TMI Blog2010 (6) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... s or by any person who is not authorised by the authority. The claim in the writ petitions is by the authorised private diesel outlets who are duly authorised by the competent authority, namely, Director of Fisheries. Therefore, a right flows out the G.O. Ms. Nos. 170 and 130 in favour of the petitioners. The authority cannot discriminate between one category or the other in the absence of a specific provision in the G.O. or any other law. The executive cannot impose a restriction not contemplated in the Government order. In view of the above, if the petitioners in all these cases satisfy the authority the requirement for supply of sales tax exempt diesel and if they make an indent for supply of sales tax exempt diesel to eligible fishermen, the authorities are bound to verify the claim and supply the same without discrimination subject to the limit specified in the G.O - Writ Petition Nos. 16993, 16994 of 2007 & 24500 of 2008 - - - Dated:- 15-6-2010 - SUDHAKAR R. , J. ORDER:- R. SUDHAKAR J. Writ Petition Nos. 16993 and 16994 of 2007 are filed to issue a writ of mandamus, directing the second respondent to determine quantity of diesel to the petitioner's diesel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rman having country boats fitted with diesel engines was 45,600 kilo litres per annum. This quantity is revised from time to time. (iii) The second respondent, Director of Fisheries, issued indent in RC No. J4/51995/2004 dated November 10, 2004, and the petitioner's bunk was given 12 kl only per month whereas the need of the fishermen was very high, which is based on the actual requirement. Aggrieved by the low allotment, the petitioner sent a representation to the fourth respondent, Assistant Director of Fisheries (Marine) with a request to modify the indent and to supply a minimum of 300 kl per month to the petitioner's diesel bunk. (iv) In spite of the G.O. Ms. No. 170 dated October 29, 2004, the second respondent, Director of Fisheries, has been issuing indent to the public sector oil companies fixing a huge quantity of diesel to the Mallipattinam diesel bunk of Tamil Nadu Fisheries Development Corporation Ltd., whereas the petitioner's diesel bunk was given a negligible quantity per month. The Tamil Nadu Fisheries Development Corporation on its part is accumulating a huge quantity of diesel as unutilised stock. It is evident from the indent issued by the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 for the Fisheries with a copy to the Director of Fisheries requesting them to consider their grievance and allot 250 kl per month. (vii) The Government of Tamil Nadu in the meanwhile based on the request of fishermen increased the entitlement for each mechanized boat from 1000 liters to 1500 liters. The petitioner, therefore, claim that they are entitled to supply of not less than 400 kl per month. The deprivation of this claim is arbitrary and contrary to the Government order. The petitioner sent further representation dated August 9, 2006 to the second respondent requesting for increased supply. Since the said representation and the earlier representation have not been considered in the light of the Government Orders applicable, the petitioner has come forward with this writ petition. In Writ Petition No. 16994 of 2007, the plea is that the petitioner's bunk was installed in the Nagapattinam area on May 20, 1989. A representation dated June 23, 2006 was sent for an identical relief as above a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, (i.e.), diesel to other vehicles also. The exercise of fixing the indent to the diesel outlets run by the respondent, TAFCOFED and authorised private dealers is being done in the interest of the beneficiaries and the same is constitutionally valid and legal. The petitioner in all these cases claim the benefit of G.O. Ms. No. 170 dated October 29, 2004 and that too without discrimination. The G.O. Ms. No. 170 dated October 29, 2004 and the other G.O. Ms. No. 130 dated October 29, 2004 are Government orders granting benefits to fishermen and the respondents and individual dealers are medium through which diesel is supplied to fishermen exempting it from sales tax. It will, therefore, be relevant to analyze the G.O. Ms. No. 170 dated October 29, 2004. G.O. Ms. No. 170 Commercial Taxes (B2), October 29, 2004 reads as follows: In exercise of the powers conferred by sub-section (1) of section 17 of the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959), the Governor of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird 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 fishermen for fishing activities, the Government have decided to exempt the sales tax on sale of high speed diesel oil to be supplied to fishermen through the diesel bunks run by the Tamil Nadu Fisheries Development Corporation Limited (TNFDC), Tamil Nadu State Apex Fisheries Co-operative Federation Limited (TAFCOFED) and other private diesel bunks already approved by the Government subject to the following conditions: (i) Sales tax shall be exempted on sale of high speed diesel oil not exceeding 10,000 litres per mechanised boat for the year period in case of 5,000 mechanised boats operating for marine fishing in the State (with maximum limit of 50,000 kilo litres for the whole year). (ii) Sales tax shall be exempted on sale of high speed diesel oil not exceeding 30,000 litres per motorised traditional boated operating diesel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Fisheries concerned. 5.. The Assistant Director of Fisheries should work out the diesel requirement for the purpose of sales tax exemption to be given. 6.. The Assistant Director of Fisheries concerned is to workout the details of sales tax exempted diesel required to the authorized bunk every month. 7.. The Assistant Director of Fisheries is to furnish indent for the sales tax exempted diesel to the Director of Fisheries every month. 8.. The Departmental officers should prevent any misuse of diesel by the users and suppliers. 9.. The Departmental officers should maintain proper records for all transactions and watch the actual use of diesel by the mechanised fishing boat/c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 29, 2004 gives the indication as to how the unutilised quantity of diesel specified for the month should be released subject to the overall limit for the year applicable for each category of fishermen. It, therefore, follows that when fishermen having mechanized boats and fishermen having country boats fitted with diesel engines approach the diesel vendors, who are authorised to distribute the sales tax exempt diesel oil, they are bound to supply and for which they are entitled to place the indent and the Director of Fisheries cannot discriminate between one or the other category in allotment. (ii) In this case, the arbitrariness in allotment of diesel is evident as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing 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. Raman, learned Advocate-General appearing for the State, stated that the Director of Fisheries in his proceedings Rc. No. 55416/J4/ 2004 dated May 12, 2005 formed a committee to identify suitable dealers for supply of sales tax exempted diesel to fishermen. The committee in its meeting held on June 15, 2005, inter alia, proposed to impose restriction of 10 per cent. The proposal of the committee reads as follows: VII. In order to protect the interest of the TNFDC and TAFCOFED (a) first priority will be given to TNFDC and TAFCOFED in the proposed new places. For this purpose a copy of the above notification will be addressed to both the agencies. (b) The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment 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 chosen to permit/authorise certain private diesel bunks which are situate proximate to coastline to distribute the tax exempted diesel oil to fishermen subject to the quantity restriction indicated in the Government order. This is a beneficial measure given to the fishing folk who mostly live in penury and lead a life of trial and turbulence as is the sea that feeds them. The mode of distribution through the three service providers can be better understood by a proceedings of the Director of Fisheries dated November 10, 2004 which clearly states the method to be followed by the Government owned corporation, cooperative federation and the authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 besides giving certain directions as to how the indent should be made, it also talks about the issue of diesel card, the manner in which the bill should be issued, how the quantity of diesel sold should be recorded and informed to the authorities. It also specifies that if the sales tax exempted diesel is not sold to the fishermen within a reasonable time, it should be informed to the higher authorities. Checks and balances have been indicated in the proceedings of the Director of Fisheries, the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Government owned corporation or the cooperative federation. The Committee's recommendation is contrary to the purpose specified in the letter of the Director of Fisheries. This court is not inclined to go into the veracity of the Committee's report or its directions for the reason that the said committee's proposal has no legal basis. On the basis of the proposal, the authority acting in terms of G.O. cannot impose a restriction on one or other category of authorised diesel outlet. First o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 from para 31 and reads as follows: 31. In the instant case, the farmer or agriculturist who has chosen to receive subsidies or financial assistance under the schemes of the Government has an obligation to accept the terms and conditions for such assistance. One of such conditions is that in the northern region of the State, pumpset for which financial assistance has been given is to be purchased from the approved dealers of the Government. The private dealer cannot insist that the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, 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 authorised by the authority. The claim in the writ petitions is by the authorised private diesel outlets who are duly authorised by the competent authority, namely, Director of Fisheries. Therefore, a right flows out the G.O. Ms. Nos. 170 and 130 in favour of the petitioners. The authority cannot discriminate between one category or the other in the absence of a specific provision in the G.O. or any other law. The executive cannot impose a restriction not contemplated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
