BHAWANI SINGH, C. J. ( 1 ) THIS batch of writ petitions (W. P. Nos. BHAWANI SINGH, C. J. ( 1 ) THIS batch of writ petitions (W. P. Nos. 3547 of 2001 M. P. Cement Manufacturers Association v. The State of M. P. and others, 3810 of 2001 Indorama Synthetics (I) Ltd. v. State of M. P. and others, 3911 of 2001 Anant Spinning Mills Ltd. v. The State of M. P. and others, 3912 of 2001 Moral Overseas Limited v. The State of M. P. and others, 3926 of 2001 M/s. Ritspin Synthetics Limited v. The State of M. P. and others, 3928 of 2001 Pratibha Syntex Limited v. The State of M. P. and others, 3929 of 2001 Maikaal Fibres Limited v. The State of M. P. and others, 3933 of 2001 M/s. Nahar Spinning Limited v. The State of M. P. and others, 3940 of 2001 National Steel Industries Ltd. v. The State of M. P. and others, 3941 of 2001 Parasrampuria International Ltd. v. The State of M. P. and anothers, 3970 of 2001 M/s Century Textiles And Industrial Ltd. v. The State of M. P. and anothers, 4020 of 2001 M/s. Hind Syntex Ltd. v. The State of M. P. and others, 4292 of 2001 J. K. Industries Ltd. v. The State of M. P. and others, 4549 of 2001 Grasim Industries Ltd. v. The State of M. P. and others, 4563 of 2001 Flex Chemicals Ltd. Now Called NCL v. The State of M. P. and others, 4564 of 2001 SRF Limited v. The State of M. P. and others, 4565 of 2001 Flex Industries Ltd. v. State of M. P. and others, 4619 of 2001 GMMCO Ltd. and anothers v. The State of M. P. and anothers, 4753 of 2001 Vikram Woollens v. The State of M. P. and others, 4791 of 2001 GILT Pack Ltd. v. The State of M. P. and others, 4800 of 2001 Vaishnav Fibre Ltd. v. The State of M. P. and others, 4804 of 2001 M/s. Indore Composite Pvt. Ltd. v. The State of M. P. and others, 4858 of 2001 M/s. Vippy Spinro Ltd. v. The State of M. P. and others, 4859 of 2001 M/s. Gujarat Ambuja Export Ltd. v. The State of M. P. and others and 4860 of 2001 Vippy Industries Ltd. v. The State of M. P. and others is proposed to be decided by common judgment since they are directed against the same Ordinance/legislation issued/passed by the State of Madhya Pradesh. ( 2 ) PETITIONERS are Association of the Cement Manufacturers, companies and individuals having their industries at various places in the State. They are equally aggrieved by the promulgation of M. P. Upkar (Sanshodhan) Adhyadesh, 2001 (Ordinance) by the Governor under Art. 213 of the Constitution of India on 29-6-2001 and replaced by M. P. Upkar (Sanshodhan) Adhiniyam 2001 published in Gazette on 17-9-2001 amending S. 3 of the M. P. Upkar Adhiniyam, 1981. ( 3 ) THE Indian Electricity Act 1910 is the Law relating to the supply and use of electrical energy. The Electricity (Supply) Act, 1948 (for short the Act of 1948) is the law relating to the rationalisation of the production and supply of electricity and for taking measures conducive to electrical development, purpose being co-ordinated development of electricity in the country by suitable methods. Constitution of Central Electricity Authority is provided under S. 3 of the Act of 1948. Number of functions have been assigned to it, some of such being to act as arbitrator in matters arising between the State Government or the Board and a licensee or other person as provided in the Act, collect and record the data concerning the generation, distribution and utilisation of power and carry out studies relating to cost, efficiency, losses, benefits and such like matters, make public from time to time information secured under this Act and to provide for the publication of reports and investigation, make arrangements for advancing the skill of persons in the generation and supply of electricity, promote research in matter affecting the generation, transmission and supply of electricity, advise the Central Government on any matter on which its advice is sought or make recommendation to that Government on any matter if, in the opinion of the Authority, the recommendation would help in improving the generation, distribution and utilisation of electricity and discharge such other functions as may be entrusted to it by or under any other law. ( 4 ) STATE Electricity Boards, Generating Companies, State Electricity Consultative Councils and Local Advisory Committees are constituted under Chapter III of the Act of 1948. Therefore, M. P. Electricity Board has been constituted by the State of M. P. with duties provided in S. 18 of the Act of 1948. ( 4 ) STATE Electricity Boards, Generating Companies, State Electricity Consultative Councils and Local Advisory Committees are constituted under Chapter III of the Act of 1948. Therefore, M. P. Electricity Board has been constituted by the State of M. P. with duties provided in S. 18 of the Act of 1948. Some of the duties pertain to supply of electricity as soon as practicable to a licensee or other person requirng such supply if the Board is competent under this Act so to do; to collect data on the demand for, and the use of, electricity and to formulate perspective plans in coordination with the Generating Company or Generating Companies, if any, operating in the State, for the generation, transmission and supply of electricity within the State; and to prepare and carry out schemes for transmission, distribution and generally for promoting the use of electricity within the State. Duties of Generating Company are set out in Section 18-A which amongst others are to operate and maintain in the most efficient and economical manner the generating stations, tie-lines, sub-stations and main transmission lines, etc. ( 5 ) SHORTAGE of power in the country in general and the State of Madhya Pradesh in particular, has been acute. Generation of electricity is less than the demand putting severe constraints on Electricity Boards capacity to meet the growing demand for power supply. Both Central and State Governments formulated their Power Policies. With a view to tone up the industrial activities in the State in the context of huge power shortage, the petitioners were encouraged to establish their captive power plants to enable them to produce power for their consumption and sale of surplus power to the Electricity Board. Section 44 of the Act of 1948 provides for grant of consent by State Electricity Board for establishment of Captive Power Plants and provides complete mechanism in this field read with S. 49. Due to the failure of Electricity Board to supply adequate, regular and uninterrupted power to the petitioners for their industrial requirement as per High Tension Agreements with them and there having been frequent power cuts, load-shedding and trippings irreparably affecting the industries production and consequential loss, the petitioners were permitted to install Captive Power Plants, notwithstanding statutory obligation of the Electricity Board to supply sufficient, regular and uninterrupted power to the industries under the respective agreements. However, with a view to establish the industries in this State and after having done so, to save them from losses due to frequent power cuts, load-shedding and trippings, petitioners established Captive Power Plants in their industries after huge investment even though the industries were passing through an unprecedented phase of recession. When some of the industries could become self reliant in power, the Electricity Board, with a view to tide over its financial difficulties, started taking several actions detrimental to them. ( 6 ) STATE Government framed Captive Power Policy 2001 with salient features that Captive Power producer has to be consumer of the Eletricity Board and should not owe any dues to it; it should draw at least 50% of electricity requirement from the Electricity Board; the permission to run Captive Power Plant would be for maximum period of ten years; wheeling power shall not be permitted other than for own use; storage and banking shall not be available; exemption in electricity-duty shall not be available; and energy development cess of 20 paise per unit shall be levied on Captive Power Plants to be recovered by the Electricity Board. Thus, the power policy requires industries to enter in to HT agreement for power consumption to the extent of at least 50%, though they did not require it from the Electricity Board. Further, major below of policy is the imposition of energy development cess at the rate of 20 paise per unit, the Captive Power Plant produces for the industry. ( 7 ) THE law relating to establishment of Captive Power Plants can be enacted by Parliament. Sections 44/45 of the Act of 1948 cover the field in relation to establishment of power generating plants or Captive Power Plants. It is a Central Legislation while M. P. Electricity Duty Act 1949, referable to Entry 53 of List II of Seventh Schedule to the Constitution, refers the duty on sale or consumption of electricity. Section 2 defines 'consumer' to mean "any person who receives electrical energy sold or supplied by a distributor of electrical energy or a producer and includes a person receiving electrical energy in bulk for onward distribution". Section 2 defines 'consumer' to mean "any person who receives electrical energy sold or supplied by a distributor of electrical energy or a producer and includes a person receiving electrical energy in bulk for onward distribution". The term 'producer' means "subject to such rules as may be made by the State Government for registration of generators, a person who generates electrical energy at a voltage exceeding hundred volts and, in the event of generation of electrical energy by a hire of generator, the owner of generator shall be deemed to be the producer". For levy of duty on sale or consumption of electrical energy, charging provision is Section 3 of the M. P. Electricity Duty Act 1949 (for short the Duty Act 1949 ). Section 3 of the Duty Act 1949 being relevant is reproduced below :"3. Levy of duty on sale or consumption of electrical energy : (1) Subject to the exceptions specified in S. 3-A, every distributor of electrical energy and every producer shall pay every month to the State Government at the prescribed time and in the prescribed manner a duty calculated at the rates specified in the table below on the units of electrical energy sold or supplied to a consumer or consumed by himself for his own purposes or for purposes of his township or colony, during the preceding month. "the petitioners submit that under S. 3 of the Electricity Duty Act 1949, liability to tax is on sale or consumption of electrical energy. The Electricity Board or any independent power project or generating company is also liable to pay electricity duty. ( 8 ) M. P. Upkar Adhiniyam 1981 provides for levy of electrical energy development cess on every distributor of electrical energy, payable to the State Government at the rate of 1 paisa per unit on the total units of electrical energy sold or supplied to the consumer or consumed by himself or his employees. ( 9 ) THE Governor promulgated Ordinance No. 2 of 2001 Madhya Pradesh Upkar (Sanshodhan) Adhyadesh 2001 (for short the 'ordinance') to amend M. P. Upkar Ahiniyam 1981. ( 9 ) THE Governor promulgated Ordinance No. 2 of 2001 Madhya Pradesh Upkar (Sanshodhan) Adhyadesh 2001 (for short the 'ordinance') to amend M. P. Upkar Ahiniyam 1981. The Ordinance substitutes Section 3 of the M. P. Upkar Adhiniyam, 1981 in the following manner :3 (1) Every distributor of electrical energy shall pay to the State Government at the prescribed time and in the prescribed manner in energy development cess at the rate of one paisa per unit on the total units of electrical energy sold or supplied to a consumer or consumed by himself or his employees during any month. . . . . . . . . ""3 (2) Every producer producing electrical energy by his captive power unit or diesel generator set of capacity exceeding 10 kilowatt in total shall pay to the State Government an energy development cess at the rate of 20 paise per unit on the total units of electrical energy produced whether for sale or supply to a consumer or for consumption by himself or his employees during any month. . . . . . . . . . . . . . "the result of this amendment would be additional cost and virtually closer of the industries which are otherwise facing severe crisis. . . . . . . . . . . . . . "the result of this amendment would be additional cost and virtually closer of the industries which are otherwise facing severe crisis. Section 3 (3) provides for placing the fund at the discretion of the State Government to be utilised for research and development in the field of energy including electrical energy as well as other conventional and non-conventional sources of energy, improving the efficiency of generation, transmission, distribution and utilization of energy including reduction of losses in transmission and distribution, research in design, construction, maintenance, operation and materials of the equipment used in the field of energy with a view to achieve optimum efficiency, continuity and safety, survey of energy sources including non-perennial sources to alleviate energy shortage, energy conservation programmes, extending such facilities and services to the consumers as may be deemed necessary, creation of a laboratory and testing facilities for testing of electrical appliances and equipments and other equipments used in the field of energy, programme of training conducive to achieve any of the above objectives, transfer of technology in the field of energy, any purpose connected with safety of electrical installations and any other purpose connected with improvement of generation, transmission, distribution or utilisation of electrical and other forms of energy, as the State Government may, by notification, specify. Even though it is claimed that energy development cess was being levied for purposes enumerated in it, there is no evidence of any such activity being undertaken by the State Government. Rather, these purposes are required to be fulfilled mainly by the Central Electricity Authority. ( 10 ) PETITIONERS assert that no part of aforesaid fund has been utilised for the purposes enumerated above. It is a taxing measure for augmentation of revenue to be spent at the sole discretion of the State. The Act provides for exemption in favour of certain categories like, Government of India, Railways, Rural Electric Co-operative Society registered under the M. P. Co-operative Societies Act, 1960 and the local bodies including Municipal bodies and Panchayats for consumption in public street lamp or lamps in any market place or water works or other places of public resort maintained by such bodies apart from some other activities. It provides for collection through Electricity Board and then making the same available to the State Government which would deal with it as per Section 3 (3) of the Act of 1981. The Energy Development Cess levied under S. 3 (2) of the Ordinance/act is unconstitutional, illegal and unauthorised, therefore, deserves to be declared ultra vires and unconstitutional and the respondents mandamussed not to levy and collect Energy Development Cess from the petitioners under S. 3 (2) of the Ordinance/act. ( 11 ) THE Ordinance/act seeks to impose cess on the production of power by Captive Generating Plants, though named cess, is in pith and substance a duty in the nature of excise leviable by the Parliament in Entry 84 of Union List in Seventh Schedule to the Constitution of India. The levy of cess under S. 3 (2) of the Ordinance/act amounts to an unreasonable restriction on the freedom of trade of the Petitioners, therefore, it is hit by Arts. 213/304 (b) of the Constitution of India. The State may be competent to levy cess on the sale and consumption of electricity but not on the production of electricity. The Ordinance/act is not within the competence of the State Legislature which could issue Ordinance or enact law on sale and consumption of electricity under Entry 53 of List II of Seventh Schedule, but it has exercised the power against Entry 84 of List II of Seventh Schedule to the Constitution with regard to production of electricity, subject within the competence of Parliament. ( 12 ) EXEMPTION granted to some of the petitioners from payment of duty under the Electricity Duty Act 1949 cannot be set at naught by asking them to pay cess taking away the exemption by circuitous methods. The imposition of cess at the rate of 20 paise per unit is most unreasonable, excessive so hit by Arts. 14 and 19 (1) (g) of the Constitution, amounting to an unreasonable restriction on the freedom of trade. It creates vidious discrimination between the petitioners who are being called upon to pay duty at the rate of 20 paise per unit while the State Boards have to pay only one paise per unit and many categories have been left out from its operation. It creates vidious discrimination between the petitioners who are being called upon to pay duty at the rate of 20 paise per unit while the State Boards have to pay only one paise per unit and many categories have been left out from its operation. Levy of cess in S. 3 (2) of the Ordinance/act for the same purpose for which cess was levied under the M. P. Upkar Adhiniyam, 1981 is bad in law and does not satisfy the test of cess, for it ought to be compensatory in nature to be used for purposes of the Act. Levy of cess on production and levy of duty on production amounts to double taxation on the same incident of taxation, by the same authority, namely Section 3 of the M. P. Upkar Adhiniyam, 1981 and Section 3 (2) of the Ordinance/act which is legally impermissible. The State ought to have waited for Electricity Regulatory Commission's report which has the power to examine the issue of cost/tariff/duty etc. for production and supply of electricity before proposing to impose the cess and the State is estopped from imposing the additional conditions and also the onerous and burdensome cess after having encouraged, invited and induced the petitioners to set up power plants at huge investment. ( 13 ) STATE of M. P. and M. P, State Electricity Board, have contested these petitions. The cess is a tax and State Legislature is competent to levy it under Entry 53 List II of Seventh Schedule to the Constitution. The entries in the Schedule have to be given wide meaning. Properly understood, cess under S. 3 (2) of the Ordinance/act is not on the production of energy. 'production' is a measure of tax for the purpose of calculation of the amount of cess to be paid by Captive Power Producer. The Legislature can adopt it as a measure of tax because the Captive Power generated through Captive Power Plant varies from producer to producer, depending upon the generating capacity of the set/plant. Electricity, once produced through any means, cannot be stored and has to be consumed. The Captive Power Plants set up by the petitioners are situated in the factory premises. Unless there is consumption, there cannot be any generation of power and no consumption would be measured if there is no load. Electricity, once produced through any means, cannot be stored and has to be consumed. The Captive Power Plants set up by the petitioners are situated in the factory premises. Unless there is consumption, there cannot be any generation of power and no consumption would be measured if there is no load. The production has been taken as a measure of unit for purposes of calculating the tax and production is not a taxing event. The Ordinance/act is not hit by Art. 254 (2) Constitution of India since M. P. Upkar Adhiniyam, 1981 deals with levy of electricity cess which clearly falls under Entry 53 List II of Seventh Schedule to the Constitution. There is no conflict between the State Legislation and the Legislation passed by the Parliament occupying the same field. The legislation is not hit by Arts. 14, 19 and 304 (b) of the Constitution since it is neither arbitrary nor unreasonable nor violative of Art. 304 (b) of the Constitution. Uniform rate of cess has been provided for each Captive Power Producer who have set up generating plants/sets of 10 KW or more than 10 KW of the total aggregate capacity. It is a compensatory fiscal measure and cannot be challenged on the ground that the burden imposed by it is heavy. To facilitate the industrial growth and benefits of cheaper power, captive power plants were permitted freely up to 1998 under the then prevailing captive power policy. Unfortunately, industrial growth did not take place and instead existing industrial consumers shifted to captive generation reducing or terminating their contract demands. This affected the finances of the Electricity Board resulting into heavy losses. In case, the Electricity Board generates sufficient money, it would be able to purchase more power for supply to the consumers in the State. ( 14 ) EXPERIENCING deficiency in the old power policy, revised policy has been issued on 20-2-2001. Among other things, it envisages that those who are operating lawfully would continue, they will continue to be the consumers of Electricity Board without any stipulation of minimum purchase of power from Electricity Board and those who are operating without the consent of the Electricity Board could get their Captive Units regularised and those who desire fresh consent could get the same. They will have to consume at least 50% of their monthly requirement from Electricity Board. They will have to consume at least 50% of their monthly requirement from Electricity Board. Facility of exemption of energy duty for a period of five years has been withdrawn from new Captive Power Units. However, those who have installed captive units lawfully and are still under period of exemption would continue to avail exemption from energy duty up to the period of five years. The cess of 20 paise per unit would be imposed on use of power generated from Captive Units and the money so realised would be used for electricity facility in the rural areas. Against demand of cess at the rate of 75p. per unit, the State Goverment decided to impose the cess at the rate of 20 paise per unit. Under Section 44 of the Act of 1948, obtaining of prior written consent from the Electricity Board before establishment or acquisition of generating set is necessary. It does not provide that the person so authorised to generate and utilise electricity from the generating sets would do so without any restrictions. The Electricity Board has authority to give consent to install Captive Power Plant/generating Set. It is competent to prescribe terms andconditions for generation of electricity from such plants so that financial resources of the Electricity Board and its capacity to serve the poor section of the Society, are not eroded. Such terms and conditions can be prescribed under S. 79 (k) of the Act of 1948 and the interest of the Electricity Board had to be kept in view while formulating the Captive Power policy so that the essential functions of the Board are not affected by loss of revenue. It was after open consultative process with the representatives of industries that the State Government formulated power policy notified on 20-2-2001, taking care of both Electricity Board and the industries. The allegations as to shortage of electricity to the extent the same refer to requirement of HT consumers are not admitted by the Electricity Board and it is stated that the Electricity Board has sufficient power from its own generation and power purchases. ( 15 ) HAVING quoted some material pleadings, we advert to the submissions advanced by the learned counsel for parties. ( 15 ) HAVING quoted some material pleadings, we advert to the submissions advanced by the learned counsel for parties. ( 16 ) WHETHER the amendment of M. P. Upkar Adhiniyam 1981 (No. 1 of 1982) by the M. P. Upkar (Sanshodhan) Adhyadesh, 2001 (No. 2 of 2001), later enacted M. P. Upkar (Sanshodhan) Adhiniyam 2001 (No. 15 of 2001) introducing sub-section (2) in Section 3 levying "energy Development Cess" (impugned Cess) is ultra vires and unconstitutional. It would be appropriate to quote Section 3 in extenso as it stands after the amendment. "3 (1) Every distributor of electrical energy shall pay to the State Government at the prescribed time and in the prescribed manner an energy development cess at the rate of one paise per unit on the total units of electrical energy sold or supplied to a consumer or consumed by himself or his employees during any month : provided that no cess shall be payable in respect of electric energy : (i) (a) sold or supplied to the Government of India for consumption by that Government; or (b) sold or supplied to the Government of India or a railway company for consumption in the construction, maintenance or operation of any railway administered by the Government of India; (ii) sold or supplied in bulk to a Rural Electric Co-operative Society registered under the Madhya Pradesh Co-operative Societies Act, 1960 (No. 17 of 1961 ). Explanation : For the purpose of this sub-section 'month' means such period as may be prescribed. (2) Every producer producing electrical energy by his captive power unit or diesel generator set of capacity exceeding 10 kilowatt in total shall pay to the State Government an energy development cess at the rate of 20 paise per unit on the total units of electrical energy produced whether for sale or supply to a consumer or for consumption by himself or his employees during any month; provided that no cess shall be payable in respect of electrical energy produced by :- (i) the Government of India for consumption by that Government. (ii) the Government of India or a railway company for consumption in the construction maintenance or operation of any railway administered by the Government of India. (iii) the State Government for consumption by the Government. (iv) a Rural Electric Co-operative Society registered under the M. P. Co-operative Societies Act, 1960. (ii) the Government of India or a railway company for consumption in the construction maintenance or operation of any railway administered by the Government of India. (iii) the State Government for consumption by the Government. (iv) a Rural Electric Co-operative Society registered under the M. P. Co-operative Societies Act, 1960. (v) the local bodies including Municipal bodies and Panchayats for consumption in public street lamp or lamps in any market place or water works or any other places of public resort maintained by such bodies. Provide further that the amount of energy development cess shall be collected by the Madhya Pradesh State Electricity Board and the amount so collected shall be made available to the State Government. (3) The proceeds of the cess under sub-sections (1) and (2) shall first be credited to the Consolidated Fund of the State and the State Government may, at the commencement of each financial year, after due appropriation has been made by law withdraw from the Consolidated Fund of the State an amount equivalent to the proceeds of cess realized by the State Government in the preceding financial year and shall place it to the credit of a separate fund to be called the Energy Development Fund and such credit to the said fund shall be an expenditure charged on the Consolidated Fund ofto be called the Energy Development Fund and such credit to the said fund shall be an expenditure charged on the Consolidated Fund of the State Government of Madhya Pradesh. (4) The amount in the credit of the funds shall, at the discretion of the State Goverment be utilized for :- (a) research and development in the field of energy including electrical energy as well as other conventional and non-conventional sources of energy. (b) improving the efficiency of generation, transmission, distribution and utilization of energy including reduction of losses in transmission and distribution. (c) research in design, construction, maintenance, operation and materials of the equipment used in the field of energy with a view to achieve optimum efficiency, continuity and safety. (d) survey of energy sources including non-perennial sources to alleviate energy shortage. (e) energy conservation programmes. (f) extending such facilities and services to the consumers as may be deemed necessary. (g) creation of a laboratory and testing facilities for testing of electrical appliances and equipments and other equipments used in the field of energy. (d) survey of energy sources including non-perennial sources to alleviate energy shortage. (e) energy conservation programmes. (f) extending such facilities and services to the consumers as may be deemed necessary. (g) creation of a laboratory and testing facilities for testing of electrical appliances and equipments and other equipments used in the field of energy. (h) programme of training conducive to achieve any of the above objectives. (i) transfer of technology in the field of energy. (j) any purpose connected with safety of electrical installations and (k) any other purpose connected with improvement of generation, transmission, distribution of utilization of Electrical and other forms of energy, as the State Government may be notification, specify. Explanation : In this sub-section 'energy' includes all conventional and non-conventional form of energy. (5) If any question arises as to whether the purpose for which the fund is being utilized is a purpose falling under sub-section (4) or not, the decision of the State Government thereon shall be final and conclusive. "the State can levy taxes on the consumption or sale of electricity under Entry 53 of List II, Seventh Schedule to the Constitution of India. This entry does not contemplate tax on production of electricity. The levy of cess is on production of electricity and not either on consumption or sale thereof which is clear from the provision because the incidence of levy falls on the head of producer of electrical energy by his captive power plant or diesel generator set of capacity exceeding 10 KW in total and the act of producer, producing electrical energy is the taxing event under the provision and the quantum of the cess is to be calculated at the rate of 20 paise per unit on the total units of electrical energy produced. There are three basic and essential components of imposing cess namely, the assessee being the person on whom the incidence of tax falls, the taxable event, act or transaction that attracts the tax, and the assessment of the tax. The levy is a tax on production of electricity not on sale or consumption of electricity. Thus, the impugned levy does not fall under Entry 53 List II State List, Seventh Schedule to the Constitution of India. In this case, tax liability arises the moment a producer of electrical energy produces electrical energy. The levy is a tax on production of electricity not on sale or consumption of electricity. Thus, the impugned levy does not fall under Entry 53 List II State List, Seventh Schedule to the Constitution of India. In this case, tax liability arises the moment a producer of electrical energy produces electrical energy. The subsequent utilisation, non-utilisation, sale, supply or consumption and the person who utilises, purchases, receives, or consumes the electrical energy so produced is immaterial being clear from the words "whether for sale or supply to a consumer or for consumption by himself or his employees during any month. " Therefore, the impugned provision levies tax on production and not on consumption or sale of electricity, emphasis being on producer and production of electrical energy and not on consumption or sale of electrical energy produced by the captive producers through captive power unit or diesel generator set of capacity exceeding 10 kilowatts or below 10 kilowatt, otherwise covenant of tax liability within these parameters could not have been there. Further submission is that it is a levy on only a captive producer of electricity and not on a non-captive producer of electricity. Section 3 (2) covers the first and Section 3 (1) the latter having remained unchanged by the impugned Ordinance/act. Joint reading of the two demonstrates the intention to levy a tax on production of electrical energy by a captive consumer, under S. 3 (2) whereas S. 3 (1) levies tax on production of electrical energy by a non-captive consumer like the M. P. State Electricity Board. The State Legislature has no legislative competence, the field being reserved to Parliament by Entry 84 List I Seventh Schedule to the Constitution of India. The Ordinance/act does not comply with the mandate of Art. 304 (b) of the Constitution of India, particularly the levy being neither compensatory nor regulatory. ( 17 ) ENTRY 38 of List III, Seventh Schedule to the Constitution of India has been utilised by the Parliament for enacting Indian Electricity Act 1910 and Electricity (Supply) Act, 1948 covering the entire field relating to electricity, therefore, the impugned Act could not have been enacted to cover the same field namely electrical development in view of law laid down by the Apex Court in Deepchand v. State of U. P. , AIR 1959 SC 648 . The State can legislate under Entry 53, List II only with respect to consumption or sale of electricity. The cess in question is neither the tax on consumption nor sale of electricity but on production thereof. ( 18 ) UNDER Art. 213 read with Art. 304 (b), Governor had no authority to levy the cess in question, therefore, from the promulgation of the Ordinance till the publication of the Act, cess cannot be collected. It is also contended that State Legislature is not competent to enact law in respect of production or generation of the electricity by captive power producers in view of Entry 38 of List III, Seventh Schedule to the Constitution of India read with Section 44 of the Electricity (Supply) Act 1948. Further placing reliance on Additional Commissioner (Legal) v. Jyoti Traders (1999) 2 SCC 77 , Commr. of Income-tax, Madras v. Kasturi (1999) 3 SCC 346 , V. V. Sugars v. Government of A. P. (1999) 4 SCC 192 and Principles of Statutory Interpretation by Justice G. P. Singh (6th Edition) 1996, it was contended that taxing statute has to be construed from the language thereof. If it is clear, it has to be given its full effect. The subject is not to be taxed without clear words for that purpose and that every act of Parliament must be read according to the natural construction of its words. If the persons sought to be taxed comes within letter of law, he must be taxed, however, great the hardship may appear to the judicial mind to be. That equitable consideration is not admissible in a taxing statute where one can simply adhere to the words of statute and that in a taxing Act, one has to look merely at what is clearly said. There is no room for any intendment. There is no presumption as to tax. Nothing is to be read in and nothing is to be implied. One can only look fairly at the language used. In Orissa State Warehousing Corporation v. The Commr. of Income-tax (1999) 4 SCC 197 , the Apex Court said in paragraph 40 that :"40. In fine thus, a fiscal statute shall have to be interpreted on the basis of the language used therein and not dehors the same. No words ought to be considered so as to ascertain the proper meaning and intent of the legislation. of Income-tax (1999) 4 SCC 197 , the Apex Court said in paragraph 40 that :"40. In fine thus, a fiscal statute shall have to be interpreted on the basis of the language used therein and not dehors the same. No words ought to be considered so as to ascertain the proper meaning and intent of the legislation. The Court is to ascribe natural and ordinary meaning to the words used by the Legislature and the Court ought not, under any circumstances, to substitute its own impression and ideas in place of the legislative intent as is available from a plain reading of the statutory provisions. "shri Ravindra Shrivastava, learned senior counsel for some of the petitioners lays great emphasis on paragraphs 12 to 14 and 16 of the Apex Court decision in Mathuram Agrawal v. State of M. P. (1999) 8 SCC 667 , Paragraphs 12 to 14 and 16 (of SCC) : (paras 11, 12, 13 and 15 of AIR) are quoted below :"12. Another question that raises for consideration in this connection is whether sub-section (1) of Section 127-A and the proviso to sub-section (2) (b) should be construed together and the annual letting values of all the buildings owned by a person to be taken together for determining the amount to be paid as tax in respect of each building. In our considered view this position cannot be accepted. The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly whether the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted soas to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i. e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. The statute should clearly and unambiguously convey the three components of the tax law i. e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it for the legislature to do the needful in the matter. 13. In the case of Bank of Chettinad Ltd. v. CIT (AIR 1940 PC 183) 1936 AC1 the Privy Council quoted with approval the following passage from the opinion of Lord Russell of Killowen in IRC v. Duke of Westminster (1936 AC 1 ). "i confess that I view with disfavour the doctrine that in taxation case the subject is to be taxed if in accordance with a Court's view of what it considers the substance of the transaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. As Lord Cairns said many years ago in Partington v. Attorney General (1869 (4) HL 100) at p. 122 : "as I understand the principle of all fiscal legislation, it is this; if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be. " 14. In the case of Russell (Inspector of Taxes) v. Scott (1948 (2) All ER 1) Lord Simonds in his opinion at p. 5 observed : "my Lord, there is a maxim of income tax law which, though it may sometimes be overstressed, yet ought not to be forgotten. It is that the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax on him. It is necessary that this maxim should on occasion be reasserted and this is such an occasion. " 16. It is that the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax on him. It is necessary that this maxim should on occasion be reasserted and this is such an occasion. " 16. This construction, in our considered view, amounts to supplementing the charging section by including something which the provision does not State. The construction placed on the said provision does not flow from the plain language of the provision. The proviso requires the exempted property to be subjected to tax and for the purpose of valuing that property alone the value of the other properties is to be taken into consideration. But, if in doing would be taxable. One cannot determine the rateable value of the small property by aggregating and adding the value of other properties, and arrive at a figure which is more than possibly the value of the property itself. Moreover, what rate of tax is to be applied to such a property is also not indicated. "therefore, submission is that had the framers of the Constitution of India intended to include production of electricity in the legislative field under Entry 53, they could have enacted Entry 53 providing for it "taxes on the production or consumption or sale of electricity. " Consequently, absence of "production" in Entry 53 is deliberate. Wherever the act of production is contemplated in any Entry, the same expressly mentions it in Entry 83 List I, Seventh Schedule to the Constitution of India. It was on the language of the charging provision Section 3 of the M. P. Electricity Duty Act 1949 and the scheme of the Act that Section 3 thereof was held to be covered by Entry 53 List II Seventh Schedule to the Constitution of India. On the basis of decision of Apex Court in Jiyajeerao Cotton Mills Limited Birlanagar, Gwalior v. State of Madhya Pradesh, AIR 1963 SC 414 submission is that this decision turns on the interpretation of the M. P. Electricity Duty Act, 1949 that under the Act, taxable event was not production or generation of electric energy but its consumption. However, in the case of impugned Ordinance/act, the levy is on producer producing electrical energy in respect of which the impugned cess is calculated at the rate of 20 paise per unit on the total energy produced. However, in the case of impugned Ordinance/act, the levy is on producer producing electrical energy in respect of which the impugned cess is calculated at the rate of 20 paise per unit on the total energy produced. Sub-section (4) of S. 3 of the Act of 1949 outlines the purposes for the utilisation of cess collected through MPSEB for the development of energy but there is no legislative entry in the Constitution of India for levying it. Wherever development is the object, the legislative entry specifying provides. Therefore, reference may be made to Entry 53/54 List I and Entry 23/50 List II, Seventh Schedule to the Constitution of India. The framers of the Constitution ofIndia did not confer the power to tax for development of energy either on Central or State legislature, otherwise express provision to that effect could have been made in one or more of the Lists. The impugned cess is not to be assessed, computed or quantified on the basis of sale or supply or consumption, but on the total units of electrical energy produced. There is nothing in S. 3 (3) of the Act of 1949 to indicate that the cess is levied on the sale or supply or consumption of electricity nor that its demand would fall on the seller or supplier or consumer of electricity. Further, the legislative entries in Seventh Schedule to the Constitution of India contemplate levy only of taxes, fees, duties, tolls and revenue. None of these entries contemplate any levy called "cess". Consequently, there is no power with State Legislature to levy cess. The cess in this case is a levy which is neither a tax nor a fee. A reference to Om Prakash Agrawal v. Giriraj Kishore (1986) 6 SCC 722, Secretary, Govt. of Madras v. Zenith Lamp (1973) 1 SCC 162 , Indian Mica Micanite Ind. v. State of Bihar (1971) 2 SCC 236 : AIR 1971 SC 1182 , Hingir Rampur Coal Company v. State of Orissa, AIR 1961 SC 459 , Jagannath Ramanuj Das, AIR 1954 SC 400 , Commissioners Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar, AIR 1954 SC 282 and Secunderabad Hyderabad Hotel Owner's Association v. Hyderabad Municipal Corporation, Hyderabad (1999) 2 SCC 274 , has been made. Precisely, the contention is that on the same transaction of captive generation of electricity, the State of M. P. is claming two taxes namely the electricity duty under S. 3 of the M. P. Electricity Duty Act, 1949 and cess under S. 3 (2) of the impugned Act. ( 19 ) SHRI S. L. Saxena, learned senior counsel submits that taxing event in this case is "production". Intention of Legislature can be gathered from the legislation and in case the Legislature wanted to impose cess/tax on energy consumed or sold, it would have used such words in place of "production". Apex Court decision reported in Dadi Jagannadham v. Jammulu Ramulu (2001) 7 SCC 71 is brought to our notice by the learned counsel. President's assent was there in M. P. Upkar Adhiniyam 1981 because the Act was enacted under Entry 38 List III Seventh Schedule. Cess means 'fee', therefore, it was enacted under Entry 47 List III. In support of this submission, reliance is placed on Hiralal v. State of M. P. , 1986 MPLJ 514 , M. P. Lime Manufacturers's Association v. State of M. P. , AIR 1989 Madh Pra 264 (FB) and Gram Panchayat of Village Jamalpur v. Malwinder Singh, AIR 1985 SC 1394 . Obtaining of assent from President was essential and since it has not been obtained, impugned Ordinance/act is unconstitutional. ( 20 ) SHRI Vivek Tankha, learned Advocate General submitted that this amendment is covered by Entry 53, List II Seventh Schedule to the Constitution of India, alternatively, Entry 38 List III, since there is no Central law with respect to cess on electricity, as such M. P. Electricity Duty Act 1949 being relevant only to the extent petitioners submit that duty is already being charged from distributor and producer for sale or consumption which could not have been done under Upkar Adhiniyam 1981, as amended in 2001 (Act No. 18 of 2001), it amounted to double taxation which could not be done, purpose being same, of course, definitions under the M. P. Electricity Duty Act 1949 are applicable to M. P. Upkar Adhiniyam 1981. Learned Advocate General contends that this tax is for sale or consumption of electricity, same is the case with respect to impugned Ordinance/act under challenge, which is permissible. Both the Acts can provide for tax on the same item. Learned Advocate General contends that this tax is for sale or consumption of electricity, same is the case with respect to impugned Ordinance/act under challenge, which is permissible. Both the Acts can provide for tax on the same item. Under Article 287 of the Constitution of India, exemption from taxes on electricity has to be granted to Government of India, Railways etc. Cess is a tax, so interpreted in catena of decisions like Jadeja Habhubha v. State of Bombay, AIR 1959 Bombay 43 Shanmugha Oil Mill, Erode v. Coimbatore Market Committee, Tirupura AIR 1960 Madras 160 and Tata Iron and Steel Co. Ltd. v. State of Bihar, AIR 1991 Patna 75. Additional tax can be imposed through separate legislation. There can be surcharge on income tax, surchargeon electricity and Apex Court decision in Indian Aluminium Company v. State of Kerala (1996) 7 SCC 637 : ( AIR 1966 SC 1431 ) deals with surcharge on electricity. In order to be an excise duty, the levy must be on goods and the taxable event must be the manufacture or production of goods. It need not be imposed at the stage of production or manufacture but may be imposed later. Whether particular levy is a levy in respect of manufacture or production of goods has to be decided on the facts of each case but one of the essential characteristics of an excise duty is uniformity of incidence and it is closely related to and it must be closely related to production or manufacture of goods. It remains excise duty, even if it is collected from the retailer, as laid down by the Apex Court in Shinde Brothers v. Dy. Commissioner, Raichur AIR 1967 SC 1512 followed in India Cement Ltd. v. State of T. N. (1990) 1 SCC 12 , these decisions also laid down that cess is a tax. We are measuring the electricity produced on its generation for consumption or sale, Shri Tankha submits. At the stage of production, it can be measured for excise and this measurement can be used for sale or consumption, meaning thereby what is produced is consumed since it cannot be stored. The generation is for consumption or sale and not for storage. We are measuring the electricity produced on its generation for consumption or sale, Shri Tankha submits. At the stage of production, it can be measured for excise and this measurement can be used for sale or consumption, meaning thereby what is produced is consumed since it cannot be stored. The generation is for consumption or sale and not for storage. Measure of tax is administrative convenience and it can be imposed at any point, as laid down by Apex Court in Goodricke Group Limited v. State of W. B. 1995 Supp (1) SCC 707 : (1995 AIR SCW 123 ). Similar view was taken by the Apex Court in earlier decision in R. R. Engineering Company v. Zila Parishad Bareily ( 1980 3 SCC 330 : AIR 1980 SC 1088 ). Cess is a tax, which is not a restriction within the meaning of Arts. 301/304 of the Constitution of India. This view has been taken in Buxa Dooars Tea Company Ltd. v. State of W. B. (1989) 3 SCC 211 , Shree Digvijay Cement Co. Ltd. v. State of Rajasthan, AIR 2000 SC 680 , Union of India v. R. V. Swamy, AIR 1997 SC 2069 and Subodhyya Chit Fund (P) Ltd. v. Director of Chits, Madras, 1991 Suppl 2 SCC 131. ( 21 ) LEARNED Advocate General contends that what is being taxed is sale or supply of electrical energy and not the production "whether" qualifies utilisation of electrical energy either for sale or supply. Entry 53 List II is fully incorporated in S. 3 (2) of the impugned Act. Production is followed by sale or supply for consumption. Something could be said in case there had been stop after "produced" but it is followed the purpose of production which is within Entry 53 List II. From the generating set, electric energy enters the machine, so the place of measure is the first point where the consumption can be counted. Their plants are within factory premises that is why they are called Captive Power Plants, out of which electricity energy is produced for consumption straightway instead of being routed through the transmission lines of the MPSEB. Principle is the same between Section 3 (1) and S. 3 (2 ). In the former, it is one paisa per unit and in the latter, it is 20 paise per unit. Principle is the same between Section 3 (1) and S. 3 (2 ). In the former, it is one paisa per unit and in the latter, it is 20 paise per unit. In Mysore case, challenge is to the bill is for not giving discount for loss of electricity before consumption and total production is taxed. In this case, there is no loss from the stage of production to consumption. What is produced is consumed/used. ( 22 ) GIVING consideration to the preliminary and ancillary submissions advanced by the parties, we find that the State can levy taxes on the consumption or sale of electricity under Entry 53 List II Seventh Schedule to the Constitution of India while the Union can legislate with respect to duties on excise under Entry 84 List I, Seventh Schedule to the Constitution, Careful reading of the Ordinance/act demonstrates that S. 3 (2) does not levy cess on the production of electrical energy produced by Captive Power Unit or Diesel Generator Set with capacity existing 10 KWs but on the sale or supply of the same. By mere use of word "production" in Section 3 (2), it does not cease to be cess on the consumption of electrical energy. It is not on production because it is at the rate of 20 paise per unit of the production since production is measure of tax payable by owner of the Captive Power Plant. "whether" in Section 3 (2) qualifies the object of production. It is in the nature of a Proviso which means in case the production of electrical energy is for sale or supply to a consumer or for consumption by himself or his employees during any month, it would attract the cess. What is important is consumption and notproduction since without consumption, there cannot be production. Production is for consumption since electrical energy cannot be stored like other goods. Production is simply a measure of tax for the purpose of calculation of the amount of cess to be paid by the Captive Power Producer whose plant is located in the factory premises and wharever electrical energy is generated is consumed in the same premises and on the units so consumed, the electricity duty under the M. P. Electricity Duty Act, 1949 is being paid by him. For the same number of units of electrical energy consumed, cess is being charged. For the same number of units of electrical energy consumed, cess is being charged. If there is no load, consumption is not recorded by the meter. Therefore, production is being taken as a measuring unit for calculation of tax, otherwise it is not a taxing event. Simply because the stage of measure is production, it does not amount to tax on production of electricity. Excise duty can eb levied at the stage of production or at the stage of retail sale. Simply because it is levied at later stage, it does not cease to be excise duty. Similarly, in case cess is calculated at the initial stage, it does not cease to be cess nor does it become excise duty. Both are different taxes leviable for different purposes. Like excise duty, stage of measure is for administrative convenience even otherwise required when the electrical energy produced by the plant is straightway consumed by the industry since both are located within the same premises and installed for consumption by the industry, therefore called Captive Power Plant. Measure applied for assessing the tax ought not be confused with the nature of tax. In Entry 84 List I, taxing event is production while in Entry 53, List II, it is sale or consumption of electricity. In substance, cess is on energy consumed, stage of measure is only standard by which it is measured. Simply because it is measure at the stage of production, it does not become excise duty, but remains cess on consumption of electrical energy. Cess is tax on consumption of electricity, so falls under Entry 53, List II, Seventh Schedule to the Constitution and not excise duty under Entry 84 List I even if the measure of both is at the same stage. There is no dispute with regard to canons for interpretation of fiscal statute which have to be construed from the language thereof and if the same is clear, plain and unambiguous, it has to be given full effect without adding or substituting words therein. In Indian Aluminium Company v. State of Kerala (1996) 7 SCC 637 , the Apex Court said in paragraph 20 that :"20. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. In Indian Aluminium Company v. State of Kerala (1996) 7 SCC 637 , the Apex Court said in paragraph 20 that :"20. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. Therefore, the controversy must be resolved as far as possible, in view of the legislative body putting most liberal construction upon the relevant legislative entry so that it may have the widest amplitude. The Court is required to look at the substance of the legislation. It is equally settled law that in order to determine whether a taxing statute is within the competence of legislature, it is necessary to determine the nature of the tax and whether the legislature has had power to enact such a law. The primary guidance for this purpose is to be gathered from the charging section. It is substance of the impost and not reform that determines the nature of the tax. " (underlining supplied)the Apex Court said in Jiyajeerao Cotton Mills Ltd. , Birlanagar, Gwalior v. State of M. P. , AIR 1963 SC 414 that the language used in the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude to power of the legislature to legislate and not in a narrow and pedantic sense. With a view to understand the exact nature of the tax, title of the Act and the words used therein may not be conclusive, therefore, the pith and substance of the statute needed to be looked into. Further, in paragraph 22, the Court said:"22. The doctrine of pith and substance, though applied in determining the true character of the statutes under List III (Concurrent List) of the respective legislative topics of the State Legislature and Parliament, it was extended for consideration of the true character of the legislation even under the same legislative list. In all cases, therefore, the name given by the legislature in the impugned enactment is not conclusive on the question of its competence to make it. It is the pith and substance of the legislation which decides the matter which to be decided with reference to the provisions of the statute itself"therefore, in pith and substance, the Ordinance/act imposes tax on the sale or consumption of electrical energy. It is the pith and substance of the legislation which decides the matter which to be decided with reference to the provisions of the statute itself"therefore, in pith and substance, the Ordinance/act imposes tax on the sale or consumption of electrical energy. The contention that there is hiatus between production and consumption can not be appreciated since generatedelectrical energy is directly consumed without installation of transmission lines, sub-stations causing transmission and transformer loss. With this background, therefore, case of Indian Aluminium Company (supra) is relevant as against State of Mysore v. West-coast Papers Mills Limited (1975) 3 SCC 448 which is a decision for two questions recorded in paragraph 1 of the judgment, therefore does not apply to the facts of this case. ( 23 ) THE M. P. Electricity Duty Act, 1949 has been held valid by the Apex Court in the case of Jiyajeerao Cotton Mills Ltd. (supra), being covered by Entry 53 List II Seventh Schedule to the Constitution of India. Principle behind S. 3 (1) and 3 (2) is same, former deals with producer and the rate of cess is 1 paisa per unit, in the latter, it is producer and rate of cess is 20 paise per unit. It is further contended that imposition of cess at the rate of 20 p. per unit is unreasonable, excessive and arbitrary besides being discriminatory, therefore, hit by Art. 14 Constitution of India. Section 3 (1) and S. 3 (2) of the impugned Act treat equal as unequal, though it is on the same act of production of electrical energy. There is artificial distinction between the non-captive power plants and the captive power plants which amounts to invidious discrimination. The M. P. State Electricity Board has been benefitted, therefore, there is colourable exercise of power, purpose being to provide more funds to it despite continued inefficiency in managing its affairs and provide proper services to the consumers. The submissions are devoid of substances. A glance at the functions being discharged by the M. P. State Electricity Board would indicate that large number of functions have been assigned to it under statutes. It is the principal distributor of electrical energy in the State. It has to provide electricity to all sections of society residing at different distant locations irrespective of the fact whether the execution of such society oriented schemes are profitable or not. It is the principal distributor of electrical energy in the State. It has to provide electricity to all sections of society residing at different distant locations irrespective of the fact whether the execution of such society oriented schemes are profitable or not. Therefore, such organisations stand apart and cannot be equated with the petitioners. The power generation by petitioners is limited to their industries. The petitioners do not suggest initiation of scheme (s) for common welfare nor can they do since the generation of electrical energy by them is for self use. With this background, classification is constitutionally permissible and the grievance made on this count is not sustainable. Moreover, exemptions granted to certain categories have full justification in the context of the functions they discharge, therefore, the charge of arbitrariness and discrimination has no substance. Another facet of the submission is that the cess at the rate of 20 p. per unit is heavy, therefore, unreasonable. Shri V. K. Tankha, learned Advocate General submitted that the M. P. State Electricity Board had suggested cess at the rate of 70 p. per unit but the State Government after discussion with industry, fixed it at the rate of 20 p. per unit. It is well settled that unless the rate of tax is shown to be confiscatory, the Court cannot interfere with it. Incidence of tax cannot be avoided on the ground the same being heavy (Jagannath v. Union of India AIR 1962 SC 148 ). But in the given facts of the case, cess at the rate of 20 p. per unit of electrical energy consumed, cannot be said to be heavy and, therefore, confiscatory. ( 24 ) NEXT, it is contended that the impugned Ordinance/act violates Arts. 213/301/304 (b) of the Constitution of India since it has been promulgated without instructions from the President which is necessary in this case since it affects freedom of trade, commerce and intercourse and as per Art. 304 (b) of the Constitution, whenever State intends to impose reasonable restriction on freedom of trade, commerce and intercourse with or within that State in public interest, a bill or amendment requires previous sanction of the President before being introduced or moved in the State Legislature. This being so with respect to a Bill or amendment, the Governor could not promulgate Ordinance without instructions from the President with respect to the same subject matter. This being so with respect to a Bill or amendment, the Governor could not promulgate Ordinance without instructions from the President with respect to the same subject matter. Article 213 under Chapter IV deals with the legislative powers of the Governor known as Ordinance Making Power. It can be exercised when both the Houses of the StateLegislature are not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action in the circumstances. It has to be exercised with the aid and advice of the Council of Ministers. It ceases to operate at the expiration of six weeks from the date of re-assembly unless it is approved earlier by that Legislature or withdrawn by the Governor. It can be issued at any time. It can be exercised with respect to matters over which the State Legislature is competent to legislate. Therefore, Ordinance Making Power is legislative and not an executive act. As such, it cannot be assailed on the ground of non-application of mind, ulterior motive or ulterior purpose, any more than any law passed by the Legislature (See Nagaraj v. State of A. P. (1985)1 SCC 523 . The principle laid down by the Apex Court in S. R. Bommai v. Union of India (1994) 3 SCC 1 may apply in the facts and circumstances of the case. However, the petitioners do not succeed because their freedom of trade, commerce and intercourse is not directly and immediately affected by the Ordinance/act. There is no proper foundation for alleging this grievance in the pleadings nor could be gathered from the submissions advanced on this point except placing reliance on Apex court decision in Atiabari Tea Company v. State of Assam, AIR 1961 SC 232 facts of which have no application to these cases. Similarly, decision in Automobile Transport (Rajasthan) Limited etc. v. State of Rajasthan, AIR 1962 SC 1406 explains decision in Atiabari Tea Company case (supra), and it is said in paragraph 14 thus :"14. After carefully considering the arguments advanced before us, we have come to the conclusion that the narrow interpretation canvassed for on behalf of the majority of the States cannot be accepted, namely, that the relevant articles in Part XIII apply only to legislation in respect of the entries relating to trade and commerce in any of the lists of the Seventh Schedule. But we must advert here to one exception which we have already indicated in an earlier part of this judgment. Such regulatory measures as do not impede the freedom of trade, commerce and intercourse and compensatory taxes for the use of trading facilities hit by the freedom declared by Art. 301. They are excluded from the purview of the provisions of Part XIII of the Constitution for the simple reason that they do not hamper trade, commerce and intercourse but rather facilitate them. "further, in paragraph 17, the Court said:"17. We have, therefore, come to the conclusion that neither the widest interpretation nor the narrow interpretations canvassed before us are acceptable. The interpretation which was accepted by the majority in the Atiabari Tea Company case, ( 1961 1 SCR 809 : AIR 1961 SC 232 ) is correct but subject to its clarification. Regulatory measures are measures imposing compensatory taxes for the use of trading facilities do not come within the purview of the restrictions contemplated by Article 301 and such measures need not comply with the requirement of the Proviso to Art. 304 (b) to the Constitution. "the petitioners have not submitted how the Ordinance/act affects their freedom of trade, commerce and intercourse. It does not affect them directly and immediately. The affect may be remote provided the burden of price escalation of goods produced by them falls on them and not on the ultimate consumers. Therefore, imposition of cess does not violate the provisions of Arts. 301/304 of the Constitution of India. Consequently, promulgation of Ordinance, by the Governor under Art. 213 Constitution of India, is unassailable. Therefore, the previous sanction of President was not required for production of Bill in the State Legislature, See Shri Digvijay Cement Company Ltd. v. State of Rajasthan, AIR 2000 SC 680 . ( 25 ) ANOTHER facet of the submissions may also be dealt with. It is contended that legislation falls under Entry 38 of List III, Seventh Schedule to the Constitution of India, so Art. 254 is violated, there being already two Central legislations on the subject, namely, The Indian Electricity Act 1910 and Electricity (Supply) Act, 1948. Therefore, the Act is liable to be declared ultra vires unless gamut of Art. 255 is crossed. Therefore, the Act is liable to be declared ultra vires unless gamut of Art. 255 is crossed. We have found that the Ordinance/act has been promulgated/passed under Item 53 "taxes on consumption or sale of electricity" List II, Seventh Schedule and does not fall under Entry 84 List I of the Seventh Schedule, therefore, contention as to theapplication of Entry 38 List III of the Seventh Schedule to the Constitution of India need not be examined. We also find that the two Central legislations relate to different subject matters and there is no Central Legislation providing for this kind of tax/cess. As such, the submission of conflict based on Art. 254/255 is clearly without any basis. ( 26 ) NEXT, it was contended that the Ordinance imposing the cess has been issued five days before the notification of the State Electricity Regulatory Commission. The Ordinance was promulgated with a view to ignore the Commission, which has the power to examine the issue of costs/performance/duties etc. The State could have brought the matter before the Legislature instead of promulgating Ordinance. We do not appreciate these contentions. From the submissions of Shri V. K. Tankha, learned Advocate General, we find that imposition of cess was under consideration of the State for some time past. It was discussed with the industry and formed part of Captive Power Policy before Ordinance was promulgated. In case, the respondents wanted to rush through the measure, it could be done long back. It is not incumbent for the Government to discuss a matter with public before it is legislated. Therefore, the Ordinance could be promulgated at any time, the Government deemed necessary to do so. Moreover, Bill was presented before the Legislature, which had passed it. Consequently, these objections have no sustenance and are therefore rejected. ( 27 ) FURTHER, it was contended that the State is estopped from imposing additional fees and burdens them with cess after having encouraged, advised and induced the petitioners to set up the power plants at huge investments. This plea has also no force. The petitioners were permitted to install captive power plants in their industries under Sections 44/45 of the Electricity (Supply) Act, 1948 which do not prohibit imposition of conditions and additional conditions and cess is being imposed in exercise of statutory powers against which estoppel cannot be invoked. This plea has also no force. The petitioners were permitted to install captive power plants in their industries under Sections 44/45 of the Electricity (Supply) Act, 1948 which do not prohibit imposition of conditions and additional conditions and cess is being imposed in exercise of statutory powers against which estoppel cannot be invoked. Further, the purpose of imposing cess is clearly spelt out in sub-Section (4) of Section 3, careful reading of which suggests that rightful utilisation of the amount would definitely serve the research and development in the field of energy - conventional and non-conventional, efficiency of generation, transmission and distribution and utilisation, reduction of loss in transmission and distribution, research in design, construction, maintenance operation and materials of the equipment used in the field of energy with a view to achieve optimum efficiency, continuity and safety, survey of energy sources including non-perennial sources to alleviate energy shortage, energy conservation programmes, extending such facilities and services to the consumers as may be deemed necessary, creation of a laboratory and testing facilities for testing of electrical appliances and equipments used in the field of energy, programme of training conducive to achieve any of the above objectives, transfer of technology in the field of energy and other matters connected therewith, the benefits of which would definitely become available to producers, distributors and consumers of electrical energy. Consequently, attack mounted on this provision is liable to be rejected. ( 28 ) FROM the aforesaid discussion, what emerges is that the amendment of M. P. Upkar Adhiniyam, 1981 (No. 1 of 1982) by M. P. Upkar (Sanshodhan) Adhyadesh 2001 (No. 2 of 2001) is constitutionally valid, so is the M. P. Upkar (Sanshodhan) Adhiniyam, 2001 (No. 15 of 2001) and all these challenges advanced by the petitioners against the legislations are without any merit. Consequently, there is no merit in these writ petitions and they are dismissed. Costs on parties. Petitions dismissed. .