2010 (6) TMI 721 - HC - VAT and Sales Tax

Writ of mandamus, directing the second respondent to determine quantity of diesel to the petitioner s diesel bunk on par with the third respondent s diesel bunk at Mallipattinam and Akkaraipettai, respectively, as per G.O. Ms. No. 170 Commercial Taxes (B2) dated October 29, 2004. Held that - 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 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

Summary

Issues Involved:
1. Determination of diesel quantity allocation for the petitioner's diesel bunk vis-`a-vis other diesel bunks.
2. Increase in the supply of sales tax-exempted high-speed diesel oil to the petitioner.
3. Alleged discriminatory practices in diesel allotment.

Detailed Analysis:

1. Determination of Diesel Quantity Allocation:
The petitioners sought a writ of mandamus to direct the second respondent to determine the quantity of diesel supplied to their diesel bunks on par with other diesel bunks, specifically those run by Tamil Nadu Fisheries Development Corporation (TNFDC) and Tamil Nadu Fisheries Development Co-operative Federation (TAFCOFED). The petitioners argued that their diesel bunks, which exclusively catered to fishermen, were unfairly allotted significantly lower quantities of diesel compared to TNFDC diesel bunks, despite the high demand from fishermen. The petitioners presented a table showing the discrepancy in diesel allotment, highlighting the arbitrary and biased nature of the allocations. They contended that the allotment should be based on actual requirements and not on arbitrary decisions.

2. Increase in Supply of Sales Tax-Exempted High-Speed Diesel Oil:
The petitioners also sought an increase in the supply of sales tax-exempted high-speed diesel oil from 36 KL per month to 400 KL per month. They argued that the Government Orders (G.O. Ms. No. 130 and G.O. Ms. No. 170, both dated October 29, 2004) intended to alleviate the difficulties faced by fishermen due to the high price of diesel. The petitioners claimed that the current allotment did not meet the genuine needs of the fishermen and that they were entitled to a higher quantity of diesel as per the government orders. They highlighted that the government had increased the entitlement for each mechanized boat, thus justifying their request for enhanced supply.

3. Alleged Discriminatory Practices in Diesel Allotment:
The petitioners alleged that the Director of Fisheries was issuing indents that favored TNFDC diesel bunks, allowing them to accumulate unutilized stock, while the petitioners' diesel bunks were given negligible quantities. They argued that this discriminatory practice was contrary to the government orders, which did not differentiate between government-run and private diesel bunks. The petitioners emphasized that the purpose of the government orders was to provide tax-free diesel to fishermen, and any discrimination in allotment defeated this purpose. They asserted that all authorized diesel outlets, including private ones, should be treated equally and without discrimination.

Court's Findings:
The court analyzed the relevant government orders and the express memo issued by the Director of Fisheries. It found that the government orders intended to provide benefits to fishermen by exempting sales tax on diesel oil and did not differentiate between government-run and private diesel bunks. The court noted that the Director of Fisheries had the discretion to monitor and implement the government orders but could not arbitrarily discriminate between different diesel outlets. The court emphasized that the allotment of diesel should be based on the actual requirements of the fishermen and that any discrimination in allotment was contrary to the purpose of the government orders.

The court concluded that the petitioners, being authorized dealers, were entitled to supply sales tax-exempted diesel to fishermen without discrimination. It directed the authorities to verify the petitioners' claims and supply the required quantity of diesel subject to the limits specified in the government orders. The court allowed the writ petitions and ordered that the petitioners be treated on par with other authorized dealers in diesel allotment.

Conclusion:
The court ruled in favor of the petitioners, directing the authorities to ensure fair and non-discriminatory allotment of sales tax-exempted diesel to all authorized diesel outlets, including private ones. The judgment reinforced the principle that government orders intended to benefit a specific group (fishermen, in this case) should be implemented without arbitrary discrimination between different service providers.