IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 W.A.No. 2398 of 2009 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.30291/2009 .................... APPELLANT(S)//PETITIONERS: --------------------- 1. R.SETHURAJ, PROPRIETOR AND LICENSEE OF HOTEL NAVARATNA, M.C.ROAD, CHENGANNUR, ALAPPUZHA DISTRICT. 2. K.V.VISWAMBHARAN, PROPRIETOR AND LICENSEE OF HOTEL BHAGAVATH GARDENS, MARKET ROAD, CHENGANNUR, ALAPPUZHA DIST. 3. P.CHANDRASEKHARAN, AUTHORISED AGENT, HOTEL PRIYA, MARKET ROAD, CHENGANNUR, ALAPPUZHA DISTRICT. BY ADVS. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENT(S)/RESPONDENTS: ----------------------- 1. THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. 3. THE CIRCLE INSPECTOR OF EXCISE, CHENGANNUR. 4. THE THIRUVANVANDOOR GRAMA PANCHAYATH, THIRUVANVANDOOR GRAMA PANCHAYATH OFFICE, THIRUVANVANDOOR P.O., CHENGANNUR TALUK, ALAPPUZHA DISTRICT, REPRESENTED BY ITS SECRETARY. 5. THE PULIYOOR GRAMA PANCHAYATH, PULIYOOR GRAMA PANCHAYATH OFFICE, PULIYOOR P.O., CHENGANNUR TALUK, ALAPPUZHA DISTRICT, REPRESENTED BY ITS SECRETARY. 6. THE CHENGANNUR MUNICIPALITY, MUNICIPAL BUILDINGS, CHENGANNUR, ALAPPUZHA DISTRICT, REPRESENTED BY ITS SECRETARY. BY GOVT. PLEADER SRI. NOBLE MATHEW THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.No.2398 of 2009 ------------------------------ Dated this, the 28th day of October, 2009 JUDGMENT Balakrishnan Nair, J. The appellants were the Writ Petitioners. They filed the Writ Petition challenging Exts.P4, P5 and P6 communications dated 20.10.2009 issued by the Circle Inspector of Excise, Chengannur directing them to close down the Bars attached to their hotels on 29.10.2009 and 30.10.2009. This direction was issued based on Ext.P7 order passed by the District Collector under Section 54 of the Kerala Abkari Act. A copy of Ext.P7 order was also served on them along with the aforesaid communications. The bye-election to Mazhukkeer keezhu ward of Thiruvanvandoor Grama Panchayat and Nootavan Para Ward of Puliyoor Grama Panchayat are scheduled to be held on 28.10.2009. The counting of votes is scheduled to be held on 29.10.2009 in the Government Vocational Higher Secondary School for Girls, Chengannur. So, the District Collector issued Ext.P7, an W.A.No.2398 of 2009 - 2 - order under Section 54 of the Kerala Abkari Act, directing to observe the days mentioned in that order as dry days and the same was communicated to the appellants by the Circle Inspector of Excise, by Exts.P4 to P6 communications. The area covered by the order included the area within a radius of two kilometres of the counting station. The hotels of the petitioners were admittedly within two kilometres of the counting station. They were to remain closed on 29th and 30th of October, 2009. Challenging those orders, the Writ Petition was filed. According to them, Rule 28A of the Foreign Liquor Rules, does not permit prohibition of sale of liquor in nearby areas. The prohibition can be imposed only in the concerned ward or panchayat. In support of that contention, they relied on the decision of a learned Single Judge in Sulekha v. State of Kerala, 2008(2) KLT 23. They also submitted that power under Section 54 of the Abkari Act has been exercised in this case without valid grounds. At any rate, the number of dry days should have been reduced to the minimum. According to them, counting day alone should have been observed as dry day. But, the learned Single Judge dismissed the Writ Petition. Hence this Writ Appeal. W.A.No.2398 of 2009 - 3 - 2. The appellants reiterated the aforementioned contentions before us also. Rule 28A of the Foreign Liquor Rules reads as follows: “28A. The licenced premises for sale of liquor in respect of all the Licences issued under these rules shall remain closed on the following days: (i) Birth day of Mahatma Gandhi (ii) Birth day of Sree Narayana Guru (iii) Commemoration day of Mahatma Gandhi (iv) Samadhi day of Sree Narayana Guru (v) The days of poll and two days preceding the day of the General Election or Bye-election and on the day counting of votes and the day succeeding thereto. (vi) The day of poll and the day preceding that day of the election/bye-elections to the Corporation/Municipal Wards/Panchayat Constituencies and in the day of counting of votes and the day succeeding thereto. (vii) The first day of all English calendar months.”. Going by Ext.P7, we find that, it is not an order issued under the above rule, but one issued under the first part of Section 54 of the Kerala Abkari Act. The said section reads as follows: “54.Closing of shop for the sake of public peace:- It shall be lawful for the District Magistrate by W.A.No.2398 of 2009 - 4 - notice in writing to the licensee, to require that any shop in which liquor or any intoxicating drug is sold shall be closed at such times or for such period as he may think necessary for the preservation of the public peace. If a riot or unlawful assembly is apprehended or occurs in the vicinity of any such shop, it shall be lawful for any Magistrate, or for any Police Officer who is present, to require such shop to be kept closed for such period as may be necessary.”. The decision of the learned Single Judge in Sulekha's case (supra), relied on by the appellants, has no application to the facts of this case, as the learned Single Judge has considered only the impact of Rule 28A of the Foreign Liquor Rules. Further, the very same learned Single Judge in W.P.(C) No.26786/09 has taken a view, which was different from the one taken in Sulekha's case (supra) and justified the closure of shops by orders similar to those impugned in this case. The said decision was concerning the counting of votes in the very same school in relation to a bye election held to a local Grama Panchayat about one month back. The learned Single Judge in that unreported decision held that since hotels of the appellants are located within two kilometres of the counting station, the W.A.No.2398 of 2009 - 5 - prohibition of sale of liquor was justified. 3. Going by the first part of Section 54 of the Kerala Abkari Act, we are of the view that the District Magistrate has the power to pass an order in the nature of Ext.P7. Once we find that the order passed is within the jurisdiction, it is not proper to interfere with that. Further, this Court has no appellate power to consider whether the number of days, for which sale of liquor is prohibited, is necessary to achieve the object of maintaining law and order in the area concerned. The judgement of the District Magistrate on that point has to be respected. Accordingly, the Writ Appeal fails and it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)