IMPORTANT POINT
Commissioner Excise while exercising power u/s 67F of Kerala Abkari Act would not be exercising any quasi-judicial power.

ORDER

In the year 1989, the Excise Circle Inspector seized a lorry and 45 barrels of spirit under the Abkari Act, alleged to be owned by the respondent. The driver and the cleaner compounded the offence before the Excise Circle Inspector on payment of fine of Rs. 10,000/- each. Subsequently, the Joint Commissioner, Excise, released the vehicle to the respondent on furnishing the bank guarantee for a sum of Rs. 1,50,000/-.

2. Aggrieved, an appeal was filed by the respondent before the Joint Commissioner under Section 67B of the Kerala Abkari Act, 1977 (for short the Act ) and the same was dismissed. The respondent thereafter filed a revision before the Excise Commissioner praying therein for suo moto exercise of revisional power by the Excise Commissioner for setting aside the order passed by the authority below. The said petition was rejected on 4.6.91 by the Excise Commissioner. Aggrieved, the respondent filed a petition under Article 226 of the Constitution of India, which was dismissed. However, on a writ appeal filed by the respondent, the Division Bench of the Kerala High Court set aside the order of the learned Single Judge and allowed the appeal after having come to the view that as the Excise Commissioner was exercising powers under Section 67F of the Act, he was acting quasi judicially and as such an opportunity of hearing ought to have been given to the respondent and further the Commissioner ought to have recorded reasons for rejecting the petition of the respondent. It is against the said judgment of the High Court, the appellant is in appeal before us.

3. We have heard learned counsel appearing for the appellant and are satisfied that the view taken by the High Court is erroneous. Section 67F of the Act runs as under:

"67F. Revision:-(1) The Commissioner may, before the expiry of thirty days from the date of an order passed under Section 67B or Section 67E, of his own motion, call for and examine the record of that order and may make such inquiry or cause such inquiry to be made and may pass such orders as he deems fit:

Provided that the Commissioner shall not call for and examine the record of any order passed under Section 67B if an appeal against such order is pending before the appellate authority:

Provided further that no order prejudicial to a person shall be passed under this Section without giving him an opportunity of being heard.

(2) An order of the Commissioner under sub-section (1) shall be final and shall not be called in question in any court."

4. The aforementioned provision empowers the Commissioner to examine the records on his own motion. The Commissioner may for the aforesaid purpose call for examination of the records wherein an order has been passed under Section 67B or Section 67E of the Act, before expiry of 30 days thereof for the purpose of making an enquiry or cause such enquiry to be made. It is no doubt true, as has also been noticed by the High Court, that for exercising the said powers, the Commissioner may consider the question as regards initiation of such proceedings relying on or on the basis of an appropriate application filed by the aggrieved persons or the Department. But only because the party to the proceedings may bring an order passed under Section 67B or Section 67E to the notice of the Commissioner, the same would not ipso facto mean that he has to exercise his suo moto powers. A party to the appeal, in terms of Section 67B or Section 67E of the Act, has not been conferred any right to file a revision application. When the Commissioner examines the application only for the purpose of arriving at a finding as to whether it is a fit case where suo moto power of revision should be exercised or not, no lis between the parties can be said to be pending. At that stage, he would not be exercising any quasi judicial powers as has been held by the High Court. In that view of the matter, the question of giving an opportunity of hearing to the applicant or for that matter assignment of re