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TMI Blog2010 (6) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitions are taken up together and disposed of by this common order. The brief facts of the case in W.P. No. 16993 of 2007 are as follows: (i) Petitioner's diesel bunk, a marine outlet, was installed in the Mallipattinam area on February 23, 1994 as dealer of the fifth respondent Indian Oil Corporation. The petitioner's diesel bunk was able to supply high-speed diesel to the extent of 300 kilo litres per month by exclusively catering to the requirements of fishermen. The Tamil Nadu Fisheries Development Corporation has its diesel outlet bunk even earlier to the petitioner's bunk. The excise duty component of the diesel price was reimbursed by the Central Government from the year 1994. The petitioner's bunk availed of the same from the year 1997. In the year 2004, the petitioner's diesel bunk was supplying diesel to 225 registered mechanized boats and country boats owned by fishermen and thereby petitioner's diesel bunk was supplying near about 300 kilo litres every month up to 2004. (ii) Due to high demand of diesel, by fishermen and considering the repeated representation from the fishermen, the Government of Tamil Nadu issued G.O. Ms. No. 170 Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 TNFDC Mallipattinam 204 240 January 2007 as per the requirement and is overlooked, whereas the respondent- TNFDC Mallipattinam 216 240 Corporation is allotted higher quantity in spite of carry forward of a huge stock as unutilized quota. This clearly establishes the arbitrariness and the bias on the part of the Department. (v) The petitioner brought the matter to the notice of the Director of Fisheries pointing out that the indent issued is discriminatory and the more advantageous to diesel bunks run by corporation, but does not benefit the fishermen as envisaged by the G.Os. The petitioner's bunk is short supplied and thereby affecting the fishermen. The petitioner prayed for enhanced supply. (vi) Further grievance of the petitioner is that the Director of Fisheries is permitting Tamil Nadu Fisheries Development Corporation and Tamil Nadu Fisheries Development Co-operative Federation to place orders directly with the public sector oil companies without following the indent procedure, which is contrary to the Government order and the instructions of the Director of Fisheries. The petitioner, therefore, sent a representation dated June 24, 2006 to the Minister f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 dated October 29, 2004, does not mention the petitioner's name and does not fix the quantity to be supplied to any particular bunk. It gives discretion to the Director of Fisheries to monitor and implement the said G.O. at his discretion and therefore, allotment of different quantity cannot be challenged. It is argued that the allotment is discretionary. In W.P. Nos. 16993 and 16994 of 2007, respondents 2 and 4 filed counteraffidavit stating that the intention of the Government is to issue sales tax exempted diesel to the fishermen through Government outlets to the maximum extent so as to ensure proper implementation of the welfare scheme. The Government aid, (i.e.), supply of sales tax exempt diesel is not to work for the improvement of private diesel dealers, but to implement the scheme of providing sales tax exempt diesel for the easy reach of fishermen. In W.P. No. 24500 of 2008, fourth respondent Fisheries Department filed a counter-affidavit stating that the outlets run by this respondent and TAFCOFED are distributing diesel only to fishermen for fishing purpose and not doing any business as dealer, whereas the petitioner is a commercial unit selling in open market, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted for the whole year under each category. (d) The Director of Fisheries shall issue a declaration for the purchase of diesel for distribution to fishermen of Tamil Nadu in the Form mentioned below to the public sector undertaking oil companies every month. " G.O. Ms. No. 130 Animal Husbandry and Fisheries (FS-1) Department dated October 29, 2004 which is referred to earlier reads as follows: "In the representation first and second read above, the Chennai, Tiruvallur, Kancheepuram Fishing Industry Protection Association and the Chennai-Kancheepuram District Mechanised Boats Fishermen Association and United Panchayat Sabha have requested the Government to exempt sales tax on diesel to be supplied to fishermen to use in fishing activities in Tamil Nadu like Karnataka, Andhra Pradesh and Pondicherry, etc. (2) In the reference third read above, the Director of Fisheries has sent his report to Government on the demands made by those fishermen's association and problems being faced by them due to price hike of high speed diesel oil. (3) After careful examination of the request of the above association seeking sales tax exemption on the sale of high speed diesel oil to fisherm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a mechanised fishing boat and 3,000 litres for a traditional fishing craft fitted with diesel engines per year (copy enclosed). This should be followed scrupulously by Departmental Officers. The Joint Director of Fisheries (Regional) Chennai, Tuticorin, Nagapattinam and Deputy Director of Fisheries (Regional) Madurai and Trichy and the Assistant Director of Fisheries concerned will be implementing the scheme. The following guidelines are issued. 1.. Mechanised fishing boat and country boat (OBM/KOE) to get diesel from the authorised diesel outlet. A copy of the list of eligible conditions is enclosed. 2.. The Assistant Director of Fisheries concerned is to furnish the eligible quantity of diesel to be drawn by the mechanised fishing boats/country crafts fitted with OBM/BE diesel engines to the authorized diesel bunk to draw diesel. 3.. The Departmental officers should watch the utilization of the diesel drawn and confirm that it has been used for fishing purposes only. 4.. The Assistant Director of Fisheries is to get details of the diesel supplied from the bunk drawn by the boat/fishermen and check whether diesel drawn as per the indent issued by the Assistant Director of F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector of Fisheries, it has been specifically stated that the petitioner in W.P. No. 24500 of 2008, viz., M/s. Samatti Fuel Centre is eligible along with four others for the supply of sales tax exempt high speed diesel oil. As far as the petitioner M/s. Govindammal Diesel Centre is concerned, a specific G.O. Ms. No. 184 Animal Husbandry and Fisheries (FS. V) Department dated August 5, 1994 has been issued duly authorising them as dealer outlet for supply of sales tax exempt diesel oil to fishermen. The petitioners in W.P. Nos. 16993 and 16994 of 2007 are existing vendors and are authorised by the Director of Fisheries for supply of diesel free of sales tax for fishermen and that is not in dispute. It, therefore, follows that as per the condition mentioned in G.O. Ms. No. 170 dated October 29, 2004 and the Express Memo issued, the Director of Fisheries should authorise the public sector undertaking oil companies to supply diesel to fishermen through diesel bunks run by the three categories mentioned therein. All the petitioners are duly authorised and are eligible for supply and sale of sales tax exempt diesel to fishermen. The condition No. (c) of the G.O. Ms. No. 170 dated October ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich discriminates between the authorised vendors, viz., Government owned diesel outlets and the individual authorised private diesel outlets. Therefore, the petitioner is entitled to be treated equally and without discrimination and the relief sought for should be granted. Thiru P.R. Raman, learned counsel appearing for the petitioner in W.P. No. 24500 of 2008 referred to the express memo dated November 5, 2004 and stated that the Director of Fisheries has issued a guideline as to how the sales tax exempted diesel oil should be disbursed in terms of the G.O. Ms. No. 170 and G.O. Ms. No. 130 both dated October 29, 2004. The petitioners have been scrupulously following the guidelines. In spite of the specific request, which is based on demand and the need of the fishermen, they are denied the supply of the required quantity. In the outlet the requirement of the fishermen is higher and that has not been taken note of. The petitioners are scrupulously following the direction issued by the Director of Fisheries. The second respondent, however, failed to grant the indent for supply of the quantity specified in terms of the G.O. to the fishermen who approached the petitioners. Mr. P.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fishermen to run their mechanized and country boats fitted with diesel engines. The Government has considered a large number of representations made by the fishermen, whose bread and butter is fishing in the high seas which occupation is seasonal. Considering the plight of the fishermen, the constrain that they face, the calamities that they endure in their occupation, the benefit is granted to all fishermen coming under the two categories mentioned in the G.Os. The Government has also chosen a medium for distribution of the sales tax exempted diesel oil for helping the downtrodden fishermen. The first two categories of authorised dealers are the Government owned corporation and the cooperative federation. The third category is the authorised private diesel outlets which are situated in the various places on the coastline of Tamil Nadu. The choice of private diesel outlet is specific to cater to the need of the fishermen. Realizing the difficulty that the fishermen will have to undergo if they are forced to go a long way in search of the diesel outlets run by the Government owned corporation or cooperative federation which may not be situate in all places, the Government has chos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n should be obtained from the concerned Assistant Director of Fisheries of the concerned district. 3.. Every sale of sales tax exempted diesel is to be made through a printed bill in duplicate noting the Boat No./Name of the owner/ Diesel Card No. etc., 4.. The sale should be made through diesel card issued by the authorised officer of the Department of Fisheries after the introduction of the sales tax exempted diesel. The diesel cards issued previously for diesel subsidy is not valid and therefore fresh cards are to be obtained by the fishermen. 5.. Particulars of sales and receipt of tax exempted to diesels to be furnished to the authorized officer concerned. 6.. If for any reason, the sales tax exempted diesel could not be sold to the fishermen within a reasonable time, the fact should be brought to the notice of the Assistant Director of Fisheries concerned for necessary action. 7. The sales tax exempted diesel ordered as per the indent should be unloaded to the diesel outlets specified in the indent only and not to any other bunk/places, etc. Sd/A.S. Jeevarathina Director of Fisheries". On a reading of the above letter dated November 10, 2004, it is evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hermen, who have to be covered, it has become necessary to issue the abovestated instructions for effective implementation of the welfare scheme for the benefit of fishermen. In such a situation, the restriction or non-supply of sales tax exempted diesel to one or other authorised dealer will be arbitrary. The learned Advocate-General relied on the proceedings of the Director of Fisheries dated November 12, 2005 and stated that they have the power to restrict the supply to private diesel bunk and on the basis of such proceedings, the restriction has been imposed. This argument of the learned Advocate-General based on the proceedings referred to by him, on the face of record, is unacceptable, improper and contrary to the G.O. The said proceeding is also bad for the reason that its recommendation is contrary to the purpose for which the committee was formed. The Director of Fisheries formed a Committee to identify suitable dealers for supply of sales tax exempted diesel. Instead of doing so, the Committee takes upon the role of a watch dog and restricts the supply of sales tax exempted diesel to already authorised private bunks stating that it will be in the interest of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of fishermen under the two categories mentioned in the Government order, the Department has no jurisdiction to withhold the supply of sales tax exempt diesel to the petitioners. If the petitioners are denied the supply of sales tax exempt diesel on an erroneous proceedings, it will indirectly amount to denial of the rights and privileges given to the fishermen. The restriction imposed on private diesel outlets without any just or reasonable cause cannot be justified. The Government order is clear and unambiguous. The benefit will have to be extended to the fishermen through the authorised diesel outlets specified in the G.O. There is no rationale in discriminating between one or other diesel outlet. The petitioners, therefore, are entitled to be treated on par with other authorised dealers without discrimination. The learned Advocate-General relied on the decision of the apex court in Krishnan Kakkanth v. Government of Kerala reported in AIR 1997 SC 128 and contended that the authority had the power to impose reasonable restrictions as in the present case. The decision of the apex court does not apply to the facts of the present case as the facts are different as could be seen f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. It may be indicated that although a citizen has a fundamental right to carry on a trade or business, he has no fundamental right to insist upon the Government or any other individual for doing business with him. Any Government or an individual has got a right to enter into contract with a particular person or to determine person or persons with whom he or it will deal." In the present case, the petitioners are authorised dealers and are covered by the G.O. and therefore, they are not outsiders to the Government orders. If this fact is accepted, then, between three categories mentioned in the G.O., there cannot be any differentiation unless it is authorised by law. The authority, to regulate the supply of diesel which is sales tax exempted in favour of fishermen, has a role to ensure that such commodity reaches the fishermen through all the three agencies specified in the G.O. subject to proper supervision and regulation to ensure that there is no misuse or abuse. The apex court's decision relates to a claim by a private dealers as against the Government authorised dealers. In the facts of the present case, there is no claim by any outsiders or by any person who is not autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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