account of an agreement which is Annexure ‘D’ to this writ petition. The agreement was effective from 1st May, 1994 till 30th April, 1997. Therefore, at best, there could be an intermediate revision under Section 180 of the Calcutta Municipal Corporation Act, 1980 from the 2nd quarter 1994-95 till 1st quarter 1997-98 and not beyond. Whereas, the assessment has since been made from 2nd quarter 1993-94 and is continuing even though the agreement had expired and the tenancy did not continue. He further contends that the petitioner had filed an appeal without complying the provisions of Section 189 (6) of the said Act and, therefore, there is no appeal in the eye of law and as such, it cannot be said that the petitioner had availed of alternative remedy. He then contends that the alternative remedy cannot be a bar particularly when the remedy is onerous. The alleged delay had also been explained by him. He contended further that the delay could not be fatal in every case. Having regard to the facts and circumstances of the case, the filing of the writ petition in 2000 would not be fatal, particularly when ex facie the assessment is perverse.
2. Mr. Ashoke Das Adhikary, learned Advocate appearing on behalf of the Calcutta Municipal Corporation, on the other hand, contends that in view of Section 190 of
the said Act, if the appeal is not an appeal in the eye of law, the assessment has become final. He further contends that the writ petition has since been filed only to avoid compliance of Section 189 (6). Whether there is any appeal in the eye of law or not, the petitioner having availed of alternative remedy, he cannot approach this Court which is a discretionery remedy. He further contends that there has been an inordinate delay in preferring this writ petition. He then contends that, it is a disputed question of fact which cannot be gone into by this Court, since according to him, the occupancy started in 1993-94 and not on 1st May, 1994 as was found on inspection. According to him, as soon it requires a decision on a question of fact, writ Court should not exercise its jurisdiction. On these grounds, he proposes that the writ petition should be dismissed.
3. I have heard both the counsel at length. Both of them had cited certain decisions to which reference would be made at appropriate stage.
4. Admittedly, the assessment was made effective from 4th quarter 1990-91, sometimes in 1996 and it was due to be valid until a fresh assessment is made. In the present case, another assessment was sought to be made with effect from 2nd quarter 1993-94 in 1996 itself. Two assessments were made successively one for the period from 4th quarter 1990-91 and other from 2nd quarter 1993-94.
5. Be that as it may, in law, there is no embargo in making two assessments in the same year in respect of different period on conditions which might fall within the provisions of Section 180 of the said Act. Sub-section (2) of Section 180 prescribes for revision of assessment on the grounds mentioned therein. Clause (ii) permits revision when any tenancy or any rent changes. In the present case, the ground for revision was changes in rent. This, change, according to Mr. Bhattacharya, is effective from 1st May, 1994 and, therefore, the assessment ought to have been effective from 2nd quarter 1994-95. Whereas Mr. Das Adhikary contends that the occupancy was there since 2nd quarter 1993-94 and, therefore, it was due to be effective from 2nd quarter 1993-94.
6. There is no dispute about the authority of the Corporation to revise the assessment under Section 180 if any of the conditions
provided in Sub-section (2) are satisfied. But, the question is, from which date, it is to be effective or whether there was really any change within the scope and ambit of Section 180 (2) or not. Admittedly, the change is not disputed. It is the date since when the change was effective is in dispute. This is a dispute of fact. Such disputed question of fact cannot be determined by this Court. Section 189 prescribes a remedy by way of an appeal before the Tribunal. Such disputed question can be gone into before the Tribunal, if it is so disputed, but then Section 189 (5) prescribes the period within which such appeal is to be preferred — but the appeal has since been preferred, it is not necessary to go into that question. Whereas, Section 189 (6) prescribes that no appeal would be entertained, unless the provisions contained in Sub-section (6) are complied with. Sub-section (6) requires deposit of disputed amount of the tax assessed till the date of filing of the appeal and continuance of payment of such tax till the disposal of the appeal. No doubt, the condition can be termed as ‘onerous’, but still then, the validity of the provision has since been upheld by the Apex Court. Therefore, it cannot be said that the provision for appeal is onerous.
7. Relying on Sub-section (6) of Section 189, Mr. Bhattacharya had contended that unless Sub-section (6) is complied with, there is no appeal in the eye of law. In order to appreciate the situation, it would be beneficial to quote Sub-section (6) as follows :–
“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 consolidated rate is continued to be deposited till the appeal is finally disposed of.”
8. The expression used is “no appeal shall be entertained”, unless the condition contained in Sub-section (6) are complied with. Mr. Das Adhikary proposes to contend that this entertainment of the appeal means, “hearing of the appeal”. It does not preclude filing of the appeal. According to him, the appeal filed may be admitted but the same cannot be heard and disposed of unless the Sub-section (6) is complied with.
9. It seems that there is a fallacy in the language itself. It is contended that no appeal can be entertained unless Sub-section (6) is complied with. It pre-supposes that even if appeal is filed, the same cannot be touched and thus, the appeal though filed cannot be treated to be an appeal on which the appellate Tribunal could exercise its jurisdiction. Relying on the decision in the case of Shyam Kishore v. Corporation of Delhi, , Mr. Das Adhikary had supported his contention. In the said case. Section 170 of the Delhi Municipal Corporation Act was involved which provided for conditions of right to appeal. The said section opened with the expression, “no appeal shall be heard or determined”. Thus, the said Section used the expression, “heard or determined” which is a complete different expression, than “no appeal shall be entertained”. When there is a distinct and different expression used in different statutes, the ratio decided on the basis of a particular statute cannot be attracted to the other which has used distinctive expressions.
10. The expression used in the present Act is that, “no appeal shall be entertained” while that of the Delhi Act was that “no appeal shall be heard or determined”. The question of hearing and determination comes after the appeal is filed or admitted which means a stage after it is entertained. Thus, the condition in the Delhi Act was an embargo on the question of hearing and determination of the appeal unless the condition is complied with. Whereas, in the present Act, it is at the threshold of entertaining the appeal. Thus, it appears that there are substance in the submissions of Mr. Bhattacharya to the extent that an appeal without compliance of Sub-section (6) is not an appeal in the eye of law. Mr. Bhattacharya had relied on the decision in the case of Surendra Enterprise Pvt. Ltd. v. The Calcutta Municipal Corporation, (1993-1994) 98 CWN 1116, where a similar view was taken in paragraph 13 which runs as follows :–
“It appears that the aforesaid provisions require deposit of consolidated rates on the enhanced rates as the pre-condition of filing of an appeal and so long as the appeal is not disposed, the appellant has to go on depositing the consolidated rates and taxes as determined by the Authorities. 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. Therefore, the contention that the petitioner has alternative remedy cannot be entertained on the facts of this particular case.”
11. In view of the distinguishing feature as I have noted above, I have every reason to follow the decision in the case of Surendra Enterprise Pvt. Ltd. (supra) by this Court in preference to that of Shyam Kishore (supra) as is apparent in the said case of Shyam Kishore (supra).
12. Now, the question remains as to whether even on the face of the fact that there is no appeal in the eye of law, the petitioner could avail of the right to invoke writ jurisdiction. Admittedly, the petitioner had preferred the appeal, but did not comply with Sub-section (6). The conduct of the petitioner shows that he had invoked writ jurisdiction in order to avoid compliance of Sub-section (6).
13. In fact, the petitioner had preferred the appeal but did not comply with Sub-section (6) and waited for long four years and had come to this Court after lapse of almost four years. In the case of Killa Investment Pvt. Ltd. v. Calcutta Municipal Corporation, 1998 (1) CHN 333, this Court had taken the same view that the writ petitioners had invoked the discretionary writ jurisdiction in order to avoid payment of tax in terms of Section 189 (6) of the Act. On this ground in the said case, writ Court refused to exercise its discretion.
14. In the present case, it further appears that there has been a delay of four years. Existence of alternative remedy is not an absolute bar in invoking writ jurisdiction. At the same time, the delay also may not be an absolute embargo in invoking writ jurisdiction yet each case has to be decided on the facts of each individual case according to its merit.
15. Admittedly there appears to be some substance when it is contended that change of rent was effective from 1st May, 1994, but at the same time, if it is contended that the occupancy was there since before 1994, then it becomes a disputed question of fact, which I have already held to be best decided by the Tribunal.
16. Thus, from the conduct of the petitioner, it appears that he had waited for long four years to invoke writ jurisdiction after having resorted to an alternative remedy, but without complying with the relevant provision. Therefore, it is also a case fit where the discretion of this Court may not be exercised.
17. Over and above, in his usual fairness. Mr. Bhattacharya 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.
18. Mr. Bhattacharjee had relied on a decision in the case of N. Raghavan Pillai v. Union of India, 1996 (1) CLJ 497 in order to propound that alternative remedy is not an absolute bar. This proposition is a sound proposition and cannot be disputed. In view of the discussion made above, it would not be necessary to deal with the question any further.
19. Relying in the decision of the case Karnani Properties Ltd. v. The Corporation of Calcutta, Mr. Das Adhikari has pointed out that when there is a question raising a dispute of fact of such a nature which it would not be appropriate to decide in this application under Article 226 of the Constitution, this Court may not invoke the writ
jurisdiction. In the present case the question that has been raised is to the extent as to whether the tenancy had commenced from a date as contended by the Corporation or from the date sought to be insisted upon by the petitioner. This proposition supports the view which I have taken earlier that such a disputed question cannot be decided in exercise of writ jurisdiction.
20. Relying on the decision in the case of Calcutta Municipal Corporation v. Abdul Halim Mollah. , Mr. Das Adhikari had contended that denial of liability or alleged illegalities committed in respect of a year while making assessment cannot be a ground for stalling payment of huge amount for a long time. In the present case, in fact, the petitioner had stalled payment of taxes for a long time and had sought to avoid payment by invoking writ jurisdiction, after having preferred an appeal. Therefore, the petitioner is not entitled to the relief as claimed in this writ petition except to the extent as I have observed hereinbefore.
21. Relying oh the same decision, Mr. Das Adhikari has also contended that the words employed in a restrictive statute should be construed to enable the Court to give full effect thereto. As I have interpreted the provision above, it seems that the principle laid down in the case of Abdul Halim Mollah (supra) has been adhered to.
22. Mr. Das Adhikari had also relied upon a decision in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig, . Relying on paragraph 14 of the said decision, Mr. Das Adhikari has pointed out that ‘delay defeats equity’. In the present case the petitioner had filed an appeal and waited for a long time to approach this Court. By reason thereof by his conduct, he has given a go-by to his rights. Since he was not vigilant, he cannot get the benefit of invoking writ jurisdiction. In fact, the Apex Court in the said decision had laid down the proposition as has been sought to be urged by Mr. Das Adhikari. In fact, in the present case, on account of such delay, I do not propose to invoke the writ jurisdiction but to remand the case to the appellate Tribunal for appropriate decision on fulfilment of the conditions indicated hereinbefore.
23. This writ petition is thus disposed of.
24. All parties are to act on a xeroxed
signed copy of this dictated order on the usual undertaking.