Amitava Lala, J. - (1.) This writ petition relates to enhancement of the annual valuation of the building by the Calcutta Municipal Corporation from Rs. 6,95,090/- to Rs. 1,88,00,000/- and odd for the period of first quarter 1984-1985 to the first quarter of 1990-1991. Respective notices were given. Petitioners were purported to have been heard by the Hearing Officer. A dispute arose whether at all any hearing was given by the Hearing Officer or not. But I find from an interim order of this High Court that the petitioners preferred an appeal to the assessment Tribunal. Therefore, existence of order was obvious. The Court found that the order under Section 178(2) of the Calcutta Municipal Corporation Act, 1980 is not appealable. Petitioners gave the undertaking that they will not proceed with the pending appeal and an application to the effect will be filed before the assessment Tribunal within the time prescribed under the order. Mr. S. P. Sarkar, Learned Senior Counsel, appearing for the petitioners contended that no assessment order was served upon them, only the notices for recovery for the enhanced sum were served.
(2.) Incidentally a question arose about the maintainability of the writ petition when the alternative forum of appeal is available.
(3.) However, one ground is very clear that the order under Section 178(2) is not an appealable order. An appeal can be made under Section 189 of the Act in respect of the valuation fixed by the authority under Section 188 of the said Act. According to me, Section 188 might have been the provision for fixation of valuation under determination of objection, if any, but if the applicability of the original section, which is the root of cause of action, is challenged then the alternative remedy, if any, cannot be held to be an absolute bar irrespective of the fact that under Article 226 of the Constitution of India High Court has its plenary jurisdiction to entertain, try and determine the matter with or without any alternative forum for adjudication. Secondly, the objection in respect of maintainability of the writ petition will be taken at the first. Such objection cannot be allowed to be taken after eleven years of pendency of the writ petition wherein the parties advance their arguments in merit. Although there is no provision in this High Court to admit the writ petition before hearing but such principle by and large is applicable by way of necessary implication. Particularly such point arose at the inception and the Court allowed the application to go on provided the appeal preferred by the petitioners is withdrawn. Thirdly, during the pendency of the writ petition Court was pleased to observe that there are necessary ingredients to attach or evaluate vires of the Act and allowed to amend the prayer to that extent. Hence, by virtue of the decision in the Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, reported in 1998 (8) SCC 1 : (AIR 1999 SC 22) invocation of the writ jurisdiction of the petitioners cannot be disallowed. This resolves the question of maintainability of the writ petition.;