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2014 DIGILAW 51 (GUJ)

Rajpipla Social Service Society v. Collector

2014-01-16

AKIL KURESHI, SONIA GOKANI

body2014
JUDGMENT SONIA GOKANI, J. Petitioner – Rajpipla Social Service Society – challenges in this petition under Article 226 of the Constitution of India, the order of respondent No. 1 Collector dated 3rd September 2012 in the following factual background. The petitioner herein purchased two vehicles for providing free legal aid and counselling to the victims of the earthquake in the district of Kutch. Notification No. 2 of 2001 of the Central Excise dated 27.2.2001 exempted all goods falling under first and second Schedule to the Central Excise Tariff Act, 1985 donated or purchased out of cash donation for the relief and rehabilitation of the people affected by the earthquake in the State of Gujarat from the whole of the duty of excise leviable thereon. It would be relevant, at this stage, to reproduce the entire notification: "Notification No. 2 of 2001Central Excise. In exercise of the powers conferred by subsection (1) of section 5A of the Central Excise Act, 1944 (of 1944), read with subsection (3) of the Additional Duties of Excise (Goods of Special Importance Act, 1957 (58 of 1957) the Central Government being satisfied that it is necessary tin the public interest so to do, hereby exempts all goods falling under the First and Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) donated or purchased out of cash donations, for the relief and rehabilitation of the people affected by the earthquake in the State of Gujarat from the whole of the duty of excise leviable thereon under both the above mentioned Acts, subject to the following conditions, namely: (i) That it is certified by the manufacturer of such goods on the relevant clearance documents that the goods are intended to be donated for the relief and rehabilitation of the people affected by the earthquake in the said State without making any charge therefor. (ii) That the goods are sent directly from the factory of the manufacturer or warehouse to the Central Government, the Government of Gujarat, or as the case may be, the relief agencies of the Central Government, the Government of Gujarat, or as the case may be, the relief agencies of the Central Government, the Government of Gujarat including the relief agencies duly approved by the Government. (iii) That the manufacturer produces before the jurisdictional Deputy Commissioner or the Assistant Commissioner of Central Excise, as the case may be, within three months from the date of removal of the goods or within such extended period as the said officer may allow, a certificate from the District Magistrate of the affected area in the State of Gujarat that the said goods have been donated for use for the aforesaid purpose. This notification shall remain in force upto and inclusive of the 31st day of July, 2001. (G.D. Lohani) Under Secretary to the Government of India." For the purpose of relief work undertaken by the petitioner, it purchased two vehicles from Toyota Kirlosker Motors Limited and from Mahindra and Mahindra Limited respectively on 13th July 2001 and 21st July 2001. A certificate had been issued by the Director, Voluntary Agencies, State of Gujarat, to the petitioner certifying to be an approved agency for carrying out relief activities for the victims of the earthquake in July 2001. Mamlatdar, Bhuj, also certified that the petitioner provided free legal aid and counselling to the victims of earthquake. However, the request made to respondent No. 1 Collector vide communication dated 21st September 2001 for issuing a certificate in respect of these two vehicles to avail exemption from payment of excise duty was refused by communication dated 25th September 2001 on the ground that free legal aid and counselling to the earthquake victims could not be said to be a work of rehabilitation and reconstruction. Aggrieved by this, the petitioner challenged such an order of the Collector by preferring writ petition before this Court being Special Civil Application No. 10793 of 2001 raising various grounds. This Court after exhaustively dealing with the notification dated 21st January 2001 in clear terms held that the two conditions mentioned in the said notification were duly satisfied. With regard to the third condition, which required the petitioner to furnish a certificate issued by the District Magistrate to the effect that that the said goods have been donated for use for the purposes stated in the notification, it directed respondent No. 1 to once again decide the application for issuance of certificate by quashing the earlier order. With regard to the third condition, which required the petitioner to furnish a certificate issued by the District Magistrate to the effect that that the said goods have been donated for use for the purposes stated in the notification, it directed respondent No. 1 to once again decide the application for issuance of certificate by quashing the earlier order. The Court having noted that the Collector lost sight of the fact that the expression used in the notification dated 27.1.2001 is relief and rehabilitation and not rehabilitation and reconstruction, chose to remand the matter for examining condition No. 3. It would be apt to reproduce the relevant observations so also the direction of the Court for the purpose of appreciating the controversy in the instant petition: "The third condition requires the petitioner to furnish a certificate issued by the District Magistrate to the effect that the said goods have been donated for use for the purposes stated in the notification dated 27.1.2001. The respondent No. 1 Collector & District Magistrate has turned down the request on the ground that the petitioner is engaged in the relief work of providing free legal aid and counselling to the earthquake affected persons which cannot be considered to be “rehabilitation and reconstruction work”. However, it appears that the Collector has lost sight of the fact that the expression used in the notification dated 27.1.2001 is “relief and rehabilitation and not “rehabilitation and reconstruction”. The language employed in the notification is “goods donated or purchased out of cash donations, for the relief and rehabilitation of the people affected by the earthquake in the State of Gujarat from the whole of the duty of excise leviable thereon”. On a perusal of the impugned communication it appears that the Collector has not applied his mind to the aspect as to whether the petitioner has purchased the vehicles out of the cash donations and as to whether the same were used for the relief and rehabilitation of the people affected by the earthquake in the State of Gujarat, as contemplated under the said notification. The notification nowhere refers to “rehabilitation and reconstruction”, in the sense that there should be some construction carried out for the purpose of helping quake affected persons. The notification nowhere refers to “rehabilitation and reconstruction”, in the sense that there should be some construction carried out for the purpose of helping quake affected persons. This appears to be the case of the respondent in paragraph 7 of the affidavit in reply, wherein it is stated that, “the respondent authority has only granted exemption to the organization which have supplied cement, iron rods, galvanize sheets and articles used for reconstruction of building”. Thus, the respondents appear to have given a narrow construction to the notification by limiting it to the articles donated for the purpose of reconstruction of buildings only. However, the said notification dated 27.1.2011 does not speak of articles donated for the purpose of reconstruction only. The words used are “the goods donated or purchased out of cash donations, for the relief and rehabilitation of the people affected by the earthquake in the State of Gujarat”. In the aforesaid premises it is apparent that the respondent No.1 – Collector has not properly construed the notification No.2/2001CE dated 27th January, 2001 and is, therefore, not justified in turning down the request of the petitioner company for issuance of a certificate as contemplated under condition No.(iii) of the said notification for the reason that the petitioner is not engaged in “Rehabilitation and Reconstruction work”. In the circumstances, the impugned communication having been issued without considering the notification dated 27.1.2001 in proper perspective, cannot be sustained and as such, is required to be quashed and set aside. 16. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned communication dated 25.9.2001 issued by the respondent No. 1 – Collector is hereby quashed and set aside. The respondent No. 1 Collector shall decide the application of the petitioner for issuance of certificate under condition No. (iii) of the Notification No. 2/2001CE dated 27.1.2001 afresh, keeping in view the observations made hereinabove and after affording an opportunity of hearing to the petitioner. Rule is made absolute accordingly, with no order as to costs." In essence, respondent Collector was directed to examine the aspects of purchase of both the vehicles out of cash donation as also whether their use was for relief and rehabilitation work of victims of earthquake at District Kutch as claimed by the petitioner. Rule is made absolute accordingly, with no order as to costs." In essence, respondent Collector was directed to examine the aspects of purchase of both the vehicles out of cash donation as also whether their use was for relief and rehabilitation work of victims of earthquake at District Kutch as claimed by the petitioner. Pursuant to such direction of the Court, hearing had been fixed by the Collector on different dates, i.e. 9.11.2011, 23.11.2011, 30.11.2011, 7.5.2012 and 4.6.2012. On 7th May 2012 and 4th June 2012, the petitioner was directed to remain personally present when no documentary evidences for substantiating the claim had been put forth by the petitioner. It can be noticed that on 3rd September 2012, respondent No.1 passed order denying issuance of the utilization certificate for getting exemption from payment of excise duty in respect of both the vehicles. We also notice that the rejection of the request has come on the ground that the work undertaken by the petitioner was not that of rehabilitation and reconstruction and therefore, no exemption from payment of excise duty could be made available to both the vehicles purchased by the petitioner. Therefore, the present petition. Learned Senior Counsel Mr. Shalin Mehta appearing with learned counsel Ms. Vidhi Bhatt for the petitioner forcefully submitted that despite the Court having directed to apply the mind carefully, similar mistake has been repeated in the order impugned. He urged this Court that the work of the petitioner was of giving free legal aid and counselling to earthquake victims and in the earlier petition, this Court had noted unequivocally that the certificate issued by the Director of Voluntary Agencies, State of Gujarat was not under challenge bearing proof of service rendered to the victims. The petitioner being an approved agency thus for carrying out such relief activities, the Collector could not have interpreted the same as not having come under the banner of relief and rehabilitation. The petitioner being an approved agency thus for carrying out such relief activities, the Collector could not have interpreted the same as not having come under the banner of relief and rehabilitation. With respect to the purchase by cash donation, pursuant to the direction issued by this Court dated 19th June 2013, it is urged by the counsel that an additional affidavit has been filed on 9th July 2013 and along with the same, income tax return filed by the petitioner for the assessment year 200203 as also foreign contribution received by the petitioner from 1.4.2001 to 31.3.2002 in the form of Form FC3 submitted to the Home Ministry and the Ledger Account reflecting the purchases of two jeeps from the cash donations have been brought on record. Learned counsel also brought to our notice the documentary evidence brought on record along with the affidavit concerning the relief work provided by the petitioner as also to substantiate the fact that the order of the Collector has recorded facts contrary to the evidences which were already before him. Accordingly, it is urged that the impugned order deserves quashment and the benefit of the concerned notification needs to be made available to the petitioner society. Per contra, learned AGP Mr. Jaimin Gandhi appearing for respondent Nos. 1, 2 and 4 has vehemently urged that the Court does not need to interfere in the order impugned as the petitioner failed to adduce any evidence despite having been given various opportunities by the respondent Collector. He further urged that the word ‘relief’ cannot be looked at in isolation, but relief and rehabilitation, both, if are construed together, the work rendered by the petitioner would not come within the purview of the notification. He urged that the work of counselling and providing legal aid to the victims surely cannot be termed as work of ‘relief and rehabilitation’. Moreover, when nothing was on record to indicate that such purchase of vehicles was by cash donation as is the requirement of the notification, respondent No.1 Collector committed no error in rejecting the request for certification. Learned counsel Ms. Sejal Mandavia appearing for respondent No. 3 has also forcefully argued on the same line as that of learned AGP. She urged, therefore, that the benefits cannot be made available to the petitioner society. Learned counsel Ms. Sejal Mandavia appearing for respondent No. 3 has also forcefully argued on the same line as that of learned AGP. She urged, therefore, that the benefits cannot be made available to the petitioner society. Upon thus hearing both sides and on close perusal of the materials on record, at the outset, we need to specifically make a mention of the fact that directions issued by this Court in the earlier petition to the District Magistrate is to consider the application of the petitioner for issuance of the certificate keeping in view the observations made in the order passed by this Court after affording the opportunity to the petitioner herein. The Court in terms held that the Collector disregarded the fact that the expression used in the notification dated 27th January 2001 was “relief and rehabilitation” and not “rehabilitation and reconstruction”. The Court also expressed its displeasure by noting that the Collector had neither applied its mind nor had properly construed the notification and therefore, was not justified in turning down the request of the petitioner for issuance of certificate by holding that the petitioner is not engaged in rehabilitation and reconstruction work. And thus, having held that the communication in the form of order was issued without considering the notification dated 27.1.2001 in proper perspective, aforementioned direction had been issued by the court. Thus, the Collector’s scrutiny in the second round was limited to examination of issue of purchase of vehicles as to whether the same was with the cash donation and whether their use was for the relief work of victims of earthquake. We unhesitatingly hold that respondent No. 1 has reiterated the very same mistake which had cropped up in the earlier order and was in categorical terms pointed out by the Court. In the impugned order, the respondent No. 1 after having commented that the petitioner did not choose to participate despite having availed of the opportunities of producing documentary evidences, also noted that no documents have been produced in relation to legal aid availed to various persons who have been named in the said order to conclude in the operative portion of the order that the work of the petitioner does not come under the work of “rehabilitation and reconstruction” and therefore, exemption provided under the notification would not be available to the petitioner. It is thus very apparent proof of non application of mind despite the specific direction of the Court in this regard. Although there may not be any necessity to elaborate once again what amounts to relief and rehabilitation, in common parlance these words indicate “respite or aid to the needy” and restoring the normal life. At this stage, we would like to refer to the dictionary meaning of the word “relief” from the Black’s Law Dictionary, which reads: Relief. Aid or assistance given to those in need, esp., financial aid provided by the state (Cases: Social Security and Public Welfare) The word ‘rehabilitation’ as defined in the dictionary also requires reproduction at this stage. ‘Rehabilitate’ would, as per Webster’s Third New International Dictionary, mean “to put on a proper basis, or into a previous good state; restore (as something damaged or decayed) to a state of efficiency and good management; to restore to a condition of health or normal activity by a process of medical rehabilitation. Apex Court in case of Collector of 24 Parganas vs. Lalit Mohan Mullick, (1986) 2 SCC 138 , has referred to Collins Dictionary of the English Language to refer the word ‘rehabilitate’ and observed as under: “13. In Collins Dictionary of the English Language, the meaning for the word 'rehabilitate' is given as "to help a person (who is physically or mentally disabled or has just been released from prison) to readapt to society or a new job as by vocational guidance, retraining or thereby ........." By rehabilitation what is meant is not to provide shelter alone. The real purpose of rehabilitation can be achieved only if those who are sought to be rehabilitated are provided with shelter, food and other necessary amenities of life. It would be too much to contend, much less to accept, that providing medical facilities would not come within the concept of the word 'rehabilitation'. No detailed discussion is necessary to hold that putting up of a hospital and in particular one for crippled children is one of the important facets of the concept of 'rehabilitation of displaced persons'. Displaced persons are an unenviable section of society. They bring with them not only misery and poverty but ailments also. Their children will be afflicted by manifold ailments. Displaced persons are an unenviable section of society. They bring with them not only misery and poverty but ailments also. Their children will be afflicted by manifold ailments. To provide a hospital for the disabled and for the crippled children of such displaced persons, in our judgment, squarely comes within the concept of the idea of 'rehabilitation' and consequently of settlement of the refugees.” It can be noticed from these meanings that any assistance or aid given to the community or affected persons or victims for restoring their lives to normalcy would come under the definition of “relief and rehabilitation”. The word “rehabilitate” also means to restore to proper condition or former privileges which would also include availing physical, mental and psychological aid. The purpose of rehabilitation is thus to render aid to the affected persons to bring them back to normal life by providing all these aids which include, shelter, food and other necessary amenities of life. Medical aid provided to the victims had also been included in the term rehabilitation by the Apex Court as mentioned hereinabove. Any legal assistance or legal counselling made available to the victims who had lost completely their houses, belongings, beloved as well and thereby providing them with right guidance to reach to the statutory aids made available would surely be the part of work of relief and rehabilitation. We, therefore, are of the opinion that no parochial meaning could be attributed to the words “relief and rehabilitation” particularly keeping in mind the facts and circumstances existed at the relevant time in the district causing devastating effect everywhere. In our candid opinion, respondent has not examined the very aspect of ‘relief’ at all and whether the work rendered could fall under the purview of the term ‘relief’, but simply denied the benefit by holding that such work of the petitioner cannot be termed as work of “reconstruction and rehabilitation”. Respondent by not examining and thereby impliedly not accepting the services rendered by the petitioner society as work of relief for the purpose rehabilitation at the time when the entire district Kutch was severely affected by the fury of earthquake has not appreciated true construction of these words. Respondent by not examining and thereby impliedly not accepting the services rendered by the petitioner society as work of relief for the purpose rehabilitation at the time when the entire district Kutch was severely affected by the fury of earthquake has not appreciated true construction of these words. We in terms, therefore, on the basis of the above discussion hold that the relief of free legal aid and counselling provided by the petitioner to various victims of earthquake and making them aware of the various packages made available by the Government and guiding them aptly so also advising them suitably on legal issues would be squarely covered under the words “relief and rehabilitation.” Resultantly, it is to be held that misreading of the notification is evident once again. To say that the work of petitioner did not include the work of rehabilitation and reconstruction, despite those words having been absent in the notification, respondent No.1 when has chosen to reiterate those very words, we do not see any reason to uphold the contention of the respondents of accepting such interpretation which is ex facie untenable. With regard to the issue of purchase of such vehicles by cash donation, it is admitted by learned Senior Counsel Mr. Mehta that the petitioner could not participate in the proceedings of hearing undertaken by respondent No.1 nor could documentary evidences be produced reflecting such purchase from cash donation at the relevant point of time. However, this Court since had directed, as mentioned hereinabove, the petitioner to produce the relevant documents, by way of additional affidavit, those documents have come on the record. Respondent State, by filing an affidavit in reply particularly on this aspect has urged that there is no evidence from the petitioner that these cars have been purchased out of cash donation and the additional affidavit was also indicative of only acknowledging filing of income tax return, but it is not the entire document. Receipt of foreign contribution and donation though has been indicated from Form FC3, it is pointed out that the evidence does not indicate the same has been used for the purpose of purchase of two vehicles. It was also contended that since no documents were produced before respondent No. 1 at the time when hearing had taken place, the matter deserves to be remanded back to the respondent No. 1 for consideration of such material. It was also contended that since no documents were produced before respondent No. 1 at the time when hearing had taken place, the matter deserves to be remanded back to the respondent No. 1 for consideration of such material. We have noticed that the entire dispute concerns the year 2001 when the State was gripped under the fury of earthquake and the petitioner society had rendered timely requisite relief for the purpose of rehabilitation. Since a long span has passed, we deem it fit not to once again remand the matter back to respondent No. 1 for considering the issue concerning the purchase of vehicles from cash donation. Instead, we have satisfied ourselves from the material, so also from the additional affidavit, noticing also the contentions raised in the affidavit in reply that these documents are clearly indicative of the fact that they are statutorily credited accounts. The petitioner society had received from 1st April 2001 to 31st March 2002, foreign contribution and accordingly form FC3 which otherwise was required to be submitted to the Home Ministry, is forming part of these documents. Again, the Ledger Accounts for the year 2001-2002 are indicating the purchase of jeep from cash donations received by the Society and they also form part of these documents. Income Tax Return filed for the assessment year 2002-03 further establishes such details. Additional affidavit clearly suggests that these documents have been filed before the Income Tax Department and some of them also before the Home Ministry (Central Government). When the veracity of the same is not in doubt and the purchase of vehicles from cash donation has been clearly reflected and established, we are satisfied ourselves that they are in consonance with the requirement of the notification for the purchase of vehicles from cash donations received by the Society and therefore, both the conditions of purchase of such vehicles out of cash donations and use of such vehicles for the relief and rehabilitation of the people affected by earthquake in the State of Gujarat have been duly satisfied by the petitioner entitling the petitioner society to get the benefit of the exemption of notification in payment of excise duty particularly when use of vehicles is duly certified for the work of petitioner at Kutch only requirement was to satisfy the third condition which according to us get duly fulfilled. Therefore, the order impugned of respondent No. 1 needs quashment and hence is quashed with a further direction to respondent No. 1 to grant utilization certificate for the purpose of granting exemption from payment of central exercise in relation to purchase of these vehicles within four weeks from receipt of this order. Accordingly, the petition succeeds. Rule is made absolute to the extent above with no order as to costs.