# Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 964
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-22
- **Case number:** Writ C No. 7616 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maulana-mohammad-ali-jauhar-trust-lko-u-p-anr-v-state-of-u-p-ors-46856
- **Pages:** 20

## Headnote

A. Civil Law - Tax - The Building and Other
Construction Workers Welfare Cess Act,
1996 - Section 3, 4, 5, 6, 8, 9, 10, 11 - The
Building and Other Construction Workers
Welfare Cess Rules, 1998: Rules 6, 7, 13, 14
(Para 49)

Maintainability of writ petition - It must be
remembered that a statutory alternative
remedy in a fiscal statute ought not to be
ignored
except
in
very
exceptional
circumstances and on reputed principles,
which are not found to exist here. Even if
the statutory remedy is onerous, in the
sense that it involves a condition of pre-deposit, a writ petition ought not to be
entertained. (Para 46, 47)

Facts show that no return was filed by the
University, leaving the Assessment Officer with no
option but to proceed u/s 5(2) of the Cess Act to
assess without a return. It is to the above end that
the
Cess
Assessment
Collector-cum-Assistant
Labour Commissioner, Rampur addressed a memo
dated 16.11.2017 to the Assessment Officer,
recommending inter alia that a team be got
constituted by the Uttar Pradesh Buildings and
other Construction Workers' Welfare Board or
other competent Authority to assess the cost of
the constructions involved. Taking cognizance of
the aforesaid recommendation, the Deputy Labour
Commissioner/Assessment Officer addressed a
memo
dated
18.11.2017
to
the
District
Magistrate/Collector, Rampur, requesting him to
ensure a valuation of the constructions raised by
the University, by Engineers from the Public Works
Department
or
the
Rampur
Development
Authority. The Collector, in turn, constituted a twomember team, including the Executive Engineer of
the PWD, Rampur to undertake a valuation of the
constructions made after February, 2009, vide an
order dated 22.12.2017.

It has been noticed in detail that how a team of
valuers demanded copies of drawings, designs,
valuation report and other construction related
documents, but in vain from the University.
There is a rather startling document on record,
which is a letter dated 8.2.2018 addressed by
the Administrative Officer/PRO of the University
to the Executive Engineer of PWD, Rampur,
which says that the required building plans and
other documents, demanded by the Executive
Engineer for the purpose of valuing the cost of
constructions, could not be provided for the
present, because these were with the Engineer,
Building
Construction
and
Maintenance
Department,
who
was
not
available
for
sometime past. The record shows that it is
replete with letters written by the Executive
Engineer, PWD to the University, requiring their
assistance to value the constructions for the
purpose of assessment under the Cess Act, but
all to no avail.

Therefore, it can be said that ample opportunity
was afforded to the University, at different
2 All. Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr. Vs. State of U.P. & Ors.
965
stages of proceedings, culminating in the
impugned assessment. (Para 40)

B.
Disproportionate
and
exorbitant
demand - It must be remarked that the figures
involved do not carry an inherent element of
absurdity, given the contemporary value of cost
of construction, of which judicial notice may be
taken. In the event, the petitioner wished
to
substantiate
his
plea
about
the
assessment,
being
an
arbitrary
and
exorbitant figure, the carpet area of the
varying units, the built up area, the
material used, ought to have been placed
on record to show that these varying
determinations are arbitrary; else some
other factual basis about the estimated cost of
construction should have been placed on record
by the University, to enable this Court to discern
an ex facie absurdity or exaggeration in the
assessment made. There is no such material
available on record. Therefore, the second limb
on which he wants this writ petition is based on,
bypassing the statutory alternative remedy, is
also untenable. (Para 42, 45)

Writ petition dismissed. (E-3)

Precedent followed:

## Text

_Characters 0–39,887 of 70,912. This is a partial read: ask again with offset=39887 for what follows._

964 INDIAN LAW REPORTS ALLAHABAD SERIES
Limited and another Vs. State Bank of
India and other (2014) 5 SCC 762.

35. Therefore, in view of the legal
position stated above this writ petition is
being
dismissed
on
the
ground
of
alternative
remedy
available
to
the
petitioner
under
Section
17
of
the
SARFAESI Act, 2002.

36. There shall be no order as to costs.
----------
(2021)02ILR A964
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ C No. 7616 of 2020

Maulana Mohammad Ali Jauhar Trust, Lko.
U.P. & Anr. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Syed Mohd. Fazal, Sri S.G. Hasnain

Counsel for the Opposite Party:
C.S.C., A.S.G.I., Sri Sanjay Kumar Om.

A. Civil Law - Tax - The Building and Other
Construction Workers Welfare Cess Act,
1996 - Section 3, 4, 5, 6, 8, 9, 10, 11 - The
Building and Other Construction Workers
Welfare Cess Rules, 1998: Rules 6, 7, 13, 14
(Para 49)

Maintainability of writ petition - It must be
remembered that a statutory alternative
remedy in a fiscal statute ought not to be
ignored
except
in
very
exceptional
circumstances and on reputed principles,
which are not found to exist here. Even if
the statutory remedy is onerous, in the
sense that it involves a condition of pre-deposit, a writ petition ought not to be
entertained. (Para 46, 47)

Facts show that no return was filed by the
University, leaving the Assessment Officer with no
option but to proceed u/s 5(2) of the Cess Act to
assess without a return. It is to the above end that
the
Cess
Assessment
Collector-cum-Assistant
Labour Commissioner, Rampur addressed a memo
dated 16.11.2017 to the Assessment Officer,
recommending inter alia that a team be got
constituted by the Uttar Pradesh Buildings and
other Construction Workers' Welfare Board or
other competent Authority to assess the cost of
the constructions involved. Taking cognizance of
the aforesaid recommendation, the Deputy Labour
Commissioner/Assessment Officer addressed a
memo
dated
18.11.2017
to
the
District
Magistrate/Collector, Rampur, requesting him to
ensure a valuation of the constructions raised by
the University, by Engineers from the Public Works
Department
or
the
Rampur
Development
Authority. The Collector, in turn, constituted a twomember team, including the Executive Engineer of
the PWD, Rampur to undertake a valuation of the
constructions made after February, 2009, vide an
order dated 22.12.2017.

It has been noticed in detail that how a team of
valuers demanded copies of drawings, designs,
valuation report and other construction related
documents, but in vain from the University.
There is a rather startling document on record,
which is a letter dated 8.2.2018 addressed by
the Administrative Officer/PRO of the University
to the Executive Engineer of PWD, Rampur,
which says that the required building plans and
other documents, demanded by the Executive
Engineer for the purpose of valuing the cost of
constructions, could not be provided for the
present, because these were with the Engineer,
Building
Construction
and
Maintenance
Department,
who
was
not
available
for
sometime past. The record shows that it is
replete with letters written by the Executive
Engineer, PWD to the University, requiring their
assistance to value the constructions for the
purpose of assessment under the Cess Act, but
all to no avail.

Therefore, it can be said that ample opportunity
was afforded to the University, at different
2 All. Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr. Vs. State of U.P. & Ors.
965
stages of proceedings, culminating in the
impugned assessment. (Para 40)

B.
Disproportionate
and
exorbitant
demand - It must be remarked that the figures
involved do not carry an inherent element of
absurdity, given the contemporary value of cost
of construction, of which judicial notice may be
taken. In the event, the petitioner wished
to
substantiate
his
plea
about
the
assessment,
being
an
arbitrary
and
exorbitant figure, the carpet area of the
varying units, the built up area, the
material used, ought to have been placed
on record to show that these varying
determinations are arbitrary; else some
other factual basis about the estimated cost of
construction should have been placed on record
by the University, to enable this Court to discern
an ex facie absurdity or exaggeration in the
assessment made. There is no such material
available on record. Therefore, the second limb
on which he wants this writ petition is based on,
bypassing the statutory alternative remedy, is
also untenable. (Para 42, 45)

Writ petition dismissed. (E-3)

Precedent followed:

1. ABL International Ltd. & anr. Vs Export Credit
Guarantee Corporation of India & ors., (2004) 3
SCC 553 (Para 23)

2. Raj Kumar Shivhare Vs Assistant Director,
Directorate of Enforcement & anr., (2010) 4 SCC
772 (Para 46)

3. Titaghur Paper Mills Co. Ltd. & anr. Vs St. of
Orissa & ors., (1983) 2 SCC 433 (Para 48)

Precedent distinguished:

1. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., (1998) 8 SCC 1 (Para 22,
41)

2. Govt.of A.P. & ors. Vs P. Laxmi Devi (Smt.),
(2008) 4 SCC 720 (Para 24, 43)

3. Smt. Har Devi Asnani Vs St.of Raj. & ors.,
(2011) 14 SCC 160 (Para 25, 43)

4. Smt. Vijaya Jain Vs St. of U.P. & ors., 2015
(9) Additional District Judge 503 (DB) (Para 26,
43)

Present petition challenges an order dated
28.09.2018,
passed
by
the
Cess
Assessment Officer, The Building and
Other Construction Workers' Welfare Cess
Act, 1996, Rampur.

(Delivered by Hon'ble J.J. Munir, J.)

1. The Maulana Mohammad Ali
Jauhar Trust through its Chairman and
Mohammad Ali Jauhar University through
its Registrar, together have challenged an
order of the Cess Assessment Officer, The
Building and Other Construction Workers'
Welfare Cess Act, 1996 (for short, ''the
Cess Act'), Rampur dated 28.09.2018,
assessing
cess
under
the
Act
last
mentioned,
relating
to
buildings
constructed for the University, detailed in
the order. The cess, assessed by the order
last
mentioned,
is
a
sum
of
Rs.1,36,37,000/- only, determined on a total
cost of construction in the sum of
Rs.147.20 crores. The impugned order
directs the University to deposit the amount
of cess levied within 15 days of service
thereof. The order of assessment dated
28.09.2018 is hereinafter referred to as ''the
impugned order'.

2. Also under challenge is a show
cause notice dated 04.01.2019, issued by
the Cess Assessment Officer, Rampur (for
short, ''the Assessment Officer'), directing
the University to show cause why for the
delay in compliance with the impugned
order beyond time indicated to deposit the
cess, proceedings to charge interest @ 2%
per month of the cess assessed and the
imposition of penalty equivalent to the
amount of cess, under Sections 8 and 9 of
the Cess Act, be not initiated.
966 INDIAN LAW REPORTS ALLAHABAD SERIES

3.

The
University
have
then
questioned a recovery certificate issued by
the Assessment Officer dated 15.01.2019,
addressed to the Collector, Rampur, under
Section 10 of the Cess Act, read with Rule
13 of the Building and Other Construction
Workers' Welfare Cess Rules, 1998 (for
short, ''the Cess Rules'), requiring the
Collector to recover, as arrears of land
revenue,
the
sum
of
assessed
cess
Rs.1,36,37,000/- and penalty, twice the sum
of the cess levied, together with interest @
2% per month on the sum of cess levied
and the penalty imposed.

4. Apart from these orders, a recovery
citation dated 20.05.2019, issued by the
Tehsildar, Sadar, District Rampur, and an
attachment memo issued in RC Form 41 by
the Deputy Collector, Sadar, Rampur dated
22.01.2020, attaching the Administrative
Block of the Mohammad Ali Jauhar
University (for short, ''the University'),
have also been impugned.

5. It must be placed on record here
that quite apart from challenge to the
assessment of cess under the Cess Act and
other levies, the University have challenged
an order of the Government of India dated
August, 2019, declining the University's
request to grant an exemption from the
provisions of the Cess Act, invoking
powers under Section 6 thereof.

6. Upon the matter being pointed out
to the learned Senior Counsel appearing for
the University that the two reliefs relate to
two different causes of action, so much so
that the petition may become multifarious,
the learned Senior Counsel for the
Univesity has elected not to press the relief
seeking
quashing
of
the
Central
Government Order refusing exemption,
with liberty to bring a separate petition for
the purpose. The University were permitted
to not press relief Clause (iii) vide order
dated 14.12.2020 passed by this Court, with
liberty to bring a fresh petition on the cause
of action involved there.

7. Mr. Sanjay Kumar Om, learned
Advocate had appeared on behalf of the
Union of India and this order was made in
his presence. There is also another
development, that has taken place pendente
lite. One of the orders under challenge, that
is to say, the order of attachment of the
Administrative Block of the University
dated
22.01.2020,
has
come
to
be
withdrawn
on
the
Vice
Chancellor's
request, vide order dated 29.01.2020 passed
by the Tehsildar, Sadar, and instead, some
buildings under construction flanked to the
right, and left of the Science Faculty, have
been attached. This fact has figured in a
short counter affidavit filed on 14.12.2020
by the Assessment Officer, allusion to
which in some detail, would be made later
in this judgment. However, the result of this
development
is
that
the
University's
grievance about their functioning being
hindered by attachment of the command
office, no longer survives. The challenge,
therefore, to the impugned attachment
order dated 22.01.2020 also goes.

8. It must also be recorded that when
this petition came up for admission on
10.12.2020, Mr. Manish Goyal, learned
Additional Advocate General raised a
preliminary objection that this petition is
barred, in view of the alternative remedy of
appeal available to the University, under
Section 11 of the Cess Act. Mr. S.G.
Hasnain, learned Senior Advocate assisted
by Mr. Syed Mohd. Fazal, learned Counsel
for the University, urged that the bar of
alternative
remedy
would not
apply,
because the impugned order was made in
2 All. Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr. Vs. State of U.P. & Ors.
967
gross violation of the principles of natural
justice. Mr. Goyal, during the course of
submissions, in support of his preliminary
objection, wanted to refer to certain
material
to
indicate
that
adequate
opportunity was afforded at all stages of the
assessment
proceedings.
The
Court,
therefore, granted liberty to the learned
Additional Advocate General to file a short
counter
affidavit.
Mr.
Goyal
has,
accordingly, come up with a short counter
affidavit on behalf of respondent nos.2, 3
and 4, sworn by the Assessment Officer.
This Court has, accordingly, proceeded to
hear parties on the preliminary objection
about the maintainability of this writ
petition, given the pleaded bar of an
alternative remedy.

9. Heard Mr. Manish Goyal, learned
Additional Advocate General, assisted by
Mr. A.K. Goyal, learned Additional Chief
Standing Counsel in support of his
preliminary
objection
on
behalf
of
respondent nos.2, 3 and 4 and Mr. S.G.
Hasnain, learned Senior Advocate assisted
by Mr. Syed Mohd. Fazal, learned Counsel
for the University, in opposition to that
objection, at considerable length.

10. Mr. Manish Goyal, learned
Additional
Advocate
General,
has
submitted that there has been no violation
of the principles of natural justice, so as to
exclude the requirement of resort to the
statutory
alternative
remedy.
He
has
pointed out that the course of proceedings
show that the University were afforded
adequate opportunity of hearing at all
stages. In support of the fact that
opportunity was indeed afforded to the
University, the learned Additional Advocate
General has drawn the Court's attention to
the short counter affidavit. He has referred
to a copy of the notice dated 23rd January,
2015 issued by the Building and Other
Construction Workers' Welfare Board to the
University, requiring them to furnish
information regarding the sixteen buildings
and boundary walls already constructed,
and
twenty-two
buildings
under
construction, costing an estimated worth of
Rs.2000/- crores, in the proforma set out at
the foot of the notice. The notice clearly
indicates that the information is to be
furnished for the purpose of assessment
under the Cess Act within 15 days of
service of that notice, and that in case the
requisite information is not supplied, it
would be presumed that the estimated cost
of the construction is correct.

11. It is pointed out that the
University did not submit a reply to the
notice within the required time. In those
circumstances, the Assessment Officer, in
order to provide further opportunity to the
University, issued a show cause notice to
them (addressed to the Vice Chancellor of
the University) dated 21.08.2017. It is
pointed
out
further
by
the
learned
Additional Advocate General that the show
cause notice indicates that the University
did not furnish any information to the
Assessment Officer, in accordance with
Section 4 of the Cess Act, read with Rule 6
of the Cess Rules in Form-1, nor any sum
of money towards cess was deposited. The
notice further indicates that the value of the
construction undertaken by the University
was assessed by the Cess Coordinator and
Consultant
Bhawan
Nirman
Board,
Lucknow, who found the estimated cost to
be about Rs.2000 crores. It was on that
basis that a sum of Rs.20 crores @ 1% of
the estimated cost of the construction was
required to be deposited by the Building
and other Construction Workers' Welfare
Board vide notice dated 23.01.2015. The
notice, thereupon, required the University
968 INDIAN LAW REPORTS ALLAHABAD SERIES
to deposit a sum equivalent to 1% of the
total cost of construction, so far undertaken
by the University, towards cess, within a
week, and further, to provide documents,
listed at the foot of the show cause notice
dated 21.08.2017. The show cause notice
also said that in case of non-deposit of cess,
proceedings under Sections 8, 9 and 10 of
the Cess Act would be undertaken.

12. It is asserted in paragraph no.7 of
the short counter affidavit, as pointed out
by
the
learned
Additional
Advocate
General, that this show cause notice was
duly served upon the University, but
remained uncomplied with. He has then
invited the Court's attention to the fact that
vide letter dated 09.11.2017, a copy of
which is annexed as Annexure no. SCA-3
to the short courter affidavit, the University
submitted a reply to the show cause notice
dated 21.08.2017, and acknowledged the
fact that they have raised construction on
the campus, between the years 2010 to
2017. The letter also indicates that the
University sought exemption from levy of
cess.

13. It is next pointed out that though
the
Assessment
Officer
directed
the
University to deposit the cess by means of
his memo dated 16.11.2017, addressed to
the Registrar of the University, he also
recommended to the Deputy Labour
Commissioner,
Moradabad
Division,
Moradabad by his memo dated 16.11.2017,
that a team be constituted by the Board or a
competent Authority for the purpose of
valuing the University's constructions, so
that the actual cost of construction could be
ascertained. It is pointed out further that the
Deputy Labour Commissioner, in turn,
addressed a memo dated 18.11.2017 to the
District Magistrate, Rampur, requesting the
latter to ensure valuation of construction
erected by the University, by the Engineers
of the Public Works Department or the
Rampur
Development
Authority.
Ultimately, the Collector constituted a twomember team, including the Executive
Engineer of the PWD, Rampur to undertake
a valuation of the construction made after
February,
2009
vide
order
dated
22.12.2017.

14. It is pointed out further that the
said order authorized the members of the
team to demand necessary documents from
the University Administration that may be
required for doing a proper valuation,
alongside the inspection undertaken. The
learned Additional Advocate General has
drawn the Court's attention to the Executive
Engineer's letter dated 29.12.2017, and a
reminder dated 18.01.2018, demanding
copies of the drawings, designs, valuation
reports and other construction related
documents from the University. Copies of
those
letters
dated
29.12.2017
and
18.01.2018 are annexed as Annexure no.
SCA-7 to the short counter affidavit. It is
pointed out further that the University did
not furnish the required documents. The
Assistant Labour Commissioner, once
again, directed the University, by a memo
dated 08.02.2018, to cooperate and provide
the necessary documents to this valuation
team, constituted by the District Magistrate.

15. Mr. Goyal emphasizes at this
juncture that acting on the aforesaid letter
and also the letter dated 29.12.2017 issued
by the Executive Engineer, PWD, Rampur,
the Administrative Officer/ PRO of the
University addressed a memo to the
Executive
Engineer,
PWD,
Rampur,
informing
him
that
all
documents
demanded were with the Engineer, Incharge of the Construction of Buildings and
Maintenance. The
Engineer
was
not
2 All. Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr. Vs. State of U.P. & Ors.
969
available. Therefore, it was not possible to
provide
drawings,
designs
and other
documents relating to the constructions to
the members of the valuation team.

16. The attention of the Court has
been drawn by the learned Additional
Advocate General to a copy of the letter
dated
08.02.2018,
addressed
by
the
Administrative Officer of the University to
the Executive Engineer, PWD, Rampur,
which is on record as Annexure no. SCA-9
to the short counter affidavit. It is pointed
out that two letters dated 12.02.2018 and
16.03.2018 were again issued by the
Executive Engineer, PWD, Rampur, for
doing
a
proper
valuation
of
the
constructions made and the cost incurred
by the University. Copies of those letters
are also on record. But, no documents or
information were furnished.

17. Mr. Goyal says that when no
documents relating to the construction costs
were provided by the University, the
Executive Engineer, by a letter dated
03.07.2018, drafted the services of the
Assistant and Junior Engineers of the
Tubewell Division Rampur, Jal Nigam
Rampur, Rural Engineering Department,
Rampur and the Construction & Designs
Services (C&DS), Unit 54, Rampur, for the
purpose of undertaking a valuation of the
construction
costs
incurred
by
the
University. The Registrar of the University
was also informed by the Executive
Engineer through a letter dated 02.07.2018
about these twenty five Technical Officers
and the Officers of the Labour Department,
planning to undertake a survey of their
premises for the purpose of valuing
construction
costs
incurred
by
the
University. A copy of the letter dated
02.07.2018 addressed by the Executive
Engineer, PWD, Rampur to the Registrar of
the University, is on record as Annexure no.
SCA-12, through which the Court has been
taken.

18. The Executive Engineer, PWD,
Rampur submitted his valuation report
dated 07.09.2018, estimating the total
construction cost at Rs.147.20 crores, and
the labour cess at a figure of Rs.147.20
lakhs. The report indicates that according to
the report of the C&DS Department and Jal
Nigam, an amount of Rs.10.83 lakhs had
already been deposited as cess by those
Departments, because some part of the
construction
were
undertaken
through
them. The outstanding liability towards
cess, according to the valuation report, was
calculated at a figure of Rs.136.37 lakhs. It
is next indicated that upon receipt of the
aforesaid
valuation
report
dated
07.09.2018,
the
Assessment
Officer
proceeded to pass an assessment order
dated 28.09.2018, assessing a total cess of
Rs.136.37 lakhs, adjusting Rs.10.83 lakhs
deposited by the C&DS Department and
the Jal Nigam. The assessment order
records that the University have not
complied with the mandatory provisions of
Section 4 of the Cess Act and Rule 6 of the
Cess Rules. The University have been
directed to deposit the assessed sum of cess
within 15 days by means of the impugned
assessment order dated 28.09.2018.

19. It is then pointed out that the short
counter affidavit indicates that the assessed
cess was not deposited, leading to issue of
notice dated 26.12.2018, requiring the
University to show cause why interest
under Section 8 and penalty under Section
9 be not imposed on the delay and nonpayment of cess within time specified. The
show cause notice dated 26.12.2018
remaining unresponded to, a recovery
certificate dated 15.01.2019 has been
970 INDIAN LAW REPORTS ALLAHABAD SERIES
issued by the Assessment Officer to the
Collector,
Rampur,
requiring
him
to
recover the assessed amount of cess
together with interest, under Section 8 on
the delayed payment and penalty under
Section 9 (equivalent to 100% of the cess).

20. The learned Additional Advocate
General submits that the aforesaid course
of proceedings under the Cess Act would
show that the Assessment Officer has
granted adequate opportunity at every stage
of proceedings, leading to the impugned
assessment order. He, therefore, submits
that it is not a case which can be held to be
one of denial of opportunity. It is not a case
where principles of natural justice can be
said to be violated. Therefore, it is urged on
facts evidenced from all the various steps
taken during proceedings, that this case
cannot be classed as one where the clear
statutory alternative remedy of appeal
provided by the statute may be bypassed.

21. Mr. S.G. Hasnain, learned Senior
Advocate has, on facts, submitted that
violation of the principles of natural justice,
on account of denial of opportunity, is
evident in the course of proceedings. He
has drawn the attention of the Court to the
fact that after the Committee appointed by
the District Magistrate, on the request of
the Assessment Officer, submitted their
valuation report dated 07.09.2018, a copy
of the same was never supplied to the
University.
Instead,
the
impugned
assessment
order
was
passed
on
28.09.2018, without the Assessment Officer
having
before
him
the
University's
objections to the valuation report. It is,
thus, urged that the impugned assessment
order has been passed without opportunity
of hearing being afforded to the University.
It is, in particular, urged that the impugned
assessment order is not based on a return
furnished under Section 4(1) of the Cess
Act read with Rule 6(1) of the Cess Rules.
He points out that where the Assessment
Officer proceeds on the basis of a return
submitted in Form-1, appended to the Cess
Rules, no opportunity would, of course, be
required. But, that, according to Mr.
Hasnain, would be a case where assessment
is made under Section 5(1) of the Cess Act
read with sub-Rule (1) of Rule 7 of the
Cess Rules. However, in a case where the
Assessment Officer proceeds to assess
under Section 5(2) read with sub Rules (5)
and/ or (6) of Rule 7, the inquiry report or
other material, that is basis of the estimated
cost of construction, has to be provided to
the assessee. Else, Mr. Hasnain submits, it
would be a case of consideration of adverse
material behind the assessee's back and, a
fortiori a violation of the first principle of
natural justice.

22. In support of his contention that
an order passed in violation of the
principles of natural justice can be undone
by this Court, under Article 226 of the
Constitution,
without
relegating
the
assessee to his statutory alternative remedy,
the learned Senior Counsel for the
University places reliance on the decision
of the Supreme Court in Whirlpool
Corporation vs. Registrar of Trade
Marks, Mumbai and others1. He has,
particularly, emphasized the holding of
their Lordships in Whirlpool Corporation
in paragraphs 14 and 15 of the report.
These read:

"14.
The
power
to
issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing writs
in the nature of habeas corpus, mandamus,
2 All. Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr. Vs. State of U.P. & Ors.
971
prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental
Rights contained in Part III of the
Constitution but also for "any other
purpose".

15. Under Article 226 of the
Constitution, the High Court, having regard
to the facts of the case, has a discretion to
entertain or not to entertain a writ petition.
But the High Court has imposed upon itself
certain restrictions one of which is that if an
effective and efficacious remedy is available,
the High Court would not normally exercise
its jurisdiction. But the alternative remedy has
been consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement of
any of the Fundamental Rights or where there
has been a violation of the principle of natural
justice or where the order or proceedings are
wholly without jurisdiction or the vires of an
Act is challenged. There is a plethora of caselaw on this point but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the field."

23. He has next placed reliance on a
decision of the Supreme Court in ABL
International Ltd. and another vs. Export
Credit Guarantee Corporation of India
Ltd. and others2. Learned Senior Counsel
has emphasized that the said decision would
clearly show that the principle of alternative
remedy is not an absolute bar, and can be
ignored in appropriate cases. Learned Senior
Counsel has drawn the Court's attention to the
observations of their Lordships in ABL
International Ltd., where it is held:

"16. A perusal of this judgment
though shows that a writ petition involving
serious disputed questions of facts which
requires consideration of evidence which is
not on record, will not normally be
entertained by a court in the exercise of its
jurisdiction under Article 226 of the
Constitution of India. This decision again,
in our opinion, does not lay down an
absolute rule that in all cases involving
disputed questions of fact the parties should
be relegated to a civil suit. In this view of
ours, we are supported by a judgment of
this Court in the case of Gunwant Kaur v.
Municipal Committee, Bhatinda [(1969) 3
SCC 769] where dealing with such a
situation of disputed questions of fact in a
writ petition this Court held: (SCC p. 774,
paras 14-16)

"14. The High Court observed
that they will not determine disputed
question of fact in a writ petition. But what
facts were in dispute and what were
admitted could only be determined after an
affidavit-in-reply was filed by the State.
The High Court, however, proceeded to
dismiss the petition in limine. The High
Court is not deprived of its jurisdiction to
entertain a petition under Article 226
merely
because
in
considering
the
petitioner's right to relief questions of fact
may fall to be determined. In a petition
under Article 226 the High Court has
jurisdiction to try issues both of fact and
law. Exercise of the jurisdiction is, it is
true, discretionary, but the discretion must
be exercised on sound judicial principles.
When the petition raises questions of fact
of a complex nature, which may for their
determination require oral evidence to be
taken, and on that account the High Court
is of the view that the dispute may not
appropriately be tried in a writ petition, the
High Court may decline to try a petition.
Rejection of a petition in limine will
normally be justified, where the High Court
is of the view that the petition is frivolous
or because of the nature of the claim made
dispute sought to be agitated, or that the
972 INDIAN LAW REPORTS ALLAHABAD SERIES
petition against the party against whom
relief is claimed is not maintainable or that
the dispute raised thereby is such that it
would be inappropriate to try it in the writ
jurisdiction, or for analogous reasons.

15. From the averments made in
the petition filed by the appellants it is clear
that in proof of a large number of
allegations the appellants relied upon
documentary evidence and the only matter
in respect of which conflict of facts may
possibly arise related to the due publication
of the notification under Section 4 by the
Collector.

16. In the present case, in our
judgment, the High Court was not justified
in dismissing the petition on the ground
that it will not determine disputed question
of fact. The High Court has jurisdiction to
determine questions of fact, even if they are
in dispute and the present, in our judgment,
is a case in which in the interests of both
the parties the High Court should have
entertained the petition and called for an
affidavit-in-reply from the respondents, and
should have proceeded to try the petition
instead of relegating the appellants to a
separate suit."

19. Therefore, it is clear from the
above enunciation of law that merely
because one of the parties to the litigation
raises a dispute in regard to the facts of the
case, the court entertaining such petition
under Article 226 of the Constitution is not
always bound to relegate the parties to a
suit. In the above case of Gunwant Kaur
[(1969) 3 SCC 769] this Court even went to
the extent of holding that in a writ petition,
if the facts require, even oral evidence can
be taken. This clearly shows that in an
appropriate case, the writ court has the
jurisdiction to entertain a writ petition
involving disputed questions of fact and
there is no absolute bar for entertaining a
writ petition even if the same arises out of a
contractual obligation and/or involves some
disputed questions of fact.

28. However, while entertaining
an objection as to the maintainability of a
writ petition under Article 226 of the
Constitution of India, the court should bear
in mind the fact that the power to issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provisions of the
Constitution. The High Court having regard
to the facts of the case, has a discretion to
entertain or not to entertain a writ petition.
The Court has imposed upon itself certain
restrictions in the exercise of this power.
(See Whirlpool Corpn. v. Registrar of Trade
Marks [(1998) 8 SCC 1].) And this plenary
right of the High Court to issue a
prerogative writ will not normally be
exercised by the Court to the exclusion of
other available remedies unless such action
of the State or its instrumentality is
arbitrary and unreasonable so as to violate
the constitutional mandate of Article 14 or
for other valid and legitimate reasons, for
which the Court thinks it necessary to
exercise the said jurisdiction."

24. In the next limb of his
submissions, Mr. Hasnain says that in case
of fiscal statutes, there is ample authority to
show that in the event of an exorbitant
demand
based
on
an
arbitrary
determination, a writ petition under Article
226 of the Constitution may be an
assessee's permissible resort, despite the
alternative remedy provided under the law.
In this connection, the learned Senior
Counsel has placed reliance on the decision
of the Supreme Court in Government of
Andhra Pradesh and others vs. P. Laxmi
Devi (Smt.)3. In the said decision, on the
point made by the learned Senior Counsel
for the University, the observations, that are
emphasized, read:
2 All. Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr. Vs. State of U.P. & Ors.
973

"29. In our opinion in this
situation it is always open to a party to file
a writ petition challenging the exorbitant
demand made by the registering officer
under the proviso to Section 47-A alleging
that the determination made is arbitrary
and/or based on extraneous considerations,
and in that case it is always open to the
High Court, if it is satisfied that the
allegation is correct, to set aside such
exorbitant demand under the proviso to
Section 47-A of the Stamp Act by declaring
the demand arbitrary. It is well settled that
arbitrariness violates Article 14 of the
Constitution vide Maneka Gandhi v. Union
of India [(1978) 1 SCC 248: AIR 1978 SC
597]. Hence, the party is not remediless in
this situation."

25. Learned Senior Counsel for the
University has next called in aid the
decision of the Supreme Court in Smt. Har
Devi Asnani vs. State of Rajasthan and
Ors.4. In the said decision, following the
earlier decision in Government of Andhra
Pradesh and others vs. Smt. P. Laxmi
Devi (supra), it has been held:

"28. In our view, therefore, the
learned Single Judge should have examined
the facts of the present case to find out
whether the determination of the value of
the property purchased by the appellant and
the demand of additional stamp duty made
from the appellant by the Additional
Collector were exorbitant so as to call for
interference under Article 226 of the
Constitution."

26. Mr. Hasnain submits that on both
counts, that he has claimed to be relevant to
his obligation to avail the alternative
remedy of appeal, the decision of a
Division Bench of this Court in Smt.
Vijaya Jain vs. State of U.P. and others5
succinctly lays down the law in the
following words:

"10. The law as authoritatively
laid down by the Supreme Court in the
aforementioned two judgments clearly
establishes that a petitioner before the High
Court is not liable to be relegated to the
alternative remedy as a matter of rule. If in
the facts of a particular case it is
established that the principles of natural
justice have been violated or that the order
has been rendered without jurisdiction or if
it is disclosed to the Court that grave
injustice has been caused to the petitioner
and it is found that his relegation to the
alternative
remedy
would
perpetuate
injustice and cause prejudice, it is always
open to this Court to exercise its
prerogative constitutional powers and to
issue an appropriate writ striking at the
offending action. This principle stands
extended in light of the abovementioned
precedents to a case where the petitioner is
foisted with an exorbitant and arbitrary
demand in which case his relegation to the
alternative remedy would not be justified."

27. On the factual premise for the
second limb of his submission, Mr. Hasnain
submits that the impugned assessment is
one that is arbitrary and raises an exorbitant
demand. In order to demonstrate the
arbitrariness of the assessment and the
resultant exorbitant demand, the learned
Senior Counsel has drawn the attention of
the Court towards the impugned assessment
order, where he points out that under the
item detailed at serial no.5 in the tabulated
chart, the cost of construction of a One
BHK Teachers' Residential Unit, located in
the Residential Block-1, has been estimated
at a figure of Rupees 0.95 crores. Likewise,
the estimated cost of construction for a One
BHK Teachers' Residential Unit, located in
974 INDIAN LAW REPORTS ALLAHABAD SERIES
Residential Block-2, is a figure of Rupees
2.60 crores. Again, a One BHK Residential
Unit in another Residential Block has been
estimated to bear a construction cost of
Rupees 3.68 crores. A Two BHK Unit in
the Non-Teaching Residential Block has
been estimated to bear a construction cost
of Rupees 0.39 crores. A Two BHK
Residential Unit in the Non-Teaching
Residential Block-2 has been estimated for
a construction cost of Rupees 3.54 crores.
The last to be pointed out is a Two BHK
Residential
Unit
in
the
Teachers'
Residential Block, where the estimated cost
is a figure of Rupees 2.72 crores.

28. The Learned Senior Counsel
submits that these figures about the
assessment costs are ex facie arbitrary,
unreasonable and highly exorbitant. He
submits that in case a show cause notice
had been served upon the University, after
receipt
of
the
inquiry
report
dated
07.02.2018, they would have objected to
this
grossly
exaggerated/
exorbitant
estimation of cost, based on utterly
hypothetical standards. He emphasizes that
the cess levied on this count, upon a
fantastic estimation of cost, is arbitrary and
exorbitant. The learned Senior Counsel,
therefore, says that it is a case where
relying on the principle in Andhra
Pradesh and others vs. Smt. P. Laxmi
Devi (supra), Smt. Har Devi Asnani
(supra) and Smt. Vijaya Jain (supra), this
Court
should
have
no
difficulty
in
overruling the plea of alternative remedy
raised on behalf of the respondents.

29. In his rejoinder, Mr. Manish
Goyal,
learned
Additional
Advocate
General, supports his plea about an equally
efficacious alternative remedy being there,
that ought to dissuade this Court in
entertaining the present writ petition. Mr.
Goyal submits that the Cess Act has been
enacted to provide for the levy and
collection of a cess on the cost of
construction incurred by the employer, with
a view to augment the resources of the
Building and Other Construction Workers'
Welfare Board. It must be remarked here
that this reference to the object of the Cess
Act by Mr. Goyal, virtually quotes the
words of the Preamble. He emphasizes that
Section 4 of the Cess Act requires every
employer to furnish a return to the
Authority specified under the Cess Rules,
in such manner and within time as
prescribed in those Rules. It is emphasized
that sub-Section (2) of Section 4 provides
that where a person carrying on a building
construction or other construction work,
who is liable to pay cess under Section 3,
fails to furnish a return in accordance with
sub-Section (1) of Section 4, the Officer or
the Authority is enjoined to serve a notice
upon that person, to furnish a return before
such date, as may be indicated in the
notice. Mr. Goyal points out that Section 3
of the Cess Act is the charging Section. It
empowers the Assessment Officer under
Section 5(1), before whom a return in
accordance with Section 4 has been
furnished, to assess the amount of cess, that
is payable by the employer. In doing so, the
Assessment Officer is empowered to make
an inquiry, or causing it to be made in such
manner as he may deem fit, for the purpose
of satisfying himself that the particulars,
detailed in the return, are correct.

30. It is next pointed out on behalf of
the State that sub-Section (2) of Section 5
of the Cess Act prescribes that if the return
is not furnished, the Assessment Officer is
empowered to undertake an inquiry, as he
may think fit, and by order, assess the
amount of cess payable by the employer.
He further points out that Rule 6 of the
2 All. Maulana Mohammad Ali Jauhar Trust, Lko. U.P. & Anr. Vs. State of U.P. & Ors.
975
Cess Rules requires an employer, within 30
days of the commencement of construction
work or payment of cess, as the case may
be, to furnish to the Assessment Officer,
information in Form-I appended to the Cess
Rules. He points out that Section 5(2) of
the Cess Act read with sub-Rule (5) of Rule
5 of the Cess Rules empowers the
Assessment Officer to make an assessment
on the basis of available records and other
information incidental thereto, in the event
an employer does not furnish a return or
information in Form-I. It is argued by the
learned Additional Advocate General that
the record makes it apparent that the
University neither fulfilled its obligations
to file a return in accordance with Section
5(1) or furnished information, despite
notices and letters sent to it.