IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 4053 of 2009(G) --------------------------------------- PETITIONER(S): ------------------------ 1. V.V. SHIBY, S/O. VASUDEVAN, VAZHAKULAM HOUSE, CHIRAMCHIRA POST, KOTTAYAM DISTRICT. *ADDL. P2 IMPLEADED ADDL. P2: LEELAMMA, W/O.VASUDEVAN, VAZHAKKULAM HOUSE, KURICHI, CHANGANASSERY, KOTTAYAM DISTRICT. *IS IMPLEADED AS ADDITIONAL/SUPPLEMENTARY PETITIONER AS PER ORDER DATED 23/06/2010 IN I.A.8170/2010. BY ADV. SRI.N.RAGHURAJ, SMT.K.AMMINIKUTTY. RESPONDENT(S): -------------------------- 1. TE DISTRICT COLLECTOR, KOTTAYAM. 2. REVENUE DIVISIONAL OFFICER, KOTTAYAM. 3. THE ASSISTANT EXCISE COMMISSIONER, KOTTAYAM. 4. PROF. C. MAMMACHAN, GENERAL CONVENER, TODDY SHOP VIRUDHA SAMITHY, MANGANAM, KOTTAYAM. 5. REV. K.C. MATHEW, SECRETARY, MUNDAKAPPADAM MANDIRAM SOCIETY, MANGANAM, KOTTAYAM. 6. ELIZABATH SUGATHAN, VAREPPALLIL, MANGANAM P.O., KOTTAYAM. R1 TO R3 BY GOVT. PLEADER SMT.N. SUDHA DEVI R4 & R6 BY ADV. SRI.MATHEW JOHN (K), SRI.AJEESH K.SASI. R5 BY ADV. SRI.ABRAHAM GEORGE JACOB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2010,THE COURT ON 23/07/2010 DELIVERED THE FOLLOWING: WP(C) NO. 4053/2009-G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS OF THE COMMISSIONER OF EXCISE BEARING NO.XA6/29263/07 DATED 26/12/2007. EXT.P2: COPY OF THE LICENSE ISSUED BY THE 3RD RESPONDENT IN RESPECT OF T.S.NO.54/07-08 ON 25/02/2008. EXT.P3: COPY OF THE LICENSE DATED 09/04/2008 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF T.S.NO.48/08-09. EXT.P4: COPY OF THE ORDER BEARING NO.M2/24614/07 DATED 12/07/2008. EXT.P5: COPY OF THE JUDGMENT DATED 22/08/2008 IN WP(C) NO. 24697/2007-M EXT.P6: COPY OF THE NOTICE BEARING NO.M2/24614/07 DATED 20/09/2008. EXT.P7: COPY OF THE ARGUMENTS NOTES SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 10/10/2008. EXT.P8: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT BEARING NO.M2/24614/07 DATED 24/01/2009. EXT.P9: COPY OF THE JUDGMENT DATED 16/02/2005 IN WP(C) NO. 5187/2005. EXT.P10: COPY OF THE REPORT OF RDO, KOTTAYAM DATED 26/12/2008. EXT.P10 (IN I.A.8170/2010): COPY OF THE CONSENT LETTER. EXT.P11: COPY OF THE REPORT DATED 07/10/2008 SUBMITTED BY THE ASSISTANT COMMISSIONER OF EXCISE, KOTTAYAM. EXT.P12: NIL EXT.P13: COPY OF THE REPORT ISSUED BY THE SUB INSPECTOR OF POLICE, EAST POLICE STATION, KOTTAYAM DATED 03/10/2009. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE REPORT DATED 31/05/2008. EXT.R4(b): COPY OF THE PROCEEDINGS DATED 30/12/2008. EXT.R4(c): COPY OF THE NOTICE BY THE SECRETARY OF THE PANCHAYATH DATED 17/11/2008. EXT.R4(d): COPY OF THE PROCEEDINGS DATED 19/05/2008 (WRONGLY SHOWN AS 19/05/2009). //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.4053 of 2009-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2010. JUDGMENT The petitioner is the licensee of a toddy shop. This writ petition is filed challenging Ext.P8 order passed by the District Collector, invoking Section 54 of the Abkari Act, directing the petitioner to close down the shop alleging violation of public peace. 2. Short facts leading to the dispute are the following: The petitioner and two others were granted the privilege to vend toddy in the toddy shops in Group No.VIII of Kottayam Excise Range during 2007-08. T.S. No.54/07-08 in Group No.VIII (Mandiram shop) was licensed and located in a temporary shed constructed in the property in Sy. No.167/1-1. When the shop was started , respondents 4 and 5, under the banner of a Madya Nirodhana Samithi, obstructed the functioning of the same, which compelled the petitioner to approach this Court by filing W.P.(C) No.28934/2007 seeking for police protection. Pending the writ petition, the District Collector issued an order directing the petitioner to close down the shop which was challenged in another writ petition filed by the petitioner. Later, the Commissioner of Excise issued a proceedings to locate the shop wpc 4053/2009 2 in an unobjectionable site and accordingly it was shifted to another place, 1.5 kms. away from the earlier location. After completing the legal formalities, the licence was issued as per Ext.P2. Accordingly, the petitioner started conduct of business and there was no objection till 31.3.2008. In the next year situation continued and Ext.P3 is the licence issued. It is also pointed out that the premises is located in a place surrounded by paddy fields on three sides and with the property of the landlord on the remaining side. 3. Again, respondents 4 and 5 started agitation against the shop under the banner of Human Peace Organisation, and later the petitioner was issued with Ext.P4 order by the first respondent, suspending the functioning of the shop, which was challenged in W.P.(C) No.24697/2008. This Court quashed the order observing that it will be open to the first respondent to initiate fresh proceedings against the petitioner, but it shall only be after notice and after hearing the petitioner. The business was restarted and thereafter the petitioner was served with Ext.P6 notice for attending a hearing. Ext.P7 is the argument notes submitted by the petitioner before the first respondent. Finally, Ext.P8 order was issued. 4. A reading of Ext.P8 order shows that it is based on a report wpc 4053/2009 3 submitted by the Sub Inspector of Police, dated 29.12.2008 that the nearby residents of the locality has objections in the functioning of the shop. Finally, the view taken is that the toddy shop shall not be permitted in a colony and that it shall be located in a remote place without causing nuisance to the general public. 5. Mainly, it is contended that the order is passed beyond the jurisdiction conferred under Section 54 of the Act which only permits closure of shops for a limited period under the power conferred on the District Magistrate. It is pointed out that if there is any law and order problem or any situation affecting public peace, such closure can be ordered only for a limited period. It is pointed out that the dictum laid down by the Division Bench in Ext.P9 judgment squarely applies here. It is also contended that even going by the report made by the Sub Inspector, no such order could have been passed, especially since the Collector in Ext.P8 order itself records the report made by the Revenue Divisional Officer stating that there is no law and order problem or communal problems in that area. Therefore, it is contended that the order is passed without any application of mind. Learned counsel for the petitioner further submitted that the hearing was conducted on 10.10.2008 and thereafter the report of wpc 4053/2009 4 the Sub Inspector of Police has been called for and accordingly the order was passed without any further hearing. It is also bad in law. 6. Learned counsel appearing for the contesting respondents and the learned Govt. Pleader supported the order. It is pointed out by the learned counsel for the 4th respondent that the petitioner is not having any licence issued by the local Panchayat which also is a statutory formality and hence if at all this Court finds that the order is liable to be interfered with, then in the absence of a licence by the Panchayat, he cannot be allowed to conduct the business and therefore the writ petition is liable to be dismissed. Section 54 of the Abkari Act reads as follows: “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.” The scope of the power conferred under Section 54 was examined by a Division Bench of this Court in W.P.(C) No.5187/2005. Ext.P9 is the copy of the judgment in the said case. It was held by the Division Bench as follows: “The above provision is a transient provision and has to be invoked wpc 4053/2009 5 only when there is law and order situation or there is a reasonable apprehension of breach of peace and public tranquility.” 7. Evidently, the words in Section 54 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” indicates that the closure can only be for a temporary period and not on a permanent basis as is done herein. Evidently, therefore, the order is passed beyond the power conferred and hence is liable to be interfered with. 8. Learned counsel for the petitioner is also right in submitted that the police report was wrongly relied upon by the District Collector. The report of the Revenue Divisional Officer shows that there is no law and order problem or communal problems. What is mentioned in the report of the Sub Inspector is that there is objection from the local public who are facing nuisance from the persons consuming toddy from the shop, but no specific complaints from anybody have been mentioned in the report, a true copy of which is available as Ext.R4(a). It is too generalised in nature. The report does not refer to any specific complaint from any of the nearby residents also. It is in that context also that the validity of the order has to be assessed. wpc 4053/2009 6 9. It is also pointed out that the 4th respondent is residing 1 k.m. away from the place and therefore, it was not right on his part to object to the conduct of the shop in question. 10. Along with I.A. No.12486/2009 the petitioner has produced a copy of the certificate dated 3.10.2009 of the Sub Inspector of Police, East Police Station, Kottayam, certifying that no crime is registered in the said police station for the last six months against Toddy Shop No.48, situating near Mandiram within Kottayam Excise Range, as per the office records maintained till that date. 11. Ext.P10 is a communication by the Revenue Divisional Officer, Kottayam stating that due to the functioning of the shop, viz. T.S. No.48/2008-2009 there was no law and order problems or communal problems. This is referred to in Ext.P8 order passed by the District Collector. The learned counsel for the contesting respondents relied on Ext.R4(d) report of the Revenue Divisional Officer, but even therein one of the observations is that no serious law and order issues are observed so far. 12. Learned counsel for respondents 4 and 6 submitted that even if this Court finds that the order passed by the District Collector is not in tune with the statutory scheme, in the absence of a licence issued by the local wpc 4053/2009 7 Panchayat, he cannot be allowed to run the shop. Relying upon the principles stated in Abdul Hameed v. State of Kerala (1998 (1) KLT 446), it is submitted that if the effect of nullifying and quashing an order resulted in restoration of an illegal order, this Court cannot interfere in exercise of the jurisdiction under Article 226 of the Constitution of India. Reliance is also placed on the decision of a Division Bench of this Court in Bosco Antony v. State of Kerala (2007 (4) KLT 526), to show that a licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 is required for a toddy shop. My attention is also drawn to the decision of another Division Bench of this Court in Pushkaran v. Asst. Excise Commissioner (1995 (2) KLT 553), to contend that under Section 54 of the Act, the District Magistrate has power to direct shifting of shop from an objectionable place to another place, even though a licence has been granted for a particular premises. 13. Sulekha v. State of Kerala (2008 (2) KLT 23) is another decision of a learned Single Judge of this Court to the effect that the power under Section 54 has to be exercised on the basis of police report, as to the apprehension of ground realities. 14. Respondents 4 and 6 had filed an appeal as W.A. No.833/2009 wpc 4053/2009 8 against the interim order passed by this Court in I.A. No.3206/2009. A similar contention regarding the want of licence from the Panchayat was raised therein. The Division Bench after considering the contentions, stated thus: “The learned Single Judge has given liberty to the appellants to move the Panchayat authorities for appropriate action on that ground” Accordingly, the Writ Appeal was dismissed after observing that “if there is no licence, actual or deemed, the Panchayat has got every power to close down the shop, which is run without any licence.” It is pointed out by learned counsel appearing for respondents 4 and 6 that the Panchayat has already issued a notice in the matter as per Ext.R4(c). It was never answered by the petitioner and therefore the petitioner cannot be allowed to run the shop. 15. The issue herein is only with respect to an order passed under Section 54 of the Act. The District Magistrate has not relied upon any provisions of the Panchayat Raj Act to close down the shop. Therefore, the issue raised by respondents 4 and 6 now that licence of the Panchayat is required, has to be independently considered by the authorities under the wpc 4053/2009 9 said Act alone. Ext.R4(c) is only a notice to the owner of the building with regard to the use of the building for a purpose different from the one for which it was constructed. Evidently, it is up to the owner to reply to the same. As on today, no notice has been issued to the petitioner herein. Therefore, the contention relying upon the decision of a Division Bench of this Court in Bosco Antony's case (2007 (4) KLT 526), is not a matter for this Court to consider at this stage and in view of the finding by the Division Bench in W.A.No.833/2009. 16. As far as the power to order transfer of the shop from the licensed premises or to order closing of the shop on the ground of public peace and morality is concerned, expressly such a power is conferred on the Excise Commissioner under Rule 7(3) of the Abkari Shops Disposal Rules. That also is an indication that the power conferred under Section 54 is not one to close the shop permanently. 17. The decision in Pushkaran's case (1995 (2) KLT 553), is not an authority for the proposition that the District Magistrate has got power to close down the shop permanently. Therein, the order under challenge was one directing the party to shift the shop to another unobjectionable place. It was observed by the Division Bench as follows: wpc 4053/2009 10 “Section 54 of the Act provides that the District Magistrate by notice in writing to the licensee can direct him to close the shop in which liquor or intoxicating drug is sold for the preservation of the public peace. As such wide power is given to the District Magistrate to close down any shop he can certainly by the exercise of that power direct shifting of the shop from an objectionable place to a non-objectionable place.” Evidently, whether the shop can be ordered to be close down permanently, was not considered by the Division Bench. Therefore, I respectfully follow the dictum laid down by the Division Bench in Ext.P9 judgment that the provision under Section 54 is a transient provision. 18. In that view of the matter, the writ petition is allowed. Ext.P8 is quashed. If respondents 4 and 6 have got any other grievance, they can place it before the appropriate authorities and this judgment will not stand in the way of doing the same. No costs. (T.R. Ramachandran Nair, Judge.) kav/