S.K. Ray, J.
1. The petitioner is a registered dealer as defined in Orissa Sales Tax Act, 1947 (hereinafter referred to as the Act). He is engaged in business of purchase and sale of various goods including staple yarn both at Cuttack and Jatni in Puri District. He was assessed to sales tax in respect of 12 quarters (quarter ending 30-6-1959 to 31-3-1962) in respect of sale of staple yarn at the rate of 5 p. c. on the basis of entry No. 67 which subsequently became entry No. 68 in the notification No. 33927 dated 30-12-1967 as amended upto the date of assessment and demand notices were served on the petitioner on 25-2-1963. He admitted his liability to pay and paid sales tax at the rate of 2 p. c. but disputed the legality of the additional rate of 3 p. c. which is the subject-matter of the present writ.
2. The aforesaid Government notification providing for imposition of tax at the rate of 5% on sale of staple yarn was challenged as ultra vires of Section 5 (1) of the Act by the petitioner in O. J. Cs. 85 of 1965 and 138 of 1965. O. J, C. No. 85 of 1965 was in respect of the assessments made for the aforesaid 12 quarters in respect of his business at Cuttack and O. J. C. No. 138 of 1965 was in respect of assessments of the self-same quarters in respect of his business at Jatni in Puri district. Both these writ petitions were dismissed in limine on the ground that the petitioner had not exhausted all remedies under the Act.
3. The petitioner appealed to the Supreme Court from the order of the summary dismissal. The Supreme Court set aside the orders of summary dismissal remanded the cases to the High Court for disposal according to law on the ground that the question of ultra vires raised by the petitioner being foreign to the jurisdiction of the sales tax authorities created under the Act could not be decided by them. This remand order was passed on 8-11-1965.
4. While the aforesaid two O. J. Cs. were pending in this Court, after remand from the Supreme Court, Ordinance No. 13 of 1967 was promulgated on 16-11-1967 by which the general rate of tax of 2% provided under Section 5 of the Act was enhanced to 5% with retrospective effect, thereby validating imposition of tax at 5%. This Ordinance was later replaced by Orissa Act 29 of 1967 to the same effect which came into force on 30-12-1967.
5. On 8-3-1968, after Orissa Act 29 of 1967 had come into force, the aforesaid O. J. Cs. Nos. 85 of 1965 and 138 of 1965 were finally heard and disposed of. The orders passed therein are identical in language and one such order is extracted herein below:--
'8-3-1968. Heard Mr. R. Mohanty for the petitioner and Mr. R.N. Misra forthe Department. In view of Ordinance No. 13 of 1967 dated November 16. 1967 the reasonings in the impugned assessment orders are quashed. The demand at the rate of 5 per cent is however maintained.
2. Entry 68 in the Notification dated 30-12-1967 as it offends the provisions of Sub-section (1) of Section 5 of the Sales Tax Act is struck down.
3. Mr. Mohanty states that he reserves the right to challenge the vires of the Ordinance itself. This writ petition is disposed of accordingly. Parties to bear their own costs throughout.'
6. The present writ petition has been filed challenging the very same assessments for the aforesaid 12 quarters which were upheld by this Court in the aforesaid two O. J. Cs.
7. The petitioner has raised two points:--
(a) Section 2 of the Orissa Act 29 of 1967 is ultra vires; and
(b) The rate of tax on staple yarn at 5 p. c. cannot be legally justified.
8. The counsel for the opposite parties has raised a preliminary objection that the present writ petition is not maintainable being hit by the principles of res judicata. It is clear that if this preliminary objection is upheld then there would be no need to so into the merits of the contentions of the petitioner. It is, therefore, appropriate to go into the question of res judicata in this first instance.
The identical assessments which are challenged have been challenged in the two previous applications. The previous order of the High Court extracted above shows that the counsel for the petitioner had full opportunity to canvass the points now raised and he merely reserved his right to challenge the vires of the Ordinance itself, when by that time Ordinance had ceased to exist and been replaced by the Act 29 of 1967. This Act also could have been challenged but its vires was not put in issue. The order upholding the demand at 5% became final though on different considerations. The present writ petition has been filed on 14-2-1969 about more than 11 months after the disposal of the previous writ petitions on 8-3-1968 and the finality of the previous judgment of this Court is being sought to be set aside on grounds which could have been pressed earlier but were not urged. In my opinion this Is a case where the doctrine of constructive res judicata fully applies. There are a number of Supreme Court decisions which fully support this view and I proceed to notice a few of them.
9. In the case of Devilal Modi v. Sales Tax Officer, Ratlam, AIR 1965 SC 1150, the Supreme Court applied the principle of constructive res judicata. Here the assessee challenged the validity of sales tax imposed upon him under Article 226 of the Constitution before the High Court and failed. An appeal was carried to the Supreme Court where an attempt on behalf of the assessee to raise two more additional grounds, which the Supreme Court refused to entertain because they had not been taken up before the High Court and ultimately dismissed the appeal. Thereupon the assessee filed a fresh writ application before the High Court challenging the same assessment order on the same grounds which the Supreme Court did not entertain and it was held that the second writ petition was barred by constructive res judicata. Their Lordships said that:
'If constructive res judicata were not applied to such proceedings a party could file as many writ petitions as he liked and take one or two points every time. That clearly was opposed to considerations of public policy on which res judicata was based and would mean harassment and hardship to the opponent.'
10. In the case of Union of India v. Nanak Singh. AIR 1968 SC 1370, the Supreme Court laid down the principles which are relevant for the present case. The first one is that judgment in a previous case may operate by express decision as res judicata. The second is that in order that the previous judgment may operate as res judicata, the question must have been heard and decided or that the parties must have been given an opportunity of raising their contention therein. In the instant case the petitioner was given full opportunity to raise contentions, which are being raised in the present writ application.
11. In the case of Daryao v. State of U. P., AIR 1961 SC 1457 their Lordships of the Supreme Court held that if a writ petition filed by the parties under Article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties, unless modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. They further concluded that on consideration of public policy there seems to be no reason why the principle of res judicata should be treated as inadmissible and irrelevant in dealing with petitions under Article 226.
12. The order of the High Court passed in the earlier writ applications was a speaking order, and the present O. J C. being a successive writ application in respect of the very same demands which were held to be valid in the Previous writ applications on a fresh ground which was available to the petitioner to be canvassed on the earlier occasion, isdirectly hit by principles of res judicata. The preliminary objection, therefore, succeeds.
In the result, therefore, this writ fails and is dismissed with costs assessed at Rs. 100/-.
13. I agree.