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TMI Blog2020 (3) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ner : Mr.L.Chandrakumar, Mr.K.Sakthivel For the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als. It was stated that inspite of 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 mecha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 only 10% to private diesel bunks W.P.Nos.16993 and 16994 of 2007 and W.P.No.24500 of 2008 were filed. On 15.06.2010, a learned Single Judge of this Court ordered that the authorities are bound to supply without discrimination subject to the limits specified in the Government Order. Thereafter, the Department of Fisheries filed W.A.Nos.1798, 1799 and 1800 of 2011. The Division Bench stated that if the Government in public interest decides to restrict the tax exemption diesel for sale of diesel to the fishermen only to bunks run by TNFDC and TAFCOFED, then necessary modification will have to be brought in the Government Order. It had been furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Advocate General for Mr.M.Hariharan, learned Additional Government Pleader for R1 to R3. 12. The Writ Petitioners are running diesel bunks in fishing harbours at Chennai, Nagapattinam, Thanjavur, Pudukottai, and Ramanathapuram. They are all dealers of Oil Marketing Companies. They supply high speed diesel, which is required by fishermen who operate mechanized boats and motorized country boats and use them for fishing purposes. They have been supplying high speed diesel to an extent of 44 KL per month. 13. It has been stressed by Mr.L.Chandrakumar, and Mr.K.Sakthivel, learned counsels for the writ petitioners, that the petitioners are supplying high sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Government Orders, under the guise of memo / recommendations, the respondent cannot impose such restrictions. From the facts placed before us, we also see that there is more demand in the areas where Authorized Private Dealers operate and the Government outlets are unable to sell their indented quota. Therefore, the argument that when sale is made, the revenue goes directly to the Government Agency cannot be applicable to the present facts. Because of the restriction imposed, the objects of the Government Orders are defeated. Not even a single case where there is misuse of the exemption in the sale made by Authorized private outlets is reported before this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration 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 boats, providing fish storage facilities and providing cold storage facilities, erecting Ice plants and net making plants, supply of fish to the consumers in a hygienic condition at reasonable price." (Emphasis Supplied) 16. It was also stated after referring to G.O.Ms.No.5, Animal Husbandry, Dairying and Fisheries (FS-3) Department, dated 28.06.2017, as follows: "6. In the Government Order seventh read above, orders were issued, i. to enhance the quantity of supply of Sales Tax exempted High Speed diesel oil from 15,000 litres to 18,000 litres per boat for 5000 mechanized boats. The maximum limit allowed is 90,000 Kilo litres per year for 5,000 mechanized boats; ii. to enhance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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 amendment is the grievance of the writ petitioners. 21. The learned counsel Mr.L.Chandrakumar, pointed out the above amendment, and stated that the amendment excluding the diesel bunks owned by the petitioners, from grant of exemption of sales tax on sale of high speed diesel oil for fishermen, has to be interfered with by this Court on the ground that, they violated the spirit of the order of the Division Bench of this Court in W.A.Nos.1798, 1799 and 1800 of 2011. It was stated that the Division Bench had observed that there is more demand in the areas where the Authorized Private Dealers operate and that the Government outlets are unable to sell their indented quota. It was stated that because of the restriction imposed, which was challenged in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision is consistent with the requirement of Article 14 of the Constitution." 25. The learned counsels also relied on 1999 (3) MLJ 347, S.Pappa and Ors. V. Government of Tamil Nadu, and Ors, wherein, it had been stated as follows: "31. ......Likewise, even though it is stated in many places that the first impugned Order as well as the subsequent Orders were emanated in view of the policy decision of the Government, it is settled law that even the policy decision cannot violate the fundamental rights enshrined in Articles 14 and 16 of the Constitution of India. In this regard, it is worthwhile to refer a decision of the Hon'ble Supreme Court reported in K.Narayanan V. State of Karnataka (1991) 1 SCC. (Supp) 44, wherein their Lordships have held thus: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 pending the writ petition, the relief was amended to challenge the order debarring the writ petitioner and forbearing them from supplying detergent powder. On the facts of that case, the learned Single Judge of the Calcutta High Court held that Principles of Natural Justice should have been followed and grounds for cancellation should also be reasonable and not arbitrary. 29. In the instant case, the grounds for issuing the impugned Government order has been stated in the Government order itself as follows: "4. ......All the diesel bunks being operated by Tamil Nadu Fisheries Development Corporation Limited and Tamil Nadu State Apex Fisheries Co-operative Federation Limited are located inside the Jetty / Port-area and are exclusively catering to the needs of the fishermen and not authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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 the District Educational Officer. The other petitioners were working in different aided Private Management Schools. The school Managements announced that the scale of pay had been reduced to a consolidated sum. Further, vacancies of Secondary Grade Teachers which were likely to arise on account of retirement, resignation and promotion shall be filled up by posting incumbents on consolidated pay. These Government orders were challenged on the ground of exercise of arbitrary discretion. The learned Single Judge had held that, "31. ......down-grading the post of Secondary Grade Teacher as Secondary Grade (Junior Teacher) and asking both of them namely, the existing Secondary Grade Teacher and the newly appointed Secondary Grade (Junior) Teacher doing same work, however, on a consolidated pay of ₹ 800/- is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts. 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 as a whole. However, this was also amended and fresh tenders were invited for clubbing of airports and widening the scope of experience and to include advertisements in public place and also persons having a minimum of 12 months of prescribed reserve license as a turnover. This grouping of various Airports into four groups was challenged. As seen, it was found by the Court as a fact, that the amended conditions suited only the 3rd respondent in the writ petition. As a matter of fact, the learned Single Judge had dismissed the writ petition. It was stated that the Airport Authorities of India can accept or reject the bids supplied by the tenderers and therefore, it was stated that the conditions imposed are not affected by bias or malafides. 35. In the instant case, to reiterate, cogent reasons had been given in the Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 executive by the legislature. It will depend on the economic climate. New times require new measures. In a world of growing interdependence the first thing every country wants is protection for its domestic industry. 44. Governed by the market forces and the laws of supply and demand, if the Government finds that it must withdraw the exemption notification at once it can do so. What actuated the Government to take the step of exemption and reimposition was enlightened self-interest, such self-interest as would subserve the common good. The imposition and exemption of customs duty are the chief vehicles of the Government to protect a domestic market and to steady the level of prices. The tariffs are its chosen instruments to shield domestic production from foreign competition." 38. The Hon'ble Supreme Court also relied on (1995) 1 SCC 274, Kasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., (1979) 2 SCC 409 as followed in Shrijee Sales Corporation and Another Vs. Union of India, (1997) 3 SCC 398. "43. ......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 executive by the legislature. It will depend on the economic climate. New times require new measures. In a world of growing interdependence the first thing every country wants is protection for its domestic industry." (Emphasis Supplied) 44. In view of all the above reasons, I hold, the averments in the Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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