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Judgment
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 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 29.10.2004.
Writ Petition No. 24500 of 2008 is filed to issue a Writ of Mandamus, directing the second respondent to increase the supply of sales tax-
exempted High Speed Diesel Oil to the petitioner from 36 KL per month to 400 KL per month and thereby fairly implement the G.O. Ms. No.
130, Animal Husbandry & Fisheries (FS-1) Department, dated 29.10.2004 and G.O. Ms. No. 170 Commercial Taxes (B2) dated 29.10.2004.
Since the nature of reliefs sought in all the three writ petitions are almost one and the same, all the three writ petitions are taken up together and
disposed off by this common order.
The brief facts of the case in W.P. No. 16993 of 2007 are as follows:
(i) Petitioner''s diesel bunk, a marine outlet, was installed in the Mallipattinam Area on 23.2.1994 as dealer of the fifth respondent Indian Oil
Corporation. The petitioner diesel bunk was able to supply high-speed diesel to the extent of 300 Kilo Litres per month by exclusively catering to
the requirements of fisherman. The Tamil Nadu Fisheries Development Corporation has its diesel outlet bunk even earlier to the petitioner''s bunk.
The excise duty component of the diesel price was reimbursed by the Central Government from the year 1994. The petitioner''s bunk availed the
same from the year 1997. In the year 2004, the petitioner''s diesel bunk was supplying diesel to 225 registered mechanized boats and country
boats owned by fishermen and thereby petitioner''s diesel bunk was supplying near about 300 Kilo Litres every month upto 2004.
(ii) Due to high demand of diesel, by fishermen and considering the repeated representation from the fishermen, the Government of Tamil Nadu
issued G.O. Ms. No. 170 Commercial Taxes (BL) Department dated 29.10.2004 granting exemption from payment of sales tax on the sale of
diesel oil to the fishermen owning mechanized boats and motorized country boats. This exemption was given considering the enormous difficulties
faced by the fishermen in operating their boats due to increase in price of high speed diesel. The total quantity sales tax exempt diesel allocated for
a fisherman having mechanized 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 10.11.2004, and the petitioner 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,
petitioner sent a representation to the 4th respondent Assistant Director of Fisheries (Maine) 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 29.10.2004, 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 Director of Fisheries that the quota allotted
could not be utilized by the TNFDC Diesel bunks whereas the genuine need of the petitioner has been overlooked. Petitioner relies upon the
following table to explain the position:
Month & Year Petitioner''s TNFDC Diesel Bunk
Banu Filling
Station
Nov. 2004 12 96
Feb.2006 36 204
July 2006 24 132
Sep. 2006 36 204
Nov. 2006 36 648
Jan. 2007 36 240
March 2007 36 204
BACKLOG CARRIED FORWARD PERMITTED FOR TNFDC
Month Owner-ship Revenue Carried Indent
of the District forward for the
Diesel and of unutilized month
outlet Location quota
Dec. TNFDC Malli- 204 240
2006 pattinam
Jan. TNFDC Malli-
2007 pattinam 206 240
It is, therefore, evident that the petitioner is not getting the quantity as per requirement and is overlooked, whereas the respondent Corporation is
allotted higher quantity in spite of carry forward of a huge stock as unutilized quota. This clearly establishes the arbitrariness and the bias on the
part of the department.
(v) Petitioner brought the matter to the notice of the Director of Fisheries pointing out that the indent issued is discriminatory and the more
advantageous to diesel bunks run by corporation, but does not benefit the fishermen as envisaged by the G. Os. Petitioner''s bunk is short supplied
and thereby affecting the fishermen. The petitioner prayed for enhanced supply.
(vi) Further grievance of the petitioner is that the Director of Fisheries is permitting Tamil Nadu Fisheries Development Corporation and Tamil
Nadu Fisheries Development Co-operative Federation to place orders directly with the Public sector oil companies without following the indent
procedure, which is contrary to the Government Order and the instructions of the Director of Fisheries. Petitioner, therefore, sent a representation
dated 24.6.2006 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. Petitioner sent further representation dated 9.8.2006 to the second respondent requesting
for increased supply. Since the said representation and the earlier representation has not been considered in the light of the Government Orders
applicable, 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 20.5.1989. A
representation dated 23.6.2006 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, Madapam 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 & Fisheries (FS-1) Department, dated 29.10.2004, on the request of various
association of fishermen, sales tax exempted high speed diesel was directed to be supplied through 36 diesel bunks run by the 4th respondent and
TAFCOFED and other private diesel bunks already approved by the Government subject to certain conditions. Various representations dated
5.10.2006, 18.9.2006, 27.11.2006, 20.2.2007, 11.9.2007 and 10.9.2008 have been made to supply equitably, but such request was not
considered. The unequal treatment in allotment of sales tax exempt diesel is arbitrary and contrary to the pith and substance of the Government
Order and hence all the petitioners are before this Court.
In W.P. No. 16693 of 2007, the third respondent filed a counter-affidavit inter alia contending that the G.O. Ms. No. 170 dated 20.10.2004,
does not mention the petitioner''s name and does not fix the quantity to be supplied to any particular bunk. It gives discretion to the Director of
Fisheries to monitor and implement the said G.O. at his discretion and therefore, allotment of different quantity cannot be challenged. It is argued
that the allotment is discretionary.
In W.P. Nos. 16993 and 16994 of 2007, respondents 2 and 4 filed counter-affidavit stating that the intention of the Government is to issue
sales tax exempted diesel to the fishermen through Government outlets to the maximum extent so as to ensure proper implementation of the welfare
scheme. The Government aid (i.e.) supply of sales tax exempt diesel is not to work for the improvement of private diesel dealers, but to implement
the scheme of providing sales tax exempt diesel for the easy reach of fishermen.
In W.P. No. 24500 of 2008, fourth respondent Fisheries Department filed a counter-affidavit stating that the outlets run by this 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 29.10.2004 and that too without discrimination. The G.O. Ms.
No. 170 dated 29.10.2004 and the other G.O. Ms. No. 130 dated 29.10.2004 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 29.10.2004.
G.O. Ms. No. 170 Commercial Taxes (B2), 29th October, 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, shall issue a monthly schedule of indent for the above two categories to the Public
Sector Undertaking Oil Companies not exceeding the quantity as indicated above.
(b) The Director of Fisheries shall authorise the Public Sector Undertaking Oil companies for supply of Diesel to fishermen of Tamil Nadu through
the Diesel Bunks of Tamil Nadu Fisheries Development Corporation (TNFDC), Tamil Nadu State Fishermen Co-operative Federation
(TAFCOFED) and other private diesel bunks authorised by the Director of Fisheries, Tamil Nadu.
(c) The unutilized quantity of Diesel specified for any month may be released by the Director of Fisheries, Government of Tamil Nadu for the
immediate succeeding month, subject to not exceeding the specified quantity of kilo litres permitted for the whole year under each category.
(d) The Director of Fisheries shall issue a declaration for the purchase of Diesel for distribution to Fishermen of Tamil Nadu in the Form mentioned
below to the Public Sector Undertaking Oil Companies every month.
G.O. Ms. No. 130 Animal Husbandry & Fisheries (FS- Department dated 29.10.2004 which is referred to earlier reads as follows:
1) In the representation first and second read above, the Chennai, Tiruvallur, Kancheepuram Fishing Industry Protection Association and the
Chennai-Kancheepuram District Mechanised boats Fishermen Association and United Panchayat Sabha have requested the Government to
exempt Sales Tax on diesel to be supplied to fishermen to use in fishing activities in Tamil Nadu like Karnataka, Andhra Pradesh and Pondicherry
etc.
2) In the reference third 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 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 the diesel
bunks run by the Tamilnadu Fisheries Development Corporation Limited (TNFDC) Tamilnadu 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 and 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 26.10.2004.
Based on the G.O. Ms. No. 130 Animal Husbandry & Fisheries (FS-1) Department dated 29.10.2004 and G.O. Ms. No. 170 Commercial
Taxes (B2), dated 29.10.2004 and in order to give the fishermen benefits as per the Government Order, the Director of Fisheries issued the
Express Memo dated 5.11.2004 in Rc. No. 51995/JJ4/04-1 which reads as follows:
Express Memo
Sub: Fisheries - Exemption from payment of Sales Tax on the sale of diesel oil used by fishermen - orders of the government - regarding.
Ref: 1. G.O. Ms. No. 170 Commercial tax (BL) Department dated 29.10.2004.
G.O. Ms. No. 130 Animal Husbandry and fisheries Department, Chennai-9 dated 29.10.2004.
-----
The government in the above G.O. had issued orders exempting from payment of Sales Tax on the sale of diesel oil used by the fishermen for
fishing. The government has also fixed a maximum ceiling of 50,000 kilo litres for 5,000 mechanised fishing boats and 45,600 kilo litres for 15,200
motorised country boats fitted with diesel engines for the entire state for a year. The copy of the G.O. is enclosed.
The government in the G.O. 2nd cited has fixed a ceiling of 10,000 litres for a mechanised fishing boat and 3,000 litres for a traditional fishing craft
fitted with diesel engines per year (copy enclosed). This should be followed scrupulously by Departmental Officers.
The Joint Director of Fisheries (Regional) Chennai, Tuticorin, Nagapattinam and Deputy Director of Fisheries (Regional) Madurai and Trichy and
the Assistant Director of Fisheries concerned will be implementing the scheme. The following guidelines are issued.
Mechanised fishing boat and country boat (OBM/KOE) to get diesel from the authorised diesel outlet. A copy of the list of eligible conditions is
enclosed.
The Assistant Director of fisheries concerned is to furnish the eligible quantity 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.
The Departmental officers should watch the utilization of the diesel drawn and confirm that it has been used for fishing purposes only.
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.
The Assistant Director of Fisheries should work out the diesel requirement for the purpose of Sales Tax exemption to be given.
The Assistant Director of Fisheries concerned is to workout the details of sales tax exempted diesel required to the authorized bunk every
month.
The Assistant Director of Fisheries is to furnish indent for the sales tax exempted diesel to the Director of Fisheries every month.
The Departmental officers should prevent any misuse of diesel by the users and suppliers.
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 supplied)
In the light of the above stated G. Os. and Express Memo, the Learned senior counsel Mr. M. Venkatachalapay, appearing for the petitioner
in W.P. No. 16993 of 2007 submitted as follows:
(i) G.O. Ms. No. 170 dated 29.10.2004 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 the vendors, viz., Tamil Nadu Fisheries Development Corporation (TNFDC) and the Tamil Nadu State Fishermen Co-
operative Federation (TAFCOFED) and other Private Diesel Bunks authorised by the Director of Fisheries. Among the above three categories,
TNFDC and TAFCOFED are identified government organisations. As far as the private diesel bunks are concerned, the Director of Fisheries has
identified the various private diesel bunks and are authorised by the Director of Fisheries to take and supply sales tax exempt high speed diesel oil
to fishermen. One such proceeding is the authorisation issued to the petitioner in W.P. No. 24500 of 2008. The name of the petitioner has been
shown in proceedings Na. Ka. No. 55416/J4/2005 dated 11.6.2007 as authorised dealer. In the proceedings of the Director of Fisheries, it has
been specifically stated that the petitioner in W.P. No. 24500 of 2008, viz., M/s. Samatti Fuel Centre is eligible along with four others for the
supply of sales tax exempt high speed diesel oil. As far as the petitioner M/s. Govindammal Diesel Centre is concerned, a specific G.O. Ms. No.
184 Animal Husbandry and Fisheries (FS.V) Department dated 5.8.1994 has been issued duly authorising them as dealer outlet for supply of sales
tax exempt diesel oil to fishermen. Petitioners in W.P.Nos.16993 and 16994 of 2007 are existing vendors and are authorised by the Director of
Fisheries for supply of diesel free of sales tax for fishermen and that is not in dispute. It, therefore, follows that as per the condition mentioned in
G.O. Ms. No. 170 dated 29.10.2004 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 29.10.2004
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 could be seen in respect of Indent No. 15 dated 8.9.2007 (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 discrepancy in the allotment is very large and glaring. Therefore, the Director of Fisheries should be directed to act fairly and in
accordance with G.O. to all authorised dealers in so far as allotment of sales tax exempt diesel oil is concerned.
(iii) So long as the petitioners supplied diesel to the fishermen in the category mentioned in G.O. Ms. No. 170 dated 29.10.2004 and G.O. Ms.
No. 130 dated 29.10.2004, they are entitled to seek supply of sales tax exempt diesel subject to the annual limit prescribed. The discrimination of
the kind adopted by the Department should be avoided.
(iv) The object of the Government Order is to provide tax free diesel oil to fishermen for the two categories mentioned therein. There is no clause
in the G.O. Ms. No. 170 dated 29.10.2004 which discriminates between the authorised vendors, viz., government owned diesel outlets and the
individual authorised private diesel outlets. Therefore, the petitioner is entitled to be treated equally and without discrimination and the relief sought
for should be granted.
Thiru P.R. Raman, Learned Counsel appearing for the petitioner in W.P. No. 24500 of 2008 referred to the Express Memo dated 5.11.2004
and stated that the Director of Fisheries has issued a guideline as to how the sales tax exempted Diesel Oil should be disbursed in terms of the
G.O. Ms. No. 170 and G.O. Ms. No. 130 both dated 29.10.2004. The petitioners have been scrupulously following 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 off. 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 12.5.2005 formed a Committee to identify suitable dealers for supply of sales tax exempted diesel to fishermen. The
Committee in its meeting held on 15.6.2005 inter alia proposed to impose restriction of 10%. 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 private bunks selected will not be allotted more than 10% 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. 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 mentioned in the G.O. Therefore, the
indent for supply of diesel to the three categories in different quantities cannot be questioned by the petitioners. Learned Advocate General pointed
out that it is the prerogative of the Director of Fisheries to provide sales tax exempt diesel oil to the authorised private diesel bunks. The petitioners
cannot as a matter of right seek higher quantity than what has been allotted by the Director of Fisheries. The authority has got the power to restrict
the quantity based on the circumstances and exigencies prevailing.
In all the writ petitions, it has to be borne in mind that the two Government Orders referred to above by the petitioners are intended for
granting certain benefits to fishermen (i.e.) providing sales tax exempt diesel oil so as to enable the fishermen to run their mechanized and country
boats fitted with diesel engines. The Government has considered a large number of representations made by the fishermen, whose bread and butter
is fishing in the high seas which occupation is seasonal. Considering the plight of the fishermen, the constrain that they face, the calamities that they
endure in their occupation, the benefit is granted to all fishermen coming under the two categories mentioned in the G. Os. The Government has
also chosen a medium for distribution of the sales tax exempted diesel oil for helping the downtrodden fishermen. The first two categories of
authorised dealers are the government 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
10.11.2004 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 above said beneficial G.O. The said letter dated 10.11.2004 is extracted
hereunder:
Sub: Fisheries Supply of Sales Tax exempted Diesel - Supply of Indent placed.
Ref: 1) G.O. Ms. No. 170, Commercial Taxes (BL) Department, dated 29.10.2004.
-----
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/- xxxx
for director Fisheries
Copy to the
Assistant Director of Fisheries (Fishing Harbour Management Wing), Chennai.**
**Assistant Director of Fisheries (Marine)Nagapattinam/ Thanjavur**
A copy of the indent is enclosed. They are requested to hand over the coy of indent to the concerned approval private Diesel outlets and request
them to place indent with the concerned Oil Company. They are requested to get necessary undertaking from the concerned Private dealer that
they will supply the diesel as per the authorization issued by the Fisheries Department Officials.
The sales Tax exempted diesel as per this indent is for sale to fishermen only for fishing purposes and to be sold based on the authorization
issued by the Authorised Officer/Officials of the Fisheries Department.
Authorization should be obtained from the concerned Assistant Director of Fisheries of the concerned District.
Every sale of Sales Tax exempted diesel is to be made through a printed bill in duplicate noting the Boat No. Name of the Owner/Diesel Card
No. etc.,
The sale should be made through Diesel card issued by the Authorised officer of the Department of Fisheries after the introduction of the Sales
Tax exempted diesel. The Diesel cards issued previously for diesel subsidy is not valid and therefore fresh cards are to be obtained by the
fishermen.
Particulars of Sales and receipt of tax exempted to diesels to be furnished to the Authorized Officer concerned.
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.
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. Jeevarathinam
Director of Fisheries
On a reading of the above letter dated 10.11.2004, 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 competent authority, in terms of
G.O., for the effective distribution of diesel to fishermen.
Furthermore, the Express Memo is issued on 5.11.2004 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 Director of Fisheries
clearly indicated that all authorised diesel outlets are entitled to draw diesel as per indent based on the actual requirement or consumption as the
case may be. The officers of the Fisheries Department are given the power to monitor the supply and use the sales tax exempted diesel oil.
A conjoint reading of the Express Memo dated 5.11.2004 and the letter dated 10.11.2004 both issued by the Director of Fisheries, makes it
clear that there is no scope for restriction in the supply of sales tax exempted diesel to one or other category of authorised diesel outlets. The need
has to be assessed and indent issued, if the fishermen seek supply through any one of the authorised diesel outlet.
As stated earlier, considering the large coastline and the number of fishermen, who have to be covered, it has become necessary to issue the
above stated instructions for effective implementation of the welfare scheme for the benefit of fishermen. In such a situation, the restriction or non-
supply of sales tax exempted diesel to one or other authorised dealer will be arbitrary.
Learned Advocate General relied on the proceedings of the Director of Fisheries dated 12.5.2005 and stated that they have the power to
restrict the supply to private diesel bunk and 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 of all, in terms of G.O. Ms.130 dated 29.10.2004 and the G.O. Ms. No. 170 dated 29.10.2004, 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 12.5.2005 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 authority by a presumptive power when
there is none. All that the authority is bound to do is to regulate the supply and ensure proper utilisation.
Insofar as the Director of Fisheries is concerned, the authority can regulate the supply so as to avoid misuse or abuse of the tax exempted
diesel oil. There can be no restriction in favour of one or other person. It is not the case of the respondent Fisheries Department that the petitioners
breached the condition of supply.
The Express Memo dated 5.11.2004 and the letter dated 10.11.2004 both issued by the Director of Fisheries immediately after passing of the
G.O. clearly state the manner in which the sales tax exempted diesel should be distributed. If the petitioners satisfy the requirement and seek the
indent based on the requirement of fishermen under the two categories mentioned in the Government Order, the department has no jurisdiction to
withhold the supply of sales tax exempt diesel to the petitioners. If the petitioners are denied the supply of sales tax exempt diesel on an erroneous
proceedings, it will indirectly amount to denial of the rights and privileges given to the fishermen. The restriction imposed on private diesel outlets
without any just or reasonable cause cannot be justified. The Government Order 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.
Learned Advocate General relied on the decision of the Apex Court in Krishnan Kakkanth Vs. Government of Kerala and ohters, 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:
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 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 paragraphs 27, 28 and 30 observed as
follows:
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 be determined with reference to the circumstances relating to the trade or business in question. Canalisation of
a particular business in favour of specified individual has been held reasonable by this Court where vital interests of the community are concerned
or when the business affects the economy of the country. The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport
Authority, Aurangabad and Others, ; Shree Meenakshi Mills v. Union of India 1974 SC 366 and LaLa Hari Chand Sarda Vs. Mizo District
Council and Another, .
It is true that even for imposing reasonable restriction on the fundamental right guaranteed under Article 19(1), the restriction is to be imposed
under a valid law, be it a satisfactory law or statutory regulation, and not by any executive instruction of the Government Kharak Singh Vs. The
State of U.P. and Others, .
It may be indicated that although a citizen has a fundamental right to carry on a trade or business, he has no fundamental right to insist upon the
Government or any other individual for doing business with him. Any Government or an individual has got a right to enter into contract with a
particular person or to determine person or persons with whom he or it will deal.
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. Hence, the
decision will not apply to the facts of the present case.
The other decision relied upon by the Learned Advocate General, viz., Sher Singh Vs. Union of India (UOI) and Others, relates to preference
in grant of transport permit to State Transport undertaking as against private transport operators. Such a situation does not arise in the facts of the
present case. Therefore, the said decision is irrelevant on facts. Both the cases relied on are distinguishable on facts and are therefore, the
contention based on the said decision is rejected.
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 stand allowed as above. No costs.