IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 Con.Case(C).No. 1210 of 2006(S) ------------------------------- AGAINST THE ORDER IN WPC.23450/2006 Dated 30/08/2006 .................... PETITIONERS --------------------- 1. THOMAS GEORGE, MANAGING PARTNER, HOTEL ZION, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. 2. MARY KURIAN, MANAGING PARTNER, HOTEL PARK, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. BY ADV. SRI.THOMAS ABRAHAM SRI.K.B.ARUNKUMAR RESPONDENT: ------------- ASHOK KUMAR SINGH, FATHER'S NAME AGE AND RESIDENTIAL ADDRESS NOT KNOWN TO THE PETITIONERS, DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PATHANAMTHITTA. BY GOVERNMENT PLEADER SRI. P.N. SANTHOSH. THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Cont. Case (C) No. 1210 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th July, 2008. J U D G M E N T The petitioner has filed this contempt case alleging violation of Annexure A3 order, whereby I had directed that passing of orders under Section 54 would be strictly on satisfaction of the conditions stated in Annexure A1 judgment, which is a judgment of the Division Bench in W.P(C) No. 5187/2005, wherein, this Court has held thus: “This writ petition has been filed questioning the order passed by the District Collector, Pathanamthitta in exercise of the powers under Section 54 of the Kerala Abkari Act (for short “the Act”). Maramon convention is held every year at Kozhenchery in Pathanamthitta District. Petitioner is the licensee of a Bar attached to Hotel under the name and style “Hotel Zion” at that place. Within a periphery of two kilometers of convention, the Bar attached to hotels/restaurants were ordered to be closed. It is also stated that all other toddy shops and liquor shops were also ordered to be closed. 2. 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 years back, the members who attended the convention, had attacked the Bar and other shops where intoxicating drinks were being sold. But, this cannot be a ground to exercise the power 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 kilometers of the above convention, the said Cont. Case (C) . No. 1210/2006 -: 2 :- 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 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 5 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 power 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, Pathamamthitta to exercise the powers under Section 54 of the Abkari Act in future, but, only if the circumstances so warrant.” 2. Now, a counter affidavit has been filed stating as follows: “As per Annexure 3 Order this Hon'ble High Court was pleased to pass an order hereunder: “Notice by Special Messenger. Passing of orders under Section 54 shall be strictly on satisfaction of the conditions stated in Ext. P1 judgment.” Ext. P1 judgment referred to in Annexure A3 Order is the judgment of this Hon'ble High Court dated 16-2-2005 in W.P(C) No. 5187 of 2005. Annexure A1 judgment (Ext.P1 judgment referred to in Annexure A3) was passed by this Hon'ble High Court in W.P.No. 5187 filed by the first petitioner herein challenging the order passed by the District Collector, Pathanamthitta in exercise of the powers under Section 54 of the Kerala Abkari Act. As per the same Bar attached to hotels/restaurants and other shops and places where intoxicants are sold within a periphery of 2 Kms. of the place where in Maramon Convention was to be held were ordered to be closed for 9 days. As per Annexure-A1 judgment this Hon'ble High Court was pleased to hold that the District Magistrate or Superintendent of Police could not lay down a policy of closure of Bars and shops dealing in intoxicants and further that the exercise of powers under Section 54 should not be mechanical. It was also observed therein that mere letters from the Superintendent of Police expressing his concern regarding a likelihood of breach of peace in case of sale of Alcohol and Liquor within the said area, could Cont. Case (C) . No. 1210/2006 -: 3 :- not form the basis for passing such an order. Accordingly, the order impugned therein Viz. Order No.B5-45972/04 dated 11.2.2005 passed by the District Magistrate and District Collector, Pathanamthitta was set aside. In Annexure A1 judgment this Hon'ble High Court was pleased to observe as hereunder: “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, Pathamamthitta to exercise the powers under Section 54 of the Abkari Act in future, but, only if the circumstances so warrant.” Thus it is obvious that there is no prohibition for the District Collector, and District Magistrate, Pathanamthitta to pass appropriate orders in exercise of powers under Section 54 of the Abkari Act. As per Annexure A1 judgment of this Hon'ble High Court such an order could be passed only if the circumstances so warranted. Therefore, merely because of an order is passed by the District Magistrate and District Collector, Pathanamthitta invoking the power under Section 54 of the Abkari Act, the petitioner cannot allege Commission of Contempt of this Hon'ble High Court. Annexure A4 order dated 8.9.2006 was passed in connection with Uthruttathi Boat Race and Festival then to be conducted at “Aranmula on 9.9.2006. The Palliyoda Seva Sangham is the organizer committee of the said festival and its president requested for declaration of 9.9.2006 as a 'dry day' in connection with Uthruttathi Boat Race in a radius of 2 km from Aranmula. In this context it is to be noted that Uthruttathi Boat Race was being attended by a large gathering belonging to different castes and religions. They used to gather on both the banks of the river Pamba, for about 1.5 kms. For the proper and smooth conducting of the Boat Race the water level in the river used to be got up to the required level by opening the Maniyar Dam. In the said circumstances, presence of people who consumed Alcohol may lead to occurrence of unpleasant and unwarranted situations, besides causing risk of their own lives. Moreover, the function was to be attended by the Hon'ble Chief Minister of Kerala Sri. V.S. Achuthanandan, the Hon'ble Home Minister Sri. Kodiyeri Balakrishnan. Taking into account of all those aspects the matter was got enquired into through the Superintendent of Police and also the Assistant Excise Commissioner, Pathanamthitta. Both the Superintendent of Police, Pathanamthita and the Assistant Excise Commissioner, Pathanamthitta in their respective reports recommended that to maintain proper law and order situation, to avert any kind of public nuisance and also to ensure safety and security to the VIPs, issuance of an order by the District Magistrate and District Collector, under Section 54 of the Abkari Act is highly required. It was considering all those aspects that this respondent came to the conclusion that the circumstances warranted issuance of an order by invoking the power under Section 54 of the Kerala Abkari Act. Annexure A4 was passed in the said circumstances. It is most humbly submitted that as per Annexure A4 the respondent Cont. Case (C) . No. 1210/2006 -: 4 :- had declared on 9.9.2006 as a 'dry day' for all toddy shops and liquor shops throughout Aranmula and adjacent villages ie. Kozhenherry, Mallapuzhassery and Koyipram from where people used to come and watch the Boat Race in abundance. It is most humbly submitted that the respondent has passed Annexure A4 strictly obeying the directions of this Hon'ble High Court in Annexure A1 and Annexure-A3. While passing Annexure A4, this respondent has not committed willful violation of the orders of this Hon'ble High Court and the said order was passed taking into account the direction of this Hon'ble High Court.” 3. It is a fact that every year, the District Collector is issuing similar orders on the eve of the Maramon Convention. The petitioner alleges that the issue of the order is delayed till the last moment to prevent the aggrieved persons from approaching the court for reliefs. In the above circumstances, I directed the learned Government Pleader to get instructions as to whether the respondent is prepared to issue notification in future, at least one week prior to the event. An affidavit has been filed by the Collector to the following effect: “2. Even though my predecessor in office is the respondent in the above Contempt Case this additional affidavit is filed by me after perusing the relevant records. By an order dated 05.02.2008 the Hon'ble Court directed the respondent to file an additional affidavit explaining the reason for issuing Annexure 4 order only on the eve of the Boat Race and also to explain why such orders are not passed in advance at least one week before. It is humbly submitted that the District Magistrate is empowered to issue an order in the nature of Annexure 4, if he thinks that such an action is necessary for the preservation of public peace. 3. The president of the Palliyoda Seva Sangham which is the organizing committee of the Uthruttathi Boat Race requested on 27.08.2006 that orders necessary to prohibit liquor within a radius of two kilometers of Aranmula Boat race may be issued as early as possible. A true copy of the above request is produced herewith and marked as Annexure R(a). Immediately on receipt of the above request the District Collector sent the above request to the Superintendent of Police and also to the Asst. Excise Commissioner, Pathanamthitta for report on the same day itself. But both the above officers submitted the enquiry report and recommendation only on 08.09.2006. The Superintendent of Police strongly recommended to prohibit liquor and close down bar hotels and toddy shops in and around Aranmula on 09.09.2006 and the Asst. Excise Commissioner submitted that prohibition may be declared on 09.09.2006 in connection with Aranmula Uthrattathi Boat Race, and the District Collector issued annexure 4 order on the same day. True copies of the report of the Cont. Case (C) . No. 1210/2006 -: 5 :- Superintendent of Police & that of the Asst. Excise Commissioner are produced herewith and marked as Annexure R(b) & R(c) respectively. It is humbly submitted that the District Collector could issue Annexure A4 order only on 08.09.2006 in the above said circumstances. It is submitted that in Annexure A1 judgment the Division Bench of this Hon'ble Court also made it clear that the District Magistrate could exercise the powers under Section 54 of the Abkari Act, if the circumstances so warranted. Hence it is humbly submitted that there is no wilful violation of Annexure A3 order of this Hon'ble Court . The respondent had issued Annexure A4 strictly following the direction of this Hon'ble Court in Annexure A1 & A3. In view of what is stated above it is humbly submitted that there is no wilful violation of any of the direction of this Honourable Court and it is humbly prayed that the above Contempt Case may kindly be closed.” 4. I am not at all satisfied with the conduct of the District Collector in the matter. A person aggrieved by such notification does have a right to challenge the order appropriately. The conduct of the Collector prevents aggrieved persons from challenging the order before the court, which has the effect of stultifying a right for legal remedies by a citizen. However, with the materials now on record, I do not think that in the present case, the action for contempt can be taken. Therefore, expressing strong displeasure over the conduct of the District Collector in the matter in issuing orders repeatedly every year on the last moment, this contempt case is closed with the solemn hope that at least in future the District Collector would not indulge in such practices. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.