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Judgment
Akil Kureshi, J.—The Petitioner a voluntary organization popularly referred to as NGO, has prayed for a direction to Respondent No. 1 Collector Surendranagar to issue a certificate of distribution of medicine for earthquake victims which certificate the Petitioner requires for the purpose of claiming customs duty exemption provided specifically for said purpose.
It is the case of the Petitioner that the Petitioner received certain life saving medicines from a foreign donor. Such medicines were unloaded at Mumbai port. The Petitioner in turn supplied a part of it to the Collector, Surendranagar for use and distribution amongst earthquake victims. Majority of such consignment was distributed in the District of Ahmedabad and Jamnagar. It is the case of the Petitioner that other districts had issued necessary certificate however, Collector Surendranagar did not grant such certificate, instead had issued certificate dated 27.3.2002 in which it is stated as under:
This is to certify that The Operation Mobilization of India has distributed medicines in Surendranagar District for earthquake victim Patients.
We really appreciated your generous gesture for coming forward with donation for the needy patients at the time of crisis.
We look forward to your similar kind of support in future,
Counsel for the Petitioner vehemently submitted that the medicines were handed over to the Collector, Surendranagar. However, since the public distribution system was under extreme stress due to the natural calamity and scales of destruction and since supplies were needed urgently, no written records were kept. The Petitioner organization did not insist on receipts being issued in good faith believing that authorities will not disown the supply of the materials. Counsel further contended that certificate dated 27.3.2002 clearly records participation of the Petitioner in the relief work. Such certificate ought to have been accompanied by list of supplies as was done in other districts. The Collector, Surendranagar could not have disowned the certificate or suggested that same was issued for some other purpose and not for the purpose of claiming exemption. It was further contended that Respondent No. 5 Shri P.A. Shah, the then Collector of Surendranagar has been joined in personal capacity. His presence is necessary. Petitioner may be allowed time to find his latest address and to serve notice to him.
On the other hand, learned AGP opposed the petition relying on the affidavit filed by the Respondents. She contended that there is no evidence to suggest that Petitioner did supply necessary material. Authorities verified from all the offices but found nothing on record to show that the medicines were received. It was contended that such disputed question of facts should not be decided in writ petition.
Having thus heard learned advocates for the parties, from the petition as it was originally filed, I do not find any specific averments about when the medicine or other materials were supplied to the District Collector, Surendranagar. There is no averment worth the name as to during which period such supplies were handed over to the Collector or his officer. The petition did not in its original form disclose who had handed over such materials on behalf of the Petitioner. Admittedly, there is no documentary evidence or record of such material having been handed by the Petitioner to the District Collector, Surendranagar or his representative. Through affidavit dated 31.1.2003 and another additional affidavit dated 30.1.2003, the Respondents have denied that any such material was received from the Petitioner. In particular, in affidavit dated 31.1.2003 filed on behalf of Respondent No. 1 it is stated as under:
With reference to paras: 1 and 2, I most respectfully submit that the Petitioner has not provided the details regarding the quantity of medicines received and has also not provided the receipt regarding the receipt of the said medicines with regard to the certificate produced at Ann:A the then Add. Collector Shri Paresh A Shah has clarified in his affidavit which is produced at Ann:I.
With reference to para:3 and 4 of the petition, I mos respectfully submit that the Petitioner has also not provided the details regarding the place of distribution of medicines free of costs in Surendranagar District such with reference to the distribution of medicine in District Jamnagar is concerned this office is not competent to issue such certificate.
With reference to para:12 and 13 of the petition, I say and submit that the Petitioner has not produced any document, evidence or proof regarding supply of stock of medicines to District Surendranagar and hence, on this ground alone the petition is required to be rejected.
In affidavit titled as additional affidavit sworn on 30.1.2003, it is further stated that:
I further say that when the organizations were bringing material from abroad, then it is duty of such organization to get the clearance from the customs and to provide all the documents and material to the office of the Collector and thereafter, the same can be distributed under the supervision of the Office of the Collector in the respective area. Thereafter, only such certificate can be issued by the Office of the Collector in detailed. For such certificate, there is a prescribed format and in that format, the certificate an be issued.
I further submit that when the organization is simply approaching the Office of the Collector that they have to distribute the relief material to the victims then in such cases, they are simply informing the Office of the Collector and the officer of the Collector''s Office is only indicating the area in which such material is required to be distributed, so that the purpose of relief can be served. In such cases, the Office of the Collector is only identified the area, where the material is required to be distributed so that there may not be duplication in the distribution of relief material.
In the instant case, the Petitioner has neither handed over the material, documents in the office of the Collector nor distributed in presence of any Officer of the Office of the Collector. Under the circumstances, at the relevant point of time, the Petitioner has never asked for the certificate in the format, which has been prescribed by the Government.
In view of the above premises, the certificate issued by me, which is produced at Annexure-A is required to be considered only a letter of appreciation and the same cannot be used for the purpose of custom clearance. I say that, the Petitioner has not given me any chance for physical verification of the material at any point of time and they might have distributed the material on their own and Office of the Collector was not in a position to issue any certificate with regard to the actual quantity of the material and in which area and to whom, the same has been distributed.
Significantly, this affidavit has been sworn by Shri P.A. Shah the then Collector of Surendranagar.
Yet another affidavit came to be filed on behalf of Respondents on 16.5.2006 wherein it was clarified that:
I further say and submit that in the affidavit of Additional Collector, Surendranagar he has categorically said on page 18 at para.5 that the "Petitioner has not handed over any material to the Collector office and has never ask for certificate in a particular form which is required for custom purpose on page 18 at para 6 he has said that at Annexure-A is only a letter of appreciation and there was no physical verification of the material on any point of time which might have been distributed by the Petitioner on their own and office of the Collector was not in a position to issue any certificate with regard to actual quantity of the material in which area and to whom the same has been distributed." Thus, it is clear that Annexure-A certificate is not a statutory Certificate which has to be given for custom purpose.
I further say and submit that in the affidavit of Collector it is clearly mentioned that the Petitioner has not provided any details regarding quantity of medicines received as well as details regarding the place of distribution of the medicines free of cost in Surendranagar District and Petitioner has also not provided the details that to whom the medicines are supplied. Thus, Certificate can be issued only on the basis of details provided by the Petitioner and after verifying details so provided as to their correctness that to whom, when were and How-much medicine has been distributed by him without that certificate for custom purposed cannot be issued.
I further say and submit that the Petitioner has also previously filed Special Civil Application No. 5443 of 2003 in this Hon''ble High Court in which the court has issued direction to the authority to do the needful in the matter of Petitioner and pursuant to that we have started communication in the various offices of the Department and other organization for collecting information regarding distribution of the medicines and materials and as per the letter dated 31/05/2002 to chief officer, Surendranagar Nagar Palika is directed for sending information regarding distribution of medicines by Petitioner. A copy of the letter dated 31/05/2002 is annexed hereto and marked as Annexure-R-1. After that we have sent letter to Civil Surgeon, Civil Hospital, Surendranagar to supply information regarding medicines distributed by the Petitioner through Civil Hospital which is annexed hereto and marked as Annexure-R-2, pursuant to above mentioned 2 letters we have received information which shows that Petitioner has not distributed any medicines or materials through these offices. A copy of letter dated 05/06/2002 of Surendranagar Nagar Palika is annexed hereto and marked as Annexure-R-3 to this affidavit in reply and in reply of Civil Surgeon, Civil Hospital it also stated that Petitioner has not supplied any medicines or materials through the Civil Hospital which is annexed hereto and marked as Annexure-R-4 to this affidavit in reply. I am also annexing the letter of District Panchayat Office, Health branch of Surendrangar dated 24/01/2003 which is annexed hereto and marked as Annexure-R-5 which also clearly says that no medicine has been distributed by the Petitioner through his office, District Panchayat has also submitted the list of organizations who has distributed the medicine through Panchayat. I am also annexing the list which is annexed hereto and marked as Annexure-R-6 to this affidavit in reply.
The main office of the State is Commissioner of Food and Drug Department, Surendranagar has also informed the Collector Office that the Petitioner has not supplied any medicines to their office which is annexed hereto and marked as Annexure-R-8 to this affidavit in reply. Thus, it is very much clear that from the record of each office who were carrying out earthquake relief at that point of time at district and state level pertaining to health related relief material. We have annexed all the correspondence made to collect the information regarding supply of medicines by the Petitioner as claimed by him from any of the offices and we have also submitted that Petitioner has to supply the information regarding distribution of medicines which was also not supplied by the Petitioner at relevant time and hence it is very much clear that Petitioner has not supplied any medicines in the Surendranagar District in Earthquake affected area or to earthquake victims and hence, collector, Surendranagar cannot issue the certificate which is required to be issued for custom purposes as per requirement of custom Department mentioned in Annexure-C of the petition.
From the above it can be clearly seen that factum of Petitioner having supplied medicines to the Collector, Surendranagar or any of the authorized officer is hotly disputed by the Respondents. The Petitioner has not produced any evidence, any document or any contemporaneous record of having supplied such materials to the Collector or his representative. Respondents have made thorough inquiry and found that there is no record supporting such supply. As already noted, no details have been given as to on which date, as to which place to which officer, such medicines were supplied. Only on the averment of the Petitioner that at some point of time such medicines were supplied, replies of the Respondent categorically stating that there is no details and several authorities have stated that no such materials were received, cannot be ignored.
Reliance on certificate dated 27.3.2002 or communication dated 13.6.2001 from the Coordinator of the Earthquake Relief Cell would be of no use. Certificate only records appreciation to the Petitioner organization for having come forward to help the needy patients at the time of crisis. Certificate does not record as to in what manner the Petitioner had rendered help. Certificate does not contain any details for supply of any of the materials. Communication dated 13.6.2001 appears to have been made by Coordinator of the Earthquake Relief Cell to Customs Inspector, Mumbai which records the request of the Petitioner for issuance of certificate regarding waiver of duty upon clearance of certain relief material through customs. However, above-noted communication clearly reveals that such goods were to be cleared and released only after completion of necessary formalities. Till that time, therefore, apparently goods were not cleared. There is nothing on record to suggest that such formalities were completed. Be that as it may, central question is, is there any evidence to hold that the Petitioner as suggested had supplied materials to the Collector, Surendranagar and to discard the affidavits filed by the Respondents and that there is no such record. Answer is clearly in negative.
It is true that subsequently the petition was amended and stand of the then Collector, Surendranagar was questioned. However, in para.8A of the amended petition, I do not find any allegation of personal mala fide nor do I find any such allegations in para.11(A) added through such amendment. It only questions at best the correctness of the affidavit filed by Shri. P.A. Shah. That by itself would not require his presence before the Court. Non service on him therefore, in facts of the case cannot be a hindrance to proceed with the petition, despite resistance from the Petitioner. When I find that Petitioner failed to establish allegation by producing any material whatsoever, when I find that petition itself lacked any material particulars about assertion of having supplied materials to the Collector, Surendranagar or its delegates, I do not see how presence of Respondent No. 5 would in any manner help the Petitioner. Non service to such Respondent, therefore, was ignored and Petitioner was heard.
Assertion of the Petitioner that materials were supplied under emergency and that therefore,the Petitioner did not insist on acknowledgment of receipt must be viewed in the background of fact that admittedly the materials were supplied sometime in later part of May or June whereas earthquake took place on 26.1.2001.
In the result, I do not find any merits in the petition. Petition is dismissed.Rule is discharged.