I. P. Mukerji, J. - (1.) In 2004 the writ petitioners filed a writ application in this court (WP 460 of 2004) challenging the vires of the second proviso to Section 179 (2) (d) of the Kolkata Municipal Corporation Act, 1980. They also challenged a demand for Rs. 1,93,34,726/-. Learned Counsel appearing for the appellants/writ petitioners in that writ allegedly on a mistaken interpretation of the instruction given to him abandoned the point of vires. On 20th April, 2007, the writ application was disposed of, taking into account the above concession made by learned counsel.
(2.) After disposal of the first writ application, the appellants/writ petitioners applied before the first court to resile from the alleged statement of their learned Counsel in court. The court while disposing of the application on 31st August, 2007 simply recorded that the court, while disposing of the first writ application did not have any occasion to consider the validity of the said proviso to the said Act. It did not decide the issue as to whether this point had been deliberately withdrawn or was abandoned by learned Counsel due to inadvertence. Understandably, since there was no decision of this court on the issue the appellant could not take this point before the appeal court (APO 473 of 2017) on an appeal from the order dated 20th April, 2007. They also could not take the point because they did not urge it before the trial court.
(3.) But the question is whether they could have urged it in the instant writ (WP 1021 of 2011).;