Holding

The Commissioner’s suo motu revisional power under Section 67F is not quasi‑judicial and does not require a hearing or reasons unless a prejudicial order is to be passed after a proceeding is initiated.

Summary

In 1989, Excise officials seized a lorry and 45 barrels of spirit allegedly belonging to the respondent. After the driver and cleaner compounded the offence, the Joint Commissioner released the vehicle upon a bank guarantee. The respondent's appeal under Section 678 of the Kerala Abkari Act was dismissed, and a subsequent revision petition invoking the Commissioner’s suo motu power under Section 67F was also rejected. The High Court set aside the Commissioner’s order, holding that the Commissioner acted quasi‑judicially and was required to give a hearing and record reasons. The Supreme Court reversed this view, holding that Section 67F confers a non‑quasi‑judicial, suo motu revisional power that does not obligate the Commissioner to afford a hearing or reasons unless an order prejudicial to a person is to be passed after a proceeding is initiated. Consequently, the High Court’s judgment was set aside and the appeal was allowed.

Issues considered

Whether the Excise Commissioner exercising suo motu revisional power under Section 67F of the Kerala Abkari Act must provide an opportunity of hearing and record reasons.
Whether principles of natural justice apply to the Commissioner’s suo motu revision when no statutory right to file a revision exists.

Legislation cited

Kerala Abkari Act, 1977s. 678, s. 67B, s. 67E, s. 67F, s. 68

Subjects

Excise lawRevisionSuo motu powersNatural justiceHearingKerala Abkari ActAdministrative law

Judgment

A STA TE OF KERALA AND· ORS.
V.

N. AVINASIAPPAN

NOVEMBER 20, 2003

B (V.N. KHARE, CJ. AND S.B. SINHA, J.]

Excise Law :

Kera/a Abkari Act, 1977 :

C S. 67F-Revision-Suo motu powers ofCommissioner-Opportunity
ofhearing-Application before Excise Commissioner for suo motu exercise
ofrevisional power for setting aside the order passed by Joint Commissioner
in appeal u/s. 76B-Rejected-High Court holding that Commissioner
ought to have given opportunity of hearing to applicant and recorded
D reasons for rejecting the application-Held, merely because a party to the
proceedings may bring an order passed u/s. 67B or s. 67E to the notice
of the Commissioner, the same would not ipso facto mean that he has to
exercise his suo motu powers-A parry to the appeal in terms of s. 67B
•.
or 67E has not been conferred any right to file a revision application-
£ When Commissioner examines the application only for the purpose of
arriving at a finding as to whether it is a fit case where sao motu power
of revision should be exercised or not, no !is between the parties can be
said to be pending-At that stage he would not be exercising any quasi
judicial powers as has been incorrectly held by the High Court-Question
F of giving an opportunity of hearing to applicant or assigning reasons by
Commissioner would not be necessary-Besides, in view ofsecond proviso
to s. 67F, principles of natural justice have been extended only where the ~.

proceeding is initiated in terms of the provision and the order which is
proposed to be passed would be prejudicial to the parties at a !is-As the
G applicant had no statutory right to file a revision petition, merely because
his application requesting the Commissioner to exercise suo motu revisional
powers had not been entertained, the same would not mean that any order
prejudicial to him had been passed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 225 of
H 1999.
4
STATE v. H. A VINASIAPPAN 5
_j.-
From the Judgment and Order dated 18.3.98 of the Kerala High Court A
in W.A. No. 637 of 1991.

Ramesh Babu M.R. for the Appellants.

The following Order of the Court was delivered :
B
In the year 1989, the Excise Circle Inspector seized a lorry and 45
...i
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. l 0,000 each. Subsequently,
the Joint Commissioner, Excise, released the vehicle to the respondent on c
furnishing the bank guarantee for a sum of Rs. 1,50,000.

Aggrieved, an appeal was filed by the respondent before the Joint
Commissioner under Section 678 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 motu D
exercise of revisional power by the Excise Commissioner for setting aside
j.
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 E
" 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 F
J 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.

We have heard learned counsel appearing for the appellant and are
satisfied that the view taken by the High Court is erroneous. Section 67F G
I-•

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 68 or Section 67E, of his own motion, call for and H
6 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A 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 678 if an
B appeal against such order is pending before the appellate author-
ity:

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

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

The aforementioned provision empowers the Commissioner to examine
D the records on his own motion. The Commissioner may fqr the aforesaid
purpose call for examination of the records wherein an order has been
passed under Section 678 or Section °67E of the Act, before expiry of 30
days thereof the purpose of making an enquiry or cause such enquiry to
be made. It is so doubt true, as has also been noticed by the High Court,
that for exercising the said powers, the Commissioner may consider the
E 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 678 or Section 67E to the notice of the
Commissioner, the same would not ipso facto mean that he has to exercise
F his sou motu 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 motu
power of revision should be exercised or not, no lis between the parties
G 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 ofheiµ-ing to the applicant
or for that matter assignment of reasons by the Commissioner would not
necessary.

H The question may also be considered from another angle. The second
STATE v. H. AVINAS JAPPAN 7
proviso appended to Section 67F of the Act provides that no order A
prejudicial to a person can be passed under this section without giving him
an opportunity of being heard. The principles of natural justice by reason
of the aforementioned statutory provision, therefore, have been extended
only in a case where the proceeding is initiated in terms of the said
provision and the order is proposed to be passed which would be B
prejudicial to the parties at a !is. As the respondent herein had no statutory
right to file a revision application only because his application requesting
the Commissioner to exercise suo motu revisional powers had not been
entertained, the same would not mean that any order prejudicial to him had
been pased.
c
In this view of the matter, the view taken by the Division Bench
deserves to be set aside. We, accordingly, set aside the order under
challeng(!.

The appeal is allowed. There shall be no order as to costs. D
R.P. Appeal allowed.