Thottathil B. Radhakrishnan, J. "C.R."

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, 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 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. 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, while the learned Senior Government Pleader, making reference to the precedents which we will refer to during the course of discussions, argued that Dr.Ommen1 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.

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 and in Prasad3, the validity of that rule was upheld. Noting that in Aji Kumar, the purpose of that rule was also specifically adverted to, this Court stated in W.P(C).18217/09 that though in Aji Kumar, 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 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, 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 Ahmed5 and also by the Apex Court in several cases, including Rao Shiv Bahadur Singh and Deep Chand. In Banarsi Das, this position was reiterated by the Apex Court. In Babu Varghese, 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, that it is settled that when a statutory authority is required to do a thing in a particular manner, the same mus