S.P. Khare, J.

This is a petition under Article 226 of the Constitution of India challenging the demand notice dated 25-7-1996 (Annexure A-1) and the recovery certificate dated 27-6-1998 (Annexure A-2) for payment of Rs. 73,70,003/- as terminal tax.

The petitioner is a Government Company. It is extracting coal from the Pathkhera coal mines and selling it. It is within the municipal limits of respondent No. 2 Municipal Council Sarani. Terminal tax has been imposed by this Municipality u/s 127(l)(xvi) of the M.P. Municipalities Act, 1961 (hereinafter to be referred to as the Act) on the export of goods from its limits after its proposal was sanctioned by the State Government as per notification published in the Official Gazette on 26-4-1991. Item No. 6 of the Schedule of the articles is "Coal" and the rate of tax on this is 2% of its value. The respondent No. 2 by the impugned notice is demanding terminal tax for the period 16-9-1991 to 16-9-1995.

The petitioner's case is that terminal tax cannot be levied on the export of coal from the municipal limits. Further, the petitioner is selling the coal at the pit-head of the colliery and it is the purchasers of coal who are exporting it from the municipal limits. Therefore, the terminal tax can be recovered from the purchasers.

The case of respondent No. 2 is that the petitioner had challenged the demand of the terminal tax by filing M.P. No. 3514 of 1991 and that was dismissed by order dated 12-9-1995. The stay order passed earlier stood vacated with the dismissal of the writ petition. The SLP was also dismissed by the Supreme Court. The petitioner has paid Rs. 34,377/- as terminal tax on import of timber and the amount of Rs. 73,45,623/- is yet to be recovered as terminal tax on export of coal for the period the stay was in operation.

The only point which has been raised by the learned counsel for the petitioner during the course of arguments is that the terminal tax cannot be levied on the export of coal and the reliance has been placed on the decisions of the Supreme Court in India Cement Ltd. and Others Vs. State Of Tamil Nadu and Others, and Orissa Cement Ltd. vs. State of Orissa, AIR 1961 SC 1676. These two cases dealt with cess or tax levied by the State on royalty a payment for user of land. The cess on royalty could not be legally justified under entries 23, 49 or 50 of List II of Schedule VII of the Constitution in view of the overriding provisions of entries 52 and 54 of the List I read with the provisions of the Mines and Minerals (Regulation and Development) Act, 1957. Royalty is payable on the extraction from the land. These two cases do not deal with the imposition of terminal tax. The State legislature has power to impose this tax under Entry 56 of List II of the VII Schedule of the Constitution. The State has passed it on to the Municipality which is authorised to impose it u/s 127 of the Act. The Constitutional validity of the terminal tax has been upheld by the Division Benches of this Court in Monji Kalyanji and Others Vs. State of Madhya Pradesh, and recently in Smt. Meera Khandelwal Vs. State of Madhya Pradesh and Others, . Therefore, the contention of the petitioner that the terminal tax cannot be imposed on the export of coal from the municipal limits has no legal foundation. It was not raised in M.P. No. 3514 of 1991 filed by the petitioner. A copy of order dated 12-9-1995 in that petition is on record. It does not show that this point was raised therein while challenging the imposition of terminal tax on various other grounds. The rule of constructive res judicata is attracted. Even now it is not made clear how the coal is untouchable for the purpose of imposition of terminal-tax over which the State and the Municipality have full legal competence. It is not a tax or cess on royalty on mineral rights covered by entries 52 or 54 of the union list. Sales tax is levied by the State on coal and that is beyond challenge because of Entry 54 of List II. Therefore,