Petitioner is the registered owner of a vehicle bearing No. KL- 26-A-7997. The said vehicle was seized on 5.7.2011 alleging involvement in crime No.451 of 2011 of Adoor Police Station. Aggrieved by its seizure, the petitioner moved a petition before the Court of Judicial First Class Magistrate, Adoor for its temporary release. However, it was rejected by the learned Magistrate and thereupon, the petitioner challenged the same before this Court by filing Crl.R.P.No.2070 of 2011. It was disposed of vide Ext.P4 order with a direction to take action under section 451 of the Code of Criminal Procedure for the release of the vehicle. Later, the learned Magistrate passed an order for its release with certain conditions. That order was again challenged before this Court in Crl.M.C.No.4002 of 2011 and it was disposed of as per Ext.P5 order.
In tune with the directions thereunder the petitioner got the vehicle released. Evidently, it was only a temporary order to release the vehicle without prejudice to the right of the authorities to initiate proceedings for confiscation under section 67(B) of the Abkari Act. Later, Ext.P6 order under section 67(B) of the Abkari Act was passed confiscating the vehicle to the Government. Feeling aggrieved by Ext.P6, the petitioner preferred Ext.P7 appeal before the second respondent. Thereafter, the petitioner filed W.P.(C).No.26942 of 2013 for its expeditious disposal and that writ petition was disposed of as per Ext.P2 judgment dated 20.11.2013 with a direction to the second respondent to consider the said appeal (marked therein as Ext.P5) in accordance with law and pass orders thereon within the time stipulated thereunder. However, taking note of the directions in Ext.P2 judgment, the second respondent thought it fit to consider the appeal again and reconsider the issue. Such a reconsideration then, culminated in Ext.P1 order. A scanning of Ext.P1 order would reveal that the appeal was again rejected assigning the same reason of being filed beyond the period of limitation. The learned senior counsel appearing for the petitioner submitted that it is incorrect to say that the appeal was filed beyond the time stipulated as per the statute in the circumstances and at any rate, in the light of Annexure R3(b) there was no justification to refuse consideration of the appeal on merits. This writ petition has been filed seeking quashment of Ext.P1 and for consequential reliefs.
2. From the rival contentions it is evident that Ext.P7 appeal was not affixed with stamps, legal benefit and court fee. There cannot be any doubt with respect to the position that an appeal cannot be rejected on the ground of insufficiently stamped or on the ground of non-affixture of stamps. In either case, the appellant has to be notified about the same and time has to be given to cure the defect. In fact, that was done as per Annexure -R3(b). At the same time, it is evident that the mistake crept in the computation of the value of Legal Benefit Fund Stamp was corrected and intimated to the petitioner only on 5.11.2013 in and vide Annexure R3(b). As noticed hereinbefore, the same was originally calculated and communicated as Rs.23750/- and it was corrected as Rs.2375/- and communicated only as per Annexure R3(b) dated 5.11.2013. The petitioner was also required thereunder to cure the said defects and to resubmit the appeal and for that purpose 15 days time was also granted. It is also not in dispute that the petitioner cured the defects and resubmitted the appeal on 13.11.2013, i.e., within the time stipulated as per Annexure- R3(b).
3. In the statement filed by the 3rd respondent it is stated that Ext.P7 appeal, which is marked as Ext.R3(a) in the statement, was returned to the petitioner as per Annexure -R3(b) dated 5.11.2013 with a direction to rectify the defects and to re-submit the same. It is also stated therein that the appeal was then re-submitted along with Annexure-R3(c) petition to condone the delay in filing the appeal. Later, as per Annexure R3(d) dated 20.11.2013, Ext.P7 appeal was rejected on the ground of being barred by limitation. Both Ext.P2 judgment and Annexure R3(d) were passed on the same day viz., on 23.11.2013. A perusal of Annexure- R3(d) would reveal that the same was rejected not on merits but, as noticed hereinbefore, on the ground that it was filed beyond the time statutorily stipulated for filing an appeal.
4. I have heard the learned senior counsel for the petitioner and the learned Government Pleader. A scanning of Ext.P1 would reveal that Ext.P7 appeal preferred against Ext.P6 was rejected on the ground that it was filed beyond the period statutorily fixed. In other words, the same reason assigned for rejecting the appeal in Annexure- R3(d) was reiterated in Ext.P1. According to the petitioner, as against Ext.P6 order passed under section 67B of the Abkari Act which was communicated to him on 2.9.2013, Ext.P7 appeal was preferred on 25.9.2013. Admittedly, the value of the Legal Benefit Fund Stamp to be affixed in the appeal was wrongly computed in Ext.P6 and as per the same stamp worth Rs.23750/- was to be affixed. Indisputably, the same was correctly computed and communicated to the petitioner only as per Annexure R3(b) dated 5.11.2013. The petitioner was asked thereunder to affix the Legal Benefit Fund Stamp worth Rs.2375/- and a court fee stamp of the value Rs.10/- in the appeal and to return the same along with the cover in which the confiscation order was sent to the petitioner. The petitioner was further cautioned that in case the appeal was not resubmitted within 15 days, after curing the defects, it would be rejected without receiving into the file. The fact that the appeal was resubmitted within the time thus granted is not in dispute. There cannot be any doubt with respect to the position that no authority can take advantage of its own wrong. When once the facts that the value of Legal Benefit Fund Stamp to be affixed in the appeal was wrongly calculated and communicated and upon correct calculation time was granted for re-submission of the appeal, were admitted an appeal re-submitted within the time granted for the purpose should not have and could not have resulted in its rejection on the ground of being filed belatedly. I am of the view that the second respondent should not have declined to consider the appeal on merits and rejected the same solely on the ground of limitation. The long and short of the discussions is that the second respondent was bound to treat Ext.P7 appeal as a competent one upon its resubmission and should have considered the same on merits. In the circumstances, to enable the second respondent to consider Ext.P7 appeal preferred by the petitioner on merits, Ext.P1 order is set aside. Consequently, there will be a direction to the second respondent to consider Ext.P7 appeal on merits and pass appropriate orders thereon, in accordance with law. It is made clear that this Court has not made any observation as to the merits of the claims and contentions of the petitioner in Ext.P7 appeal. When this matter came up for admission, this Court ordered to keep all further proceedings pursuant to Exts.P1 and P6 in abeyance. Since Ext.P1 is set aside, the said order would continue to remain in force as regards Ext.P6 and it is made clear that the question of necessity to seize the vehicle and confiscate the same would depend upon the outcome of the decision on Ext.P7 appeal.
Writ petition is disposed of accordingly.
Sd/-
C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.
JUDGMENT September, 2010