IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(C).No. 33628 of 2009(W) ---------------------------------------- PETITIONER(S): ------------------------ C.J. DEVELOPMENT FOUNDATION CHOORAVILA, KUREEPUZHA .PO., PERINAD KOLLAM- 691 604, REPRESENTED BY ITS SECRETARY MR.INNOCENT JOSEPH. BY ADV. MR.V.JAYAKUMAR RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FISHERIES, GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF FISHERIES,GOVT.OF KERALA VIKAS BHAVAN, THIRUVANANTHAPURAM 3. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF REVENUE GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI. 4. THE COLLECTOR OF CUSTOMS, CUSTOM HOUSE WILLINGDON ISLAND, COCHIN 682 009. R1 & R2 BY GOVERNMENT PLEADER MR.A.J. VARGHESE. R3 BY ADV. MR.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA. R4 BY ADV. MR.JOHN VARGHESE,SC,CEN.BOARD OF EXCISE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33628/2009-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER DATED 19/01/2005 FROM M/S. MERCURY MARINE SINGAPORE PVT. LTD. TO M/S.ESMARIO EXPORT ENTERPIRSES. EXT.P2: COPY OF THE LETTER DATED 19/01/2005 FROM M/S.ESMARIO EXPORT ENTERPRISES TO THE 1ST RESPONDENT. EXT.P3: COPY OF THE LETTER DATED 02/02/2005 FROM THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXT.P4: COPY OF THE LETTER DATED 02/02/2005 FROM THE 1ST RESPONDENT TO THE 4TH RESPONDENT. EXT.P5: COPY OF THE COMMUNICATION DATED 26/07/2005 FROM THE 4TH RESPONDENT TO THE 1ST RESPONDENT. EXT.P6: COPY OF THE BOND DATED 21/09/2006 EXECUTED BY THE PETITIONER WITH THE CUSTOMS AUTHORITIES. EXT.P7: COPY OF THE BOND DATED 28/11/2006 EXECUTED BY THE PETITIONER WITH THE CUSTOMS AUTHORITIES. EXT.P8: COPY OF THE AGREEMENT DATED 31/01/2007 EXECUTED BY THE 1ST RESPONDENT. EXT.P9: COPY OF THE ORDER DATED 08/02/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P10: COPY OF THE ORDER DATED 05/01/2008 ISSUED BY THE 1ST RESPONDENT. EXT.P11: COPY OF THE ORDER DATED 01/02/2008 ISSUED BY THE 1ST RESPONDENT CANCELLING EXT.P10. EXT.P12: COPY OF THE NOTICE DATED 01/09/2009 ISSUED BY THE PETITIONER TO RESPONDENTS 2 AND 3 AND THE HONOURABLE CHIEF MINISTER. EXT.P13: COPY OF THE ACKNOWLEDGMENT RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT. EXT.P14: COPY OF THE ACKNOWLEDGMENT RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT. EXT.P15: COPY OF THE ACKNOWLEDGMENT RECEIVED BY THE PETITIONER FROM THE CHIEF MINISTER'S OFFICE. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE SANCTION ISSUED BY THE GOVT. OF INDIA DT. 11/08/2006. EXT.R4(b): COPY OF THE PROVISIONAL BOND EXECUTED BY THE PETITIONER DT.21/09/2006. EXT.R4(c): COPY OF THE PROVISIONAL BOND EXECUTED BY THE PETITIONER DATED 28/11/2006. //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.33628 of 2009-W = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of February, 2010. Judgment On 5.1.2008, the Additional Secretary to Government of Kerala in the Disaster Management (TRP-Cell) Department issued Ext.P10 issuing Government sanction to distribute fishing boats to fishermen societies having maximum number of fishermen registered before Tsunami, now functioning and who have lost boats in Tsunami. The first priority was directed to be given to societies who lost their fishing vessels in Tsunami and yet to be compensated. The remaining boats were directed to be distributed to the fishermen societies following transparent process. The said decision of the Government was preceded by fixation of norms for selection of beneficiaries following the Cabinet Sub Committee decision on 14.11.2007 to allot the boats in district-wise manner identifying fishermen WPC33628/09 -: 2 :- groups. Much prior to that, on 8.2.2007, the Government issued GO(Rt).No.62/07/F & PD whereby Fisheries and Ports Department had issued guidelines for the distribution of 20 numbers of fibre glass fishing boats donated by M/s.C.J.Foundations to the Tsunami affected fishermen in the State. It appears that the petitioner CJ Foundation was just the facilitator of the movement of the boats from international donors to the actual recipients in the State of Kerala. It is submitted by the learned counsel for the petitioner that the original agreement was with the donors and that the petitioner is not even an inter-meddler making any profit out of the transaction. Disaster management, aid to the victims etc. have now snow-balled into a Damocles's sword hanging over the petitioner's head in the form of demand of excise duty and also the burden to take care WPC33628/09 -: 3 :- of the 20 boats which have been brought into the Indian territory. With the passage of time, in the coastal area we can easily visualise that these boats would turn to be useless, if not put to proper use within reasonable time. Therefore, it will not be in the interest of the State or the intended beneficiaries to let the boats continue to lie idle without finalising the import procedures and also without handing over the same to the needy in terms of the Government decisions. Hence, this writ petition is ordered directing the State of Kerala and respondent No.2 to ensure that the final action following Ext.P10 is done within a period of three months, without fail and reported to this Court in the form of an affidavit before the Registrar General of this Court as may be filed by the second respondent. Respondents 3 and 4 are directed to hold back any penal action against the petitioner or against the aforesaid vessels on account of the WPC33628/09 -: 4 :- transaction in question taking into consideration that the facts disclosed are extra-ordinary circumstances. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/0802