Judgement

WANCHOO, CJI. :- The petitioner is a Public Limited Company manufacturing bars, rods and agricultural implements out of scrap iron and steel and consumes energy of High Tension Supply for the purpose. Its case is that it is governed by the Industries (Development and Regulation) Act, No. 65 of 1951, (hereinafter referred to as the Central Act), even though it did not require a licence under Section 11 thereof in view of the notification issued by the Central Government under Section 29-B by which industrial undertakings having fixed assets not exceeding rupees ten lakhs were not required to obtain a licence thereunder irrespective of the number of persons employed in such undertakings. The petitioner commenced functioning from February, 1963. The Madras Legislature passed the Madras Electricity (Taxation on Consumption) Act No. IV of 1962, (hereinafter referred to as the Madras Act) by which tax was imposed on the consumption of energy both of high tension and low tension electricity for various purposes at varying rates. Section 12 of the Madras Act however provided that where energy under High Tension Supply is consumed in the process of manufacturing or producing the principal product in any industrial undertaking licensed under the Central Act, no electricity tax shall be payable on the energy so consumed for a period of three years from the date of the commencement of the manufacture or production of the principal product in such undertaking.

2. The petitioner requested the Government of Madras for exemption from tax on the ground that even though it was not licensed under Section 11 of the Central Act, it was governed by that Act. The Madras Government rejected its prayer on the ground that no exemption could be granted to undertakings which were not licensed under the Central Act as provided in Section 12 of the Madras Act. Thereupon the petitioner filed a writ petition in the High Court of Madras attacking Sec. 12 of the Madras Act under Article 14 of the Constitution and claiming that it should also have been granted exemption. The petition was dismissed by a learned Single Judge of the High Court without issue of notice by a short order to the effect that the petitioner was not entitled to the benefit of Section 12 of the Madras Act and the validity of the section could not be attacked as the exemption provided was based on sound principles.

3. The petitioner then went in Letters Patent Appeal and the appeal was heard by a Division Bench of the High Court. The Division Bench held that the exemption was a concession and could not be claimed as a matter of right and that as Section 12 did not provide for exemption in favour of undertakings like the petitioner s it could not claim exemption. The Division Bench also rejected the argument that Article 14 was applicable in this case. In consequence, the appeal was dismissed.

4. The present petition was filed by the petitioner soon after the appeal had been dismissed by the High Court and its contention before us is that it should have been given the exemption under Section 12 of the Madras Act in view of Article 14 of the Constitution. The petitioner however did not file any appeal from the order of the Division Bench of the High Court. The petition has been opposed on behalf of the State of Madras and a preliminary objection has been taken that as the petitioner did not file an appeal from the order of the Division Bench, it is not open to it to file this petition in view of the decision of this Court in Daryao v. State of U. P., (1962) 1 SCR 574. It is further contended that Section 12 of the Madras Act is not hit by Article 14.

5. We are of opinion that the preliminary objection must prevail. It is urged on behalf of the petitioner that the decision in the case of Daryao, (1962) l SCR 574 shows that it was only when notice had been issued on a writ petition and it is decided on contest that the principle of res judicata would apply and a petitioner losing on such