IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 5748 of 2009(K) ----------------------------------- PETITIONER(S): ------------------------ VANJU KAMAL, PROPRIETOR,HOTEL HILLWAY, KADAKKAL, RESIDING AT MANJU VILLA, KADAKKAL.P.O, KOLLAM DISTRICT. BY ADVS. MR.THOMAS ABRAHAM MR.DIPU.R SMT.MERCIAMMA MATHEW MR.K.S.HARIDAS MR.V.RENJITH KUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY FOR TAXES DEPARTMENT,GOVERNMENT OF KERALA,SECRETARIAT,TRIVANDRUM. 2. COMMISSIONER OF EXCISE, TRIVANDRUM. 3. ASSISTANT EXCISE COMMISSIONER,KOLLAM. 4. DISTRICT COLLECTOR, KOLLAM. 5. CIRCLE INSPECTOR OF EXCISE , KOTTARAKKARA. 6. EXCISE INSPECTOR CHADAYAMANGALAM RANGE. ADDL. R7 IS IMPLEADED 7. K.VENU, SECRETARY, THIRUVATHIRA FESTIVAL COMMITTEE, KADAKKAL TEMPLE, KADAKKEL, KOLLAM. ADDL. R7 IS IMPLEADED AS PER ORDER DT. 3.3.07 IN IA. 3174/09 ADV. MR.V.PREMCHAND FOR ADDL.R7 GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2009, ALONG WITH WPC NO. 6149 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5748 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE FL-3 LICENSE RENEWED TILL THE CURRENT YEAR. P2:- COPY OF THE INTERIM ORDER DT. 8.3.06 IN WP(C) NO.6923/06. P3:- COPY OF THE ORDER DT. 2.3.07 IN WPC. NO.7026/07. P4:- COPY OF THE JUDGMENT DT. 7.2.08 IN WPC. NO.4477/08. P5:- COPY OF THE ORDER DT. 15.2.08. P6:- COPY OF THE JUDGMENT DT. 16.2.05 IN WPC. NO.5187/05. P7:- COPY OF THE REPRESENTATION DT. 14.2.09 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS. P8:- COPY OF THE ORDER DT. 3.3.09 . RESPONDENT'S EXHIBITS R7(a):- COPY OF THE ORDER DT. 7.3.06. R7(b):- COPY OF THE ORDER DT. 15.2.08. R7(c):- COPY OF THE PETITION DT. NIL. /TRUE COPY/ P.A. TO JUDGE tss S. SIRI JAGAN, J. ------------------------------------ W.P.(C)Nos.5748 & 6149 OF 2009 ---------------------------------------- Dated this the 5th day of March, 2009 JUDGMENT A distressing situation arises in these writ petitions. During past years, several instances have come to the attention of this Court wherein District Collectors issue orders under Section 54 of the Abkari Act directing closure of abkari shops the day previous to the event, for protection of which the order is passed, with the result that the aggrieved licencees are unable to challenge those orders, even if they have proper reasons to do so. In fact it had even resulted in a contempt case and I had repeatedly issued directions to the effect that such orders shall be passed at least one week prior to the event so as not to deny the legitimate right of the licencees for legal remedies. Despite the same, the District Collectors in the State continue to pass such orders on the day previous or intervening holidays which effectively prevents the aggrieved licencees from challenging those orders. This has resulted in licencees starting to file writ petitions in advance anticipating such orders. These two are two such writ petitions. W.P.(c)Nos.5748/09 & Con.case 2 2. The petitioners are licencees of FL-3 shops. The event in question is the Thiruvathira Festival in Kadakkal temple. Apprehending passing of orders under Section 54 at the last moment, the petitioners have filed these writ petitions. In order to prevent passing of last minute orders passed interim direction to the effect that orders passed shall not be implemented without obtaining orders from this Court. The order has been passed only on 3.3.2009, although the event is to take place on 6.3.2009 and the same was served on one of the petitioner only on 4.3.2009. The learned counsel for the petitioners would submit that the petitioner in W.P.(C) No.6149/2009 has not been served with a copy of the same till today. This is disputed by the learned Government Pleader. The petitioners have filed applications to amend the writ petition challenging that order also. 3. The issue of the validity of that order has been heard elaborately by me today. The law on the subject has been succinctly laid down by a Division Bench of this Court in W.P.(C) No.5187/2005, the judgment in which is produced by the petitioners in these two writ petition. The relevant portion of the judgment reads thus: W.P.(c)Nos.5748/09 & Con.case 3 “Mr. C.K.Abdul Rahim, learned Senior Government Pleader after obtaining instructions from the Government submits that this is not imposed as a policy decision of the Government. If that be so, the District Magistrate exercised the power in the facts and circumstances of a particular situation, which cannot be called continuous or perpetual and are only momentary. It is stated that about four year back, the members who attended the convention, had attached the Bars and other shops where intoxicating drinks were bing sold. But, this cannot be a ground to exercise the powers under Section 54 of the Act for this year. The above provision is a transient provision and has to be invoked only when there is law and order situation or there is a reasonable apprehension of breach of peace and public tranquility. The fact that, about four years back, there was rioting by members of the convention, protesting against the operation of the bars and other shops dealing in intoxicants, cannot be a ground for the District Magistrate to order closing of the said Bars and shops for this year as it is the duty of the District Magistrate to supervise the law and order situation and Superintendent of Police to tackle law and order problem. It is admitted that the District Magistrate or Superintendent of Police cannot lay down a policy of closure of Bars and shops dealing in intoxicants. If that be so, the exercise of the powers under Section 54 of the Act cannot be mechanical and merely because there is a letter of the Superintendent of Police, Pathanamthitta expressing concern that there is every likelihood of breach of peace if sale of alcohol and liquor is allowed within a periphery of two kiolmeters of the above convention, the said vague letter cannot form basis for imposition of the ban for a total period of nine days during which the convention is held. It is also pertinent to mention that there is no remission granted W.P.(c)Nos.5748/09 & Con.case 4 to the petitioner in the license fee which had been paid for the said period. Learned Senior Government Pleader Sri. C.K. Abdul Rahim submits that under Sub- Rule 26 of Rule 6 of the Kerala Abkari Shops (Disposal in Auction Rules), 1974 no remission can be granted and there is a dictum laid down by the Supreme Court to that effect. If that be so, imposition of ban by the District Magistrate, without there being any policy decision of the Government, results in unreasonable restriction in the conduct of the business when that business is allowed to be conducted, as the license had been granted after receipt of license fee of Rs.18 lakhs per annum. In any view of the matter, the facts, as on today, cannot be read as empowering the District Magistrate to exercise the powers under Section 54 of the Act and as such we set aside the proceedings of the District Magistrate and District Collector, Pathanamthitta bearing No.B5-45972/04 dated 11-2- 2005. We make it clear that this order is confined only to the petitioner herein and not being passed as the judgment in rem be complied with. We also make it clear that this order shall not preclude the above District Magistrate and District Collector, Pathanamthitta to exercise the powers under Section 54 of the Abkari Act in future, but, only if the circumstances so warrant”. (underlining supplied) So, I have to consider whether the order of the District Collector impugned in these writ petitions has been passed in the light of the legal principles in that judgment. In that judgment, even after pointing out that four years back there were some untruly incidents causing breach of peace, the W.P.(c)Nos.5748/09 & Con.case 5 Division Bench was not prepared to accept the same as an acceptable reason for issuing an order under Section 54 of the Act. The order passed by the District Collector and the District Magistrate in these cases reads thus: “As per the references cited, the Superintendent of Police, Kollam, the Tahsildar, Kottarakkara and the Deputy Commissioner of Excise, Kollam have informed that the main programme of Kadakkal Thiruvathira Festival will be held on 06.03.2009 and it is expected gathering of large crowd on this day. In the reports, it was stated that it is desirable to close down all the toddy shops and liquor shops in Kadakkal Police Circle Limit on 06.03.2009 to avoid any law and order problem in connection with the festival. In the meanwhile, Sri. Manju Kamal, Proprietor, Hotel Hillway, Kadakkal and M/s. Shilpa Hospitality Private Limited has filed Writ Petition W.P.(C). 5748/09 and W.P.(C).6149/09 respectively before the Honourable High Court of Kerala against declaration of Dry Day. I the above circumstances and considering the fact that law and order issues happened during the previous years in connection with 'Kadakkal Thiruvathira Utsavam', I am convinced that it is necessary to close down the shops, hotels, restaurants, non-proprietary clubs, star hotels and other establishments in which liquor or any other intoxicative drug is being sold or served in the Kadakkal Police Circle Limit to maintain peace in the area. In the above circumstances, I, A. Shajahan, I.A.S., District Collector and District Magistrate, W.P.(c)Nos.5748/09 & Con.case 6 Kollam in exercise of the powers conferred on me U/S 54 of the Kerala Abkari Act do hereby order to close all liquor shops, restaurants, toddy shops, non- proprietary clubs, star hotels and other establishments selling or serving liquor in Kadakkal Police Circle Limit on 06.03.2009. This is for the maintenance of law and order and for the smooth conduct of the festival and also to avoid untoward incidents. The Deputy Commissioner of Excise, Kollam and the Superintendent of Police, Kollam together will implement this order. If the petitioners in the above two Writ petitions i.e., Manju Kamal and M/s.Shilpa Hospitality Private Limited have any grievance in the matter, they are free to approach the undersigned. The implementation of the above orders is subject to further direction from the Honourable High Court in the W.P.(C) dated above”. 4. As is clear therefrom, there is absolutely no objective or subjective satisfaction by the District Collect as to any possible breach of peace or law and order. In fact what is stated is that it is desirable to close down all toddy shops and liquor shops in Kadakkal Police Circle Limit on 6.3.2009 to avoid any law and order problem in connection with the festival. The Division Bench does not accept a desirability as a justifiable reason for issuing an order under Section 54. As per the Division Bench decision there should be cogent W.P.(c)Nos.5748/09 & Con.case 7 material to show that on account of opening of liquor shops on the day of the festival, there is a distinct likelihood of breach of peace and law and order situation, which is conspicuously absent in the impugned order of the District Collector. In fact in the order there is not even a statement that there is a reasonable likelihood of breach of peace and law and order if liquor shops are allowed to be opened on the day of the festival. 5. Since the order of the District Collector was based on information supplied by the Superintendent of Police, Kollam, Tahsildar, Kottarakkara and Deputy Commissioner of Excise, Kollam, the learned Government Pleader wanted to me to peruse those communication also to see whether those communications disclose any reasonable apprehension of likelihood of breach of peace and law and order, and the same has been made available to me for perusal. Even in those communications, no specific instances, whatsoever, have been stated as an evidence for reasonable likelihood of breach of peace and law and order. In the same also only vague statement that passing of an order is desirable to prevent breach of peace and do not say as to whether any breach of W.P.(c)Nos.5748/09 & Con.case 8 peace is apprehended or the reasons for such apprehension. Therefore I am not satisfied that even those communications can justify the impugned order. 6. As such I am satisfied that the impugned order has not been passed in accordance with the principles laid down in the Division Bench decision and therefore following that Division Bench decision I quash Ext.P8 order No.M5.5841/09 dated 3.3.2009 of the District Collector and District Magistrate, Kollam. However, as done by the Division Bench, I make it clear that this order is confined only to the petitioners herein and is not being passed as a judgment in rem to be complied with. 7. I am also of opinion that it is desirable to close down liquor shops when large number of persons assemble for a festival for more than one reason. But when law prescribes a mode of closing licensed liquor shops, orders in that regard can be passed only in accordance with that law, which has been succinctly laid down in the judgment of the Division Bench, interpreting Section 54. In fact, I find that the Division Bench had in that judgment categorically held that the Government can impose such restriction as a policy decision. I W.P.(c)Nos.5748/09 & Con.case 9 am unable to understand why the Government cannot impose such restrictions in public interest as a policy decision in that regard, on days of specified festivals or other functions. I am of opinion that the Government will do well to do that, at least now. I also direct that hereinafter orders under Section 54 of the Abkari Act shall be passed at least one week prior to the event in respect of which the same is issued, in order not to stifle legal remedies available to those who may be aggrieved by such orders. The Chief Secretary to the Government shall issue appropriate instructions to all District Collectors in the State to see that the above direction is strictly complied with by them. The writ petitions are allowed as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)Nos.5748/09 & Con.case 10