WA.No.885 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941** **WA.No.885 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 17586/2015(W) OF HIGH COURT OF KERALA DATED 25.10.2018** ## **APPELLANTS/RESPONDENTS 1 TO 4 IN WP(C):** **1 THE EXCISE INSPECTOR EXCISE RANGE OFFICE, DEVIKULAM, IDUKKI DISTRICT-685613.** - **2 THE DEPUTY COMMISSIONER OF EXCISE IDUKKI, OFFICE AT THODUPUZHA-685584.** - **3 THE ADDITIONAL EXCISE COMMISSIONER, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM--695033.** - **4 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM-695033.** **BY GOVERNMENT PLEADER SMT K.R DEEPA.** ## **RESPONDENT/PETITIONER IN WP(C):** ## **JAMES MATHEW,** **S/O.MATHAI, PARTNER, E.V.MATHAI AND SONS, BUILDING NO.25/673, EDAKKATTUKUDIYIL HOUSE, KOTHAMANGALAM.P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-08-2019, THE COURT ON 21-08-2019 DELIVERED THE FOLLOWING:** **WA.No.885 OF 2019** 2 **"C.R."** ## **JUDGMENT** ## _Ravikumar, J._ A question of seminal importance pose for consideration in this appeal. To identify the question, it is inevitable to narrate the facts in succinct. Respondents 1 to 4 in W.P.(C) No.17586 of 2015 are the appellants and they assail the judgment passed thereon by the learned Single Judge dated 25.10.2018, in this appeal. The respondent herein filed the said writ petition challenging Exts.P1 and P3 orders. Ext.P1 is the order dated 21.2.2015 passed by the Deputy Commissioner of Excise, Idukki, the 2[nd] appellant herein, confiscating the Bolero Car bearing Reg.No.KL-44-5405, belonging to the writ petitioner/the respondent herein, under section 67 B of the Abkari Act. Ext.P3 is the order passed by the Additional Excise Commissioner, the 3[rd] appellant dismissing the appeal filed by the respondent herein under section 67E of the Abkari Act. The said vehicle, on interception by a squad under the leadership of Additional Tahsildar, Devikulam on 15.03.2014, was found being used for transportation of 23.4 litres of beer and 18 litres of wine without valid documents. Upon its seizure, **WA.No.885 OF 2019** 3 the vehicle along with the articles were produced before the Excise Inspector, Devikulam based on which C.R.No.12/14 of Excise Range Office, Devikulam was registered. Proceedings under section 67B of the Abkari Act for confiscation of the vehicle were consequently initiated. Ext.P1 order of confiscation was passed under Section 67B by the 2[nd] appellant. The respondent herein took up the matter in appeal under Section 67E. It culminated in Ext.P3 order of its dismissal, dated 7.5.2015. It is in such circumstances that the petitioner has approached this Court by filing the above mentioned writ petition challenging Exts.P1 and P3 orders. 2. As per the impugned judgment, the learned Single Judge held that Ext.P1 or Ext.P3 orders, with respect to confiscation of the vehicle, did not suffer from any illegality. After holding thus, the learned Single Judge went on to consider the question whether the vehicle in question could be released. Evidently, the learned Single Judge took note of the fact that the vehicle in question was temporarily released on deposit of Rs.2,00,000/-, the value of the vehicle then assessed by the Mechanical Engineer concerned. As a matter of fact, it was so released on 30.5.2014 i.e., prior to Exts.P1 **WA.No.885 OF 2019** 4 and P3 orders. The learned Single Judge, thereupon, found that it could be released after realising a sum of Rs.1,00,000/- and consequently directed respondents 2 to 4 i.e., appellants 2 to 4 herein to pay the balance amount from the security deposit remitted by the respondent/writ petitioner for getting his vehicle released temporarily, within the time stipulated thereunder. It is aggrieved by the said order that respondents 1 to 4 preferred this appeal. It is to be noted that though the learned Single Judge held Exts.P1 and P3 orders pertaining to confiscation of the vehicle as legal, no appeal has been preferred by the respondent herein/the writ petitioner. 3. Heard the learned Senior Government Pleader Smt.K.R. Deepa, for the appellants and Sri.M.G.Karthikeyan appearing for the respondent. 4. The learned Senior Government Pleader contended that the writ court ought not have ordered for releasing the vehicle after realising a sum of Rs.1,00,000/- from the amount already deposited pursuant to the order for temporary release of the vehicle and to pay him the balance amount, after holding Exts.P1 and P3 as legal. It is also submitted that a bare perusal of the impugned judgment would **WA.No.885 OF 2019** 5 reveal that the learned Single Judge after taking note of the contentions of the writ petitioner/the respondent herein that the offence involved was only a minor one, held that the offence continues to be an offence and therefore, Exts.P1 and P3 did not suffer from any illegality. In such circumstances, the learned Single Judge ought not have ordered for releasing the confiscated vehicle for Rs.1,00,000/- when the market value of the vehicle was valued with the assistance of the Mechanical Engineer as Rs.2,00,000/- and when the entire value thus assessed was deposited by the respondent/the writ petitioner for getting temporary release of the vehicle. 5. Per contra, the learned counsel appearing for the respondent/the writ petitioner submitted that there is absolutely no illegality in the impugned judgment. It is submitted that even after confiscation of a vehicle going by the scheme of the Abkari Act and also the provisions under the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 (for brevity the 'Rules') it is possible for the owner of the vehicle concerned to seek for its release on paying the market value and further that in respect of a case where the vehicle in question was got temporarily released, the market value to be paid **WA.No.885 OF 2019** 6 finally is to be reassessed in view of the provisions under the Rules. It is further submitted that in such eventuality, if the originally assessed market value for the purpose of temporary release of a vehicle is paid and if the reassessed market value of the cart, vessel or other conveyance is less than the originally assessed amount, the owner concerned who deposited the amount for temporary release is entitled to get back the balance amount after adjustment of the reassessed market value, going by Rule 4 (3)(b) of the Rules. In the light of the aforesaid rival submissions we are inclined to consider the illegality of the order for releasing the vehicle on realisation of a particular amount which is lesser than the market value assessed at the time of temporary release, that too after holding the confiscation proceedings as legal. 6. After the interception of the aforesaid vehicle and its production before the authority competent confiscation proceedings under Section 67B of the Abkari Act were initiated. Evidently, it culminated in Ext.P1 order. It is to be noted that before passing Ext.P1 order the vehicle in question was temporarily released on 30.05.2014 after assessing its market value and on its remittance. A **WA.No.885 OF 2019** 7 perusal of the Abkari Act would reveal that no specific provision is provided under the Abkari Act for temporary release of vehicle against which confiscation proceedings are initiated. We are not oblivious of the provisions under Section 53B of the Act which empowers the court to order for temporary release. At the same time, a perusal of 'the Rules' would reveal that it is permissible in respect of carts, vessels and other conveyances liable to be confiscated under the Abkari Act. In that context, it is only appropriate to refer to Rules 4(1)(a) and 4(2)(a) of the Rules and they read thus:- _**“4. Carts, Vessels or other conveyances** .- (1)(a) When the authorised officer adjudging a confiscation of cart, vessel or other conveyance under section 67E or 67F of the Act offers the owner of such property the option of paying in lieu of confiscation, a fine equivalent to the market value of the cart, vessel or other conveyance as 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, and if the owner of such property agrees to accept such option, he shall be required to pay forthwith such sum as may already have been spent towards the safe custody and unkeep of such property, and to deposit such further sum as may appear likely to be required for such purposes until the payment of the fine._ _xxxxx_ **==> picture [314 x 12] intentionally omitted <==** **WA.No.885 OF 2019** 8 _confiscated under the Act may be released temporarily by the authorised officer to its owner on depositing an amount equivalent to the market value of the cart, vessel or other conveyance, fixed by the Mechanical Engineer of the Excise Departmentor any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State in the Treasury Savings Account in favour of the Commissioner of Excise.”_ (underline supplied) 7. In such circumstances and in view of the said enabling provision the release of the vehicle on 30.05.2014 temporarily can only be taken as one effected pursuant to an order passed in invocation of the power under Rule 4(2)(a) of the Rules. In that context Rules 4(2)(b), 4(3)(a) and 4(3)(b) would also assume relevance and they read thus:- _“4(2)(b): The cart, vessel or other conveyance so released (temporarily) shall be produced before the Authorised Officer when final order of confiscation is passed by the Competent Authority and communicated to the owner of such property by Registered Post._ _4(3)(a) As and when the owner of the cart, vessel or other conveyance produces the same before the Authorised Officer, he shall reassess the market value of such cart, vessel or other - conveyance in the like manner detailed in sub rule (i)._ _4(3)(b) If the reassessed market value of the cart, vessel or other conveyance is found to be less than the original market value so fixed at the time of temporary release, the difference between the_ **WA.No.885 OF 2019** 9 _two market value of the same shall be adjusted from the deposit already made and credited to the proper head of account of the Excise Department and the balance amount due to the owner shall be released to him or in the case of death of the owner, to his legal heirs on production of necessary evidence in support of their claim as the case may be, within three months from the date of death of the ” owner._ _(underline supplied)_ 8. Going by Rule 4(2)(b), the vehicle or the other conveyance concerned so released temporarily shall be produced before the Authorised Officer when final order of a confiscation is passed by the competent authority and it is communicated to the owner of such property by Registered Post. When after the final order in confiscation proceedings, if the confiscation proceedings were sustained necessarily in the light of Rule 4(2)(b) on receiving the communication regarding the final order of a confiscation the owner of the property concerned is bound to produce the vehicle or other conveyance concerned before the Authorised Officer. On such production of the vehicle in terms of sub-rule 3(a) of Rule 4 the Authorised Officer shall reassess the market value of the vehicle or other conveyance concerned in the like manner specifically provided **WA.No.885 OF 2019** 10 under sub-rule (i). Going by Rule 4(3)(b) if on reassessment of the market value of the vehicle or other conveyance concerned is less than the original market value so fixed at the time of temporary release the difference between the two market values of the said vehicle shall be adjusted from the deposit already made and credited to the proper head of account of the Excise Department and the balance amount due to the owner shall be released to him. It is true that the learned Single Judge has not adverted to the aforesaid provisions while ordering to release the aforesaid vehicle after realising a sum of Rs.1,00,000/- (Rupees One Lakh only) from the amount of Rs.2,00,000/- (Rupees Two Lakhs only) equivalent to the market value of the aforesaid vehicle fixed by the Mechanical Engineer, for releasing it temporarily. Rule 4(2)(a) of the Rules thus empowers for releasing of vehicle liable to be confiscated by the Government under Section 67B or 67F of the Act, temporarily by resorting to such a procedure, pending such confiscation proceedings. In the decision in **Aji Kumar v. Asst. Excise Commissioner** reported in 1999 (1) KLT 131, this Court relied on the decisions of the Apex Court in **Niketa Kishorekumar v. State of Kerala** [AIR 1998 (1) **WA.No.885 OF 2019** 11 KLT 50] and **Razakbhai Issakbhai Manburi v. State of Gujarath** (1993 Supp. (2) SCC 659) and held that the legislature in its wisdom thought that for temporary release of the vehicle involved in a case, if a person puts an application, he should deposit the amount in Treasury Savings Account, after the vehicle is valued by the Mechanical Engineer concerned and should produce a certificate after depositing the amount in treasury Savings Bank Account and hence Rule 4(2)(a) is valid. In this case, admittedly, adhering to the aforesaid mandate the market value of the vehicle in question was assessed and consequently, the same was released to the writ petitioner/the respondent herein temporarily on his depositing Rs.2,00,000/-. Indubitably, the temporary release of a vehicle involved in an Abkari Case in accordance with the aforesaid provision will not affect the continuance of the confiscation proceedings. Evidently, in this case, even after the temporary release of the vehicle to the respondent herein the confiscation proceedings under Section 67B of the Abkari Act were proceeded with. The confiscation proceedings initiated under Section 67B(1) have to be finalised by passing an order in terms of the provisions under Section **WA.No.885 OF 2019** 12 67B(2). It will be open to any person aggrieved by such an order to prefer an appeal under Section 67E of the Act. Going by Section 67E(3), an order of the appellate authority under sub-section 2, shall, subject to the provision of Section 67F, be final. True that, going by the said section, such order could not be called in question in Court. There can be no doubt with respect to the position that the scope and power under Article 226 of the Constitution of India to issue writs, cannot be curtailed or whittled down by legislation. This position has been settled long back. Even when the legislature declares any action or decision of an authority under a particular statute as final and ordinary jurisdiction of courts as barred, a High Court would still be entitled to exercise its writ jurisdiction which remains unaffected by such legislation. (see the decisions of the Hon'ble Apex Court in **Sajjan Singh v. State of Rajastan** (AIR 1965 SC 845), in custodian, **Evocuee Property v. Jafran Beegum** (AIR 1968 SC 169) and in **Kartar Singh v. State of Punjab** (1994) 3 SCC 569). In **Srikant K.Jituri v. Corpn. of the City of Belgaum** reported in AIR 1995 SC 288 the Apex Court held that a finality clause in a statute is no bar to the exercise of the High Court's jurisdiction under Article 226 of the **WA.No.885 OF 2019** 13 Constitution of India. Therefore, the writ court had rightly entertained the challenge against Exts.P1 and P3 orders of the authorities. Nevertheless, the fact is that the writ court found no illegality in Exts.P1 and P3 orders and held them as legal. The contention of the appellants is that since the writ court upheld the legality of Exts.P1 and P3 orders, the order to release the vehicle in question could not have been passed. In otherwords, according to the appellants, once the validity and legality of such order passed under Sections 67B and 67E are upheld, there can be no question of ordering for the release of the vehicle confiscated. It is in this context that Rules 4(2)(b), 4(3)(a) and 4(3)(b) of the Rules, extracted and discussed in detail earlier, assume relevance. 9. A perusal of those provisions under 'the Rules' viz, Rules 4(2)(b), 4(3)(a) and 4(3)(b) would reveal that legislature envisaged such situations. In fact, application of the said provisions would come into play only after passing of final order of confiscation. If ultimately, it is found in the confiscation proceedings under section 67B, after an enquiry as envisaged by section 67(1) of the Act, that the property is liable to be confiscated, then and then only the **WA.No.885 OF 2019** 14 provisions would be attracted. This is because sections 67C and 67 D would make it abundantly clear that initiation of confiscation proceedings not necessarily end in confiscation of the property concerned. Section 67D of the Act reads thus:- “ **67D. Property not liable to confiscation to be returned to owner** .- Where the authorised officer passes an order under Section 67B that any property seized and detained by him or produced before him under that section is not liable to confiscation under this Act, he shall, after the expiry of thirty days from the date of such order, release such property to the person from whom it was seized. Provided that where the Commissioner has called for under Section 67F the record of an order of the authorised officer such property shall be released only subject to the orders of the Commissioner under that section.” Thus, it is evident that where the authorised officer passes an order under section 67B that any property seized and detained by him or produced before him under the said section is not liable to confiscation under 'the Act' then that property shall be released to the person from whom it was seized. A perusal of Sections 67B, 67C of the Act and Rules 4(2)(b), 4(3)(a) and 4(3)(b) would also reveal that virtually the actual assessment of the market value of the vehicle which is found liable to be confiscated would occur only after the **WA.No.885 OF 2019** 15 issuance of the final order of confiscation. According to us, the provision under Rule 4(2)(a) for assessment of the market value of the vehicle by the Mechanical Engineer concerned and providing for temporary release of the vehicle on deposit of equivalent amount in the manner provided thereunder would and could only be the security for the temporary release of the vehicle or conveyance in question. The _raison d'etre_ for our conclusion is that a vehicle or other conveyance would vest with the Government only upon passing of a final order for confiscation under Section 67B(2) of the Act if it is not taken up in appeal and then in revision. Needless to say, if a final order of confiscation passed by the authorised officer is taken up in appeal, it would become final only on passing of an order in the appeal by the appellate authority. We have already dealt with the effect and impact of the finality clause given under Section 67E(3) to the effect that such order shall, subject to the provisions of Section 67F, be final and shall not be called in question in Court. Section 67F is a _suo motu_ revision power available to the Commissioner of Excise. Going by the decision in **Nirmala v. State of Kerala [2008 (2) KLT 346]** , it would be exclusively within the domain of the **WA.No.885 OF 2019** 16 revisional authority to decide whether it would invoke the revisional power. If it is invoked, only upon his passing an order, the order of confiscation would become final. Section 67F(2) is as follows:- “An order of the Commissioner under sub-section (1) shall be final and shall not be called in question in any court.” 10. We have already referred to Section 67D of the Act which provides that if the authorised officer found the property produced before him as not liable to be confiscated he shall, after the expiry of thirty days from the date of such order, release such property to the person from whom it was seized, subject to the proviso thereunder. We have no hesitation to hold that such a property is liable to be released to such person if the property is found not liable to be confiscated in the Appeal or in the Revision. In such circumstances, when an order passed under Section 67E(2) or 67F(1) is challenged in a writ petition under Article 226 of the Constitution of India and in the meanwhile if the vehicle in question was temporarily released pending finalisation of the confiscation proceedings finality of the question whether the vehicle or in that matter any property which is the subject of confiscation proceedings is liable to be confiscated **WA.No.885 OF 2019** 17 would and should depend upon the outcome of the said writ petition. If it is ultimately found that the order impugned is unsustainable and therefore, the property in question is not liable to be confiscated necessarily, that property has to be released to the person from whom it was seized, certainly, subject to the finality of the judgment in the writ petition concerned. However, if the confiscation proceedings are held as valid and legal in the writ petition as has been done in this case, the question is whether in respect of the vehicle seized, produced and then released temporarily under Rule 4(3)(a) of the Rules the procedures contemplated under Rules 4(2) (b), 4(3)(a) and 4(3)(b) of the Rules should be followed. It can certainly be said that the order of confiscation would become final in such circumstances mentioned above, only upon the finality of the verdict in the writ petition. We are of the considered view that in such circumstances also, on attainment of finality of the confiscation proceedings, the owner of the vehicle is bound to produce the vehicle before the competent authority as contemplated in the case of attainment of finality of order of confiscation of the statutory authorities. What should be done thereafter should be the same procedure as have been **WA.No.885 OF 2019** 18 contemplated specifically under Rules 4(3)(a) and 4(3)(b) of the Rules under normal circumstances. Rule 4(2)(b) of the Rules makes it clear that when such order of the authorities is communicated to the owner of such property by registered post, the owner concerned is bound to produce the cart, vessel or other conveyance concerned before the Authorised Officer. Under Rule 4(3)(a) of the Rules, the Authorised Officer, on such production of the vehicle, is duty bound to get reassessed the marked value of the cart, vessel or other conveyance in the like manner detailed under sub-section (1) of Rule 4 of the Rules. Rules 4(3)(b) and 4(3)(c) of 'the Rules' prescribe the next steps. Going by Rule 4(3)(b) of 'the Rules', if the reassessed market value of the cart, vessel or other conveyance is found to be less than the original market value so fixed at the time of temporary release, the difference of the two market values so fixed should be adjusted from the deposit already made and credited to the proper head of account of the Excise Department and the balance amount should be released to the owner of the vehicle concerned and in case of his death to his legal heirs on production of necessary evidence in support of their claim, as the case may be, within three months from **WA.No.885 OF 2019** 19 the death of the owner. Thus, it is evident that with respect to a vehicle in respect of which confiscation proceedings are initiated after the culmination of the proceedings for confiscation depending upon its outcome the question whether a reassessment of the vehicle should be effected or not would crop up for consideration. Going by the scheme of the Rules upon issuance of the final order of confiscation, the owner of the vehicle concerned is bound to produce the vehicle before the competent authority who in turn is bound to get the market value of the vehicle reassessed, in the like manner detailed in sub-rule (i) thereunder and thereafter, steps shall have to be taken, depending upon the circumstances envisaged under Rules 4(3)(b) and 4(3)(c) of 'the Rules'. We have no doubt that such prescribed procedures are to be followed in a case where the orders of the statutory authorities, as Exts.P1 and P3, are challenged in writ proceeding, subject to its outcome. 11. In such circumstances, we are of the considered view that the learned Government Pleader is justified in contending that when the challenge is only against the orders of confiscation under 'the Act' and upon failure in such challenge, or in other words, when once it is **WA.No.885 OF 2019** 20 found that there is no illegality in the confiscation proceedings, the matter should have been left to the authority concerned to decide the future course, in accordance with the provisions referred to hereinbefore and hereinafter. At this juncture and in view of the core contention raised by the appellants, it is only apposite again to refer to the decision of this Court in **Niketa Kishorekumar's** case (supra). Going by the decision, the release of vehicle on exercising option to pay the fine in lieu of confiscation and the temporary release of vehicle on deposit of market value of the vehicle liable to be confiscated by the Government under Section 67B or 67F of the Act are intended to ease down the rigour of law relating to confiscation and to preserve the confiscated properties from being wasted and damaged during the pendency of the adjudication of the dispute. Furthermore, it was held therein that in such cases, the procedure prescribed under Rule 4 of 'the Rules' would apply as far as the permanent and temporary release of confiscated properties on payment of fine equivalent to the market value of the property or on deposit of the market value, as the case may be. The owner of the confiscated properties could move for permanent or temporary **WA.No.885 OF 2019** 21 release of the properties before the original, appellate or revisional authority under the Act, as the case may be and in such event, the authority concerned could not refuse to consider the request if the person who sought for permanent or temporary release of the property confiscated, as the case may be complies with the provision in that behalf under Rule 4(2) (a) of the Rules, it is further held. We are of the view that same should be position under Rules 4(2)(b) and 4(3)(a) of the Rules in view of the impact of Rule 4(3)(b) of 'the Rules'. 12. In the case on hand, after initiating confiscation proceedings against the vehicle concerned, Ext.P1 order was passed under Section 67B(2) of the Act and aggrieved by the same the respondent herein/writ petitioner took up the matter in appeal under Section 67E of the Act. Ext.P3 is the order passed under Section of the Act. Those orders are in 67E(2) challenged WP(C)No.17586/2015. The impugned judgment would reveal that the orders impugned viz., Exts.P1 and P3 were not interfered with by the learned Single Judge and the learned Single Judge found the confiscation proceedings as legal. It is in the said circumstances that **WA.No.885 OF 2019** 22 this appeal has been filed challenging the order for release of the vehicle to the respondent/writ petitioner after realisation of an amount of Rs.1,00,000/- virtually, after adjusting Rs.1.00,000/- from the amount of Rs.2.00,000/- which was deposited by him for getting the vehicle released temporarily. We have already found that in view of the provisions referred supra, once it is found that there is no illegality in the confiscation proceedings as also in the order passed in the confiscation proceedings it is only just and desirable to leave the matter to the authority competent to deal with the rest of the matter, in accordance with the relevant provisions of the Act and the Rules, referred to hereinbefore. 13. Having settled the legal position thus, we will consider whether the impugned judgment is to be interfered with. In the instant case, evidently, evenafter holding Exts.P1 and P3 as legally sustainable, the learned Single Judge directed for the release of the vehicle on realisation of Rs.1.00,000/- and necessarily it has to be adjusted from Rs.2,00,000/- which was already deposited by him at the time of getting the vehicle released temporarily. The balance amount was directed to be released to the respondent/writ petitioner. **WA.No.885 OF 2019** 23 In the light of the provisions under the Rules which are adverted hereinbefore and also in view of our finding, certainly, it can be held that upon finding Exts.P1 and P3 sustainable in law as being perfectly legal, learned Single Judge ought not to have considered the matter further and left the rest to be done by the authority concerned in accordance with law, viz., as per Rules 4(2)(b), 4(3)(a) and 4(3)(b) of the Rules, in view of the attainment of finality of the order of confiscation. In this context, it is also relevant to note that even if it was left to the authority concerned to deal with the question that authority, on its own, could not have assessed the market value. This is because the legislature in its wisdom, realised and recognized that assessment and reassessment of market value of a cart, vessel or other conveyance can be done precisely by the Authorised Officer only with the assistance of a Mechanical Engineer and that is why it is mandated under Rules 4(1)(a) and 4(2)(a) as also under Rule 4(3)(a) that it should be made by a 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. This is required to ascertain the equivalent amount to the **WA.No.885 OF 2019** 24 market value. To put it shortly, reassessment of the market value of such a cart, vessel or other conveyance released temporarily has to be done in terms of Rule 4(3)(a) of the Rules by the Authorised officer after getting the market value reassessed in the like manner detailed in sub-rule (i). In short, in view of the provisions under Rules 4(2)(b), 4(3)(a) and 4(3)(b), the entitlement of the respondent herein to get adjusted the amount equivalent to the reassessed market value from the amount already deposited towards the amount equivalent to the market value fixed at the time of temporary release of the cart, vessel or other conveyance if the reassessed market value of the same is less than the original market value fixed at the time of its temporary release, as also to get released the balance amount, cannot be disputed. As can be seen from the materials on record, Rs.2,00,000/was the amount equivalent to the assessed market value of the vehicle concerned at the time of its temporary release. Admittedly, the respondent/the writ petitioner has already deposited the said amount and he got the vehicle temporarily released on 30.05.2014. The impugned order was passed by this Court on 25.10.2018 i.e., after more than four and a quarter years since the releasing of the vehicle **WA.No.885 OF 2019** 25 on temporary basis. In fact, for temporary release, the vehicle was assessed on 26.05.2014. Taking note of the market value originally assessed at the time of temporary release and the amount, now, fixed by the learned Single Judge for realising virtually towards the market value of the vehicle from the amount already deposited viz., Rs.1,00,000/- and also the period between the dates of assessment and reassessment, mentioned hereinbefore, we do not think it proper, at this distance of time, to set aside the judgment to the extent it carries the direction to release the vehicle by realising a sum of Rs.1,00,000/- and to return the balance amount in the security deposit, to the respondent/the writ petitioner. In this context, it is only appropriate to refer to the decisions of the Apex Court in **Anilbhai** ## **M. Patel and others v. Suryapur Bank Agent D. B. H Samiti and others** reported in **(2007) 4 SCC 83** . It was held therein thus:- “Ordinarily, the statutory functionaries alone can perform their statutory functions and the Court cannot arrogate to itself the functions of the statutory authority vide G.Veerappa Pillai v. Raman Ltd. (AIR 1952 SC 192), State of U.P v. Raja Ram Jaiswal (1985 (3) SCC 131, U.P. State Road Transport Corporation and Another v. Mohd. Ismail and others (1991 (3) SCC 239, S.B Vohra (supra), Arun Nathuram Gaikward (supra) etc. Only in case of inaction on their part and in rare and exceptional cases, the Court can exercise its jurisdiction in such cases.” **WA.No.885 OF 2019** 26 Taking into account all such factors and aspects, we are of the view that at this distance of time, a reassessment by the authorised officer may not make much difference, in the value to be realised from the amount already deposited by the respondent and therefore, after setting aside the judgment the authority concerned should be made to reassess the market value and to take further action, in terms of Rules 4(2)(b), 4(3)(a) and 4(3)(b) of 'the Rules'. In such circumstances, we are declining to interfere with the aforesaid direction made as per the impugned judgment. The writ appeal is disposed as above. **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH** Spc/dlk **JUDGE**