Judgment AFTAB ALAM, J. 1. This writ petition raises the question whether the petitioner is liable to pay any surcharge on the electrical energy, consumed by it captively, in terms of Sec.3-A (as it stood before its amendment w. e. f.7-6-90 by Act 2 of 1990) of the Bihar electricity Duty Act According to the petitioner, though it may be liable to pay surcharge on electrical energy supplied/sold by it to others, it is not liable to pay any surcharge on the energy consumed by it. 2. The facts are brief and simple. The petitioner Tata Iron and Steel Company Limited, is a public Limited Company. It has its works at Jamshedpur where it is engaged in the business of extraction of Iron from its ore and production of iron and steel and various iron and steel products. It is obvious that for running the works and for other incidental matters it requires electrical energy in very large amounts. It meets its requirements of electrical energy through three sources (i) it generates its own power, (ii) it receives electrical energy on payment from the Bihar State electricity Board, (iii) it also received electrical energy on payment from the damodar Valley Corporation. It is also an admitted position that the petitioner supplies/sells electrical energy to a number of allied industries and other consumers in town of Jamshedpur. 3. At this stage it is important to note that for supplying/selling energy to the public the petitioner enjoys the sanction granted to it by the State government under Sec.28 of the indian Electricity Act, 1901. It will be useful here to take a look at Sec.28 of the Indian Electricity Act which is as under: "28. Sanction required by non-licer secs in certain cases - (1) No persor other than a licensee, shall engage in the business of supplying energy to the public except with the previous sanction of the state Government and in accordance wite such conditions as the State Government may fix in this behalf, and any agreement to the contrary shall be void. Sanction required by non-licer secs in certain cases - (1) No persor other than a licensee, shall engage in the business of supplying energy to the public except with the previous sanction of the state Government and in accordance wite such conditions as the State Government may fix in this behalf, and any agreement to the contrary shall be void. (1 -A) The State Government shall not give any sanction under sub-section (1) - (a) except after consulting the State electricity Board, and (b) except with the consent - (1) in any case where energy is to be supplied in any area for which a local authority is constituted, of that local authority ; (ii) in any case where energy is to be supplied in any area forming part of any cantonment, aerodrome, fortress, arsenal, dockyard or camp or any building or place in the occupation of the Government for defence purposes, of the Central government; (iii) in any area falling within the area of supply of a licencee, of that licensee a : provided that except in a case falling under sub-clause (ii), no such consent shall be necessary if the State Goverh-ment is satisfied that such consent has been unreasonably withheld. (2) Where any difference or dispute arises as to whether any person is or is not engaging, or about to engage, in the business of supplying energy (to thepublic) within the meaning of sub-section (1) the matter shall be referred to the (State Government) and the decision of the (State Government) thereon shall be final". 4. According to the petitioner it enjoys the sanction granted by the State government under the aforequoted provision since 1923. 5. The State legislature enacted the bihar Electricity Duty Act, 1948 (Bihar act 36 of 1948) which came into force on October 1, 1948. According to the preamble it is an act for the levy of a duty on the sales and consumption of electrical energy in the State of Bihar. 5. The State legislature enacted the bihar Electricity Duty Act, 1948 (Bihar act 36 of 1948) which came into force on October 1, 1948. According to the preamble it is an act for the levy of a duty on the sales and consumption of electrical energy in the State of Bihar. Sec.2 (d) of the Electricity Duty Act defines licensee as follows: "2 (d) licensee means any person, including a company or a local authority licensed under Part II of the Indian electricity Act, 1910 (IX of 1910) to supply energy, or any person including a company or a local authority who has obtained sanction under Sec.28 of the act to engage in the business of supplying energy and includes the Bihar electricity Board constituted under Section 5 of the Electricity (Supply) Act, 1948 (54 of 1948 ). " (Emphasis added) 6 It is needless to say that by virtue of the sanction obtained by it under Sec.28 of the Indian Electricity Act the petitioner is clearly a licensee within the meaning of the Electricity Duty Act. 7. Section 3 of the Electricity Duty act is the charging section and Section 3 (1), which is relevant for the purpose of this case, is as under : "3. Incidence of duty - (1) Subject to the provisions of sub-section (2) there shall be levied and paid to the State government on the units of energy consumed or sold, excluding losses of energy in the transmission and transformation of duty at the rate specified in the Schedule. " 8. Section 4 of the Electricity Duty act deals with to the payment of duty and its various provisions are as under : "4. Payment of duty.- (1) Every licensee shall pay every month to the (State)Government at the time and in the manner prescribed the proper duty payable under section 3 on the units of energy consumed by him or sold by him to the consumer. (2) Every licensee may recover from the consumer the amount which falls to be paid by the licensee as duty in respect of the energy sold to the consumer. (3) The licensee may, for the purpose of sub-section (2), exercise of power conferred on a licensee by sub-section (1)of Sec.24 of the Indian Electricity Act, 1910 (IX of 1910) for the recovery of any charge or sum due in respect of energy supplied by him. (3) The licensee may, for the purpose of sub-section (2), exercise of power conferred on a licensee by sub-section (1)of Sec.24 of the Indian Electricity Act, 1910 (IX of 1910) for the recovery of any charge or sum due in respect of energy supplied by him. (4) Every person including any department of the State Government, other than a licensee, who generates energy for his own use or for the use of his employees, or partly for such use and partly for sale, shall pay every month at the time and in the manner prescribed the proper duty payable under Sec.3, on the units of energy consumed by him or his employees or sold by him. (4-a) Every person other than a licensee who obtains for sale or partly for his own use and partly for sale, bulk supply of energy generated by a licensee or other person shall pay every month to the State Government at the time and in the manner prescribed, the duty payable under Sec.3 on the units of energy so obtained and sold or partly sold and partly consumed by him. (5) The licensee or other person who is liable to pay duty under this Act shall, subject to the prescribed conditions, be entitled to a rebate of such percentage as may be prescribed on the amount of duty paid by him within the prescribed time. " 9. Sub-section (1) of Sec.4 is in respect of payment of duty by a licensee and sub-section (2) makes it lawful for the licensee to recover from the consumer the amounts of duty payable in respect of the energy sold to the consumer. Sub-section (4) of Sec.4 is in respect of payment of duty by a person who, though not a licensee, generates energy for his own use or partly for his own use and partly for sale. 10. Sub-section (4a) of Sec.4 is in respect of a person, other than licensee, who obtains bulk supply of energy from a licensee either for sale or partly for his own use or partly for sale. 11. 10. Sub-section (4a) of Sec.4 is in respect of a person, other than licensee, who obtains bulk supply of energy from a licensee either for sale or partly for his own use or partly for sale. 11. It is thus clear that Sec.4 of the Electricity Duty Act divides the persons who are required to pay duty on electrical energy in three categories ; (i)licensees, (ii) persons other than and licensee who generate energy for own use or partly for own use and partly for sale and (iii) persons other than a licensee who obtain bulk supply of energy generated by a licensee either for own use or partly for use and partly for sale. Persons falling in all the three categories are obliged to pay duty on electrical energy regardless of whether the electricity was consumed by them or was sold to others. 12. After the coming into force of the Bihar Electricity Duty Act the petitioner has been paying duty on electrical energy as provided under Sec.3 and 4 without any controversy. 13. By Finance Act, 1985 a provision for the payment of surcharge was introduced by insertion of Section 3-A in the Bihar Electricity Duty Act, section 3-A in its original form was as under: "3-A. Surcharge.- (1) Subject to the provision of Clauses (a), (b) and (c) of sub-section (2) of Sec.3, every licensee shall pay, in addition to the duty payable under sub-section (1) of Sec.3, surcharge at the rate of two paise per unit of energy consumed or sold. " (emphasis added) 14 Three things are to be noted in the afore-quoted provision relating to the payment of surcharge; (i) like the duty on electrical energy, surcharge was also payable both on energy consumed or sold (ii) unlike the duty which was payable not only by a licensee but also by persons enumerated in sub-sections (4) and (4-a) of Sec.4, surcharge was payable only by a licensee ; and (iii) further unlike in the case of duty, the amount of surcharge could not be collected from the consumer. 15. 15. Liking a slight deviation at this stage it may be pointed out that Section 3-A was amended w. e. f.7-6-1990 by Act 2 of 1990 and following the amendment it reads as under : "3-A. Surcharge - (1) Subject to the provision of Clauses (a), (b) and (c) of sub-section (2) of Sec.3, every licensee (YA KO ANYA BAKAYA) KO JO dhara-4 KE ANTARGAT SULK chukane KE DAYE HAY) shall pay, in addition to the duty payable under subsection (1) of Sec.3, surcharge at the rate of two paise per unit of energy consumed or sold. " 16. It is thus clear that after the amendment of Sec.3-A, not only a licensee but persons falling in the other two categories (vide sub-section (4) and (4-a) of Sec.4) are also brought within the sweep of the Section. In other words all those who are required to pay the duty as provided under Sections 3 and 4 must also pay the surcharge in terms of the amended Sec.3-A. In this application, however, we are not concerned with the amended provision as the dispute relates to the period prior to 7-6-1990 and according to the case of the petitioner it was not liable to pay surcharge in terms of the earlier un-amended provision contained in Section 3-A of the Electricity Duty Act. Further, in this regard, learned Counsel for the petitioner quite unequivocably stated that after the amendment of Sec.3-A there was no scope of any controversy and the petitioner was duly paying surcharge on electrical energy both consumed or sold by it. 17. Coming back to the facts of this case, it is to be stated that after the introduction of Sec.3-A in the electricity Duty Act,, w. e. f.7-8-1995, the petitioner also paid surcharge on electrical energy both consumed and sold by it. After sometime, however, it took the stand that though it might be liable to pay surcharge on the energy sold by it to others, it was not liable to pay any surcharge on that amount of energy generated by it which was consumer by it captively. After sometime, however, it took the stand that though it might be liable to pay surcharge on the energy sold by it to others, it was not liable to pay any surcharge on that amount of energy generated by it which was consumer by it captively. The petitioner accordingly submitted a letter dated July 31, 1986 to the Deputy Commissioner of Commercial Taxes, Urban Circle, jamshcdpur claiming refund of the amount of surcharge which according to it was paid erroneously and further claiming exemption from payment of any surcharge on that amount of energy generated by it which went into its captive consumption. 18. The Deputy Commissioner rejected the petitioners claim by order dated 12-8-1986 (copy at Annexure-1 ). The petitioner preferred an appeal under Sec.9 (A) of the Electricity duty Act which was dismissed by the commissioner, Commercial Taxes by order dated 28-11-1990 (copy at Annexure-2 ). The petitioner then filed this writ petition challenging the aforesaid two orders. 19. Mr. A. B. S. Sinha, learned counsel appearing on behalf of the petitioner submitted that the petitioner company was not engaged in the business of supplying energy and in terms of section 2 (d) of the Electricity Duty Act a licensee could only be a person engaged in the business of supplying energy. According to the Counsel, therefore, the petitioner not being a licensee, atleast in respect of the energy captively consumed by it, was not obliged to pay any surcharge as it was leviable in terms of Sec.3-A only on a licensee. 20. I am unable to accept the submission. According to Sec.2 (d)licensee means a person, including a company, who has obtained sanction under Sec.28 of the Indian electricity Act to engage in the business of supplying energy. What is, therefore, of importance is that a person or a company should have obtained the sanction under Sec.28 of the Indian electricity Act. Having obtained the sanction whether the company engaged in the business of supplying energy or not was of no relevance for the purpose of the Electricity Duty Act. And as long as the company had such a sanction in its favour it could not claim exclusion from the definition of licensee within the meaning of Electricity Duty Act on the plea that notwithstanding the sanction it was not engaged in the business of supplying energy. And as long as the company had such a sanction in its favour it could not claim exclusion from the definition of licensee within the meaning of Electricity Duty Act on the plea that notwithstanding the sanction it was not engaged in the business of supplying energy. The mere fact of enjoying such a sanction would bring the company within the definition of licensee under the Electricity Duty Act. In my opinion, therefore, it would be futile to suggest that since the company was not engaged in the business of supplying energy it was not covered by the definition of licensee even though it admittedly had the sanction under Section 28 of the Electricity Act. 21. Mr. Sinha then submitted that the petitioner generated its own power and it also purchased electricity from the Bihar State Electricity Board and the Damodar Valley Corporation and it was supplying energy to others. According to Mr. Sinha the petitioner, there-fore, fell under both the categories enumerated under sub-sections (1) and (4) of Sec.4 of the Act. On that basis it was submitted that Sec.3-A was to be so interpreted that it excluded from its purview the electricity generated and captively consumed by the petitioner (as covered under Sec.4 (4) and be restricted to only those amounts of electrical energy that it obtained from the Board and the Corporation and sold or consumed in course of business. This submission is also founded on the plea that the petitioner was not a licensee and therefore must fail for the same reasons as already stated above. 22. Mr. Sinha then submitted that the provisions of Sec.3-A before its amendment was arbitrary and discriminatory because it picked out for the levy of surcharge only the licensee while the persons falling in the other two categories vide Sections 4 (4) and 4 (4-a) who also consumed or sold electrical energy were left untouched. In support of his submission Mr. Sinha relied upon a number of decisions reported in AIR 1969 SC 376, AIR 1989 sc 565, 1992 (2) SCC 235 and 1997 suppl. (3) SCC 97. 23. In support of his submission Mr. Sinha relied upon a number of decisions reported in AIR 1969 SC 376, AIR 1989 sc 565, 1992 (2) SCC 235 and 1997 suppl. (3) SCC 97. 23. I do not find any substance in this submission thus, in my opinion the holder of a licence granted under Sec.2 or a person granted sanction under Sec.28 of the Indian electricity Act, who alone have been defined as licensee within the meaning of Electricity Duly Act definitely constitute and form a class apart from other persons and there are no arbitrariness or unreasonableness in making them liable for payment of surcharge under the electricity Duty Act to the exclusion of others. The decisions relied upon by Mr. Sinha in my opinion do not have any application to the facts of this case. 24. For the reasons as stated above, we find no merit in this application. It is accordingly, dismissed, however, without any order as to costs. Application Dismissed.