Madras High Court
Union Of India vs K.Devamani on 24 February, 2021
W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.A.No.1033 of 2020
and
C.M.P.No.12755 of 2020
1.Union of India,
Rep. by the Chief Secretary to
Government of Puducherry,
Chief Secretariat, Goubert Avenue,
Pondicherry – 605 001.
2.The Secretary to Government (Finance),
Office of the Chief Secretariat,
Goubert Avenue,
Pondicherry – 605 001.
3.The Commissioner of State Tax,
Commercial Taxes Department,
Puducherry. .. Appellants
-vs-
K.Devamani .. Respondent
1/8
https://www.mhc.tn.gov.in/judis/
W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
Appeal under Clause 15 of the Letters Patent Act to set aside the
order dated 27.08.2020 made in W.P.No.8054 of 2020.
For Appellants : Mr.T.P.Manoharan
Senior Counsel
for M/s.N.Mala
Government Pleader (Puducherry)
For Respondent : No appearance
JUDGMENT
T.S.SIVAGNANAM, J.
This appeal filed by the Government of Puducherry and two others is
directed against the order passed in W.P.No.8054 of 2020 dated 27.08.2020
filed by the respondent herein, whereby the writ petition was allowed and
the notification impugned therein was quashed.
2.We have heard Mr.T.P.Manoharan, learned senior counsel
appearing for M/s.N.Mala, learned Government Pleader (Puducherry).
Though the respondent has been served and his name is printed in the cause
list, none appears for the respondent.
https://www.mhc.tn.gov.in/judis/
W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
3.While admitting the appeal, the Hon'ble Division Bench had
granted an order of interim stay. The operative portion of the order reads as
follows:
“2.In the facts and circumstances of the case, for
the reasons and submissions, as recorded in our order
passed today, for admission of Writ Appeal, the
operation ;of the order of the learned Single Judge
dated 27 August 2020 shall remain stayed during the
pendency of the Appeal.”
4.Firstly, we need to point out that the petitioner had filed the writ
petition challenging G.O.Ms.No.24 dated 27.05.2020, by which the
Government of Puducherry in exercise of the power conferred by Section 31
of the Puducherry Value Added Tax Act, 2007 [hereinafter referred to as
“PVAT Act”] and all other powers enabling in this behalf and in super
session of the notification issued vide G.O.Ms.No.17 dated 07.04.2020, the
Lieutenant-Governor, Puducherry being satisfied that it is necessary so to do
in the public interest, was pleased to levy the rate of tax payable in respect
of petrol and diesel under the said Act as mentioned below:
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W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
Regions Petrol Diesel
Puducherry and Karaikala 28.00% 21.80%
Mahe 23.90% 18.15%
Yanam 25.70% 20.00%
The above notification came into force with effect from 29.05.2020
and to be valid for a period of three months.
5.The petitioner has not stated as to how he is aggrieved by the said
Government Order. There is no averment as to the locus standi of the writ
petitioner to approach the Court seeking to quash the notification except for
a bald averment in paragraph 10 of the affidavit filed in support of the writ
petition stating that the petitioner is suffering from all sorts of financial
crisis during the National Lock down and the Government of Puduchery has
increased the rate of tax payable on petrol and diesel and it is unacceptable.
Thus, the writ petition has been styled as a public interest litigation without
complying with the requirements under the Rules framed by the High Court.
The essential elements which have been made mandatory under the Rules
do not stand fulfilled and those requirements do not find place in the
affidavit filed in support of the writ petition. Furthermore, the notification
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W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
has worked itself out since it was valid only for a period of three months
and came to end on 28.08.2020.
6.The writ petition was allowed one day before the date on which the
Government Order lost its efficacy. The learned Writ Court was of the
opinion that unless the provisions of the Act are amended, the rate of tax
cannot be increased. In our considered view, such a finding would be
incorrect because of the distinct provisions contained in the PVAT Act. The
notification issued by the Government of Puducherry has increased the rate
of tax for petrol and diesel at 18.15% to 21.80% with maximum rate of tax
at 35% prescribed in Entries 2 and 3 of the Sixth Schedule. Therefore, the
appellants trace their power for revision or reduction from the said
maximum rate by referring to Section 31 of the PVAT Act and there would
be no necessity to bring out an amendment in the Act by invoking Section
75 of the PVAT Act.
7.The learned senior counsel has also pointed out that the
Government of Tamil Nadu had proposed to revise and increase the rate of
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W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
tax for petrol and diesel more than the maximum rate prescribed in the
Second Schedule to the Tamil Nadu Value Added Tax Act [TNVAT Act].
Hence, necessity arose for the Government of Tamil Nadu to invoke
Section 86 of the TNVAT Act and amend the Second Schedule. Similar
was in the case by the Government of Delhi which had to invoke the power
under Section 103 of the Delhi Value Added Tax Act. Similarly in the case
of Gujarat, Assam, Rajasthan, Maharashtra and Punjab.
8.As pointed out earlier, the prayer sought for by the writ petitioner is
definitely in the nature of public interest litigation and was not maintainable
before the Single Bench of this Court. Apart from that, the mandatory
requirements prescribed under the Rules framed by the High Court for filing
public interest litigations have not been complied with. There is absolute
failure on the part of the respondent to disclose as to how is aggrieved by
the Government Order and the subtle but major distinction in the exercise of
power by the Government of Puducherry when compared to exercise of
power by other States including the Government of Tamil Nadu is a very
vital factor which needs to be taken note of.
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W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
9.For all the above reasons, we are of the clear view that the order
passed in the writ petition calls for interference. Accordingly, the writ
appeal is allowed and the impugned order is set aside. No costs.
Consequently, connected miscellaneous petition is closed.
(T.S.S., J.) (R.N.M., J.)
24.02.2021
Index: Yes/ No
Speaking Order : Yes/ No
cse
https://www.mhc.tn.gov.in/judis/
W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
T.S.Sivagnanam, J.
and
R.N.Manjula, J.
cse
W.A.No.1033 of 2020
and C.M.P.No.12755 of 2020
24.02.2021
https://www.mhc.tn.gov.in/judis/
