9911796707
TMI Blog2010 (6) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 X X X X Extracts X X X X X X X X Extracts X X X X ..... d boats was 50,000 kilo litres per annum and fisherman 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitrary 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 and that was not considered. The other facts and relief sought for is one and the same as stated in W.P. No. 16993 of 2007 and the contentions are also the same. In Writ Petition No. 24500 of 2008, it is the petitioner's case that the petitioner's bunk was installed in the Ramnad District, Mandapam area in the year 1980. The facts and nature of relief sought for is one and the same as stated in W.P. No. 16993 of 2007. In this case, the petitioner further states that by G.O. Ms. No. 130 Animal Husbandry and Fisheries (FS-1) Department, dated October 29, 2004, on the request of various association of fisherme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tamil Nadu hereby makes an exemption in respect of tax payable under the said Act, on the sale of high speed diesel oil by the public sector undertaking oil companies to the Director of Fisheries, Government of Tamil Nadu, for distribution to the fishermen of Tamil Nadu not exceeding the quantity, as indicated below: (1) Fishermen having mechanized boats . . . Fifty thousand kilo litres per annum (2) Fishermen having country boats fitted with diesel engines . . . Forty five thousand six hundred kilo litres per annum Subject to the following conditions, namely: (a) The Director of Fisheries, Government of Tamil Nadu, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 per year in case of 15,200 motorised traditional boats in the State (with maximum limit of 45,000 kilo litres for the whole year). (4) Considering the welfare of the fishermen the number of diesel bunks will be increased whenever necessary. (5) This order is issued with the concurrence of Finance Department vide its U.O. No. 3323/FS/P/2004, dated October 26, 2004." Based on the G.O. Ms. No. 130 Animal Husbandry and Fisheries (FS-1) Department dated October 29, 2004 and G.O. Ms. No. 170 Commercial Taxes (B2), dated October 29, 2004 and in order to give the fishermen benefits as per the Government order, the Director of Fisheries issued the express memo dated November 5, 2004 in Rc. No. 51995/JJ4/04-1 which reads as follows: "Express memo Sub : Fisheries -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector 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/country crafts fitted with diesel engines. The Joint Director of Fisheries/Deputy Director of Fisheries and Assistant Director of Fisheries concerned are requested to strictly follow the modalities of the scheme which is enclosed." (emphasis Here italicised. supplied) In the light of the above stated G.Os., and express memo, the learned senior counsel Mr. M. Venkatachalapathy, appearing for the petitioner in W.P. No. 16993 of 2007 submitted as follows: (i) G.O. Ms. No. 170 dated October 29, 2004 provides for exemption in respect of tax payable on sale of HP diesel oil by the public sector undertaking oil companies to the Director of Fisheries, for distribution to the fishermen subject to certain conditions. Condition No. (a) relates to monthly schedule of indent for the fishermen to be given by the Director of Fisheries to the oil companies. Condition No. (b) relates to supply of high speed diesel to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 could be seen in respect of Indent No. 15 dated September 8, 2007 (Ref. No. 15307/J4/2007). In the indent, the overall sales tax exempted diesel for the month of September, 2007 shows that the TNFDC petrol bunk at Akkaraipettai has been given 716 kilo litres for the month of August 2007; whereas M/s. Govindammal Diesel Centre, the petitioner in W.P. No. 16994 of 2007 which also situates in the very same area has been given 36 kilo litres only. In the same manner, the TNFDC Diesel Bunk at Mallipattinam was given 102 kilo litres in the month of August 2007; whereas M/s. Banu Filling Station of the same area, the petitioner in W.P. No. 16993 of 2007, has been given 36 kilo litres only. The TNFDC Diesel Bunk at Mandapam, Ramanad was granted 756 kilo litres for the month of August, 2007; whereas M/s. Sammati Fuel Centre, the petitioner in W.P. No. 24500 of 2008 situated at Ramnad was granted 36 kilo litres. The discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 private bunks selected will not be allotted more than 10 per cent of the total quota eligible for that area. (c) The selection of private outlets will be purely on temporary basis and will be valid for a period of one year only. (d) The allotment of the private diesel outlets under this scheme is subject to termination whenever TNFDC and TAFCOFED desires to open new bunks in that area. VIII. The applications are invited for the above places as a first phase. Additional places will be considered within the limits prescribed in the G.O. as per the norms fixed at I above after studying the above proposed bunks for a reasonable period and the local needs." In view of the above decision, the allotment to the authorised private bunks are restricted. The learned Advocate-General further submitted that the Director of Fisheries has got power to allot at his discretion to any one of the categories of authorised dealer m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 private dealers in the distribution of the sales tax exempted diesel oil. The letter which is issued immediately after the passing of the G.O. will be more apt and appropriate to understand the need for passing the abovesaid beneficial G.O. The said letter dated November 10, 2004 is extracted hereunder: "Sub : Fisheries -- Supply of sales tax exempted diesel -- Supply of indent placed. Ref : (1) G.O. Ms. No. 170, Commercial Taxes (B2) Department, dated October 29, 2004. . . . I enclose copy of indent for the supply of sales tax exempted diesel for the month of November 2004. I request you to place specific orders for the supply of sales tax exempted diesel to the concerned oil companies enclosing copy of the indent and copy of G.O. in which the Government have exempted the payment of sales tax, so as to supply the sales tax exempted diesel to the fishermen early. Sd/A.S. Jeevarathinam, Director of Fisheries Sd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher authorities. Checks and balances have been indicated in the proceedings of the Director of Fisheries, the competent authority, in terms of G.O., for the effective distribution of diesel to fishermen. Furthermore, the express memo is issued on November 5, 2004 to implement the benefits granted under the G.O. The said express memo talks about authorised diesel outlet and their entitlement to make an indent to draw the diesel oil for supply to fishermen. It does not differentiate between the three groups. It also indicates the statement that has to be collected by the officers of the Fisheries Department with regard to utilization of the diesel supplied and check if diesel drawn is as per indent. It also gives the Assistant Director, the power to quantify the quantity required for a particular area and also to work out the details of the tax exempted diesel required to an authorised bunks every month. The express memo further directs the officers of the Fisheries Department to maintain proper accounts of all transactions and watch and prevent misuse. It, therefore, follows that there is no differentiation insofar as the three categories of diesel outlets are concerned. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of G.O. cannot impose a restriction on one or other category of authorised diesel outlet. First of all, in terms of G.O. Ms. No. 130 dated October 29, 2004 and the G.O. Ms. No. 170 dated October 29, 2004, there is no scope for any committee to identify and restrict the supply of sales tax exempted diesel. Therefore, the committee's proposal will be contrary to the G.O. Furthermore, when the Director of Fisheries in its proceedings dated May 12, 2005 requested the Committee to identify the suitable dealers for supply of sales tax exempted diesel, it is intended for identifying new dealers. The Committee had no reason to go into the other issues. Therefore, the said proposal cannot stand in the way of granting benefit to fishermen, who approach the petitioners, the authorised dealers. The Committee's proposal cannot override the benefits granted in terms of G.O. referred to above and it will be bad and without jurisdiction. The petitioners, who are duly authorised by the competent authority, viz., Director of Fisheries, are entitled to supply of sales tax exempted diesel to service eligible fishermen. That benefit cannot be withdrawn by a Committee or by any other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchased from the approved dealers of the Government. The private dealer cannot insist that the Government is also to enter into contract with any such private dealer to make it an approved dealer. Since the Government has every right to select dealers of its choice for delivery of pump-sets at the price agreed upon and to render after sales service to the purchasers of pump-sets covered by its financial assistance scheme. It is not open to challenge such selection of dealers on the score that such selection amounts to unreasonable restriction imposed on the dealers of the State to carry on trading activities in pump-sets. It is nobody's case that all the farmers and agriculturists have been compulsorily covered under such schemes. On the contrary, it is open to any farmer or agriculturists not to volunteer for taking such assistance." As regards the right of the private dealer, who claim certain benefits, the apex court in the above case observed as follows (paragraphs 27, 28 and 30): "27. It may be indicated that where a right is conferred on a particular individual or group of individuals to the exclusion of others, the reasonableness of restrictions has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
