Res judicata is not applicable, when the issue has not gone into by the high court, albeit it was taken as one of the grounds in the earlier writ petition; SC.

Supreme Court of India

Justice Ashok Bhushan

In the case titled as "Indian Oil Corporation Limited Versus State of UP and others", the supreme court was, inter alia, concerned about the issue of res judicata in the writ petition.

In the said case HC dismissed the writ petition challenging levy of interest on delayed payment of entry tax, as barred by principles of res judicata, as the issue of interest was also part of earlier writ petition, which was decided by the High court where in the liability to pay entry tax in state of UP was upheld. The said matter/ issue reached the top court by way of appeal.

The SC allowed the Appeal and held that the writ petition is not barred by res judicata as in earlier Writ Petition the high court had not decided the issue of interest, even albeit it was pleaded as one of the grounds in writ petition. Further held that even the high court de-tagged those separate writ petitions, while deciding the issue of levy of entry tax in earlier litigation, which are challenging only interest demand, therefore, in view of the said conspectus of facts, the supreme court came to the conclusion that issue of interest was not gone into by the high court in the earlier writ petition, deciding the issue of entry tax in UP.

Finally, the SC upheld the levy of interest - on entry tax late payment, as it was being done through introducing substantive provision of other act in the applicable act, which are mutatis mutandis applicable to act in question. The SC remitted the matter back to High Court - on the point of amount and rate of interest payable by the appellants, on the facts and circumstances of the present case. The appeal was disposed of.