Judgment

GAJENDRAGADKAR, C.J.I. : The short question which this appeal raises for our decision is whether the principle of constructive res judicata can be invoked against a writ petition filed by the appellant Devilal Modi, who is the Proprietor of M/s. Daluram Pannalal Modi, under Art. 226 of the Constitution. The appellant has been assessed to sales-tax for the year 1957-58 under the Madhya Bharat Sales Tax Act, 1950. He challenged the validity of the said order of assessment by a writ petition filed by him (No.114/1961) in the High Court of Madhya Pradesh on the 25th April, 1961. The High Court dismissed his writ petition and by special leave, the appellant came to this Court in appeal against the said decision of the High Court. On the 8th March, 1963, the appellant s appeal by special leave was dismissed by this Court.

2. Thereafter, the appellant filed the present writ petition in the same High Court on the 23rd April, 1963 (No.129/1963). By this writ petition the appellant challenges the validity of the same order of assessment. The High Court has considered the merits of the additional grounds urged by the appellant on this occasion and has rejected them. In the result, this second writ petition filed by the appellant has been dismissed by the High Court on the 29th April, 1963. It is against this decision that the appellant has come to this Court by special leave; and that raises the question as to whether it is open to the appellant to challenge the validity of the same order of assessment twice by two consecutive writ petitions under Art. 226.

3. It appears that the Madhya Bharat Sales Tax Act, 1950, under which the impugned: order of assessment against the appellant to pay sales-tax for the year 1957-58 has been passed, was repealed by the Madhya Pradesh General Sales Tax Act, 1958 on the 1st April, 1959. It was on the 31st December, 1960 that a notice was issued to the appellant by the Assistant Commissioner of Sales Tax under the 1958 Act. This notice recited that the Assistant Commissioner was satisfied that the appellant s sales during the period from 1st April, 1957 to 31st March, 1958 had escaped assessment and thereby the appellant had rendered himself liable to be reassessed under S. 19(1) of the Act. Pursuant to this notice, fresh assessment proceedings were started against the appellant in respect of the sales in the year 1957-58, and as a result of the said proceedings, an order was passed on the 31st March, 1961, imposing an additional tax on the appellant to the extent of Rs. 31,250 for the year in question and a penalty of Rs. 15,000. It is this order which is the subject-matter of both the writ petitions.

3-A. In his first writ petition, the appellant had substantially raised two contentions. He had urged that though S. 30 of the Act had made provision for the delegation of the duties of the Commissioner, in fact by his order passed by the Commissioner in pursuance of the said authority, he had delegated to the Assistant Commissioner his power under S.19, but not his duties; and the said delegation, therefore, made the proceedings taken by the Assistant Commissioner invalid in law. The other contention raised by the appellant against the validity of the said order was that it was in respect of sales which had been assessed earlier under the Act of 1950 and the same could not be reassessed under the subsequent Act. It is true that the said earlier assessment had been subsequently cancelled by an order made under S. 39(2) of the Act of 19581 but it was argued that the said order of cancellation was itself invalid. Both these contentions were rejected by this Court, with the result that the appeal preferred by the appellant was dismissed with costs.

4. It appears that at the hearing of the appeal before this Court, Mr. Trivedi for the appellant sought to raise two additional points, but he was not permitted to do so on the ground hat they had not been specified in the writ petition filed before the High Cou