Honble BALIA, J.–The members of the petitioners Association are the persons who have set up captive power generation plants for the use and consumption of electricity in their respective industries and are not indulging in sale and supply of electricity. (2). The Rajasthan State Legislature in exercise of its authority to legislate in the subject of `tax on consumption and sale of electricity in terms of Entry 53 of the State List of 7th Schedule of the Constitution had enacted Rajasthan Electricity (Duty) Act of 1962 (for short the ``Act of 1962). Section 3 of the Act of 1962 envisages the levy of Duty on `the energy consumed by a person other than a supplier, generating energy for his own use or consumption. In terms of proviso (3) to Section 3, by Notification dated 12.12.1989, the State Government considering it expedient in the public interest remitted the Electricity Duty on consumption of electricity by persons generating energy for their own use and consumption. Said Notification had continuously remained in force until issue of impugned Notification dated 12.7.2004, by which the Notification dated 12.12.1989 had been rescinded. This had the effect of making such consumption of electricity, which has been generated by captive generation plants, subject to Duty at the rate prescribed in this respect from time to time. (3). The State Legislature had also enacted the Rajasthan Power Sector Reforms Act, 1999 (hereinafter referred to as the `Act of 1999) with the assent of the President of India. The Act of 1999 inter alia envisaged setting up of the Rajasthan Electricity Regulatory Commission under Section 3 of the Act, 1999 and enumerated functions, proceedings and powers of the Commission under Section 9 of the Act. Section 12 of the Act of 1999 further envisages that in the discharge of its functions, the Commission shall be guided by such directions in the matter of policy involving public interest as the State Government may give to it in writing and that the State Government shall consult the Commission in relation to any proposed legislation or rules concerning any policy direction issued about the functioning of the Commission and shall duly take into account the recommendation, if any, made by the Commission on such matters. (4). (4). After enactment of the Act of 1999, the Parliament enacted the Indian Electricity Act, 2003 (for short `the Act of 2003) in exercise of its legislative authority on the subject covered by Entry 38 of the concurrent list of 7th schedule. With the enactment of Act of 2003, the Indian Electricity Act, 1910 and the Electricity Supplies Act,1948 were repealed. This enactment envisages that in determining the tariff on electricity, the Central Government or the State Government, as the case may be, will provide non-discriminatory open access to its transmission system administered by any private or Govt. Company under it and as a transitory measure levy such surcharge on consumers as may be notified by the Central Commission or the State Commission, as the case may be, to be utilised for the purpose of meeting the cost of current level cross subsidy which shall be progressively reduced and eliminated but emphasising that such surcharge shall not be levied in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use. This reveals legislative policy that additional charges cannot be levied on the electricity generation for captive consumption for the purpose of cross subsidy. (5). While making the budgetary proposals for the Financial Year 2004-05, it was given out by the Chief Minister of Rajasthan, who is also the Finance Minister in the State Legislative Assembly that all persons, industrial units who are getting supplies of energy from the electricity distribution companies are paying 40 paisa per unit Duty on the energy consumed by them, but the industries which are generating energy for captive consumption are not paying any Duty on the electricity generated for their captive consumption. This gives as extra edge to the captive power generating industries and the industries who have not established captive power plant are lagging behind. With this premise, it was proposed to levy 25 paisa per unit Electricity Duty on the consumption of electricity generated by own sources. It was further envisaged in the speech that this will result in additional revenue of 36 crores rupees, which shall be subvent to electricity distribution companies so that they can partly off- set the increased cost of coal and diesel. (6). On that very date i.e. 12.7.2004, the impugned Notification (Annex. It was further envisaged in the speech that this will result in additional revenue of 36 crores rupees, which shall be subvent to electricity distribution companies so that they can partly off- set the increased cost of coal and diesel. (6). On that very date i.e. 12.7.2004, the impugned Notification (Annex. P/10) was issued rescinding the earlier Notification dated 12.12.1989, which reads as under:- ``FINANCE DEPARTMENT TAX DIVISION NOTIFICATION JAIPUR, JULY 12, 2004 S.O. 89. - In exercise of the powers conferred by sub-section (3) of Section 3 of the Rajasthan Electricity (Duty) Act, 1962 (Rajasthan Act No. 12 of 1962), the State Government being of the opinion that it is expedient in the public interest so to do, hereby rescinds this Departments Notification No. F. 4 (46)/FD/Gr. IV/84 dated 12.12.1989. (F.4 (67)/FD/Tax/2004-49) By order of the Governor, (Ajitabh Sharma) Deputy Secretary to the Government. (7). Simultaneously, another Notification dated 12.7.2004 (Annex. P/2) was also issued fixing the rate of Electricity Duty payable on consumption of self generated energy for any purpose, at 25 paisa per unit. This Notification was also used carrying a statement that it is expedient in the public interest so to do. However, subsequently, on considering the representation made by the petitioners association and representation of other industries, another Notification was issued on 28.7.2004 modifying the rates of Electricity Duty payable on consumption of self generated energy for any purpose, by prescribing different rates of Electricity Duty, depending on the total consumption of the unit per year. THE PETITIONER CONTENDS (8). The petitioner association has principally raised three grounds challenging the Notification dated 12.7.2004 (Ex. P/10), rescinding the earlier Notification dated 12.12.1989. (9). Firstly, it was contended that imposition of Electricity Duty on captive consumption by the State Legislature is incompetent as it amounts to Duty on manufacture which amounts to a Duty of Excise which state legislature is not competent to legislate the subject falls in List I of Seventh Schedule and is exclusively for Parliament to legislate. It was also contended that the distinction has not been made between `consumption of electricity and `use of electricity for the purpose of levy of Duty. Entry 53 of List II permits levy of Duty only on consumption and sale of Electricity. Therefore, Section 3 of the Act, 1962, to the extent it authorises levy of Electricity Duty on use of captively generated electricity, is ultra vires. Entry 53 of List II permits levy of Duty only on consumption and sale of Electricity. Therefore, Section 3 of the Act, 1962, to the extent it authorises levy of Electricity Duty on use of captively generated electricity, is ultra vires. It was urged by the learned counsel that Entry 52 clearly makes a distinction between `use and `consumption of any goods. Entry 53 speaks of tax on `consumption only and not of tax on `use of electricity. On this premise, it was contended that there is difference between the consumption of electricity and use of electricity. It was pointed out that where the end product of manufacture can be used for transmission or distribution of electricity, the electricity cannot be said to have been consumed, it can only be said to have been used. It was urged that the decision of Supreme Court in Jiyajeerao Cotton Mills Ltd., Birlanagar, Gwalior vs. State of M.P. ( AIR 1963 SC 414 ) and State of Gujarat and others vs. Akhil Gujarat Pravasi V.S. Mahamandal and others (2004) 5 SCC 155 ) are distinguishable and cannot be applied without considering whether the electricity in a particular case has been `consumed or `used. To the extent the tax being levied on `use of electricity as is appearing in expression `used in Section 3 of the Act, 1962 is ultra vires. It was further urged that at any rate the question of scope and ambit of legislative competence qua imposition of Duty on electricity generated for captive consumption needs reconsideration by the Supreme Court and the issue is not being given up or waived by the petitioners. (10). The second and third contentions raised by the learned counsel for the petitioners concern validity of Notification dated 12.7.2004 rescinding the earlier Notification of remission of Electricity Duty payable on consumption of energy by a person generating such energy from and type of self generating plant for its use or consumption. (11). It was contended that any Notification remitting the Electricity Duty in terms of sub-section (3) to Section 3 of the Act, 1962 is legislative in character. Therefore, in view of clear provision of the Rajasthan Power Sector Reforms Act of 1999, it requires that State Government consult the Commission constituted under the Act, 1999 before such legislative instrument is brought into existence. Therefore, in view of clear provision of the Rajasthan Power Sector Reforms Act of 1999, it requires that State Government consult the Commission constituted under the Act, 1999 before such legislative instrument is brought into existence. Since no such consultation has taken place before issuing the impugned Notification (Annex P/10), it must be considered to be void ab initio having been issued without observing the condition precedent required by Statute before rescinding the Notification dated 12.12.1989. (12). In this connection, reliance has been place on a recent decision of Supreme Court in M.P. Cement Manufacturers Association vs. State of M.P. and others (2004) 2 SCC 249 ) and Narayanan Sankaran Mooss vs. State of Kerala and another (1974) 1 SCC 68 ) which was referred to and relied on by the Supreme Court in M.P. Cements case (supra). (13). Secondly, it has been urged that since the Notification under sub-section (2) to Section 3 of the Act, 1962 could be issued only if the State Government considers it to be necessary or expedient in the public interest to remit or reduce the Electricity Duty payable on consumption of electricity generated by persons consuming such energy for their own power generating sets. Withdrawal of such Notification once made also requires that State is satisfied it be necessary or expedient in public interest to rescind the earlier Notification. (14). On this premise it has been urged that the purpose for which the impugned Notification has been issued is to partly off- set the increased cost of coal and diesel required to be incurred by the electricity supply and distribution companies. This amounts to provide cross subsidy to industries commercially generating electricity for sale and distribution. Providing cross subsidy to such units by burdening the industries which are generating electricity for their own use and consumption has been statutorily and specifically prohibited by the Central Act of 2003, enacted to give effect to the National Electricity Policy. The purpose which is prohibited by the Statutorily recognised policy cannot be considered to be in public interest. Therefore, the purported satisfaction of existence of public interest in rescinding the Notification dated 12.12.1989 vide impugned Notification cannot legally exist and the impugned Notification issued without adhering to the pre Notification issued without adhering to the pre condition of satisfaction about the existence of public interest cannot be sustained. (15). Therefore, the purported satisfaction of existence of public interest in rescinding the Notification dated 12.12.1989 vide impugned Notification cannot legally exist and the impugned Notification issued without adhering to the pre Notification issued without adhering to the pre condition of satisfaction about the existence of public interest cannot be sustained. (15). In this connection, it was also urged that issuance of such Notification being a legislative act, and as it pertains to class of persons, it requires adherence to principle of natural justice. It was contended that no opportunity of any sort was given prior to the issue of impugned Notification. The representation of the petitioner was considered after the issue of impugned Notification. It has not taken into account all relevant factors which are required to be taken into consideration for withdrawing the exemption which is required to be withdrawn only in public interest. Thus, the impugned Notification has been issued in violation of natural justice. Since, the admitted position is that rescission of the remission Notification is founded to make the captive power generating plants to be less competitive viz-a-viz the industries which do not have captive power generation and to cross subsidise the companies engaged in power transmission on the State by partly off-setting the cost of coal and diesel to be incurred by them betrays decision to be founded on irrelevant consideration and that the relevant consideration for withdrawing the remission from payment of Electricity Duty granted to captive power generating sets has not been considered and, for that person also the Notification (Annex. P/10) is invalid. (16). In this connection reliance was placed on Section 23 of the Rajasthan General Clauses Act or for that matter Section 21 of the Central General Clauses Act, provisions of Electricity Act, 2003, statement made in the State Industrial Policy, 1994 and the decision of the Supreme Court in case of State of U.P. And others vs. Renusagar Power Co. and others (1988) 4 SCC 59 ) and the judgment of Delhi High Court in case of Shri Hari Exports vs. Director General of Foreign Trade (1994 (73) E.L.T. 794 (Del.). (17). On the aforesaid premise, learned counsel for the petitioners contend that issuance of Notification withdrawing remission suffers from non-consideration of relevant material and non application of mind to the question of public interest. RESPONDENTS REPLY (18). (17). On the aforesaid premise, learned counsel for the petitioners contend that issuance of Notification withdrawing remission suffers from non-consideration of relevant material and non application of mind to the question of public interest. RESPONDENTS REPLY (18). It was urged by learned counsel for the respondents that grant of exemption is legislative in character and the principles of natural justice do not apply to exercise of such power. (19). Learned Advocate General Shri B.P. Agarwal and Addl. Advocate General Shri N.M. Lodha appearing for the State have firstly urged that the question about legislative competence of the State Legislature to levy Electricity Duty on consumption of electricity by a person generating energy for its use or consumption is no more res integra and has been given a quietus by the Constitutional Bench of Supreme Court in Jiyajeeraos case (supra) and it is not open for the petitioners to urge to be upheld by this Court contrary thereto by seeking to draw a distinction which does not exist. It is contended that the scope and ambit of various entries in the 7th Schedule cannot be restricted by the definitions or restrictive meaning given to the term `Consumption or `Use under any other enactments enacted under different legislative fields by the competent Legislature. Attention was invited to the observations made by the Supreme Court in Jiyajeeraos case (supra) that word consumption has a wider meaning and includes the meaning `use and the expression `consumption in Entry 53 of List II ought to be given wider meaning to include the expression user of the goods or article. It was urged by the learned counsel that without user there cannot be any consumption. Consumption is wider than use and, therefore there is no dichotomy in the use of words `use or `Consumption in Section 3 of the Act. (20). About the validity of the Notification dated 12.7.2004 (Annex. It was urged by the learned counsel that without user there cannot be any consumption. Consumption is wider than use and, therefore there is no dichotomy in the use of words `use or `Consumption in Section 3 of the Act. (20). About the validity of the Notification dated 12.7.2004 (Annex. P/ 10) suffering from vice of non-fulfillment of condition precedent, it has been urged in the first instance that under the scheme of Rajasthan Act, which is vitally different from the Sudhar Adhiniyam of M.P., consultation with the Commission in the matter of levy of Electricity Duty on captive power generation does not require to be made because the levy and collection of Electricity Duty is not the subject matter on which any provision of the Act, 1999 or for that matter Central Act of 2003 impinges or can ever impinge. The function of the commission does not extend to consider or to advise the State Govt. on the matter relating to levy and collection of taxes on consumption or sale of electricity. The requirement of consultation cannot be read de hors the field of legislation covered by the Act and the provisions actually enacted under the Act. (21). Even if requirement of consultation is assumed under the provisions of Section 12, before any proposed legislation including subordinate legislation in the form of issuing Notification, since no consequence has been provided for failure to adhere to this provision, it does not render the legislation void for that reason alone and at best it can take away the inbuilt insulation which prior consultation may provide against the possible challenge on the anvil of it being violative of Article 14 of the Constitution. Since the impugned Notification does not violate Article 14 of the Constitution in any sense nor it has been impugned on the ground of being violative of Article 14of the Constitution, it can merely amount to an irregularity not affecting the validity of the legislative instrument. (22). On the question of satisfaction of Government about existence of public interest, it was contended that rescinding of earlier Notification dated 12.12.1989 was made in public interest. It is a matter of subjective satisfaction of the State Govt. and is not justiciable. The question of adequacy or sufficiency of material cannot be a ground for judicial review of existence of satisfaction of State Govt. about public interest. It is a matter of subjective satisfaction of the State Govt. and is not justiciable. The question of adequacy or sufficiency of material cannot be a ground for judicial review of existence of satisfaction of State Govt. about public interest. It was pointed out that remission was being enjoyed by the industries having captive generation plants for over 15 years and that the Industrial Policy, 1994 under which such remission has been envisaged has since long expired. Thereafter, no such remission was envisaged under the Industrial Policy, 1998. The operative period of Industrial Policy, 1998 has also expired in 2003 and looking to the need for generating additional revenue and also for the reasons which have been given by the Chief Minister in his budgetary speech constitute the material on which satisfaction of State Govt. is reached for withdrawing the Notification dated 12.12.1989. It was also contended that there being no fixed period of duration of remission and the remission having been continued for a long period, it cannot be said that any right came to be vested in the petitioners for the continuance of remission or for assumption for any reason, for continuance of remission even after 15 years of extending the benefit of remission to the captive power generation sets. (23). The exercise of power of grant or withdraw exemption being a legislative function, adherence to the principles of natural justice is not required in the sense of giving notice of hearing to the affected parties, as may be the requirement in the case of any exemption of Notification granted to an individual, as was the case in Renusagar Power Companys case relied on by the petitioner. (24). It was also pointed out that no assurance was ever given to any member of the petitioners association that this remission would continue in future for inviting continued investment in the captive power generating plants, for any unlimited period. (25). In this connection reliance was placed on State of Gujarat and others vs. Akhil Gujarat Praveasi V.S. Mahamandal and others (2004) 5 SCC 155 ) to contend that even if the reasons given are wrong, it cannot affect the competent legislation and cannot render the legislative instrument to be invalid. FIRST ISSUE: (26). (25). In this connection reliance was placed on State of Gujarat and others vs. Akhil Gujarat Praveasi V.S. Mahamandal and others (2004) 5 SCC 155 ) to contend that even if the reasons given are wrong, it cannot affect the competent legislation and cannot render the legislative instrument to be invalid. FIRST ISSUE: (26). Coming to the first contention that the imposition of Electricity Duty on captive consumption amounts to levy of duty of excise, therefore, falls under Entry 84 of the Union List and not under Entry 53 of the State List as well as the question that the term ``Consumption does not include `use of electricity and is not a subject of tax which could be authorised by the State Legislation. (27). This contention, in our opinion, is bereft of any substance in view of the clear pronouncement of the Supreme Court in Jiyajeerao Cotton Mills Ltd. Birlanagar Gwalior vs. State of Madhya Pradesh ( AIR 1963 SC 414 ), in which the Court was addressing itself to this very issue in appeal arising from judgment of M.P. High Court. Firstly, the Court held that the ``Consumer would include any person who consumes electricity supplied by a person who generates electrical energy for his own consumption. A producer consuming electricity energy generated by him is also a consumer i.e. to say he is a person who consumes electrical energy supplied to himself. Secondly, the Supreme Court considered the ambit and scope of them ``Consumption and made it clear that the expression ``Consumption used in Entry 53 of List II of the Constitution is wide enough to include the energy ``use up or ``spend. (28). In coming to the aforesaid conclusion, the Court did not agree with the contention raised by the appellants before it that the word ``Consumption should be accordance the same meaning which it had under the various Electricity Acts including the Indian Electricity Act, under which Act and under the various Provincial and State Acts, consumption of electricity meant consumption by persons other than producers and that both in the Govt. of India Act, 1935 and under the Constitution, the word `consumption must be deemed to have been used in the same sense. Rejecting the contention, the Court said:- ``The Acts in question deal with a certain aspect of the topic ``Electricity and not with all of them. of India Act, 1935 and under the Constitution, the word `consumption must be deemed to have been used in the same sense. Rejecting the contention, the Court said:- ``The Acts in question deal with a certain aspect of the topic ``Electricity and not with all of them. Therefore, in those Acts the word ``Consumption may have a limited meaning as pointed out by learned counsel. But the word ``Consumption has a wider meaning. It means also `use up or `spend. The mere fact that a series of laws were concerned only with certain kind of use of electricity, that is persons other than the producer cannot justify the conclusion that the British Parliament is using the word ``Consumption in Entry 48-B and the Constituent Assembly in Entry 53 of List II wanted to limit the meaning of ``Consumption in the same way. The language used in the legislative entries in the Constitution must be interpreted in a broad way so as to give the widest amplitude of power to the Legislature to legislate and not in a narrow and pedantic sense. (29). Reliance by the learned counsel for the petitioners placed on a decision rendered in State of Gujarat and others vs. Akhil Gujarat Pravasi V.S. Mahamandal and others ( 2004 (5) SCC 155 ), which has been rendered under the Motor Vehicles Act is misplaced. (30). In view of the clear pronouncement of the Supreme Court, the contention that comparison should be drawn between Entry 53 where words `Sale or `Use have been used in conjunction with expression `consumption in connection with authorising tax on entry of goods in local area, does not survive. (31). In this regard, it was further urged that Entry 53 of List II of the VIIth Schedule of the Constitution of India does not give legislative competence to the State Government to impose Electricity Duty on electricity used by a company for its own use and which does not, therefore, require a purchase or sale of energy. It is further submitted that at the time it was framed did not treat electricity as goods but treated it separately. It was recognised that in the case of electricity, purchase would amount to consumption as the concept of storage of electricity did not exist. Therefore, the use of the phrase `sale or consumption of electricity was in the context of sale or purchase of electricity. It was recognised that in the case of electricity, purchase would amount to consumption as the concept of storage of electricity did not exist. Therefore, the use of the phrase `sale or consumption of electricity was in the context of sale or purchase of electricity. This is evident from the fact that Entry 54 of List 1 of VIIth Schedule to the Constitution of India empowers the imposition of sale tax on the sale or purchase of goods other than newspapers and sale and purchase of goods in the course of intere state trade and commerce. If electricity were treated as goods then as per Entry 53 and 54, there could be a sales tax on the sale and or purchase of electricity and again a duty on the sale or consumption of the electricity meaning thereby that Entries 53 and 54 would in fact authorise the imposition of two separate sets of duties/taxes in respect of purchase of electricity i.e. for the very same transaction, one under Entry 54 on purchase of electricity and one under Entry 53 on consumption of the very same electricity which on purchase stood consumed whereas on all other goods only one set of tax or duty could be levied under Entry 54. (32). This contention is stated to be rejected. There does not appear to be any overlapping between Entry 53 and Entry 54 of State List. Entry 53 specifically deals with levy of Duty on consumption or sale of Electricity Duty. The two entries dealing with tax on activity of sale of movable property must be read harmoniously and not in isolation. It may be noticed that Art. 286 preserves for parliament exclusively, the field to legislate on Inter State Sale of Goods. Hence, every authorisation of tax on activity of sale of movables is subject to restrain under Article 286. So also Entry 92A of Union List which deals with tax on sale or purchase of goods in the course of inter State trade or commerce, a Union subject. The observation made by Apex Court in Commissioner of Sales Tax vs. M.P.E.B., Jabalpur AIR 1970 SC 732 to the extent that since electricity can be stored has since been over rules in State of Andhra Pradesh vs. N.T.P.C. Ltd. (2002) 5 SCC 203 . But in both decisions the Court held the electricity to be movable goods. The observation made by Apex Court in Commissioner of Sales Tax vs. M.P.E.B., Jabalpur AIR 1970 SC 732 to the extent that since electricity can be stored has since been over rules in State of Andhra Pradesh vs. N.T.P.C. Ltd. (2002) 5 SCC 203 . But in both decisions the Court held the electricity to be movable goods. It was held after considering the definition of goods as given in Art. 366(12) of the Constitution to be goods. (33). In its decision in NTPC Ltd. case the court referred to its earlier decision in Burmah Shell Oil Storage and Distributing Company India Ltd. vs. Belgaum Borrough Municipality AIR 1963 SC 906 wherein it was held while considering word `Sale in Entry 52 in List II of Seventh Schedule that:- ``the act of sale is merely the means for putting the goods in the way of use of consumption. It is an earlier stage, the ultimate destination of the goods being `use or consumption. We feel that the same meaning should be assigned to the word `sale in Entry 53. This is for a fortiori reason in the context of electricity as there can be no sale of electricity excepting by its consumption, for it can neither be preserved nor stored. It is this property of electricity which persuaded this Court in Indian Aluminium Co. Ltd. etcs case (supra) to hold that in the context of electricity, the word `supply should be interpreted to include sale or consumption of electricity. Entry 53 should therefore be read as `taxes on the consumption or sale for consumption of electricity. (34). The Court read the two Entry 53 and 54 of list II harmoniously as under:- ``With these two things in mind, namely, that electricity is goods, and that sale of electricity has to be construed and read as sale for consumption within the meaning of Entry 53, the conflict, if any, between Entry 53 and Entry 54 ceases to exist and the two can be harmonised and read together. Because electricity is goods it is covered in Entry 54 also. It is not disputed that duty on electricity is tax. Because electricity is goods it is covered in Entry 54 also. It is not disputed that duty on electricity is tax. Tax on the sale or purchase of goods including electricity but excluding newspapers shall fall within Entry 54 and shall be subject to provisions of Entry 92A of List I. Taxes on the consumption or sale for consumption of electricity within the meaning of Entry 53 must be consumption within the State and not beyond the territory of the State. Any other sale or electricity shall continue to be subject to the limits provided by Entry 54. Even purchase of electricity would be available for taxation which it would not be if electricity was not includible in the meaning of term `goods. A piece of legislation need not necessarily fall within the scope of one entry alone; more than one entry may overlap to cover the subject matter of a single piece of legislation. A bare consumption of electric energy even by one who generates the same may be liable to be taxed by reference to Entry 53 and if the State Legislature may choose to impose tax on consumption of electricity by the one who generates it such tax would not be deemed to be a tax necessarily on manufacture or production or a duty of excise. (35). Nor the two expressions `consumption or `sale used alternatively can be amalgamated into one phrase to make it a condition precedent precedent of imposition of Duty that electricity sold and consumed will alone be subject to Duty. The decision of Supreme Court in Jiyajeerao Cotton Mills Ltd., Birlanagar, Gwaliar vs. State of Madhya Pradesh, AIR 1963 SC 414 , Burne Shell Oil `State and Distributory Co. case ( AIR 1970 SC 732 ) and NTPC case (2002) 5 SCC 203 (supra) provides complete answer to these contentions. SECOND ISSUE: (36). Coming to the second question about the necessity of non- consulting the Regulatory Commission constituted under Rajasthan Power Sector Reforms Act, 1999, terms of Section 12(3) of the Act, 1999 needs notice. It reads as under: ``12(3) The State Government shall consult the Commission in relation to any proposed legislation or rules concerning any policy direction and shall duly take into account the recommendation, if any, made by the Commission on all such matters. (37). It reads as under: ``12(3) The State Government shall consult the Commission in relation to any proposed legislation or rules concerning any policy direction and shall duly take into account the recommendation, if any, made by the Commission on all such matters. (37). A perusal of the aforesaid provision in itself conveys the supremacy of the State Government in the matter of laying the policy and issuing policy directives to the Commission for its guidance. The State Govt. has not been made a subsidiary authority to lay down policy guidelines in consultation with the Commission. Sub-section (3) of Section 12 restricts the requirement of State Govt. to consult the Commission in relation to any proposed legislation or the Rules only in respect of the subject matter in respect of which policy directions have been issued by the State Government under sub-section (1) and not beyond it. (38). The substance of the contentions raised by the learned counsel for the petitioners in this regard that such consultation is necessary in respect of any and every piece of legislation, primary or subordinate, concerning the electrical industry as a whole emanates from the decision of the Supreme Court in M.P. Manufactures Associations case (supra). (39). Reliance has been placed on the following observations made by the Apex Court in M.P. Cement Manufactures Associations case. ``In our opinion, the consequence of non-consultation in terms of Section 12(3) of the Sudhar Adhiniyam would not be an incompetent piece of legislation but a legislation introduced in breach of a salutary requirement to consult an expert statutory body. The statutory requirement for consultation with a body of experts before proposing legislation will serve as an inbuilt safeguard against a challenge under Article 14 of the Constitution apart from anything else. (40). In reaching this conclusion, the Apex court made a distinction between fetter or limitation to be found in a law made by a Parliament in respect of subject matter over which the State Legislature had full competence to enact such law on the one hand and on the other such a fetter contained in law made by the State legislature in respect of which it has full competence. The Court referred to its earlier decision in Maharaj Umeg Singh and others vs. State of Bombay and others ( AIR 1955 SC 540 ) which laid down emphatically that once the topic was comprised within any of the Entries in List 2 or 3 of Seventh Schedule of the Constitution, the fetter or limitation on such legislative power had to be found within the Constitution itself and where there was no such fetter or limitation to be found there, the State Legislature had full competence to enact the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Government or the Province of Bombay or even the State of Bombay. (41). The Court held:- ``Unlike the decision in Maharaj Umeg Singh case the so- called legislative ``fetter in the case before us is itself contained in a valid legislation viz. the Sudhar Adhiniyam, 2000. The State was competent to enact the Sudhar Adhiniyam, 2000. The respondents have not urged to the contrary. So now we have two pieces of legislation viz, the Sudhar Adhiniyam, 2000 and the Amendment Act of 2001, both enacted by the State which are both equally valid. (42). The Supreme Court in M.P. Cement Manufacturers Associations case was dealing with the provisions of M.P. Upkar Adhiniyam, 1981 and provisions made in M.P. Sanshodhan Adhyadesh, 2001. The question has arisen in somewhat like circumstances as has arisen in the present case. The said Act was for imposing duty on consumption of electricity in M.P. in term of Entry 53 of State List. Vide amendment made in 2001, the charging Section of the Act of 1981 had been substituted. Sub-section (1) envisaged that every distributor of electrical energy shall pay to the State Govt. at the prescribed time and in the prescribed manner the energy development Cess @ 1 paisa per unit on the total units of electrical energy consumed or supplied to a consumer or consumed by himself or his employees during any month. Sub-section (1) envisaged that every distributor of electrical energy shall pay to the State Govt. at the prescribed time and in the prescribed manner the energy development Cess @ 1 paisa per unit on the total units of electrical energy consumed or supplied to a consumer or consumed by himself or his employees during any month. However, sub-section (2) which dealt with captive power units read as under:- ``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. (43). Considering the aforesaid provision relating to payment of cess on total unit of electrical energy produced by the captive power plants, the Supreme Court held the levy to be a tax on production of the electrical energy which was a Union Subject under Entry 84 of the List I and, therefore, it was beyond legislative competence of the State Legislature. (44). The second contention which was raised before the Supreme Court was that the cess has been imposed without fulfilling the mandatory requirement of consultation with the Electricity Regulatory Commission as a condition precedent before any legislation concerning the electricity industry could be brought into existence, as provided under Section 12(3) of the M.P. Vidhyut Sudhar Adhiniyam, 2000. (45). The question which need to be probed is whether the provisions of Section 12(3) of the Rajasthan Act are parallel and para materia with Section 12 of the M.P. Upkar Sanshodhan Adhiniyam, 2003. This can be best considered by placing the two provisions in juxtaposition before further inquiry in the question whether the conclusions reached by us aforesaid on the contours of Section 12 of the Rajasthan Act are contrary to the law stated by the Supreme Court about legislation being in breach of condition of pre-consultation before issuing of Notification, which is a specie of subordinate legislation, withdrawing the exemption granted to the captive power units in the State. Rajasthan Act Madhya Pradesh Act 12. General powers of the State Government. Rajasthan Act Madhya Pradesh Act 12. General powers of the State Government. (1) In the discharge of its function, the Commission shall be guided by such directions in the matter of policy involving public interest as the State Government may give to it in writing. 12. General powers of State Government. (1) The State Government shall have the power to issue policy directives on matters concerning electricity in the State including on measures which are considered necessary for the overall planning and co- ordination for development of Electricity Industry in the State. (2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, it shall be referred to the Central Commission whose decision thereon shall be final and binding. (2) The policy directives under sub-section (1) shall be in writing and shall be consistent with the objects sought to be achieved by this Act and they shall not adversely affect or interfere with the functions and powers of the Commission including but not limited to licensing and determination of tariffs under the powers vested in the Commission under the Act. (3) The State Government shall consult the Commission in relation to any proposed legislation or rules concerning any policy direction and shall duly take into account the recommendation, if any, made by the Commission on all such matters. (3) The State Government shall consult the Commission in relation to any policy directive which it proposes to issue or any legislation is proposed to be enacted affecting the Electricity Industry it shall duly take into account the recommendation if any, given by the Commission within such reasonable time as the State Government may specify. (46). The comparison of the two provisions contained in the M.P. Sudhar Adhiniyam and Rajasthan Power Sector Reforms Act, 1999 illuminates the distinction clearly. So far as the Rajasthan Act is concerned, the Scheme of Section 12 makes it abundantly clear that the Commission constituted under the Rajasthan Act is not required to be consulted in the matter of laying down the policy. As per sub-section (1), laying down policy for guidance and issuing directions in the matter of policy involving public interest is the task assigned to the State Government. As per sub-section (1), laying down policy for guidance and issuing directions in the matter of policy involving public interest is the task assigned to the State Government. It is only when the State Government gives in writing any policy directives about public interest to the Commission, the Commission is to be guided by such directives issued by the State Government in that regard. (47). Unlike under sub-section (2) of sub-section 12 of M.P. Act, the Rajasthan does not envisage that `directives shall not adversely affect on interfere with powers of commission including but not limited to licencing and determination of tariff under power vested in the commission under the Act. This provision places commission at far more position of strength than under the Rajasthan Act and fetters the power of State in the realm of issuing directives. (48). Sub-sec. (3) of Sec. 12 of the Rajasthan Act circumscribes the area within which the State Government is required to consult the Commission in relation to proposed legislation or rules and it is limited to the cases where the proposed legislation of rule concern any policy directives issued under sub-sec. (1) of Sec. 12. If a matter does not fall within the policy directives issued by the State Government under sub-sec. (1), the requirement of the State Government to consult the Commission in relation to any proposed legislation or rules does not arise. (49). In contrast, under Section 12 of the M.P. Sudhar Adhiniyam, the Commission has been given a superior position inasmuch as it is not only to be consulted in the matter of any proposed legislation but is also to be consulted in relation to any policy directives which State Government has to consult the Commission in relation to any policy directives which it proposes to issue. While sub-sec. (1) enables the State Government to issue policy directives in the matter concerning electricity in the State including of measures which are considered necessary for the overall planning and coordinating for the industry in the State, under sub-sec (3) it is imperative for the State Government that before issuing any such policy directives under sub-sec. (1), it consults the Commission. This makes a vital distinction between the position of Commission in State of M.P. Act and Commission in the State of Rajasthan vis-a-vis respective State Government. (1), it consults the Commission. This makes a vital distinction between the position of Commission in State of M.P. Act and Commission in the State of Rajasthan vis-a-vis respective State Government. The primacy which Commission enjoys in M.P. is not enjoyed by the Commission in Rajasthan. (50). The other vital difference which stands out on the comparative reading of two provisions is that while M.P. Act mandates the State Government, independent of policy directives, to consult the Commission in respect of any legislation which is proposed to be enacted `affecting the electricity industry as a whole in all its aspects; the requirement to consult Commission under the Rajasthan Act does not have this broad spectrum. The requirement of consulting the Commission under the Rajasthan Act does not extend to any and every legislation to be enacted, affecting the electricity industry in all its aspects but requirement of consultation is confined to the cases where the legislation is proposed by the State within the periphery of the policy directives issued by it to the Commission for its guidance. (51). It is keeping in view the requirement of the M.P. Sudhar Adhiniyam to consult the Commission under the M.P. Sudhar Adhiniyam before enacting any proposed legislation concerning the electricity industry as a whole, the Apex Court in M.P. Cement Manufacturers Association Case (2004) 2 SCC 249 emphasised that sub-sec (3) refers to any State policy directives which it proposes to issue or any legislation proposes to be enacted affecting the electricity industry. Keeping in view these two requirements, the Court which was concerned with the levy of cess which was held to be an imposition on generation of electricity, the Court concluded that the levy of cess by the impugned legislation affects the electricity industry. It is for this reason, the Court found that there was no consultation by the State Government with the Commission at any stage though the levy of cess by the impugned legislation affects the electricity industry, the legislation have been introduced under breach of salutary requirement to consult an expert statutory body. (52). It is for this reason, the Court found that there was no consultation by the State Government with the Commission at any stage though the levy of cess by the impugned legislation affects the electricity industry, the legislation have been introduced under breach of salutary requirement to consult an expert statutory body. (52). However, in the present case, we have noticed above that the requirement to consult the Regulatory Commission before any legislation proposed to be enacted affecting the electricity industry is not the requirement under Sec. 12(3) of the Rajasthan Act but the requirement of consultation is only in respect of policy directives issued by the State Government which it could issue even without consulting the regulatory Commission. Thus, whether consultation with the Commission before enacting or making any law by the State is required depends on the policy directives issued by the State demarcating the area of functions of Commission. (53). In terms of the provisions of the Rajasthan Act, the contention cannot be sustained on the anvil of M.P. Cement Manufacturers case with respect to any and every legislation affecting electricity in the State unless it can further be established that subject of levy of Duty broadly or the subject of extending concession to the captive power generation fell within the policy directives issued by the State Government in writing to the Regulatory Commission for its guidance. Unless the policy directives issued to the Regulatory Commission contains the matter relating to the concession to be granted to the captive power generation or electricity industry in the State in General, the legislation otherwise falling in the exclusive province of the State relating to imposition of duty on consumption of electricity in Rajasthan would not fall within the regulatory provision of Sec. 12 of the State Act of 1999. (54). This takes our enquiry to the question whether the subject of grant of extension of concession to the electricity industry in the matter of taxation is subject matter of policy directives issued to the Regulatory Commission? (55). Neither there is any such averment nor any material has been placed before us to show that any policy directives were issued to the Regulatory Commission in terms of Sec. 12(1) for the guidance of the Regulatory Commission. (56). (55). Neither there is any such averment nor any material has been placed before us to show that any policy directives were issued to the Regulatory Commission in terms of Sec. 12(1) for the guidance of the Regulatory Commission. (56). In this regard, the reference has been made to the Industrial Policy 1994, Industrial Policy, 1998 and the Revised Captive Power Plant Policy, 1999 amended upto 18th Jan., 2003. (57). So far as Captive Power Plant Policy, 1999 is concerned, it is in no way concerned with and/or linked with the levy of or relate to Electricity Duty under the Rajasthan Electricity Duty Act, 1962, and/or exemption from electricity to be provided to Captive Power units which were otherwise contained in Para 14.7 in the Rajasthan State Industrial Policy, 1994. (58). In Para 14.7, Industrial Policy, 1994, the State Government did clearly gave out that in order to encourage industrial units to set up and part captive power plants, the Government has recently decided to exempt Electricity Duty on such units. (59). However, this policy of 1994 was subsequently replaced by the Rajasthan State Industrial Policy, 1998. In the Industrial Policy 1998, the announcement made in respect of captive power plant were as under: 4:11.3 Captive power plants will be freely permitted. No permission from RSEB would be required. (60). There is no statement about further concession in respect of power plants in respect of Electricity Duty in the policy so announced. The only statement about any concession in this regard to be found in the Industrial Policy, 1998 is that new large industrial consumers would be required to pay for the first six months on the basis of actual consumption and for the next six months on the basis of actual consumption or 50% of the minimum charges whichever is higher. Thus, certain concession in the matter of minimum charges was promised to new large industrial consumers for a period of one year in aggregate but no tax concession formed part of the Industrial Policy, 1998 for the electricity industry in general or captive power units in particular. (61). We have already noticed above that the captive power plant policy announced in 1999 as amended upto 2003, did not contain any directives regarding levy of Electricity Duty or remission from Electricity Duty. (62). (61). We have already noticed above that the captive power plant policy announced in 1999 as amended upto 2003, did not contain any directives regarding levy of Electricity Duty or remission from Electricity Duty. (62). That position is, in fact, stated by the petitioners themselves in their written statements that the captive power plant policy has no connection with the Electricity Duty. The fact that the captive power plants will be freely permissible does not extend to policy directives in the matter of tax exemption. (63). No other document has been placed before us to suggest that any policy statement in force as on date impugned notification was issued formed part of the State policy on electricity industry concerning the tax concession so issued to the State Regulatory Commission so as to require its prior consultation before proposed legislation is enacted or promulgated whether primary or subordinate. (64). At this juncture, it will be apposite to notice that the ambit and scope of such regulatory provisions contained in any enactment made by the State and its effect on the legislative power and the State concerned was well demarcated in the M.P. Cement Associations case. (65). The Court clearly posited after refereeing to the Supreme Court decision in Maharaj Umeg Singh & Ors. vs. State of Bombay & Ors., AIR 1955 SC 540 (supra), that a State legislature cannot be fettered from exercising its plenary powers of legislation within the ambit of legislative heads specified in List II and III of the Seventh Schedule to the Constitution, unless the prohibition is contained in the Constitution itself. The Court has opined: ``Once the topic of legislation was comprised within any of the entries in Lists II and III of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Government or the Province of Bombay or even the State of Bombay. (66). With this premise, the Court drew distinction between the fetters coming from agencies outside the competent legislations and such fetters that may be contained in a valid legislation which the State itself was competent to enact. (66). With this premise, the Court drew distinction between the fetters coming from agencies outside the competent legislations and such fetters that may be contained in a valid legislation which the State itself was competent to enact. While the Court clearly ruled out that the power of the State to legislate over the field reserved for it could be regulated and fettered by the Act of Parliament otherwise then the Constitution, it carved out an exception that if the so called legislative fetter is contained in a valid legislature of that very legislation, it becomes self imposed fetter or regulation which has to be given effect to. Considering this aspect of the matter, the Court said: ``Unlike the decision in Maharaj Umeg Singh case the so called legislative ``fetter in the case before us is itself contained in a valid legislation viz. the Sudhar Adhiniyam, 2000. The State was competent to enact the Sudhar Adhiniyam, 2000. The respondents have not urged to the contrary. So now we have two pieces of legislation viz. the Sudhar Adhiniyam, 2000 and the Amendment Act of 2001, both enacted by the State which are both equally valid. The first question, therefore, is whether Section 12(3) does in fact impose any fetter on the power of the State to legislate. Sub-section (3) refers to `any policy directive which it proposes to issue or `any legislation proposed to be enacted affecting the electricity industry. It does not stop the State from enacting the legislation but merely states that prior, to any legislation being proposed, the Government shall `duly take into account the recommendation if any, given by the Commission. It was and is open to the State Legislature to repeal this law. As long as it continues to be operative, it must be assumed that it was not a mere exercise in futility and some effect must be given to the words of sub-section (3) of Section 12. As we read the sub-section, it is a mandate to the policy makers who, before proposing legislation, are required to consult the State Regulatory Commission. (67). As we read the sub-section, it is a mandate to the policy makers who, before proposing legislation, are required to consult the State Regulatory Commission. (67). Since we have come to the conclusion that the proposed legislation which concerns the levy of Electricity Duty through parent enactment or concerns a delegated legislative instrument by way of Notification prescribing rates of duty or quasi legislative instrument extending or withdrawing remission from duty does not fall within the ambit of policy directives issued to the Regulatory Commission and the proposed legislation being not within the precincts of policy directives issued to the REgulatory Commission, the obligation of prior consultation under Sec. 12(3) of the Rajasthan Power Sector Reforms Act, 1999 does not extend to the impugned Notification. (68). The learned counsel for the petitioners have referred to various provisions of the Act of 1999 of suggest that the Act of 1999 concerns the policy on electricity industry as a whole and therefore, the proposed legislation affecting electricity industry fell within the purview of Sec. 12(3). (69). We have not referred to all those provisions for the reason that the scheme of Section 12(3) does not extend to all legislations affecting electricity industry in all its aspects but the requirement is confined only to such matters which form part of the policy directives issued to the Regulatory Commission by the State Government. Since no material has been placed before us that no such policy directives were issued to the Regulatory Commission containing guidelines regarding concession to be extended to the electricity industry or taxes to be levied on electricity industry, the further enquiry into the ambit and scope of entire Act for the present purposes and the regulatory restraint over the legislative power of the State does not arise for consideration. (70). Assuming for the sake of arguments that such consultation was required before issuing impugned Notification for remission of Electricity Duty in the case of captive power units, the question still arises whether it would invalidate the impugned Notification which has been admitted to be legislative in character or will depend on other factors. (71). Sec. 12(3) an noticed above, does not affect the legislative competence to bring into any legislative instrument by parallel subordinate or delegated legislative authority. Therefore, it does not affect the competence of the delegate of the State Legislature to issue Notification in the nature of subordinate legislation. (71). Sec. 12(3) an noticed above, does not affect the legislative competence to bring into any legislative instrument by parallel subordinate or delegated legislative authority. Therefore, it does not affect the competence of the delegate of the State Legislature to issue Notification in the nature of subordinate legislation. The power of the legislative competence is co-extensive with the power to make subordinate legislation n that regard. Therefore, the question would only remain whether the Notification issued in breach of the provisions of Sec. 12(3) would become void for that reason alone or need something more to render it invalid. (72). The answer is provided by the M.P. Cement Association Case itself. According to the said judgment, the consequence would be to make it vulnerable to challenge being violative of Article 14and the necessary safeguard against such challenge may not be available to support the presumption that may arise in favour of it constitutional validity, when challenged on the anvil of Article 14 on the basis of observance of such safeguard. The Court said: ``In our opinion, the consequence of non-consultation in terms of Section 12(3) of the Sudhar Adhiniyam would not be an incompetent piece of legislation but a legislation introduced in breach of a salutary requirement to consult an expert statutory body. The statutory requirement for consultation with a body of experts before proposing legislation will serve as an inbuilt safeguard against a challenge under Article 14 of the Constitution apart from anything else. (73). However, the Court declined to decide the question whether by reason only of such non-consultation, Section 3(2) of the 1981 of M.P. Vidhyut Upkar Adhiniyam is violative of Article 14, nor did the Court proposed to decide whether the cess of 20 paise is excessive, nor the other grounds urged by the appellants pertaining to Article 14. The Court had referred to provisions of the Sudhar Adhiniyam so that the State Government may in future act in consonance with Section 12(3). (74). However, with reference to certain other precedents emanating in different circumstances in relation to difference subject matters it has been sought to urge that the non compliance with the requirement of prior consultation under Sec. 12(3) would itself render the impugned legislation invalid without anything more. (75). (74). However, with reference to certain other precedents emanating in different circumstances in relation to difference subject matters it has been sought to urge that the non compliance with the requirement of prior consultation under Sec. 12(3) would itself render the impugned legislation invalid without anything more. (75). This proposition in our opinion, is contrary to the principle emanating from M.P. Cement Manufactures Association case (supra) wherein the Court clearly stated that the requirement of such prior consultation results in strengthening inbuilt safeguard against possible challenge on the anvil of Article 14 of the Constitution. The Court has not laid down that merely on the basis of such laid down that merely on the basis of such non-compliance, the law would become void. On the contrary, by making it clear that because the Court has already reached its conclusion that the imposition of cess was a matter of tax on generation of electricity, it was beyond the competence of the State Legislature, it is not going into the question of violation of Article 14 resulting from violation of Sec. 12(3) of the M.P. Sudhar Adhiniyam, it clearly indicated that before striking down the legislation to be invalid, the Court will have to undertake further enquiry into the question whether the impugned statute suffers from the vice of breach of Article 14 of the Constitution. If a case for such breach is made out, the law would become void because it will transgress the constitutional limit provided under part III of the Constitution but not on the ground that the impugned legislation has come into being in breach of Sec. 12(3) of the Act. (76). Moreover, the decision in Narayanan Sankaran Mooss vs. The State of Kerala & Anr., (1974) 1 SCC 68 (supra) relied on by the learned counsel for the petitioner was rendered under the Scheme of Electricity Act, 1910. ``While emphasizing that the object and setting of the phrase ``after consulting the Board in Sec. 4 will have to be examined for deciding whether the provision is mandatory or directory on the construction of the relevant provisions of the Electricity Act and the impact it has on the individuals right to carry on business as a revocation of licence would result in the stoppage of business itself. It would affect the right of the petitioner under Article 19(1)(g). (77). It would affect the right of the petitioner under Article 19(1)(g). (77). The Court found that the condition of prior consultation of the Board is a condition precedent and an imperative condition. Failure to comply with the same would render the decision itself void. Thus, the breach of provision of prior consultation was held to have direct nexus with consequent adverse effect of right to carry on trade inasmuch as the consequence of order was to result in closure of business altogether. Hence the breach of condition of consultation entailed invalidating the order itself. (78). It did not lay down a universal rule to be applied in all cases irrespective of context in which the provision for prior consultation exists, to be held mandatory and consequence of non compliance would render the action void for that reason alone. The Court on surveying of the object for which the provision has been made and considering that the power to revoke licence is a drastic power which results in sever abridgment of right to carry on business came to the conclusion that `having in mind, the requirement of Article 19(1)(g), Parliament has prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Clauses (1) to (d) of Section 4 prescribe some of the conditions precedent for the exercise of power. The order of revocations, when will result in breach of right under Article 19(1)(g), will undoubtedly be void. The clause ``if in its opinion the public interest so requires is also a condition precedent. Consultation with the Board is also a condition precedent for making the order of revocation. Accordingly, the breach of this condition precedent should also entail the same consequence as the breach of other conditions. (79). A distinction has clearly to be made where the action as an administrative action in breach of requirement of prior consultation which results in breach of fundamental right to carry on trade itself and a provision which is made as a safeguard against possible breach of Article 14 and provides the presumption in favour of procedural safeguard before legislation is enacted in the matter of legislations governed by Sec. 12(3). (80). (80). The position with which we are concerned is like the protective umbrella extended to certain enactments under Article 30-A of the Constitution against such challenge to such legislation on the ground of it being violative of Article 14 on fulfillment of condition mentioned in proviso to Article 30-A (1) namely before enacting such law by the State Legislature, it is placed before the President for his consideration. (81). Failure to place the enactment before the President for its consideration before its enactment which comes within the ambit of various clauses of Article 30-A(1) results in merely taking away the protective umbrella but failure of such condition by itself does not result in legislation being invalid. In such event, non compliance with the requirement may result in taking away the immunity from challenge on the ground of it being violative of Article 14. Still a case has to be made out whether the impugned law results in breach of Article 14 before it could be declared invalid. (82). In this connection, we may refer to a Bench decision of this Court in Ram Lal & Ors. vs. State of Raj. & Ors., decided on 3.6.2004. (83). We are of the opinion that the impugned Notification cannot be invalidated only on the ground that before issuing impugned Notification, the Commission was not consulted. (84). No contention has been advanced that in fact and how the impugned Notification is otherwise violative of Article 14 of the Constitution. Last Contention (85). From the contentions noticed above, two principal issues arise for consideration firstly; whether the issuance of Notification under Section 3 of the Electricity Duty Act, 1962 requires adherence to the principles of natural justice requiring hearing from affected interests as contended by learned counsel for the petitioners and secondly whether the satisfaction of State Government as to the existence of public interest is justiciable and if so, whether in the present case, the satisfaction about existence of public interest has been established to sustain the exercise of power by the State Government under sub-section (3) of Section 3 of the Act of 1952. A. NATURE OF THE POWER EXERCISABLE UNDER SUB-SECTION (3) OF SECTION 3 OF THE ACT OF 1962 (86). A. NATURE OF THE POWER EXERCISABLE UNDER SUB-SECTION (3) OF SECTION 3 OF THE ACT OF 1962 (86). There is no dispute about the fact that the exercise of power by the State Government in granting exemption or for withdrawing exemption once granted is a legislative function exercised by the delegate of the State Legislature. The guidelines having been provided under the Act is the satisfaction of the State Government that it is necessary or expedient in the public interest to do so. (87). It will also be relevant to notice here that there exists distinction between the relevant consideration of enquiries into testing the validity of delegated legislation and the conditional delegated legislation. While testing the delegated legislations simpliciter almost the same consideration apply as are applicable to test validity of parent legislation, along with it has to be tested on the provision of Statute under which power is exercisable or any other Statute which may have relevant bearing for examining the validity of conditional legislation scope of enquiry is wider in the matter of finding the validity of impugned conditional legislation. (88). Broadly speaking, the former refers to fill in the details for carrying all the purposes of the parent Act, by the delegate e.g. power to frame Rules or schemes for which policy is laid in substantive provisions. In the latter class of the delegation, the legislation is complete in itself but leaves it to the delegate went bring into operation or to whom its operation is to be extended or in respect of whom the same may not be implemented. Exercise of such power by the delegate may be subject to conditions stated in the statute. (89). The distinction between two was stated by the Constitutional Bench of Supreme Court in Hamdard Dawakhana and another vs. Union of India and others AIR 1960 SC 544 in which the Court said that:- ``The distinction between conditional legislation and delegated legislation is this, that in the former the delegates power is that of determining when a legislative declared rule of conduct shall become effective, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend. (90). The Court further said that:- ``Thus, when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and sub serve the purpose of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed, it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation. (91). In Jalan Trading Co. (P) Ltd. vs. Mill Mazdoor Union AIR 1967 SC 691 the Apex Court was considering the nature of power conferred on Govt. under Section 36 of the Payment of Bonus Act to exempt an establishment or class or establishment from the operation of the Act. The condition of exercise of power was that the Govt. holds the opinion that it is not in the public interest to apply all or any of the provisions of the Act to any establishment or class of establishment and the opinion so founded is on a consideration of the financial portion and other relevant circumstances, it was held to be a case of conditional legislation. The Court observed that:- ``Whether in a given case, power has been properly exercised by the appropriate Govt. would have to be considered when that occasion arises. (92). The Court observed that:- ``Whether in a given case, power has been properly exercised by the appropriate Govt. would have to be considered when that occasion arises. (92). In ITC Bhadrachalam Paperboords vs. Mandal Revenue Officer (1996) 6 SCC 634 the Apex Court was considering the issue in the context of power conferred on State to exempt any class of nor agricultural lands from the levy of assessment under the A.P. Non-Agricultural Land Asst. Act, 1963 and held that the power conferred upon the Govt. to exempt persons or properties from the operation of enactment is instance of conditional legislation. (93). The conditional legislature has further been held to fall in three categories. In the first category when the legislature has completed the task of enacting a Statute, the entire superstructure of the legislation is ready but its future application to a given area is left to the subjective satisfaction of the delegate who being satisfied about the conditions indicating the ripe time for applying the machinery of the said Act to a given area exercises that power as a delegate of the parent legislative body. (94). The second and third category of conditional legislations is wherein the delegate has to decide whether and under what circumstances a completed Act of the parent legislation which has already come into force is to be partially withdrawn from operation in a given area or in given cases so as not to be applicable to a given class of persons who are otherwise governed by the Act. These categories of conditional legislations encompasses within it the conferment of authority to the State Government to grant exemption wholly or partially to a class of persons or to individuals from the operation of the Act on certain conditions. (95). Distinction between the two lies in the nature of fulfilment of conditions required for exercise of such power. These categories of conditional legislations encompasses within it the conferment of authority to the State Government to grant exemption wholly or partially to a class of persons or to individuals from the operation of the Act on certain conditions. (95). Distinction between the two lies in the nature of fulfilment of conditions required for exercise of such power. Firstly, where the exercise of such power depends upon subjective satisfaction of the delegate, that is if such an exercise is not required to be based on the prima facie proof of factual data, for and against such an exercise and if such an exercise is to uniformly apply in future to a given common class of subjects to be governed by such an exercise and when such an exercise is not to be confined to individual case only, then even in such category of class, exercise of former falls within the purview of conditional legislation. (96). Whether a conditional legislature concerning grant or withdrawal of exemption falls in the second category or third category of the conditional legislature shall invariably depend upon whether under the scheme of the statute the power is to be exercised on subjective satisfaction about the existence of conditions necessary for exercise of such power or is to be exercised by finding objectively existence of facts and its effect necessary for exercise of such power by the delegate. (97). The Apex Court in State of Tamil Nadu vs. K. Sabanayagam and another AIR 1998 SC 344 has detailed the distinction between three categories of conditional legislation and relative scope of judicial review of such instrument. (98). It was stated that first category of conditional legislation is that when the Act itself is complete and is enacted to be uniformally applied in future to all those who are to be covered by the sweep of the Act. But it is left to the subjective satisfaction of the delegate who being satisfied about the condition indicating the ripe time for applying the machinery of said Act to given area exercise power as a delegate of parent legislative body. In such case, the delegate exercises extremely limited and almost ministerial functions. In such event, no hearing or adherence to principles of natural justice is envisaged. For coming to this conclusion, the Court has referred to its earlier decision in the Tulsipur Sugar Co. In such case, the delegate exercises extremely limited and almost ministerial functions. In such event, no hearing or adherence to principles of natural justice is envisaged. For coming to this conclusion, the Court has referred to its earlier decision in the Tulsipur Sugar Co. Ltd. vs. The Notified Area Committee, Tulsipur AIR 1980 SC 882 . (99). The second category of conditional legislations wherein the delegate has to decide whether and under what circumstances a completed Act of the parent legislation which has already come into force is to be partially withdrawn from operation in a given area or in respect of given cases so as not to be applicable to a given class of persons who are otherwise governed by the Act. This second category of conditional legislation encompasses within it the authority of the State Government to grant exemption wholly or partially to a class of persons or to individuals from the operation of the Act on certain conditions. (100). This category further consists of two classes. Firstly, where the exercise of such power depend upon pure subjective satisfaction of the delegate and if such an exercise is not required to be based on the prima facie proof of factual data for and against such an exercise and if such an exercise is to uniformly apply in future to a given common class of subjects to be governed by such an exercise and when such an exercise is not to be confined to individual case only, then even in such category of cases principles of natural justice have no place while exercising conditional legislative powers. (101). The another category may be wherein the exercise of conditional legislative power, the delegate may not be required to have an objective assessment after considering rival versions on data placed before it for being taken into consideration by it in exercise of such power of conditional legislature. In such case, the authority has to be satisfied objectively about existence and assessment of such facts which could lay the foundation for decision making. To that extent, the principles of natural justice apply to such exercise of power in the sense that deciding authority takes every relevant material in consideration, does not ignore relevant fact from consideration and does not take into consideration irrelevant material. Hearing in the sense of personal hearing or giving reason in order may not be necessary. (102). To that extent, the principles of natural justice apply to such exercise of power in the sense that deciding authority takes every relevant material in consideration, does not ignore relevant fact from consideration and does not take into consideration irrelevant material. Hearing in the sense of personal hearing or giving reason in order may not be necessary. (102). Apparently, the grant of exemption or withdrawal of the exemption may fall either in category 2 or category 3 where the Act having come already into force. It is also for the delegate whether to withdraw its applicability to a given area or in a given case or to a given class of persons. Distinction lies in the conditions under which the delegate is required to exercise such power. (103). The illustration which the Supreme Court has referred to fall under category two is relevant to notice which reads as under:- ``For example if a tariff is fixed under the Act and exemption power is conferred on the delegate whether to grant full exemption or partial exemption from the tariff rate, it may involve such an exercise of conditional legislative function wherein the exercise has to be made by the delegate on its own subjective satisfaction and once that exercise is made whatever exemption is granted partially or partially withdrawn from time to time would be binding on the entire class of persons similarly situated and who will be covered by the sweep of such exemptions, partial or whole, and whether granted or withdrawn, wholly or partially, and in exercise of such a power there may be no occasion to hear the parties likely to be affected by such an exercise. For example from a settled tariff say if earlier 30% exemption is granted by the delegate and then reduced to 20% all those who are similarly situated and covered by the sweep of such exemption and its modification cannot be permitted to say in the absence of any statutory provision to that effect that they should be given a hearing before the granted exemption is wholly or partially withdrawn. (104). This illustration clarifies the class of cases falling in second category. (105). (104). This illustration clarifies the class of cases falling in second category. (105). In the third category of cases, exercise of power of conditional legislation would depend upon satisfaction of the delegate on objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons, who otherwise might have got statutory benefits under the Act, and who are likely to lose the existing benefit because of exercise of such a power by the delegate. In such type of cases, the satisfaction of the delegate has necessarily to be based on objective consideration of the relevant data for and against the exercise of such power. (106). The conditional legislation falling in third category is demonstrated by the case decided by the Supreme Court namely exemption which could be granted by competent authority under Section 36 of the Payment of Bonus Act. The power of exemption could be exercised by the appropriate Government on forming its opinion regarding grant of partial or full exemption to any establishment or class of establishments which are otherwise already covered by the sweep of the Act. It has to be satisfied about the contained factual conditions namely the financial position of the establishment or class of establishments as the case may be. There may be other relevant circumstances pertaining to such establishment or establishments which would require exercise of such power of exemption and such exercise must be in public interest as a whole and not confined to personal or private establishment concerned. (107). The requirement of statute itself was to take into consideration number of circumstances before exercise of power made it a case of objective satisfaction about the existence of certain facts in formulating its opinion. (108). The reference can also be made in this connection to the Notification required to be issued under Contract Labour Regulation & Abolition Act, 1970. (107). The requirement of statute itself was to take into consideration number of circumstances before exercise of power made it a case of objective satisfaction about the existence of certain facts in formulating its opinion. (108). The reference can also be made in this connection to the Notification required to be issued under Contract Labour Regulation & Abolition Act, 1970. The provisions of Section 4 read with Section 10 makes the task of the appropriate government of prohibiting contract labour by Notification in official gazette a case of conditional legislation falling in third category as the Advisory Board whether of the State or Central is required to be constituted consisting of not only the officials of the State Government but also members representing the Government, the industry contractors, the workmen and any other interest which in the opinion of the State Government were to be represented on the said Board. Before issuing Notification in the official gazette prescribing employment on contract of other work of the establishment, the appropriate Government is required to be satisfied after consulting Central Advisory Board or the State Board, as the case may be, and before issuing notice, the Central Government is to take into account facts detailed in Sub-section (2) of Section 10 which all depends on furnishing of data about factors which ought to go into consideration. The above scheme makes the consultation with different conflicting interest by the appropriate Government a statutory necessity, which indicates inbuilt inclusion of principles of natural justice in the procedure, by providing for consultation with various interest represented through a composite Advisory Board amalgam of all interest, and consideration of certain facts to be founded on objective assessment of data available to the appropriate government. (109). Keeping in view, if we notice the relevant provisions of Rajasthan Electricity Act, 1952, we find that before satisfying itself about necessity or expediency in the public interest to grant concession, the statute does not require the State Government to consider any specified facts or circumstances to limit the scope of public interest to be carved in that light. (110). Keeping in view, if we notice the relevant provisions of Rajasthan Electricity Act, 1952, we find that before satisfying itself about necessity or expediency in the public interest to grant concession, the statute does not require the State Government to consider any specified facts or circumstances to limit the scope of public interest to be carved in that light. (110). That being the position, it becomes abundantly clear that we are concerned with a case where the levy of Electricity Duty is complete with the enactment of Act of 1952, the power has been conferred with the State Government to grant exemption from its operation to certain class of persons on being satisfied that it is necessary or expedient in the public interest so to do. Obviously, the satisfaction is not circumscribed by any detailed consideration which should be taken into account by the State Government before it reaches satisfaction about the existence of such public interest. It has been left totally for the authority to consider by itself on available material whether it is in the public interest to grant exemption and obviously its withdrawal will also be circumscribed by the same condition. B. SCOPE OF JUDICIAL REVIEW OF DELEGATED LEGISLATION (111). It would be appropriate to examine what are the contours of the scrutiny of subordinate legislation or the delegated legislation by way of judicial review. (112). At the outset, we may notice that the absolute immunity claimed by the respondent against the judicial scrutiny of discretionary power vested in the State Government in the matter of grant of exemption as delegate of the State Legislation to issue Notification of exemption to be necessary in the public interest is not sustainable. (113). The principle is well settled and succinctly stated by the Apex Court in Indian Express News Papers (Bombay) Pvt. Ltd. & others vs. Union of India and others and other connected cases (1985) 1 SCC 641. The challenge was made to imposition of import duty on news prints imported from abroad under Section 12 of the Customs Act and the legislative levy and exemption took under the Finance Act on news print as modified by Notifications issued under Customs Act, 1962. The challenge was made to imposition of import duty on news prints imported from abroad under Section 12 of the Customs Act and the legislative levy and exemption took under the Finance Act on news print as modified by Notifications issued under Customs Act, 1962. On behalf of the Government, it has been argued, like in the present case, that the Notification under Section 25(1) of the Customs Act granting exemption from duty being in the nature of subordinate legislation, its validity cannot be tested by the Court by applying the standard applicable to the administrative action. (114). This contention was not countenanced by the Court specifically making it clear that where the Government is to exercise legislative function as discretionary powers, the challenge to it may be considered on all grounds on which administrative action may be questioned. (115). It was clearly stated by the Court that while no freedom from taxing is envisaged on the news print, which was hitherto enjoying an exemption, but such levy is subject to review by the courts in the light of provisions of the Constitution. It was stated as follows about the grounds on which validity of subordinate legislation can be examined. ``A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be question on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. (116). The court also considered the extent to which the subordinate legislation can be questioned on the ground of violation of the principles of natural justice as the administrative action can be questioned. (117). While generally accepting that subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned, but drew a distinction between the delegation of legislative function in the case on which the question of reasonableness cannot be inquired into and about conferment of discretionary power. (117). While generally accepting that subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned, but drew a distinction between the delegation of legislative function in the case on which the question of reasonableness cannot be inquired into and about conferment of discretionary power. It was said that: ``A distinction must be made between delegation of a legislative function in which the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non- application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. (118). This principle was reiterated in Daichi Karkaria Ltd. vs. Union of India and others (2000) 4 SCC 57 . This again was a case of withdrawal of exemption before the expiry of period of exemption Notification. While the Court repelled the contention of applicability of doctrine of promissory estoppal on change in the stand of the Government on account of public policy but considering the scope of judicial review where the power vested in the Government is to be exercised in the public interest, the Court said after referring to the Indian Express Newspapers (Bombay) (P) Ltd. vs. Union of India, as under:- ``An inquiry into the vires of delegated legislation must be confined to the ground on which the plenary legislation may be questioned, except that subordinate legislation cannot be questioned on the ground of violation of the principle of natural justice on which administrative action may be questioned. In case where power vested in the Government is a power which has got to be exercised in public interest, as is the case in the present case, the court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution. In case where power vested in the Government is a power which has got to be exercised in public interest, as is the case in the present case, the court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution. Section 25 of the Customs Act under which Notifications are issued confers a power coupled with a duty to examine the whole issue in the light of public interest. If the Central Government is satisfied that it is necessary in the public interest so to do, it may exempt generally either absolutely or subject to such conditions, good of any description, from the whole or any part of the customs duty leviable thereon. Power exercisable under Section 25of the Customs Act is no doubt discretionary, but it is not unrestricted.... It is ordinarily assumed that while such wide power is given to the Government, it will consider all relevant aspects governing the question whether exemption should be granted or not. (119). The contention that existence of public interest should be presumed to exist in the case power has been exercised by the State Government by referring to the earlier decision of the Supreme Court in CCE vs. R.M.D.C. Press (P) Ltd. (1998) 8 SCC 419 , was repelled by the Apex Court in Dai Chi karkaria Ltd. (2004) 4 SCC 57 (supra) saying that when a specific contention has been raised regarding non-existence of public interest, raising of such presumption would not be justified and the principle stated in R.M.D.C. is of little assistance to the present case. Consideration the statement in the return, the Court said: ``We may state that the Government has failed to discharge its statutory obligation while issuing the impugned Notifications. The justification offered during the course of examination would not be accepted. (120). In M/s. Shri Sitaram Sugar Co. Ltd. vs. Union of India & Ors., AIR 1990 SC 1277 , the Court was considering the question relating to fixation of price by the Central Government on levy sugar. The Court made clear distinction that while the price fixation of levy sugar is in the nature of legislative action, even when it is based on objective criteria founded on relevant material, no rule of natural justice is applicable to any such order. The Court made clear distinction that while the price fixation of levy sugar is in the nature of legislative action, even when it is based on objective criteria founded on relevant material, no rule of natural justice is applicable to any such order. But it said ``it is nevertheless imperative that the action of the authority should be inspired for the reason that the Government cannot fix any arbitrary price on extraneous consideration. (121). The case with which we are concerned is power to grant exemption from tax by the delegated authority. The scope of enquiry in two judicial review that can be culled out from above cases can be said to be:- (i) The function being legislative, it may be questioned on any of the grounds on which plenary legislation is questioned. (ii) In addition, it may be questioned also on the ground:- (a) That it does not conform to the statute under which it is made. (b) That it is contrary to some other statute. (c) That it is unreasonable in the sense that it is manifestly arbitrary. (d) Action can be challenged on the ground of arbitrariness in the sense that it does not conform to statutory or constitutional requirements or that it offends any of fundamental rights. (e) The test of reasonableness cannot merely on the ground that the authority has not taken into account relevant circumstances, which the court considers relevant. (iii) When the power to be exercised by the delegate is discretionary, its validity may be considered a ground on which administrative action can be questioned. But such consideration is qualified in the case of delegate of power being legislative within aforesaid contours. (122). Thus, the absolute immunity from the judicial review of the exercise of power by the State Government in granting or withdrawing exemption from payment of Electricity Duty cannot be accepted and the contention needs to be probed within the contours set up by the Apex Court as aforesaid holding that where the power vested in the State Government is discretionary it is to be exercised in public interest, it is amenable to judicial review on the same grounds as administrative action by the State is amenable to judicial review apart from the grounds on which parent legislation can be challenged. C. WHETHER RULES OF NATURAL JUSTICE APPLY (123). In State of Punjab vs. Tehal Singh & Ors. C. WHETHER RULES OF NATURAL JUSTICE APPLY (123). In State of Punjab vs. Tehal Singh & Ors. (2002) 2 SCC 7 , the Supreme Court stated that in case the legislative act of legislature, no question of application of rule of natural justice arises. However, in case of sub-ordinate legislation, legislation may provide for observation of principles of natural justice or provide for hearing. Where the legislature has provided for giving an opportunity of hearing, it is a sine qua non in turn to give an opportunity of hearing to render the declaration invalid. (124). In Union of India & Anr. vs. Cynamide India Ltd. & Anr., AIR 1987 SC 1802 , the Court was concerned with the exercise of fixation of price under the Essential Commodities Act of any particular commodity. The Court opined that the price fixation is generally legislative activity. It may occasionally assume an administrative or quasi judicial activity when it relates to acquisition or requisition of goods or property from and individual and it becomes necessary to fix the price separately in relation to such an individual. However, it declared that legislative action, plenary or subordinate is not subject to rules of natural justice. In the case of preliminary legislation, it may happen that Parliament may itself provide for a notice or for hearing. There are several instances of legislature requiring the subordinate legislating authority to give public notice and a public hearing before making subordinate legislation. Say, for example, levying a municipal rate in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. Occasionally, the body is to make `such enquiry as it thinks fit before making the subordinate legislation. In such a situation, while holding of such enquiry by the subordinate legislation body as it deems fit is a condition precedent to the sub-ordinate legislation, the nature and extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as full as it might have been. (125). (125). Like provision has been made under Sec. 9A of Customs Tariff Act, 1995 and Rules framed thereunder for elaborate investigation before Central Government as delegate of Parliament exercises its power to impose Anti Dumping Duty and decide upon rate at which such Duty is to be imposed. (126). Apparently, no such hearing to the effected party has been envisaged under the Rajasthan Act of 1952 before grant or withdrawal of exemption under Sec. 3(3). (127). In the Tulsipur Sugar Co. Ltd. vs. The Notified Area Committee, Tulsipur, AIR 1980 Sc 882 (supra), the Court was concerned with the Notification declaring village Tulsipur as notified area under the U.P. Town Area At. Holding it to be a case of conditional legislation, the Court said that the power to make a declaration under Sec. 3 of the Act is legislative in character because application of the provisions of the Act to the Tulsipur Area depended upon such declaration and to such an exercise of power, the principle of natural justice do not apply. (128). We may notice here that in Cynamid case (supra), the Supreme Court placed Notification under Sec. 36 in the third category of conditional legislation where the appropriate Government is required to act on objective satisfaction about existence of certain facts before determining rate of price of the commodity. (129). In Sundarjas Kanyalal Bhathija & Ors. vs. The Collector, Thane, Maharashtra & Ors., AIR 1991 SC 1893 , the Court reiterated that the power of the Government under Sec. 3 of the Bombay Provincial Municipal Corporation Act regarding formation of Corporation is legislative in character and is not subject to the rules of natural justice any more than legislature itself. Renusagars case (130). The principal contention founded on the decision of the Supreme Court in State of U.P. & Ors. vs. Renusagar Power Co. & Ors., (1988) 4 SCC 59 (supra). The learned counsel for the petitioners relied on this judgment to contend that the principles of natural justice apply to a case like the present one where the exemption granted to the consumers who were generating electricity from their own source is withdrawn. Grant and withdrawal of exemption are a quasi legislative function of the State, therefore, withdrawal of exemption needs adherence to principle of natural justice. Grant and withdrawal of exemption are a quasi legislative function of the State, therefore, withdrawal of exemption needs adherence to principle of natural justice. Secondly, the satisfaction of the State Government regarding the existence of public interest in withdrawing exemption is an objective consideration under the provisions of the Act. (131). The case would need considering in some detail, the background in which the case has arisen and the ratio emerging from the decision in Ranusagars case in the context of challenge made before it. (132). The petition has arisen in the context of UP Electricity (Duty) Act, 1952. The Hindustan Aluminium Limited (Hindalco) established an Aluminium Factory at Nenukut in Mirjapur District UP in 1959 and in 1962 another plant was commissioned for manufacture of alunminium. As per the contention of Hindalco, one of the respondents before the Supreme Court, the company was induced to instal aluminium industry in UP on the assurance that cheap electricity and power would be made available at the relevant time. M/s. Renusagar Power Company Ltd. a wholly owned subsidiary of Hindalco was incorporated in 1964 and it commissioned its first generating unit of 67.5 MW in 1967. The second generating unit of the Company was commissioned in 1968. M/s. Renu Sagar Company was to supply total quantity generated by it to Hindalco. (133). Under the UP Electricity (Duty) Act, 1952 vide amendment in the first instance by UP Electricity (Amendment) Ordinance, 1959. In the proviso to Section 3 of the principal Act, after clause (d), a new clause (e) was inserted which provided for non- levy or exemption from the payment of Electricity Duty on the energy consumed by a consumer in a scheduled industry. By virtue of Section 8 of the Amending Act, a schedule was added to the principal Act. In the Schedule ``non-ferrous metals and alloys was placed at serial No. 1 in part B of the scheduled under a broad heading ``Metallurgical Industries. By virtue of the aforesaid provisions, Hindalco remained exempted from payment of Electricity Duty from April 1, 1959 the date on which the Ordinance came into force. Thus, Hindalco was enjoying exemption from payment of Electricity Duty on the energy consumed by it by virtue of the aforesaid provisions contained in the Act itself. (134). By virtue of the aforesaid provisions, Hindalco remained exempted from payment of Electricity Duty from April 1, 1959 the date on which the Ordinance came into force. Thus, Hindalco was enjoying exemption from payment of Electricity Duty on the energy consumed by it by virtue of the aforesaid provisions contained in the Act itself. (134). The Electricity Duty Act was amended firstly by Ordinance No. 14/1970 which were subsequently incorporated in the UP Act 2 of 1971. Section 3 of the principal Act was substituted which included for the first time that there shall be duty upon the consumption of electricity by any person from his own source of generation. The rate of duty was to be determined by the State Government by notification in the official gazette from time to time. (135). Under sub-section (3), Duty on consumption of captive generated electricity could not be less than 1 paisa per unit and not more than 6 paisa per unit. (136). Sub-section (4) of Section 3 inter alia provided as under:- ``(4) The State Government may, in the public interest, having regard to the prevailing charges for supply of energy in any area, the generating capacity of any plant, the need to promote industrial production generally or any specified class thereof and other relevant factors, either fix different rates of electricity duty in relation to different classes of consumption of energy or allow any exemption from payment thereof. (137). With the enactment of the amending Act, the Electricity Duty Exemption available to Hindalco under the parent statute came to an end. There was no dispute about it. (138). The rate of Duty notified on consumption of captive generated power was less than the general rate. Thus, the State Government in exercise of its power under Section 3(4) has fixed lessor rate of Duty on those consumers who were getting electricity supply from their own sources. This benefit of lessor rate of duty was available to the consumers with captive power units as a class. (139). Hindalco applied for grant of exemption under sub-section (4) of Section 3. Unless such application was granted, Hindalco became eligible to pay Electricity Duty on energy consumed by it which may be supplied to it by any supplier of energy including by M/s. Renu Sagar Power Company Ltd. which was its wholly subsidiary company. (140). (139). Hindalco applied for grant of exemption under sub-section (4) of Section 3. Unless such application was granted, Hindalco became eligible to pay Electricity Duty on energy consumed by it which may be supplied to it by any supplier of energy including by M/s. Renu Sagar Power Company Ltd. which was its wholly subsidiary company. (140). It became a case of calling upon the State Government as delegate of legislature for the first time to exercise its power to grant exemption to Hindalco as an individual case. (141). The application of Hindalco for grant of exemption was rejected by the State Government furnishing numerous reasons. The petitioner filed by Hindalco against rejection of application for exemption was allowed by Allahabad High Court and the rejection order was quashed by directing the State Government to reconsider the application of Hindalco. (142). Special leave petition against the order of High Court having been dismissed, the applicants were given an opportunity of hearing by the State Government and the application was again rejected by the State Government, holding that the claim for exemption from levy of Electricity Duty was not at all justified. (143). Again petition was preferred before the Allahabad High Court and again the order rejected the application was quashed by the High Court by directing the State Government to reconsider the request of the respondent for exemption in accordance with the direction issued earlier. (144). The two questions which fell for consideration before the Supreme Court in appeal were whether the power supply made by Renusagar, a wholly subsidiary company of Hindalco, could be considered consumption of energy produced on his own source so as to claim benefit of lower rate of Duty and secondly whether before deciding the application, the State Government was required to adhere to principles of natural justice and if so whether the order passed by the State Government, having regard to its nature, was in accordance principles of natural justice in so far as the same were applicable to the facts of the case. (145). The fact-situation that emerged was that from 1952 to 1970, no Duty was payable on Aluminium industry from whatever source the electricity was supplied to it. (145). The fact-situation that emerged was that from 1952 to 1970, no Duty was payable on Aluminium industry from whatever source the electricity was supplied to it. On consumption of electricity generated from own source of energy, from 1970 to 1973 duty of one paisa was to be levied and after 1973 again no Duty was payable in respect of electricity generated from own source of energy. (146). So far as the first issue was concerned, the Supreme Court upheld the contention that in the background of the case, Renu Sagar Power Company which was a wholly owned subsidiary company of Hindalco, and was under an obligation to supply entire energy generated by it to Hindalco alone, it was a case of consumption of electricity generated and supplied from its own source of generation and was liable to pay electricity duty during which it was leviable only at the rate at which the captive power plant was subjected to electricity duty for which separate and lesser rate of Duty was notified than which was payable on energy ordinarily supplied by suppliers of electricity, if not otherwise subject to any concession. (147). So far as the question of claim of exemption was concerned, the following factors need to be noticed:- (148). Prior to the amending Act of 1971, the metallurgical industries were exempted from payment of duty and was not subjected to levy of duty under the provisions of the parent legislation itself. The exemption was not referable to captive power generation at all. The question of exercise of power of delegated authority to grant exemption to any consumer in consumption of electricity for industrial purposes had not arisen at all until the amending Act came into force. The exemption could be availed only after the same was notified by the State Government on considering the valuable factors as noticed above under Sub-section (4) of section 3. It was in that sense not a case where the State Government was exercising its power to withdraw any exemption already granted but was a case of considering application for grant of exemption to Hindalco for the first time under the amended Section 3 of the U.P. Electricity Act. (149). It was not anybodys case that exemption to electricity consumed by Hindalcos aluminium plants which was hitherto available under unamended provision continued on its own force. (149). It was not anybodys case that exemption to electricity consumed by Hindalcos aluminium plants which was hitherto available under unamended provision continued on its own force. The question of validity of withdrawal of exemption under U.P. Electricity Duty Act to Hindalco as an industry engaged in production of non-ferrors metal, was to at all in contention. The exemption granted under primarily legislature was continuous exemption so long as th provision remained in force and which had seized to be operative when primary statute was amended. The question of such cessation of a continuing exemption was not at all in issue. It was a simple case of rejection of an application for grant of exemption under new provisions. (150). Secondly, it was a case of individual applicant seeking exemption not as a class of consumers of energy. The exemption was claimed by the individual on certain grounds available to them in particular. Thirdly, it was a question of considering application made by the applicant and was not a case of making policy decision by the State Government for granting exemption generally to a class of persons. (151). The ratio laid down in Renu Sagars case has to be viewed in the background of these peculiar features. (152). Apart from the above, as we will presently see the provisions of UP Electricity (Duty) Act made it a case of grant of exemption under the UP Act, a conditional legislation of the third category discussed above which depended on finding objective facts in respect of criterion laid down by the Statute itself for determining the question of satisfaction about the existence of public interest solely on the subjective satisfaction of the State Government but has required the State Government to take into consideration specified factors stated in statute which made it a case of objective satisfaction on principle enunciated in K. Sabanayagams case. (153). On behalf of the petitioner the necessity of cheap electricity for its industry was pleaded as the reason for seeking exemption. It was urged that if the cheap electricity was not made available, the cost of indigenous aluminium would go up. It would necessitate import of aluminum causing drain on the foreign exchange of the country. (154). (153). On behalf of the petitioner the necessity of cheap electricity for its industry was pleaded as the reason for seeking exemption. It was urged that if the cheap electricity was not made available, the cost of indigenous aluminium would go up. It would necessitate import of aluminum causing drain on the foreign exchange of the country. (154). As we shall presently advert to the public purpose involved in raising revenue by imposing tax is not dependent on such statement being made in the assembly or statement of aims and objects of the Act but it inheres into the concept of imposition of tax by the sovereign power on its subject for the purposes of its expenses in its various aspects consequently, so far as the emphasis that such a decision must have arrived at objectively and in consonance with the principles of natural justice because power to grant exemption is quasi legislative in character has to be viewed in the background of the particular legislative provision with particular enquiry at hand. (155). The Additional Advocate General on behalf of the State of UP had contended that primary purpose of the Act as stated in the Preamble was to raise revenue for the development project. Whether in a particular situation, rural electrification and development of agricultural should be given priority or electricity or development of aluminium industry should be given priority on which is in public interest, were held to be value judgments and the legislature is the best judge for such value judgments. (156). While accepting the concern for need for protection to indigenous production as pleaded by the applicant as held by the High Court in the end conclusion, the Apex Court observed that: ``It is true as the High Court has pointed out that the question regarding public interest and need to promote indigenous industrial production was related with the question of exemption of duty but what the High Court missed in our opinion, with respect was that a matter of policy which should be left to the Government. (157). The Court further stated that ``It is true that certain amount of encouragement was given to Hindalco to start the industry in a backward area. After considerable point of time, the very low rate of duty was charged. (157). The Court further stated that ``It is true that certain amount of encouragement was given to Hindalco to start the industry in a backward area. After considerable point of time, the very low rate of duty was charged. But if we need other sectors of growth and development for example food, shelter, water, rural electrification and need of encouragement to aluminium industry had to be subordinate by little high cost because that is a matter on which the Government has representing the will of the people is the deciding factors. Price fixation in our opinion, which is ultimately the basis of rise in cost because of the raise of the electricity duty is not a matter for investigation of the Court. (158). In the final analysis, the Court held that the assurance of cheap power factor was there but the assurance of cheap power factor does not hang over the public purpose of raising public revenue for other purposes. (159). A great deal of emphasis has been laid that the raising of public revenue has been held to be in a public interest because it was so stated in the preamble of the UP Act but such purpose of raising revenue has not been stated in preamble of Rajasthan Act. Therefore, raising public revenue cannot be considered as ground outweighing the public interest in allowing the industry the benefit of cheap electricity by not burdening it with tax imposition and secondly on the observation made by the Court that it appears that sub-sec. (4) of Sec. 3 of the Act in the set up is quasi legislative and quasi administrative in so far as it has power to fix different rates having regard to certain factors and in so far as it has power to grant exemption in some cases, in our opinion, is quasi legislative in character. Such a decision must be arrived at objectively and in consonance with the principles of natural justice. (160). Such a decision must be arrived at objectively and in consonance with the principles of natural justice. (160). Keeping in view the distinction between a conditional legislation which is dependent on subjective satisfaction of the delegate and the conditional legislation which depends on finding categorical facts objectively by the delegate, the provision of U.P. Electricity (Duty) Act, 1959 as amended by Amending Act, 1971 is akin to the power conferred on grant of exemption under Sec. 36 of the Payment of Bonus Act which was in consideration before the Supreme Court in K. Sabanayagams case AIR 1988 SC 344 . (161). We may recapitulate as in the case of Sec. 36 of the Payment of Bonus Act wherein the matter to be considered while considering the public interest in granting exemption from the rigours of Sec. 36 were laid down in the Act itself. The power was held to be falling in the third category of the conditional legislation requiring objective satisfaction about the existence of the conditions but the principle was clearly stated that illustration given in the second category of the legislation fall within the domain of subject satisfaction. (162). Since under sub-sec. (4) of Sec. 3, the U.P. Legislation itself provided the matters to be considered in arriving at satisfaction about public interest, it became a matter requiring objective satisfaction about the existence of public interest on the criterion laid in the statute, the principles of natural justice in the limited extent as explained by the Supreme Court were held applicable to the case. (163). This apart it cannot be lost sight that Renusagar was a case of consideration of individual application for grant of exemption and not about determination by the State Government as a matter of public policy to grant exemption to a class of persons, as in the present case. The exercise in two cases makes a difference. (164). In view of the aforesaid discussion, we are of the opinion that no assistance can be derived from the principle enunciated in Ranusagars case (supra) to support the claim to adherence to principles of natural justice and coming to objective opinion about existence of public interest in exempting Hindalco from payment of Electricity Duty, outweighting public purpose of raising for the State. (165). (165). This takes us to the last contention raised by the learned counsel for the petitioners that issuance of a Notification granting remission requires the satisfaction of the State Government about the existence of public interest. The revocation of its is also circumscribed by the same requirement, namely once an exemption Notification has been issued remitting Electricity Duty in the case of captive power units, on State Government being satisfied it to be in public interest, while revoking it also, the State Government has to be satisfied in the same manner about the existence of public interest for withdrawing such remission. (166). With this premise, it has been contended that such satisfaction of the State Government about public interest in withdrawing remission does not exist on respondents own showing. Because the withdrawal of the remission Notification vie the impugned Notification dated 12.07.2004, as per the object of Notification stated by the State Finance Minister/Chief Minister herself. Firstly, `to make the industries with their own source of power generation less competitive with other industries which have not invested in captive power generation to remain dependent on electricity distribution system, and secondly to provide cross-subsidy to those industries which generate electricity for supply and distribution and are liable to pay Duty. (167). The purpose of reinstating Electricity Duty on consumption of electricity generated from own sources is to subsidize cost of generation of power by those engaged in supply and distribution of electricity by utilising the additional revenue generated by the proposal to offset the cost of such industries to that extent, is contrary to the legislative policy emanating from Indian Electricity Act, 2003 which frowns upon cross subsidization of electricity industry at the expense of captive power plants. (168). The making of such statement in the Budget Speech declaring the purpose for withdrawing the remission Notification and subjecting the consumers of Electricity by captive generation to the Electricity Duty has not been denied in the return or thereafter in the return, no other specific public purpose has been shown to exist otherwise than that the State has power to raise revenue for its welfare activities. But principal reliance has been made on the legislative competence of the State to issue such impugned Notification and the exclusive domain of the State in the matter of imposition of Electricity Duty and to provide for all matters ancillary and incidental thereto. But principal reliance has been made on the legislative competence of the State to issue such impugned Notification and the exclusive domain of the State in the matter of imposition of Electricity Duty and to provide for all matters ancillary and incidental thereto. The State is free from the constraint and restraint emanating from the Act of Parliament, particularly the Electricity Reforms Act, 2003 which operates on different subjects and does not impinge on the exclusive authority of State in authorising any tax which is within its legislative competence. The utilisation of the revenue generated by subjecting the consumption of captive power generation to the Electricity Duty for the purposes stated in Budget Speech is not disputed. (169). It has further been stated in the reply that realisation of tax revenue by a welfare State is utilised for the general welfare of the public at large in one or other form. (170). Apart from the aforesaid, to para M of the grounds so taken, it has been replied to as under:- ``M That the contentions made in ground M of the writ petition are not admitted. The public interest requires revenue mobilization in the welfare State, therefore, such imposition of Electricity Duty cannot be treated as illegal and invalid. (171). In the backdrop of those contentions and pleadings, the question relating to public interest to respect of taxing power of the State may be viewed. Tax Exemption - Public Interest (172). The power of tax generally speaking is an inherent sovereign power of State of collect contribution of money or other property from its citizens and the inhibitents of its territory for defraying its general expenditure. It was so stated by Cooley in his Law of Taxation IVth Edition. To this it can be added that the expenditure of the Government includes the expenses required to be incurred by the State as a welfare State obligated to undertaken multipal welfare activities in different spheres. (173). The Constitutional scheme of sovereign power of taxation is in that it requires legislative sanction for its levy and collection under Article 265. The essential nature of tax lies in its being burden or charge imposed by the legislative power upon persons or property for public purpose. (173). The Constitutional scheme of sovereign power of taxation is in that it requires legislative sanction for its levy and collection under Article 265. The essential nature of tax lies in its being burden or charge imposed by the legislative power upon persons or property for public purpose. The public purpose in imposition of tax is not to be searched somewhere else but is inherent into it where the tax is imposed as a measure of collecting general revenue. Where nature of imposition is compensatory in nature, it may requires some probe in that it is collected for some services rendered by the State which is usually confined to the recipient of such services or who are likely to receive such service in given circumstances. The tax as a measure of public finance policy can also be imposed for the purpose of regulating and controlling some essential or undesirable activity. (174). In this connection, we may notice that Julius Stone in his work Social Dimensions of Law and Justice has stated ``taxation as the source of public revenue is of course a foundation of all political institutions. (175). In the present case, it is not the case before us that the duty impossible on consumption of electricity falls in the nature of regulatory or compensatory tax but is imposed as a general measure of collecting additional revenue for the purposes of State expenses in general. Therefore, in our opinion, so far levy of the Electricity Duty is concerned is not relatable to anything except for raising the public revenue in general, for public purposes in general to be pursued by the State. (176). Principle was approved by the Supreme Court in Jagannath Ramanty vs. State of Orissa, AIR 1954 SC 400 . The Constitution Bench of the Supreme Court speaking through B.K. Mukherjee, J. said considering distinction between a tax and fee: ``A tax is undoubtedly in the nature of compulsory exaction of money by a public authority for public purposes. The payment of which is enforced by law. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax. The taxes collected are all merged in the State revenue to be applied for general public purposes. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax. The taxes collected are all merged in the State revenue to be applied for general public purposes. Thus, tax is a common burden, and the only return which the tax payer gets is the participation in common benefits of the State fees, on the other hand, are payments primarily in the public interest but for special services rendered or some special work done for the benefit of those from whom the payment are demanded. (177). J.C. Shah is State of Madras vs. N.K. Natraja Mudaliar, AIR 1969 SC 147 said that no doubt that exercise of power to tax may normally be presumed to be in the public interest. (178). Another Constitution Bench of the Supreme Court in State of T.N. vs. Sitalakshmi Mills (1974) 4 SC 408 said that imposition of tax is normally to be presumed to be in the public interest. (179). While imposition of tax is presumed to be for public purpose, and normal rule is that burden fall on all goods or persons within the imposition any exemption or concession results in transmission of burden to be discharged by the recipient concession to remain subject of tax. Hence exemption or concession ought ordinarily be supported by some public interest to be served by such grant outweighing the raising of public revenue to some expertise of State including expenses to save public causes pursued by the welfare State. However, as the imposition of tax is considered essential for carrying on functions of Government and often described as price which we pay for civilization, there cannot be any such claim to exemption as of right. (180). In 84 Corpus Juris Secondum, the principle on which exemptions are granted has been stated that ``exemptions are favoured on theory that the concessions are quid pro quo for performance of service essentially public by which the State is relieved pro fanto from performing. It was also stated that ``exemption from taxation are granted on the theory that they will benefit the public generally or as a reward on compensation for services rendered in the performance of some function being socially desirable. (181). It was also stated that ``exemption from taxation are granted on the theory that they will benefit the public generally or as a reward on compensation for services rendered in the performance of some function being socially desirable. (181). As noticed above, the exemptions are sometime granted by way of incentive and to achieve a particular objective. In Orient Weaving Mills (P) Ltd. and Anr. vs. UOI and Anr. AIR 1963 SC 98 while considering the challenge to Notification issued by the Central Government in exercise of power to grant exemption from tax levies, the court said that ``it is the function of the State in order to raise revenue for State purposes to determine what kind of taxation will be levied and in what manner. Its function therefore, is to raise revenue for public purposes. (182). Considering the grant of exemption which was before the Court, the Court said:- ``the exemption granted by the impugned Notifications from payment of excise duty on cotton fabrics produced by certain cooperative societies, is meant primarily for the protection of petty producers of cotton fabrics, not owning more than four power loom, from unreasonable competition by big producers. This exemption from burden of taxation which originally falls on all, usually justified on the ground of public interest for protecting the petty producers from unreasonable competition by the big producers. (183). In Andhra Sugers Ltd. and Anr. vs. State of Andhra Pradesh and Ors. AIR 1968 SC 599 , the Court upheld the justification for grant of exemption to new industrial undertakings as a measure of incentive. The Court said the establishment of new factories and the expansion of the existing factories need encouragement and incentives. The exemption in favour of new and expanding factories is based on legitimate legislative policy. The court further observed that the question whether the exemption should be granted to any factory, and if so, for what period and the question whether any factory has substantially expanded and if so, the extent of such expansion have to be decided with reference to the facts of each individual case. (184). The principle was applied to by the Supreme Court in Shri Ram Sugar Industries Ltd. vs. State of Andhra Pradesh and Ors. (1974) 1 SCC 534 . In this case, the court was concerned with grant of exemption of tax on new and expanded units. (184). The principle was applied to by the Supreme Court in Shri Ram Sugar Industries Ltd. vs. State of Andhra Pradesh and Ors. (1974) 1 SCC 534 . In this case, the court was concerned with grant of exemption of tax on new and expanded units. The exemption has been granted to the cooperative sugar factories consisting of sugarcane growers. While there was difference of opinion on the issue whether the exercise of discretion vesting in the State Government in the matter of granting exemption from tax under the Andhra Pradesh Sugarcane Regulation of Supply and Produce Act, 1961, there was unanimity on the question of ambit and scope of exemption namely that ``it is not possible to read the section as imposing a mandatory obligation upon the Government to grant exemption even if all the conditions specified in clause (b) of Sub-Section (3) are satisfied. The Court upheld the test of section 21 which is not in fact obligatory on the part of the State Government to grant exemption. POWER TO WITHDRAW EXEMPTION (185). Power to withdraw exemption is required to be subject to same conditions on which power to grant exemption can be exercised. This position is not in contention before us that the State Government has necessary power to withdraw its earlier Notification dated 12.12.1989 remitting the Electricity Duty payable on consumption energy by a person generating such energy from any type of self generating set for him own use or consumption. However, such power can be exercised by the State Government subject to some conditions viz if it is in public interest to withdraw the existing exemption available to consumption of energy generated by captive generation plant. (186). This principle is in the statutory scheme of construction of Statute detailed in General Clauses Acts. (187). By virtue of Section 14 and 21 of the General Clauses Act when a power is conferred on an authority to do a particular act such power can be exercised from time to time and carry with it power to withdraw, modify or cancel the orders earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. (188). (188). In Rameshchandra Kachardas Porwal and others vs. State of Maharashtra and others (1981) 2 SCC 722 , in the context of the provisions of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 emerging from different States, the question has arisen where a principal or sub-market was established in exercise of power conferred by Section 5 of Maharashtra Agricultural Produce Market Committee Act within Regulation, 1963, which were sought to be transferred and to be set up at different areas. It was contended that the power could not again be exercised by de establishing the market. This contention was repelled by referring to section 14 and 21 of the Bombay General Clauses Act which governed the interpretation of the Bombay Acts. (189). The Apex Court approved the ratio laid down by the Division Bench of Bombay High Court in Bapubhai Ratanchand Shah vs. State of Bombay, (1955) 57 Bom. LR 892 in which the Bombay High Court said that:- ``Now, Section 4-A(2) confers upon the government the power to declare any enclosure, building or locality in any market area to be a principal market yard for the area and other enclosures, buildings or localities to be one or more sub market yards for the area. It is clear that by reason of Section 14 of the General Clauses Act any power that is conferred on government can be exercised from time to time as occasion requires. Therefore, it would be clearly competent to the State Government to declare from time to time which should be the principal market yard and which should be sub market yards. It is also clear under Section 21 of the General Clauses Act that when a power to issue Notifications, orders, rules, or by laws is conferred, then that power includes a power to exercise in the like manner and subject to the like sanction and conditions, if any, to add to, amend, very or rescind any Notification, orders, rules or by laws so issued.. (190). We have already noticed above that the contours of requirement of public interest or requirement of adherence of the principles of natural justice while exercising the power of granting exemption depending upon the nature of satisfaction that the Government is required to hold as to existence of public interest for exercise of its discretion. (191). In State of Rajasthan and others vs. Mahaveer Oil Industries and Ors. (191). In State of Rajasthan and others vs. Mahaveer Oil Industries and Ors. 115 STC 29, the question has arisen in the context of Notification issued by the State of Rajasthan under Section 4(2) of the Rajasthan Sales Tax Act, 1954 under which the State of Rajasthan has exempted certain new industrial units/expansion units from payment of tax, on sale of goods manufactured by them within the State of Rajasthan in the manner and to the extent for the period covered by the Notification. The Notification was to remain in force for a limited period. The exemption was withdrawn before expiry of period in respect of oil extraction or manufacture industries by including its name in the list of ineligible industries. Considering the question of public interest that required for extending benefit to certain industries to get exemption and consequently assurances contained in the Notification granting concession whether it results in promissory estoppal so as to estope the State Government from withdrawing the same before the expiry of period, the court said that:- ``Public interest requires that the State be held bound by the promise held out by it in such a situation. But this does not preclude the State from withdrawing the benefit prosepectively even during the period of the scheme, if public interest so requires. Even in a case where a party has acted on the promise, if there is any supervening public interest which requires that the benefit be withdrawn or the scheme be modified, that supervening public interest would prevail over any promissory estoppal. (192). In coming to this conclusion, the Court referred to and relied on earlier decision in Kanishka Trading vs. Union of India (1995) 1 SCC 274 . (193). Conversely, simultaneously with the withdrawal of Notification under Section 4(2) of the Rajasthan Sales Tax Act, 1954, the State Government has also withdrawn the exemption granted to oil extraction and manufacturing industries under Section 8(5) of the Central Sales Tax Act vide incentive scheme simultaneously introduced along with the introduction of the scheme under the State Act. However, after withdrawing the exemption in respect of Oil Industries by Notification dated May 7, 1990, vide another Notification dated July 26, 1991 the part of Notification dated May 7, 1999 was revoked resulting in restoration of same benefit under the Central Sales Tax Act. (194). However, after withdrawing the exemption in respect of Oil Industries by Notification dated May 7, 1990, vide another Notification dated July 26, 1991 the part of Notification dated May 7, 1999 was revoked resulting in restoration of same benefit under the Central Sales Tax Act. (194). Such revocation of benefit of incentive scheme in the case of Oil Industry under CST Act was in consideration in State of Rajasthan and another vs. Gopal Oil Mills and another 115 STC 25. The Court was considering that prior to May 7, 1999 Oil industries were admitted to the benefit of incentive scheme and after it was taken out of the exemption scheme, the benefit was restored by Notification dated 26.07.1999. The pertinent question which arose was about existence of such public interest for which the State Government could withdraw the exemption granted vide Notification dated 23.05.1987 for limited period between May 7, 1990 to 26.07.1991. The Supreme Court upheld the decision of the Rajasthan High Court in that regard by observing that:- ``The State Government has been unable to support that action on the ground of public interest by producing any material to support that action and to indicate that the withdrawal of the benefit was in public interest only for the limited period between May 7, 1990 and July 26, 1991 in so far it relates to withdrawal of the benefit granted earlier under the Central Sales Tax Act. (195). These twin cases clearly indicate that though it is permissible for State Government, which is empowered to granted any benefit, exemption or concession in tax in public interest, it is also empowered to withdraw the same but it is also empowered to withdraw the same but it is equally necessary to support the withdrawal of such concession on the basis of satisfaction about existence of some superior public interest. (196). These two decisions further show that in such circumstances, burden is ordinarily on the State which withdraws any concession granted in public interest to show that is public interest which has satisfied the State Government for withdrawing such concession by placing the facts which have led it to hold such satisfaction where the court found that State has discarded such burden, the exercise of power upheld where it found the action was invalidated. However, the principle has been enunciated in the cases where the tax concession or exemption was to operate for a fixed period, which impliedly contained an assurance that the tax payer will be entitled to avail such concession upto a particular date. It does not contain any such assurance that circumstances remaining same, the concession will be continued thereafter. (197). Likewise, the decision in Dai Chi Karkaria Ltd. (2004) 4 SCC 57 also dealt with withdrawal of time bound exemption before expiry of period. (198). In all such cases when such exemption was withdrawn before expiry of the period during which such concession was to remain effective, the question of explaining the reason for premature withdrawal was required to be furnished about supervening public interest which could outweigh the public interest manifest in keeping the State bound with assurance given by it. Where existence of such supervening public interest was made out, the exercise of power was held to be valid. On failure to do so, the exercise of power to withdraw prematurely the exemption was invalidated. (199). However, when certain exemption is granted without such limit, it does not carry any such implied assurance that such exemption will continue ad infinitum. In such cases the principles governing the tax exemption generally come into play. (200). So far as the question relating to withdrawal of exemption once granted is concerned, the matter came before the Supreme Court in Epari Chinna Krishna Moorthy vs. State of Orissa & Ors., AIR 1964 SC 1581 , the question arose that exemption granted under the provisions of the Act by competent authority could be withdraw retrospectively. The Court said: ``The contention that once exemption was validly granted, the legislature cannot withdraw it retrospectively, because that would be invalidating the notification itself cannot be accepted as correct. What the legislature has purported to do by S. 2 of the impugned Act is to make the intention of the notification clear. Section 2, in substance declares that the intention of the delegate in issuing the notification granting exemption only to person who actually produce gold ornaments or employ artisans for that purpose. No question of legislative incompetence can come in the present discussion. Section 2, in substance declares that the intention of the delegate in issuing the notification granting exemption only to person who actually produce gold ornaments or employ artisans for that purpose. No question of legislative incompetence can come in the present discussion. And, if the State Government was given the power either to grant or withdraw the exemption, that cannot possibly affect the legislatures competence to make any provision in that behalf either prosepectively or retrospectively. (201). The question of retrospective withdrawal depended upon the exercise of power by the parent legislature but the fact remains that the Court accepted the power to withdraw exemption once granted prosepectively at any time. Where the exemption has been granted for a period, if it is withdrawn prior to the expiry of period for which an exemption is remained in force, it may entail consideration of jurisdiction for withdrawal of such exemption but where exemption has not been granted for any specific period, its effect is that it shall continue to remain in force until it is withdrawn. But withdrawal by the competent authority at any time is not inhibited. (202). Really speaking, unlike exemption or concession granted for a specific period in cases like the present, the question of withdrawal of exemption does not arise. It becomes a case of non- continuance of exemption either on issuance of subsequent amendment in primary legislation resulting in repeal of existing law granting exemption, rescission or by issuing a fresh Notification, rescinding earlier Notification extending exemption. (203). To withdraw an exemption granted for specified period before of expiry of such period is distinct from the power exercised by the authority granting exemption to continue until otherwise directed. Even in the case of former notwithstanding all the conditions remaining same, there can be no insistence on continuance of such exemption until cessation of public interest, that weighed with the State Government to grant exemption in the first place. For such non-continuance, the competent authority cannot be called upon to establish a specific public interest, other than raising of revenue for non-continuance. The competent authority cannot be enforced to exercise power of exemption to continue to exemption on the ground that conditions which enabled the Government to exercise such power still exists. The present is a case of the latter nature. (204). The competent authority cannot be enforced to exercise power of exemption to continue to exemption on the ground that conditions which enabled the Government to exercise such power still exists. The present is a case of the latter nature. (204). The consideration which become germane for withdrawal of exemption before it becomes exhausted or before period for such exemption expires strictly speaking cannot apply to the case of non continuance of exemption at any time which may have been enjoyed for sufficiently long period. (205). As an illustration one can pick up the case of an exemption which is envisaged under the statutory provisions and that continue only until substituted or withdrawn, by amending the statute by removing the subject of exemption from the enumerated list of exemptions in the Act. It does not entail judicial review finding existence of specific public interest for such discontinuance, the reason is obvious that the exemptions are granted by the legislation so long as it wishes to carry burden of exemption as a matter of policy. It does not impinge upon the legislative policy to raise taxes for public purpose. Exemption is only an exception to allow a class interest to be served for some reason over general and public wider interest and no right can be claimed on continued exemption ordinarily for indefinite period at the pains of finding specific reasons, except on the ground that levy of tax itself may result in violation of some statutory provision or constitutional right. (206). It will be apposite to revert back to Indian Express Newspapers case (1985) 1 SCC 641 (supra). It was a case in which question has arisen in respect of custom duty on imports of newsprint. The Notification under Section 25(1) of the Customs Act were issued for grant of certain exemption from payment of duty beyond certain limits. The Notification granting exemption in restrictive manner were issued in substitution of total exemption. Section 25(1) of the Customs Act empowered the Central Government to grant exemption from levy under Customs Duty absolutely or subject to conditions mentioned in notification if it is satisfied that it is necessary in the public interest so to do. No criterion were laid circumscribing consideration of public interest. As a result of new notification, the newsprint imports which were hitherto absolutely exempt became only to a limited extent. (207). No criterion were laid circumscribing consideration of public interest. As a result of new notification, the newsprint imports which were hitherto absolutely exempt became only to a limited extent. (207). The Court repelled the contention that impugned notification was beyond the reach of administrative law altogether. It said:- ``Hence the claim made on behalf of the Government that the impugned notifications are beyond the reach of the administrative law cannot be accepted without qualification even though all the grounds that may be urged against an administrative order may not be available against them. (208). With this premise, the power of exemption being discretionary and is amenable to challenge on the ground that it has been exercised unreasonably in terms of principles noted by us earlier, the foundation of its enquiry was laid on the principle that though duty can be imposed on newsprint imports, the newsprint is integrally connected with right to freedom of speech under Article 19(1) and test of reasonableness was considered on the charter of whether it has been so unreasonably exercised to result in violation of fundamental rights. The Court observed:- ``The Government should strike a just and reasonable balance between the need for ensuring the right of people to freedom of speech and expression on the one hand and the need to impose social control on the business of publication of a newspaper on the other. In other words, the Government must at all material times be conscious of the fact that it is dealing with an activity protected by Article 19(1) (a) of the Constitution which is vital to our democratic existence. In deciding the reasonableness of restrictions imposed on any fundamental right the Court should take into consideration the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the disproportion of the imposition and the prevailing conditions at the relevant time including the social values whose needs are sought to be satisfied by means of the restrictions. The restriction in question is the burden of import duty imposed on newsprint. Section 25 of the Customs Act, 1962 under which the notifications are issued confers a power on the Central Government coupled with a duty to examine the whole issue in the light of the public interest. (209). The restriction in question is the burden of import duty imposed on newsprint. Section 25 of the Customs Act, 1962 under which the notifications are issued confers a power on the Central Government coupled with a duty to examine the whole issue in the light of the public interest. (209). In State of Rajasthan vs. J.K. Udaipur Udhyog Ltd., Civil Appeal No. 8193/2003, decided on 28.9.2004 the Apex Court has laid down that ordinarily recipient of a concession has no legally enforceable right against the Government to grant any concession except to enjoy the benefit of concession during the period of its grant. The State Government is competent to modify and revoke the grant unless the Government is prohibited from doing so on the ground of promissory estoppal. (210). The only right which a tax payer avail against withdrawal of any exemption or concession is on the grounds on which any State action is challegeable whether it is within the province of statute, any other statute or the Constitution. (211). In M/s. Diwarka Das Mafatia & Ors. vs. Board of Trustees, Bombay Port AIR 1989 SC 1642 , the Court said: ``Where there is arbitrariness in State action, Art. 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Art. 14. (212). The principle has an echo of ratio laid in E.P. Rayappas case ( AIR 1974 SC 555 ). (213). Even as per the principle enunciated in Renusagars case, the requirement of natural justice does not extend to a formal hearing and detailed reasons expressed in order to insist upon following of principles of natural justice in the present case. The relevant consideration remains an exercise in mind. The raising of revenue is pre dominant consideration as has been stated in reply noticed by us above which cannot be ignored and subject to what has been stated broadly by the Finance Minister/Chief Minister in her Budget Speech while delineating the application of the public revenue to different purposes cannot affect the compliance of the Government in raising public revenue by withdrawing the exemption, which was continuing for such a long period. The public interest inheres in raising of revenue. (214). The public interest inheres in raising of revenue. (214). In Renusagars case itself, the Court while upholding rejection of application moved by Hindalco took into consideration that while initial exemption may be justifiable after its levy confirmation, it was justified that exemption is withdrawn to serve some other public interests. (215). So far as the consideration of other industries not having captive power consumption being at disadvantageous position as a result of continued full remission is concerned, also cannot be said to be wholly irrelevant. We have noticed that tax burden should admittedly fall equally on subject, in the present case, on consumers of electricity. Relative profitability of two classes of industries with captive power plants or without captive power generation cannot be assessed only on the basis of profitability on account of tax concession. But for concession notwithstanding respective cost structure of ones own industry dependents upon managerial efficiency and optimum blend of resource material. Tax concession come by way of incentive or as a support of measure for backward economy. In the present case, the remission from Electricity Duty was primarily granted to consumers getting electricity from their own sources as an industry supplementing the deficit between demand and supply of electricity through distribution agencies. Since 1989 the captive power generating units were enjoying full exemption from payment of tax. Claim is to continued exemption on the ground of continued deficit in demand and supply. (216). The contention that to reduce the competitive edge of industries with captive power generation misses the point that the Electricity Duty is not related to cost, nor exemption was related to provide any competitive edge to such industries. Cost of production depends on the personal efficiency of industry concern. The tax burden results in equal increase of cost for either industries. Ordinarily, the tax burden falling on two classes of consumer industries made a vital contribution in competitive structure of two industries of same categories otherwise while it gave the captive power generation equipped industry more profitability on the basis of tax exemption. To the extent industries claims to survive on tax exemption only, it does not convey a happy signal for balanced grown of industry. Health of growth industry ultimately is to be adjudged on its strength of profitability without tax exemption. Tax exemption itself being a form of subsidy cannot be indicative of good health. To the extent industries claims to survive on tax exemption only, it does not convey a happy signal for balanced grown of industry. Health of growth industry ultimately is to be adjudged on its strength of profitability without tax exemption. Tax exemption itself being a form of subsidy cannot be indicative of good health. When tax exemption is not relatable as dole for sick industry, cannot be relevant to consider whether any class of industry should continue to enjoy competitive as only on the basis of tax exemption. (217). Thus, if in order to see that by reducing the competitive margins to the extent it is referable only to tax exemption, the industry may have more balanced growth, the consideration cannot be said to be wholly irrelevant. (218). Moreover though remission has been withdrawn still rate of duty on consumption of self generated electricity is far less than general rate. To that extent tax advantage still continues with industries consuming electricity generated from its own sources. (219). There is no dispute that initially the State Government has proposed levy of uniform rate of duty at the rate of 25 paisa per unit which tax was less than general rate of electricity duty at the rate of 40 per unit. On considering the representation made by the trade association, rate of the duty chargeable on captive power consumption was further modified. (220). If we draw analogy from Renusagars case (supra) under UP Act the concession envisaged was either wholly or by providing different rates for different consumers. For captive power consumption rate was prescribed only 1 paisa per unit. The Court took notice of the fact and held that while Hindalco was not entitled to claim full exemption by upholding the rejection of application for exemption, the court upheld its contentions that it is entitled to lower rates of duty on captive power consumption. Whether impugned Notification is in violation of Policy under the provisions of Electricity Act, 2003 (221). It remains to be seen whether the test of subjective satisfaction of the State Government with stand the test of being founded on existence of objective facts having some nexus to the purpose for which power is being exercised is satisfied as per the principle enunciated in Barium Chemicals Ltd. vs. Anr. vs. Company Law Board & Ors., AIR 1967 SC 295 . (222). vs. Company Law Board & Ors., AIR 1967 SC 295 . (222). This takes us to the last lag of contentions raised by the petitioners that the reason that has been stated in Budget Speech and for which the revenue was being raised by withdrawing the exemption is contrary to the National Electricity Policy against providing cross subsidy. (223). This would need a brief preview of the provisions of the Electricity Act, 2003 and the Rajasthan Power Sector Reforms Act, 1990. The Rajasthan Power Sector Reforms Act, 1999 as such does not speak anything about such cross subsidy. Under Sec. 26 it does not envisage any subsidy to any industry. It only envisages grant of subsidy to any consumer in terms of sub-section (6) of Section 26, which reads as under:- (6) Where the State Government requires the grant of any subsidy to any consumer or class of consumers in the tariff determined by the Commission under this section, the State Government shall pay the amount of subsidy to compensate the person affected by the grant of subsidy, in the manner the Commission may direct, as a condition for the licence or any other person concerned to implement the direction with regard to subsidy provided for by the State Government. (224). Section 65 of the Electricity Act, 2003 is couched in identical terms and the two provisions of Central & State Acts are not repugnant. (225). Apparently, this provision reveals that the State Government may if it so desires to decide can grant subsidy to any consumer or class of consumers in the tariff, but it itself shall have to bear the cost of subsidy. Tariff in the context can only mean the price chargeable by supplier or distributing agency from its consumers. It cannot have reference to tax imposable by State Government on its subject in exercise of its sovereign power. (226). The condition that such subsidy shall be paid by the Government from its own sources and shall not befall on the supplier of the electricity primarily concerns with the price chargeable for supply or sale of electricity for consumption. It cannot have reference to tax imposable by State Government on its subject in exercise of its sovereign power. (226). The condition that such subsidy shall be paid by the Government from its own sources and shall not befall on the supplier of the electricity primarily concerns with the price chargeable for supply or sale of electricity for consumption. Where the supplier of electricity is required to supply the electricity at concession rate or free of cost to any consumer or class of consumers, sub-section (6) envisages that the supplier shall not have to suffer the burden of subsidy but it shall be borne by the State Government. (227). It is inherent in such condition that such cost of subsidisation shall be paid by Government from its own revenue independent of tariff structure. Therefore, mobillisation of revenue resources available to State and allocation of any parts of its revenue to different heads to meet its expenses does not fall within the ambit of statutory provision under the Act of 2003. What appears to be idea is to restrict the tariff structure of the electricity supply agency, which is to be done in consultation with regulatory commission from so designing the tariff schedule which may result in passing on the burden of concession to any consumer to the supplier. (228). Section 39 and 42 of the Electricity Act, 2003 deals with providing transmission and distribution of Electricity respectively. Part V deals with inter-State and intra-State transmission of electricity and matters connected with transmission of electricity generally. Part VI deals with ancillary subject of distribution of electricity. (229). For better management of electricity transmission and distribution through grid system, the Act of 2003 favours setting of open access system to be monitored by setting up of Central Transmission Utility or State Transmission Utility as a Government company and setting up of load dispatch centers at different echelons for rendering these services. (230). Section 39 envisages setting of State Transmission Utility to monitor intra State transmission of electricity for setting up open access transmission system. Sub-section (2) (d) of Section 39 envisages that to meet expenses of open access transmission system, licence or generating company may be required to pay transmission charges. The consumer is also required to pay transmission charges and surcharge thereon as may be specified. (231). Sub-section (2) (d) of Section 39 envisages that to meet expenses of open access transmission system, licence or generating company may be required to pay transmission charges. The consumer is also required to pay transmission charges and surcharge thereon as may be specified. (231). Significantly surcharge is not to be chargeable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to destination of his own. Likewise Section 42 also reiterates same thing that surcharge shall not be leviable in case open access is provided to such a person who has established a captive generation plant for his own use. (232). The scheme is that while every supplier and consumer is required to pay transmission charges, surcharge is leviable only on consumers other than those who has established captive generating plant. Only the amount of surcharge to be recovered from consumer of electricity who is not consuming self generated electricity is earmarked to be utilised for the purpose of meeting the current requirement of cross-subsidy. Surcharge and cross subsidy are both to be progressively reduced and eliminated. (233). Every consumer even on consumption of self-generated electricity has to pay consideration for open access to transmission or to avail distribution system, both of which are to be managed by Government companies. Hence, in such event, question of charging of surcharge is only by way of additional consideration for specific purpose of passing on to some extent the burden of subsidy enjoyable by another class of consumers. But this cross transmission of burden of cross subsidy is referable to some class of consumers, viz. who consumes electricity supplied from sources other than captive generation. (234). This shows that subsidies are inter connected with consumers to be supplied electricity at concessional rate or free and subsidies required to meet such deficit arising from concession in tariff. The burden of consumer with surcharge under Section 39 or 42 of the Act of 2003 is part of price charged from them for services rendered by the company by allowing open access to transmission. It is not a part of common burden like general tariff or tax. Every subsidy granted by the State, unless collected by other methodology has to come from taxes. Hence, the levy of tax and its utilisation for meeting the burden of subsidy is not against the Act of 2003. It is not a part of common burden like general tariff or tax. Every subsidy granted by the State, unless collected by other methodology has to come from taxes. Hence, the levy of tax and its utilisation for meeting the burden of subsidy is not against the Act of 2003. What is prohibited to subsidise any consumer in the matter of supply of energy, extra price may be charged from other consumers other than those who are getting supply from their own source. This increasing price of electricity or services to cross subsidies cannot be extended to captive generation units but has nothing to do with equal distribution of tax burden. (235). Reason is not far to seek. Subsiding certain sector is envisaged under State Act of 1999 or Central Act of 2003. The cost of subsidy through tariff concession is not to be borne by supplying agency. Therefore, while deriving charges for open access transmission surcharge which is meant for utilisation against cost of cross-subsidy, has been restricted to consumers of service class. Since consumers of captive power does not at all supply energy to outside consumers, it is totally de-linked with subsidisation through tariff concession. In fact, no tariff is chargeable from such consumer except remuneration for transmission and distribution services availed by such class of consumers. (236). The levy of surcharge under Section 39 is not a tax. The Central Government has not been conferred with any legislative competence to levy tax on consumption of electricity, which is exclusive domain of State legislation. Hence, no part of Act of 2003 can be read as restriction on legislative competence of State or its delegate to the extent it exercises power to tax the subject. Reference may be made to M.P. Cement Associations Case (supra). (237). Nor such power to levy and collect tax has been conferred on the transmission service utility to be managed as Government company. (238). It can be viewed from another point. Levy of electricity duty on consumption of electricity is an imposition of tax, which State legislation is competent to levy. Revenue from different taxes are not earmarked to be utilised for any specific purpose. For what purpose a tax collected is to be utilised is a stage subsequent to lawful authorisation. The statement about allocation of a part of revenue for any purpose also come later. Revenue from different taxes are not earmarked to be utilised for any specific purpose. For what purpose a tax collected is to be utilised is a stage subsequent to lawful authorisation. The statement about allocation of a part of revenue for any purpose also come later. The levy does not become invalid if part of revenue is allocated for any purpose not authorised by law. Even such event bond of contention may be allocation and not the levy of tax. Reference may be made to State of Gujarat & Ors. vs. Akhil Gujarat Pravasi V.S. Mahamandal & Ors. (2004) 5 SCC 155 wherein the Court said that if the State Legislature was competent to pass the Act, the question of motive with which the tax was imposed is immaterial and there can be no plea of a colourable exercise of power to tax if the Government had the power to impose the tax. If the Government had an authority to impose a tax, the fact that it gave a wrong reason for exercising the power would not derogate from the validity of the tax. (239). It was also observed by the Apex Court in M/s. R.M.D.C. (Mysore) Pvt. Ltd. vs. State of Mysore, AIR 1962 SC 594 : ``The substance of an enactment is not the motive or the object, but the subject matter and the question in every case is what does not legislation enact. (240). It may be relevant here to notice in this connection the scope of cross subsidy cost of which is to be borne by the State under the Electricity Reform Act. A question has arisen before the Supreme Court in West Bengal Electricity Regulatory Commission vs. CESC Ltd. AIR 2002 SC 3588 . (241). The Court noticed that object of 1998 West Bengal Act was to create an independent regulatory authority with the power of determining the tariff, bearing in mind the interest of the consumers whose rights were till then totally neglected. The fact that Commission was obligated to bear in mind the interest of the consumers is also indicative of the fact that the Commission had to hear the consumers in regard to fixation of tariff. The fact that Commission was obligated to bear in mind the interest of the consumers is also indicative of the fact that the Commission had to hear the consumers in regard to fixation of tariff. This right to the consumers is further supported by the language of section 26 of the Act which specifically mendate the commission to authorise any person as it deems fit to represent the interest of the consumers in all proceedings before it. The High Court while requiring the regulatory commission to reconsider determination of tariff has directed the company to maintain tariff structure as it was prevailing before the Commission fixed the new tariff and it has also directed the increase in over all rate of tariff which directed to be prorated by the company from different consumers. This order permitted the continuance of cross subsidy. The court held that ``the object of 1998 Act is to prevent discrimination in fixation of tariff by imposing cross subsidy, but at the same time, as per Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course, the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. (242). In this connection, the decision in MP Cement Association Case also need notice where the court categorically stated that in the mater of levy of cess, a specie of tax on levy of cement, authority of State Legislature cannot be affected by any of the provisions in the Central enactment but can only be circumscribed by the restrictions imposed by the very same legislation which is competent to enact the legislation imposing tax. (243). Therefore, there being nothing repugnant to raising of public revenue in exercise of sovereign power of State to impose and collect taxes including Electricity Duty in any provision in the Act or policy statement, the raising of public revenue by withdrawing or reducing the exemption for meeting the cost of subsidies, so long as they are not obliterated and are in force as matter of State policy, cannot be said to be against the provisions of any statute. (244). In view of the aforesaid discussion, we do not find any merit in any of the contentions raised before us. (244). In view of the aforesaid discussion, we do not find any merit in any of the contentions raised before us. Consequently, the petitioner is dismissed. (245). There shall be no order as to costs.