IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WA.No. 289 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.2444/2010 Dated 27/01/2010 .................... APPELLANT(S): PETITIONER ------------------------ SURESH KUMAR.C.S, AGED 34 YEARS, S/O.CHELLAPPA NADAR, CHANDRAVILASOM BUNGLOW, PAYATTUVILA.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.P.VIJAYA BHANU SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S): RESPONDENT ------------------------- 1. THE DEPUTY EXCISE COMMISSIONER, DIVISION OFFICE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. GOVERNMENT PLEADER SRI.BENNY GERVACIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ```````````````````````````````````````````````````````````` W.A. No. 289 of 2010 ```````````````````````````````````````````````````````````` Dated this the 19th day of February, 2010 J U D G M E N T Balakrishnan Nair, J. Appellant is the writ petitioner. He claims to be the registered owner of the vehicle bearing registration No.KL-19- 1323. The vehicle was involved in Crime No.258/2009 of Neyyar Dam Police Station, which was registered under sub-sections (1) and (2) of Section 8 of the Kerala Abkari Act. The allegation was that the above said vehicle, which is a motor car, was used for transporting illicit arrack. The vehicle was seized along with the contraband arrack. The Deputy Commissioner of Excise, Thiruvananthapuram has initiated steps to confiscate the vehicle. Pending confiscation, the appellant moved for release of the vehicle. The Deputy Commissioner of Excise, the first respondent herein, issued Ext.P4 communication directing him to remit the market value of the vehicle as provided under Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996. In the above background, the writ petition is filed seeking the following relief:- WA.289/2010 : 2 : “ Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to release the vehicle forthwith to the petitioner.” 2. We notice that Ext.P4 is not under challenge in the writ petition. Therefore, no relief can be granted to the appellant. The learned Single Judge dismissed the writ petition. Hence, this appeal. 3. We heard the learned counsel for the appellant. The Rule under which Ext.P4 is passed reads as follows:- “ R.4(2)(a). The cart, vessel or other conveyance liable to be confiscated under the Act may be released temporarily by the authorised officer to its owner on depositing an amount equivalent to the market value of the cart, vessel or other conveyance, 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 the Treasury Savings Account in favour of the Commissioner of Excise.” 4. The order of the first respondent is strictly in conformity WA.289/2010 : 3 : with the above Rule. This Court can issue a writ of mandamus as prayed for if the first respondent owes a duty to release the vehicle unconditionally and the appellant has got a legal right to the performance of that duty. The appellant has failed to show any such duty in the first respondent or corresponding right in the appellant. Therefore, the writ petition itself was not maintainable. So, we find no reason to interfere with the judgment under appeal. The writ appeal is accordingly dismissed. But, having regard to the facts of the case, the first respondent may expedite the proceedings and pass orders in the matter as expeditiously as possible. Sd/- (K.BALAKRISHNAN NAIR, JUDGE) Sd/- (P.N.RAVINDRAN, JUDGE) aks // True Copy // P.A. To Judge