Kartheikeyan v. Deputy Commissioner of Excise, Excise Divisional Office, Ernakulam and Circle Inspector of Excise, Kothamangalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **&** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932** **WP(C).No. 35588 of 2010(W)** **---------------------------------------** **PETITIONER(S):** **------------------------** **KARTHEIKEYAN, S/O.SANKU, KALLIPALATHINGAL HOUSE, THAIKKATTUSSERY, OLLUR, THRISSUR DIST** **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENT(S):** **-------------------------** **1. DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISIONAL OFFICE, ERNAKULAM, PIN-682018** **2. THE CIRCLE INSPECTOR OF EXCISE, KOTHAMANGALAM PIN-686691** **BY GOVT. PLEADER SRI.LAKSHMINARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ.** ------------------------------------------W.P(C).No.35588 OF 2010 ------------------------------------------Dated this the 22[nd] day of December, 2010 ## **JUDGMENT** ## Thottathil B.Radhakrishnan, J. **==> picture [42 x 11] intentionally omitted <==** 1.The writ petitioner’s vehicle was intercepted and seized on allegation of violation of the provisions of the Spirituous Preparations (Control) Rules, 1969 (Kerala). Those rules are issued under the Abkari Act. The statutory authority imposed a condition that the petitioner deposits an amount of Rs.2,50,000/- for temporary release of that vehicle under the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, hereinafter, ‘Confiscation Rules’. The petitioner, relying on the judgment of this court in **Dr.Ommen[1] ,** filed the writ petition seeking a direction that the vehicle be ordered to be released without insisting on making cash deposit. When the matter came up for admission, learned single Judge was of the view that in the light of the relevant statutory provisions which WPC.35588/10 2 appears to be categorical, there is no room for its dilution by judicial intervention. The learned judge felt that the view that he was taking is in conflict with that expressed in **Dr.Ommen[1]** . Hence this reference to the Division Bench. - 2.Heard the learned counsel for the writ petitioner and the learned Senior Government Pleader on behalf of the State. - 3.The learned counsel for the petitioner stated that relief may be granted following **Dr.Ommen[1]** , while the learned Senior Government Pleader, making reference to the precedents which we will refer to during the course of discussions, argued that **Dr.Ommen[1]** is not correctly decided and that the same, at least to the extent apparently holding that the statutory authority is empowered to release the intercepted vehicle on furnishing bank guarantee or other security, is in contrast to the clear statutory provisions to the contrary. WPC.35588/10 3 4.Read Rule 4(2)(a) of the Confiscation Rules. That provides, inter alia, that the vehicle liable to be confiscated under the Abkari Act may be released temporarily by the authorised officer, to its owner, on depositing in the Treasury Savings Account in favour of the Commissioner of Excise, an amount equivalent to its market value, fixed by the Mechanical Engineer of the Excise Department or any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State. In **Aji Kumar[2]** and in **Prasad[3]** , the validity of that rule was upheld. Noting that in **Aji Kumar[2]** , the purpose of that rule was also specifically adverted to, this Court stated in **W.P(C).18217/09** that though in **Aji Kumar[2]** , the fact that the petitioner therein was a hirer covered by a hire purchase agreement would have led this Court to take a lenient view authorizing release of the vehicle on furnishing bank guarantee in lieu of deposit, that is an exception and cannot be treated as a rule. It was noted in that judgment that such orders would not be issued violating the law, though in exceptional circumstances the writ court WPC.35588/10 4 may order release, when it becomes absolutely necessary and as may be found in jurisdictions which are totally discretionary. 5.More than a century and a quarter ago, in **Taylor[4]** , it was categorically laid down that where a power is given to do a certain thing in a certain way, that thing must be done that way, or not at all, and that other methods of performance are necessarily forbidden. When law prescribes the manner of exercising jurisdiction and confers power for that purpose, it has to be exercised in that manner only. This principle was applied by the Privy Council in **Nazir Ahmed[5]** and also by the Apex Court in several cases, including **Rao Shiv Bahadur Singh[6]** and **Deep Chand[7]** . In **Banarsi Das[8]** , this position was reiterated by the Apex Court. In **Babu Varghese[9] ,** the Apex Court laid down that it is a basic principle of law that if the manner of doing a particular action is prescribed under any statute, that act must be done in that manner or not at all. The Apex Court stated in **Bhavnagar University[10]** , that it is WPC.35588/10 5 settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities, while acting under the statute, are only creatures of statute and they must act within the four corners thereof. The Apex Court noticed in **Ramachandra Keshav Adke[11]** that the said rule has stood the test of time. To the same view is the judgment of this Court in **Shamin Sainudhen[12]** . 6.When the Confiscation Rules contain the clear statutory provisions as to the manner in which, and the conditions subject to which only, a vehicle could be provisionally released pending confiscation proceedings, it is not open to any statutory authority acting under the Abkari Laws to issue any order for release, except in conformity with that statutory condition. Statutory provisions, including subordinate legislation, bind the repository of power under that statute and hence, there is no way for any abkari officer to act except in terms of the direction therein. WPC.35588/10 6 7.In so far as the exercise of jurisdiction under Article 226 of the Constitution is concerned, it needs to be noted that in exceptional cases, the court may issue orders to render justice, without in any manner impairing the effect of the statutory law governing the field. However, this would not be done in violation of any express interdiction created by statute law. Equally, even when such a power is being exercised, the writ court would loathe transgress the statutory limitations, unless of course, equivalent appropriate conditions are imposed. This is a very cautious exercise resorted to any exceptionally exceptional circumstances and cannot be asked for as a matter of right or course. Not only that, such a procedure would be adopted only for such strong reasons which are demonstrably overwhelming and requiring judicial indulgence exercising prerogative discretionary jurisdiction to meet the ends of justice, excusing a person, for the time being, from complying with the obligations under the statutory provision; that too, only on stringent conditions. Therefore, even if we find some WPC.35588/10 7 element of power under Article 226 to grant any such discretionary order, it cannot be asked for, or granted, as a matter of course in matters relating to the release of vehicles involved in alleged abkari offences. 8.The direction issued to the Deputy Excise Commissioner in **Dr.Ommen[1]** to grant interim custody of the vehicle involved in that case, without insisting on making cash deposit, is not one recognizing the power or authority of that officer to do so under the statutory provisions. That precedent is not authority for any position in law that the statutory authority can release vehicle to interim custody without insisting on the statutory conditions contained in Rule 4(2)(a) of the Confiscation Rules. In the light of what we have stated above, we would read that decision as one resting exclusively on the facts of that case and not laying down any principle of law which could be followed by any subordinate authority, or for that matter, by the writ court, as a precedent. Equally, the decision of the Apex Court in **Jabbar[13]** is also of no aid to the writ petitioner. The ratio of WPC.35588/10 8 that precedent has nothing to do with the nature of conditions that may be imposed by the statutory authority while ordering temporary release of the vehicle involved in an Abkari offence. The law laid therein is to the effect that when statutory appellate and revisional remedies are available, interference by the High Court is not called for in such matters. Insofar as the conditions for release of the vehicle are concerned, all that was done by the Apex Court was to vacate the direction of the High Court, thereby restoring the statutory authority’s decision as regards the conditions. By doing so, the Apex Court was not laying down any law that a statutory authority could release the vehicle on conditions other than those provided by the statute. Therefore, reliance placed by the writ petitioner on that precedent is groundless. - 9.We answer the reference as above. - 10.Adverting to the facts of this case, we find that no circumstance worth mentioning, which would prompt the writ WPC.35588/10 9 court to exercise its visitorial jurisdiction, in favour of the petitioner, in terms of law as stated above, is demonstrated. We therefore find no merit in the writ petition. It fails. In the result the writ petition is dismissed. No costs. Sd/- **THOTTATHIL B.RADHAKRISHNAN, Judge** . Sd/- **P.BHAVADASAN,** **Judge.** 1. Dr.Ommen Mathew and Others v. Excise Commissioner, Trivandrum and Others [2010(2) KHC 617] 2. Aji Kumar v. Assistant Excise Commissioner [1999 (1) KLT 132] 3. Prasad v. Sub Inspector of Police (DB) – [2002 (2) KLT 790] 4. Taylor v. Taylor [(1871) 1 Ch D 426] 5. Nazir Ahmed v. Emperor [63 Ind App 372] 6. Rao Shiv Bahadur Singh and Another v. State of Vindh.P [AIR 1954 SC 322] 7. Deep Chand v. State of Rajasthan [AIR 1961 SC 1527]. WPC.35588/10 10 8. Banarsi Das v. Brig.Maharaja Sukhjit Singh & Another [1998 (2) SCC 81] 9. Babu Varghese & Others v. Bar Council of Kerala & Others [(1999) 3 SCC 422] - 10.Bhavnagar University v. Palitana Sugar Mill (P) Ltd. And Others [2003(2) SCC 111] - 11.Ramachandra Keshav Adke v. Govind Joti Chavare and Others [AIR 1975 SC 915] - 12.Shamin Sainudhen & Others v. Medical Council of India & Others [2010(4) KHC 204(DB)] - 13.State of Kerala v. Jabbar [2009(2) KLT 709] kkb.23/12.