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2008 DIGILAW 73 (KER)

P. Nirmala v. State Of Kerala

2008-01-28

THOTTATHIL B.RADHAKRISHNAN

body2008
Judgment :- Petitioners husband was apprehended on the allegation of commission of offences punishable under the provisions of the Abkari Act, hereinafter, the "Act". On that count, lorry belonging to the petitioner was confiscated as per Ext. P-I order. Since her appeal against it was dismissed, the petitioner filed Ext. P-3 requesting the Excise Commissioner to invoke the suo motu power of revision under Section 67F of the Act. That request has been declined as per the impugned Ext. P4 order, on the grounds that the Excise Commissioner had already decided not to invoke the suo motu revisional jurisdiction in relation to Ext. P-2 order; that a party to an appeal under the Act does not have the right to file a revision; that a party has no right to insist upon the Excise Commissioner to invoke suo motu revisional power and, still further, that the required fee is not paid on the application in terms of Rule 11 of the Kerala Legal Benefit Fund Rules, 1991, hereinafter, "LBF Rules" and S.R.O.226 of 2002. This is under challenge. 2. Section 67F of the Act provides that the Commissioner, may of his own motion, call for and examine the record of an order passed under Section 67B or 67E of the Act. After calling for the records, he may make such inquiry or cause such inquiry to be made and may pass such orders as he deems fit. The time-limit of 30 days is prescribed for exercise of such suo motu revisional power. Section 67E contains the right of appeal, which was invoked by the petitioner. That resulted in Ext. P-2. No provision in the At confers any right on the petitioner to seek revision of that appellate order. In the jurisdictional concept of revision, contrasting it with that of an appeal, it is a well accepted principle that even when a party has a provision enabling him to file a revision, the right to seek revision of a decision is not akin to a right of appeal. Also, a revisional jurisdiction is not always coexistence with appellate jurisdiction. An examination of the Act clearly shows that no party has a right to file a revision against an appellate order passed under Section 67E of the Act. There is also no provision enabling a revision being filed. Also, a revisional jurisdiction is not always coexistence with appellate jurisdiction. An examination of the Act clearly shows that no party has a right to file a revision against an appellate order passed under Section 67E of the Act. There is also no provision enabling a revision being filed. The only revisional power in relation to a confiscation order under Section 67B or an appellate order under Section 67E is that which is contained in Section 67F. That is essentially and indisputably a suo motu power. While a person may not have the right to seek revision of an order or even when there is no provision enabling him to file a revision, any suo motu power available with any authority can be triggered in a given case at the request of an aggrieved person. In that process, he is not invoking a revisional power or filing a revision. He is only making a request to the repository of the suo motu revisional power to invoke and exercise such power and if such a request is found to be appealing, within the format of the relevant statutory provision, it would be open to the revisional authority to invoke the revisional power suo motu and to exercise such authority and do the needful as may be deemed fit in accordance with the mandate of a provision like Section 67F of the Act. The exercise of such power would depend on the authority deciding it a fit case for exercise of previsional power, to prevent miscarriage of justice. So much so, while a party cannot challenge an appellate order under Section 67E he cannot be precluded from requesting the Excise Commissioner to consider a case for exercise of the suo motu power and such application is not an application by way of revision but only one requesting invocation of the revisional power. That application, by itself, is not revision at all. But it may not be in the fitness of justice to exclude the invocation of the suo motu revisional power on a legitimate request of an aggrieved person. It would be exclusively within the domain of the revisional authority to decide whether it would invoke the revisional power suo motu or not. 3. Ext. P-2 was issued on 31-10-2007. This is discernible from Ext.P-4. Obviously, the request of the petitioner for invoking the revisional power was by her application dated 29-11-2007. It would be exclusively within the domain of the revisional authority to decide whether it would invoke the revisional power suo motu or not. 3. Ext. P-2 was issued on 31-10-2007. This is discernible from Ext.P-4. Obviously, the request of the petitioner for invoking the revisional power was by her application dated 29-11-2007. Therefore, it was within the period of 30 days. There is no statement to the contrary in Ext. P-4. The fact that the Excise Commissioner had concluded not to initiate suo motu revision is by itself no reason to desist from considering the request of the petitioner for exercising the suo motu power against the appellate order confirming the confiscation. The conferment of such suo motu power on an office of high authority like that of Excise Commissioner carries with it the duty and responsibility to exercise such power with great care and caution and also to exercise it as and when the exercise of such power is called for in a particular fact situation. Therefore, it may not be appropriate to conclude off a request to invoke the suo motu revisional power by merely stating that the revisional authority has already concluded not to exercise the suo motu power. It would be appropriate that the applicant is given an opportunity to show why the suo motu power is being invoked. 4. This leads to the questions as to whether any payment has been made in terms of Rule 11 of the LBF Rules and the notification to sustain the application. The levy in terms of the notification and the rule, the vires of which has been upheld by this Court in Ismail vs. State of Kerla (2005 (3) K.L.T. 1052) confirmed in Chackolas Spinning & Weaving Mills Ltd. vs. State of Kerala (2006 (1) K.L.T. 959), provides only for levying of additional court fee on appeal or revision. As already held, Ext. P-3 application made by the petitioner is not a revision. It is only an application seeking indulgence of the Excise Commissioner to invoke the suo motu revisitoval power by a person who does not have a statutory right to file a revision. Obviously, therefore, Ext. P-3 is not chargeable with any fee leviable under Rule 11 of the LBF Rules read with the notification. Therefore, the view in Ext. P-4 that the petitioners application (Ext. Obviously, therefore, Ext. P-3 is not chargeable with any fee leviable under Rule 11 of the LBF Rules read with the notification. Therefore, the view in Ext. P-4 that the petitioners application (Ext. P-3) is liable to be charged with a fee in terms of the LBF Rules does not stand. 5. Having regard to what is stated above, the decision contained in Ext. P-4 is set aside and it is directed that Ext.P-3 application of the petitioner will be taken up without insisting on payment of any further fee and she shall be given an opportunity of being heard to show whether there is any reason which should lead the revisional authority, namely the Excise Commissioner, to exercise the suo motu power under Section 67F of the Act. This shall be done within an outer limit of two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above.