TMI Blog2020 (3) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents : Mr.P.H.Aravind Pandian, AAG., for M.Hariharan, AGP. COMMON ORDER All the Writ Petitions have been filed by the Dealers of Oil Marketing Companies having diesel bunks in Fishing Harbours at Royapuram - Chennai, Mandapam Ramanathapuram, Kottaipattinam Pudukottai, Mallipattinam Thanjavur, Thonithurai Nagapattinam and Port premises Nagapattinam, in the nature of Writ of Certiorarified Mandamus, calling for the records relating to the 1st respondent namely, the State of Tamil Nadu, represented by its Secretary, Animal Husbandry Dairy and Fisheries (FS-3) Department, Chennai in G.O.(Ms) No.238, Animal Husbandry Dairy and Fisheries (FS-3) Department dated 11.12.2017 and consequential order of the 2nd respondent namely, the Director of Fisheries, Chennai, in R.C.No.21066/J4/2007 dated 19.02.2018 and quash the same and direct the respondents to issue allotment to the petitioner's bunk towards supply of sales tax exempted diesel. 2. The affidavit of K.R.Selvakumar, Proprietor, Fishermen Corporative Oil Dealers, having diesel bunk in fishing harbour Kasimedu, Royapuram, Chennai, filed in support of W.P.No.5246 of 2018 is taken up for consideration and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such orders, the Director of Fisheries had chosen to seek supply of huge quantity of diesel to TNFDC run diesel bunks. Thereafter, the 1st respondent namely, the State of Tamil Nadu, represented by its Secretary, Animal Husbandry Dairy and Fisheries (FS-3) Department, Chennai passed G.O.(Ms) No.5 of 2017 dated 28.06.2017 reiterating the earlier G.O.(Ms).No.170 dated 29.10.2004. A further order in G.O.(Ms).No.238 dated 11.12.2017 was issued deleting private diesel bunks from the scope of G.O.(Ms).No.130, Animal Husbandry Dairy and Fisheries (FS-3) Department, dated 29.10.2004. The present Writ Petitions have been filed questioning the said Government Order. 6. In the counter affidavit filed by the Director of Fisheries, it had been stated that the writ petitioners own diesel bunk in the Fishing Harbour / Port surrounding areas and they supply diesel to fishing boats to carry out fishing operations. It had been stated that originally, the Government, by G.O.Ms.No.550, Animal Husbandry Dairy and Fisheries Department, dated 12.11.1990, granted assistance in the form of reimbursement of Central Excise Duty levied on high speed diesel oil used by mechanized fishing vessels with lengt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Oil Dealers 4 Seashell 5 Samithra Agencies 6 S.Indira 7 Govindammal Diesel Centre Nagapattinam 8 RSR Enterprises 9 Banu Filling Station Thanjavur 10 Star Traders Pudukottai 11 S.Annadurai 12 Sammatti Fuel Centre, Mandapam Ramanathapuram 13 Neelakadal Enterprises, Rameswaram 14 Rohan Petroleum Kanyakumari 8. It was stated that the committee allotted 10% of the total quota eligible for an area to the private diesel bunks. The major portion of the allotment was made to the bunks owned by TNFDC and TAFCOFED. This was with an intention to ensure that the sales tax exempted diesel oil reaches the actual fishermen. Aggrieved by the decision to allot onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of March 2018. It was stated that the private diesel bunk dealers can approach new customers for their business development. It was also stated that allotment of sale tax exemption diesel to private diesel bunk cannot be claimed as a matter of right. It was therefore stated that the Writ Petition should be dismissed. 10. The 3rd respondent namely, the Commercial Taxes Department also filed their counter affidavit in which they claimed that they are not a necessary party to the writ petitions. It was stated that the entire issue relates to the Fisheries Department. It was stated that G.O.Ms.No.170, Commercial Taxes (B2) Department, was issued on 29.10.2004, granting exemption from payment of sales tax on the sale of high speed diesel oil by the Public Sector Undertaking Oil Companies to the Director of Fisheries for distribution to the fishermen. It was stated that, it was the Fisheries Department, who makes allotment quota to various oil companies. It was therefore stated that the writ petition should be dismissed. 11. Heard arguments advanced by Mr.L.Chandrakumar and Mr.K.Sakthivel, learned counsels for the petitioners and Mr.P.H.Aravind Pandian, learned Additional Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. Hence, the decision will not apply to the facts of the present case. ...... 31.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. All the Writ Petitions stands allowed as above. No costs. 14. This judgment was taken up in appeal by the State Government and by the Director of Fisheries, in Writ Appeal Nos.1798, 1799 and 1800 of 2011.A learned Division Bench of this Court after examining the entire issue had observed and laid down as follows: 24. Similarly, as rightly observed by the learned Single Judge, when such restrictions were not imposed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting private diesel bunks also to supply sales tax exempted diesel oil to fishermen is only for the benefit of the fishermen community and not for the improvement or enhancing the income of private bunk dealers. All the diesel bunks being operated by Tamil Nadu Fisheries Development Corporation Limited and Tamil Nadu State Apex Fisheries Cooperative Federation Limited are located inside the Jetty / Port-area and are exclusively catering to the needs of the fishermen and not authorized to sell diesel to the other public whereas there in no such restriction on private diesel bunks. Further, the Director of Fisheries is also the Managing Director of Tamil Nadu Fisheries Development Corporation Limited and Functional Registrar of the Tamil Nadu State Apex Fisheries Co-operative Federation Limited is having better control over the implementation of the scheme. It is very easy to monitor and control their selling of diesel, accounts verification and other transactions in these two organizations. Besides, the Tamil Nadu Fisheries Development Corporation Limited is also implementing various Government Schemes such as construction of the fishing boats and supply of the Mechanized fishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in G.O.Ms.No.238 dated 11.12.2017 from which a relevant portion had been extracted above and the consequent letter issued by the Director of Fisheries are being impugned in these writ petitions. 20. Even before examining, the contentions of the writ petitioners reference must be made to G.O.Ms.No.130 Animal Husbandry Fisheries (FS-I) Department dated 29.10.2004. By this Government order, after examining requests made by the Fishermen Associations, it had been stated as follows: 3.After careful examination of the request of the above Association seeking sale tax exemption on the sale of High Speed Diesel Oil to fishermen for fishing activities, the Government have decided to exempt the sale tax on sale of High Speed Diesel Oil to be supplied to fishermen through 36 diesel bunks run by the Tamil Nadu Fisheries Development Corporation Limited (TNFDC), Tamil Nadu State Apex Fisheries Co-operative Federation Limited (TAPCOFED) and other private diesel bunks already approved by the Government. (Emphasis Supplied) The words 'other private diesel bunks already approved by the Government' was deleted by the impugned G.O.Ms.No.238 dated 11.12.2017. This amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the private dealers. It was stated that by this policy, the hardships which accrued to the private dealers have not been taken into consideration by the respondents. The learned counsel stated that the writ petition should be allowed and the impugned Government order and consequential letter should be set aside. 24. In this connection, the learned counsels for the writ petitioners relied on 2005 AIR (Calcutta) 129, Hindustan Detergent Corporation and another V. W.B.Small Industries Development Corporation Ltd., and others, wherein it had been stated as follows: 14. ...... While cancelling a contract they have not only to follow a procedure, which should be consistent with Article 14 of the Constitution, that is, after observing the rules of fair play and the principles of natural justice, but the grounds for such cancellation should, also, be reasonable and not arbitrary. Any executive decision has to be tested on the touchstone of Article 14 of the Constitution not only so far as its procedural part is concerned, but also in respect of its substantive part. Even in a case where the procedural part has been followed still the Court can examine whether the ultimate decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27. Placing reliance on the above judgments, the learned counsels stated that the concept of equal treatment applies also to matters of Governmental policy any action of the Government relating to contractual matters. It was argued that even policy decisions cannot violate the Fundamental Rights enshrined in Articles 14 and 16 of the Constitution of India. 28. The Judgment relied on in 2005 AIR (Calcutta) 129, Hindustan Detergent Corporation and another V. W.B.Small Industries Development Corporation Ltd., and others, related to a writ petition filed by a registered partnership firm, running a small-scale industrial unit, who had been issued with a show cause notice for alleged supply of bad quality of 'WEBSI' detergent powder. It was found that the samples collected after testing were below the standards. Questioning the show cause notice, the writ petition had been filed. During the pendency of the writ petition, an order was passed, whereby, the petitioner was debarred as manufacturer of 'WEBSI' detergent powder and also from supplying the detergent powder to the W.B.Small Industries Development Corporation Limited. Since that decision was taken pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.238 dated 11.12.2017, which is also impugned in this writ petition, cogent and specific reasons have been given why the sales tax benefit is extended only to the diesel bunks operated by TNFDC and TAFCOFED and the private diesel bunks are excluded. It had been further stated that, (i)There is no restriction on private diesel bunks to sell diesel to other public. (ii)Monitoring and control of sales and verification is better since, the Director of Fisheries is also the Managing Director of Tamil Nadu Fisheries Development Corporation Limited and Functional Registrar of the Tamil Nadu State Apex Fisheries Co-operative Federation Limited, whereas by implication, such monitoring and control and verification is not possible with respect to other private dealers. (iii).Supply of sales tax exempted diesel oil may also lead to black marketing the supply of diesel. I hold the judgment of the Calcutta High Court is not applicable to the facts of this case. 32. In the judgment reported in 1999 (3) MLJ 347, S.Pappa and Ors. V. Government of Tamil Nadu, and Ors, the Writ Petitioners were Secondary Grade Teachers who had been appointed and whose appointments had been approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental right of the writ petitioners. It was granted in the peculiar circumstances which prevailed in the year 2004. Subsequently, the operations of TNFDC had widened and as stated above they also extend benefits to the fishermen in a wide range of activities including construction and supplying of fishing boats / mechanized boats, providing / erecting cold storage facilities, Ice plants and net making plants. These are all objects meant for public interest and therefore, I hold that the facts of the present Writ Petitions are distinguishable from the said judgment. 34. In the judgment reported in (2004) 2 MLJ 314, V.Krishnamurthy, Proprietor V. Airports Authority of India, the writ petitioner had challenged a notice inviting tender for licensing indoor and outdoor advertisement sites at International and Domestic Airports. In the said notification, there were conditions relating to experience and turnover. It was also found that Civil Aviation Ministry had advised the Airport Authority of India for clubbing of airports so that one or two big airports would be clubbed with smaller airports which would make it possible for the intending bidders to bid for the entire group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court relied on an earlier judgment in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409, and extracted paragraph Nos.43 and 44 from the said judgment which are as follows: 43. Estoppel cannot be invoked where the result will be to compel the Government to continue the exemption which a competent enactment has validly authorised the executive to withdraw in the public interest at any time. In public interest exemption can be granted. In public interest exemption can be rescinded. In other words, the rights of individuals are subordinated to the paramount interest of the public good. Section 25 underlines the importance of the common good. Public interest dominates the economic scene. If in public interest the Central Government finds that it is necessary to protect its own industry by putting up a tariff wall it will be futile to say that it cannot do so because it is bound by its promise to continue the exemption up to a particular time. The traders may feel incensed at the behaviour of the executive at its imposition, exemption, reimposition and re-exemption of taxes and levies. But when to exempt and when to impose duty is left to the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the activities of TNFDC and TAFCOFED. It is seen that TNFDC implements various Government Scheme such as, (a).construction of fishing boats, (b).supply of Mechanized fishing boats, (c).providing fish storage facilities, (d).providing cold storage facilities, (e).erecting Ice plants, (f).net making plants, and (g).supplying fish in hygienic condition at reasonable price to consumers. 42. Therefore, I hold that it is only appropriate that they are granted exemption from sales tax. The Private Diesel Bunk operators have not offered to participate in such implementation of Government schemes. All that is said is, they would not sell diesel to private parties. However, it has been made very clear, in the Government order that there is no such restriction. 43. In view of all the reasons, I hold that the Government order impugned and the consequential Notification do not suffer from any infirmity. Reasons had been given. Explanations have been given. The reasons are cogent and acceptable. By the said reasons malafide had not been impugned on the petitioners, but as the Hon'ble Supreme Court said in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
