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2021 Supreme(Ker) 532
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J.
S.OMANA AMMA W/O.LATE DAMODARAN NAIR – APPELLANT
VS.
STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, GOVERNMENT SECRETARIAT – RESPONDENT
WP(C) NO. 12225 OF 2014
Decided On : 22-07-2021
For The Appellant : O.V.MANIPRASAD, SRI.SAJU J PANICKER
For The Respondent: SHEEJA.C.S.
Point of Law: Carts, Vessels or other conveyances - Legal Maxim "Nemo Debet Locupletari ex AlienaJactura" means no one should be enriched by another's loss. Without any statutory backing, respondents have no authority to keep interest accrued for amount deposited as per Rule 4(2)(a).
Headnote:
Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 - Rule 4(2)(a) - Tamil Nadu Prohibition Act, 1937 - Notice - Quash of - Vehicle seized - Confiscating Authority - 3rd respondent to release entire balance amount in treasury savings bank account to petitioner after adjusting amount to respondents - Petitioner was registered owner of vehicle Tempo Trax - Thereafter vehicle was produced before the confiscating authority. The petitioner approached authority for interim custody of vehicle - Whether petitioner is entitled the interest amount that accrued to amount deposited in the Treasury Savings Account while releasing the vehicle on temporary basis under Rule 4(2)(a).
Finding of the court: As per Rule 4(2)(a), vehicle which is liable to be confiscated under Act may be released temporarily by authorised officer to its owner on depositing an amount equivalent to market value of car, vessel or other conveyance, fixed by Mechanical Engineer of Excise Department or any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of Public Works Department of State in the Treasury Savings Account in favour of Commissioner of Excise. Admittedly the vehicle was released to the petitioner on temporary basis subject to final decision in the confiscation proceedings as per Rule 4(2)(a) - It is clear that statute specifically authorise to deduct interest also from any money owing to person which may be in hands or under control or disposal of any officer of State Government - Admittedly there is no such corresponding provision in Kerala Abkari Act or in Rules - In such circumstances, without backing of a statute, respondents cannot retain interest amount - It may amount to unjust enrichment - Admittedly there is no specific rule authorizing authority to appropriate the interest accrued for deposit as per Rule 4(2)(a). But court considered corresponding section in Tamil Nadu Prohibition Act, 1937.
Result: Writ petition is allowed
JUDGMENT :
This writ petition is filed with following prayers:
i. To issue a writ of certiorari calling for records to Ext P8 notice and quash the same.
ii. To issue a writ of mandamus, order or direction to the 3rd respondent to release the entire balance amount in the treasury savings bank account TSA 10640 to the petitioner after adjusting Rs.1,10,000/- to the respondents.
Ii (a). to issue a writ of certiorari quashing Ext P10 order.
iii. Such other relief this Hon'ble court deems fit and proper to grant in the facts and circumstances of the case.
2. Short facts for disposal of this writ petition are narrated below:
Petitioner was the registered owner of vehicle Tempo Trax bearing No.KL-02D/9143. The above vehicle was involved in Crime No.78/99 of Excise Range Office, Pathanapuram and the 4th respondent seized the vehicle in connection with the above crime. Thereafter the vehicle was produced before the confiscating authority. The petitioner approached the authority for interim custody of the vehicle. The above application for temporary custody of the vehicle was allowed as per Ext.R3(a) order. As per Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 (for short 'the Rules') the vehicle was valued by the authorised officer and the amount valued by the officer concerned was Rs.1,25,000/-. Accordingly the petitioner deposited an amount of Rs.1,25,000/- as security for temporary custody of the vehicle. Ext.P1 is the details showing that the above market value is deposited in the Treasury Savings Bank Account. Accordingly the vehicle was obtained by the petitioner based on Ext.R3(a) order.
3. The 3rd respondent, in the year 2006, had issued a show cause notice to the petitioner in connection with the confiscation proceedings. The petitioner submitted objection and after hearing the petitioner, the 3rd respondent confiscated the vehicle as per order dated 26.03.2007. Ext.R3(b) is the order of confiscation passed by the authority. Thereafter the petitioner surrendered the vehicle before the 4th respondent on 01.08.2013 and a receipt was issued by the 4th respondent after surrendering the said vehicle for and on behalf of the 3rd respondent. Ext.P5 is the receipt. Thereafter the 3rd respondent issued a notice to the petitioner on 29.01.2014 informing her that she shall appear before the 3rd respondent to receive the present market value of the vehicle Rs.15,000/- within 7 days from the date of receipt of the notice. Ext.P6 is the notice. The petitioner submitted reply to the same, stating that the vehicle was temporarily released after depositing Rs.1,25,000/- and the said amount was deposited in the Treasury Savings Account in the year 1999 and the total amount in the said account comes to about Rs.2,65,000/- as on that date. According to the petitioner, respondents are entitled to get only an amount of Rs.1,10,000/- and the balance amount in the account is to be disbursed to the petitioner. In other words, according to the petitioner, the petitioner is not only entitled for Rs.15,000/-, which is the balance amount, but is also entitled to the interest accrued on the amount deposited. Ext.P7 is the reply submitted by the petitioner. The 3rd respondent thereafter issued notice dated 28.03.2014 to the petitioner, stating that the petitioner shall receive the present market value of the vehicle and if not, the said amount will be forfeited. Ext.P8 is the notice. As per Ext.P8, it is stated that the Excise Commissioner took a decision that the petitioner is entitled for only Rs.15,000/- and the rest of the amount shall be forfeited to the government. The petitioner again submitted a reply to the same, stating that the respondents are entitled to only an amount of Rs.1,10,000/- and the balance amount is to be given to the petitioner. Ext.P9 is the reply. Thereafter Ext.P10 order is passed by which the confiscating authority forfeited the entire amount. Hence, aggrieved by the same, this writ petition is file
