IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WP(C).No. 3764 of 2011(U) ------------------------- PETITIONER(S): --------------- 1. THOMAS GEORGE, MANAGING PARTNER, HOTEL ZION, KOZHENCHERY, PATHANAMTHITTA DISTRICT. 2. MARY KURIAN, MANAGING PARTNER, HOTEL PARK, KOZHENCHERY, PATHANAMTHITTA DISTRICT. BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM - 695 001. 2. COMMISSIONER OF EXCISE, TRIVANDRUM - 695 001. 3. ASSISTANT EXCISE COMMISSIONER, PATHANAMTHITTA - 688 001. 4. DISTRICT COLLECTOR, PATHANAMTHITTA - 688 001. 5. DISTRICT SUPERINTENDENT OF POLICE, PATHANAMTHITTA - 688 001. 6. THE MALABAR MAR THOMA SYRIAN CHRISTIAN EVANGELISTIC ASSOCIATION, REPRESENTED BY ITS GENERAL SECRETARY, THIRUVALLA-689 101. BY G.P.SMT.K.R.DEEPA FOR R1 TO R5 ADV. SRI.BABU VARGHESE, SENIOR ADVOCATE FOR R6 SRI.JOHNSON T. JOHN FOR R6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.3764 of 2011 ---------------------------------------- Dated 9th February, 2011 JUDGMENT The petitioners are FL-3 licensees running Bar hotels in Kozhencherry. They filed this writ petition challenging Ext.P5 order passed by the 4th respondent invoking the power under section 54 of the Kerala Abkari Act (for short `the Act'). Ext.P5 order would reveal that it is founded on a reasonable apprehension of breach of peace and public tranquility in and around the area where the 116th Session of Maramon Convention is scheduled to be held from 13.2.2011 to 20.2.2011 in the absence of a prohibitory order under section 54 of the Act. The place wherein the convention is scheduled to be held is admittedly, on the banks of river Pampa at Maramon. Invariably, crowds will throng the convention area, adjoining place and the roads in and around the area during the aforesaid period. Ext.P5 would reveal that the General Secretary of the Convention as per his letter dated 10.1.2011 requested the District Collector as well, to take effective measures to maintain law and order in the convention area during the convention period. Ultimately, that led to the issuance of Ext.P5 order. Firstly, it is challenged on the ground of non-existence of circumstances warranting WP(C).No.3764/2011 2 invocation of the power under section 54 of the Act. It is contended that there was absolutely no material before the fourth respondent for passing such an order. According to the petitioners, there was no chaotic situation or circumstance for forming a reasonable apprehension of breach of peace and public tranquility existed or existing in the area. Therefore, relying on the decision of this Court in W.P.(C)No.5187 of 2005 (Ext.P1) and Ext.P2 judgment it is contended that Ext.P5 order is unsustainable. It is also contended that taking note of Ext.P1 judgment and rather, to comply with the directions thereunder that Government have issued a circular dated 29.4.2009 incorporating seven instructions. It is further contended that such specific instructions in Ext.P3 also did not lend any support to Ext.P5 order. 2. Section 54 of the Act, in so far as it is relevant for the purpose of deciding the issue involved in this case, reads as follows: “54. Closing of shop for the sake of public peace.- It shall be lawful for the District Magistrate by notice in writing to the licensee, to require that any shop in which liquor or any intoxicating drug is closed at such times or for such period as he may think necessary for the preservation of the public peace.” It is considering the scope of power under section 54 of the Act that this Court has passed Exts.P1 and P2 judgments. As noticed hereinbefore, in terms of the directions in Ext.P1, Ext.P3 circular has been issued by the WP(C).No.3764/2011 3 Government. It is relevant to note in this context of the contentions that instruction (b) thereunder would also instruct the competent authority rather, allow the competent authority to invoke the power under section 54 of the Act when there is a reasonable apprehension of breach of peace and pubic tranquility and the circumstances so warrant. What is laid down in Exts.P1 and P2 judgments is that on the mere recommendation of an authority/authorities the power under section 54 of the Act cannot be exercised, without any application of mind. The corollary is that considering the attendant circumstances, with application of mind, the authority competent can take a decision as to whether or not the power under section 54 of the Act is to be exercised. Therefore, the question is whether Ext.P5 was passed with application of mind and also, under circumstances justifying invocation of power under section 54 of the Act. 3. The learned counsel for the petitioners submitted that a bare perusal of Ext.P5 order would reveal that it was passed with closed mind and merely relying on the recommendations made by the Superintendent of Police, Pathanamthitta and also the Deputy Commissioner of Excise, Pathanamthitta without any application of mind. It is contended that Ext.P5 order is unsustainable in the light of Exts.P1 and P2 and also in terms of the provisions under section 54 of the Act. WP(C).No.3764/2011 4 The learned counsel made available a copy of the order passed by the District Collector who is also the District magistrate of Pathanamthitta, during the previous year viz., order No.B5-43252/2009 dated 5.2.2010 to canvass the position that Ext.P5 is nothing but reiteratation of the said order with suitable modifications. Essentially, the contention is that Ext.P5 reveals non-application of mind as also non-existence of grounds for invocation of power under section 54 of the Act. 4. I have heard the learned Government Pleader as well. The learned Government Pleader made available the reports referred to in Ext.P5 viz., report dated 19.1.2011 of the Superintendent of Police, Pathanamthitta as also the report dated 18.1.2011 of the Deputy Commissioner of Excise, Pathanamthitta. Evidently, as per the said reports, both the said authorities, taking stock of the situation reported that possibility of antisocial and other miscreants taking advantage of the situation after consuming alcohol cannot be ruled out and therefore, recommended for prohibition of the sale of liquors in the proximity of the convention area to avert any possible breach of peace and public tranquility and to maintain proper law and order. Ext.P5 order would reveal that the Secretary of the convention had, earlier requested the District Collector to take effective measures to maintain law and order in WP(C).No.3764/2011 5 the convention area during the convention period. It would also reveal that the Minister for Water Resources had convened a meeting of all concerned on 21.1.2011 and while reviewing the arrangements made in connection with the smooth conduct of the convention it was decided to request the concerned authorities to take all actions for the smooth conduct of the convention including prohibition of sale and use of liquor in the proximity of the convention area. The petitioners would also admit that in connection with the convention crowds would throng in the convention area, the adjoining places and on the roads leading to the convention area. Considering all the aspects of the matter including the reports of the Superintendent of Police and Deputy Commissioner of Excise, Pathanamthitta the District Collector who is also the District Magistrate, passed Ext.P5 order to ensure the safety and security of the public including a large number of women and children who may gather to attend the convention. A bare perusal of the said order would reveal that it is founded on a reasonable apprehension of breach of peace and public tranquility. The instructions in Ext.P3 also call for invocation of the power under section 54 of the Act when circumstance demands invocation of such a power. The judgments relied on by the petitioner viz., Exts.P1 and P2 would not in any manner, restrain the competent WP(C).No.3764/2011 6 authority from exercising the power conferred under section 54 of the Act. The said decisions are to the effect that the said power is not exercisable on the mere recommendation of any authority whilst it requires application of mind to the attending circumstances. Obviously, the impugned order was passed in connection with the 116th Session of Maramon Convention. The spiritual atmosphere of the convention cannot be permitted to be spoiled by any untoward incident and the concern shown by the 4th respondent cannot be said to be unwarranted or absolutely unnecessary considering the crowd expectancy. Evidently, the 4th respondent has called for requests from the Superintendent of Police, Pathanamthitta and also from the Deputy Commissioner of Excise, Pathanamthitta. The reports of the said authorities on a possible breach of peace and public tranquility and the desirability to prohibit sale of liquor in the proximity of the area to maintain law and order situation cannot be ignored while considering the question regarding the requirement or otherwise to issue an order by invoking the power under section 54 of the Act. A scanning of the impugned order would reveal that it was issued in the interest of safety and security of the public including a large number of women and children who may assemble to attend the convention based on the reasonable apprehension of breach of WP(C).No.3764/2011 7 peace and public tranquility in case of selling/serving of toddy and other liquors in and around the concerned area. It was such consideration that resulted in the declaration of dry days for toddy shops, liquor shops and Bars in and around one kilometre from the Maramon Convention area from 13.2.2011 to 20.2.2011. The learned Government Pleader further submitted that the sustainability of the order of previous year viz., No.B5- 43252/2009 dated 5.2.2010 was virtually, considered by this Court at the instance of the petitioners themselves. After considering all the aspects of the matter the interim order passed in I.A.No.1999 of 2010 in W.P.(C) No.3530 of 2010 filed by the petitioners was vacated and subsequently, the petitioners themselves, had withdrawn the writ petition. In short, I am of the view that the impugned order calls for no interference. There is no material before this Court to arrive at a conclusion that even on grant of permission to the petitioners to conduct their business from 13.2.2011 to 20.2.2011 it would not lead to any unpleasant situation as reasonably apprehended by the 4th respondent. The petitioners do not challenge the authority of the fourth respondent to pass an order like Ext.P5 by invoking the power under section 54 of the Act. In short, the contention is that there was no reason for forming such an apprehension. However, when the competent authority after considering the WP(C).No.3764/2011 8 circumstances and after calling for the reports makes such an order, I do not think that this Court can interfere with such a finding on the ground that another view is also possible. Reasonable apprehension of the concerned authority under section 54 of the Abkari Act cannot be said to be unfounded or unwarranted. Therefore, I cannot countenance with the contention that Ext.P5 was passed without any application of mind. For the foregoing reasons, I am of the view that Ext.P5 calls for no interference and accordingly, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS // True copy // P.S. to Judge