Honble Sudhir Agarwal, J.—In all these writ petitions, the common question involved is whether the petitioners-Banks are liable to pay trade tax under U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act) for renting Lockers to their customers. The incidental question is whether Lockers are "goods" and right to use Locker can be said to be "transfer of right to use any goods" attracting liability of tax under the Act.

2. In some of these cases, assessment orders have been passed, and in some cases, notices for assessment have been issued. Since, the principal question involved in all these writ petitions is common, therefore, as requested and agreed by learned Counsel for parties, all these writ petitions have been heard together at this stage under the Rules of the Court and are being decided finally by this common judgment.

3. The writ petition No. 840 of 2005, for the purpose of referring to the documents and pleadings is taken as the leading case.

4. The petitioner, M/s. Oriental Bank of Commerce after execution of agreements with its customers, provide facility of using Lockers installed in the Bank on rent to the said customers. It is not disputed that Lockers are installed inside the strong room of the bank, permanently attached to the earth and inseverable by the customers. It is said that the relationship of the Bank and the customers is that of landlord and tenant and not that of bailor and bailee. The Lockers can be operated with two keys, one key remains in possession of the customer and another in the possession of the bank and can be operated when both the keys are simultaneously inserted in the key hole of the Locker. Entry in strong room for operating Locker is restricted as per the rules of the Bank. A letter was issued on 11.2.2005 by respondent No. 2 requiring the petitioner to furnish details of the operation of Lockers and rental accrued during the assessment years 1998-99 to 2004-05. The Assistant Commissioner, Trade Tax, Meerut, however, issued a notice dated 21.2.2005 to the petitioner for assessment year 2002-03 to show cause as to why trade tax be not charged on rental accrued to the Bank on the Lockers allotted to different persons as it amounts to "sale" under the extended definition of "sale" being "transfer of right to use the goods". Similar notices were issued on 17.3.2005 under Section 21(2) for the assessment year 1998-99. The petitioner submitted reply dated 19.3.2005 stating that neither the petitioner is a "dealer" nor the Lockers can be said to be "goods" nor facility of use of Locker can be said to be "transfer of right to use goods" and, therefore, the petitioner is not liable to pay any trade tax. Details of operation of Locker etc. were also mentioned therein. However, respondent No. 2 passed an assessment order dated 22.3.2005 for the assessment year 2002-03 holding that the petitioner is liable to pay tax as the right to use Locker by customer on rent amounts to "transfer of right to use goods" and, therefore, is taxable under Section 3-F of the Act. Similar assessment orders or notice proposing assessment have been issued in other cases. Aggrieved, the petitioners have filed these writ petitions challenging the proceedings.

5. All the petitioners are banks providing facility of use of Locker to their customers on rent and basic facts are common.

6. The respondents have filed counter-affidavit raising a preliminary objection that against the assessment order, the petitioners have an alternative remedy of filing Appeal under Section 9 of the Act and, thereafter, Second Appeal under Section 10(2), therefore, the writ petitions are liable to be dismissed on the ground of alternative remedy. On merits, it is said that the Bank is a dealer in view of the decision of Apex Court in State of U.P. and another v. Union of India and another, 2003(22) NTN 175, renting out Lockers to their customers is taxable under Section 3-F of the Act and, therefore, the assessments made or pr