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(2015) 440 KLW 366 - D. Thyagarajan Vs. State of Kerala [Prohibition of Liquor]

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Contents

  1. 1 Section 54 of the Abkari Act. 
    1. 1.1 2. What is the justification for extending prohibition of business in liquor in bar hotels that situate even beyond the periphery of about 10 Kms of Kadakkal Devi Temple in connection with Thiruvathira Festival for, two days that too, in total disregard to the directions in the judgment dated 5.3.2009 in W.P.(C)Nos.5748 and 6149 of 2009 and the judgment in W.P.(C)No.5187 of 2005 and also Ext.P3 Circular? 
      1. 1.1.1 4. Satisfaction by the District Magistrate concerned as to any possible breach of public tranquility, peace or law and order is a sine qua non for invoking the powers under Section 54 of the Abkari Act. Mere narration of the report received from the persons concerned with the event in respect of which the order is solicited, the report of the District Police Chief concerned or the Abkari Officer concerned cannot be a true reflection of application of mind. What is more deprecative is the delay in serving such orders despite the clear direction in the aforementioned judgments and Ext.P3 circular. The orders are being served belatedly with a view to stifle legal remedies available to the aggrieved parties. The petitioner raises specific grievance regarding the delay in serving the impugned order. Purposeful or unexplained delay in serving the orders to the concerned parties who may feel aggrieved with a view to stifle their legal remedies cannot be appreciated whilst it is to be deprecated as it is being done despite the specific directions in that regard by this Court and the clear instructions in Ext.P3 circular. Kerala, being a State where festive occasions are aplenty on account of religious and cultural activities a prudent and pragmatic approach is required for passing orders invoking the aforesaid and allied powers. Adhering to the directions of this Court in the aforementioned judgments Ext.P3 circular would definitely avert unnecessary litigious circumstances.
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(2015) 440 KLW 366

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T.RAVIKUMAR, J.

W.P.(C)No.7150 of 2014

Dated 17th March, 2014

PETITIONER

D.THYAGARAJAN, AGED 65 YEARS S/O.DAMODARAN, RESIDING AT RAJ BHAVAN, KULANADA, PATHANAMTHITTA 689 503. 

BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.V.SURESH (TRIVANDRUM) SRI.V.S.PREJITH SMT.NEETHU.K.SHAJI 

RESPONDENTS

1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA HOME DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001.

2. ASSISTANT COMMISSIONER OF EXCISE EXCISE COMPLEX, KOLLAM 691 001.

3. DISTRICT COLLECTOR CIVIL STATION, KOLLAM 691 013.

4. CIRCLE INSPECTOR OF EXCISE EXCISE CIRLCE OFFICE, KOTTARAKKARA, KOLLAM 691 506 5. EXCISE INSPECTOR EXCISE RANGE OFFICE, CHADAYAMANGALAM, KOLLAM 691 504. 

BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR

JUDGMENT 

The challenge in this writ petition is against Ext.P1 order passed by the 3rd respondent invoking the power under 

Section 54 of the Abkari Act. 

Upon hearing the learned counsel for the petitioner and also the learned Government Pleader I ween it only appropriate to express the displeasure and concern of this Court over the invocation of powers under section 54 of the Abkari Act disregarding the binding directions and guiding observations of this Court as also Ext.P3 circular of the Government, on the subject. Usually, such a situation arises not as a bolt from the blue and quite often, based on destined events. Even then such orders are being passed ignoring the repeated judicial pronouncements making it clear in unambiguous terms that an order under section 54 of the Abkari Act shall be passed only with application of mind and the power thereunder shall not be invoked on the mere asking by the persons associated with the event in respect of which the order is solicited or based on a report from the District Police Chief showing concern over a likely breach of tranquility or law and order situation without subjective and objective satisfaction. The matter, certainly, beckons correction in the sense, critical notice and chastisement.

2. What is the justification for extending prohibition of business in liquor in bar hotels that situate even beyond the periphery of about 10 Kms of Kadakkal Devi Temple in connection with Thiruvathira Festival for, two days that too, in total disregard to the directions in the judgment dated 5.3.2009 in W.P.(C)Nos.5748 and 6149 of 2009 and the judgment in W.P.(C)No.5187 of 2005 and also Ext.P3 Circular? 

The 3rd respondent or in that matter any of the District Collectors within the State of Kerala cannot feign ignorance about the said judgments and also of Ext.P3 circular. The aforesaid judgments have been specifically referred to in Ext.P3 circular dated 29.4.2009 and it is evident from Ext.P3 circular itself that copies of the same have been served on all District Collectors and also to the Excise Commissioner. Paragraphs 3 and 4 of Ext.P3 circular assume relevance in the context and they read thus:-

“3. In compliance of the judgment dated 5.3.2009 of the Hon'ble High Court in W.P.(C) No. 5748 & 6149 of 2009, the following instructions are issued to the District Collectors in the State for strict compliance while exercising the powers under section 54 of the Abkari Act directing closure of abkari shops for the preservation of peace:-

(a) An order 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 such orders. 

(b) Section 54 of the Abkari Act shall be invoked only when there is a law and order situation or there is a reasonable apprehension of breach of peace and public tranquility and the circumstances so warrant. 

(c) The exercise of the powers under the said section may not be mechanic and if there is any apprehension of breach of peace and public tranquility, the grounds or acceptable reasons in support of such apprehension shall be stated in the order. 

(d) The order shall not be on vague grounds and a speaking order shall be passed. 

(e) The order shall not be based on desirability but to the objective and subjective satisfaction of the District Collector that there is possible breach of peace or law and order. 

(f) There shall be cogent material to show that on account of opening of liquor shops there is a distinct likelihood of breach of peace and law and order situation. 

(g) The facts and circumstances of a particular situation shall not be treated as continuous or perpetual warranting an order under section 54 for the coming year.

4. All District Collectors shall ensure that the above instructions are strictly complied with.”

(emphasis added) 

3. In this case, evidently, the request of the festival committee of Kadakkal Devi Temple for declaring 'dry days' in connection with the Thiruvathira Festival of the Temple in respect of all the liquor shops within the Kadakkal area and a report recommending declaration of 'dry days' in Kadakkal police circle limits to avoid any law and order situation and also similar recommendations from the Deputy Excise Commissioner, Kollam and Tahsildar, Kottarakkara were the basis for Ext.P1 order. Admittedly, Ext.P3 circular carrying instructions for strict compliance was issued pursuant to the judgment of a Division Bench of this Court in W.P.(C) No. 5187 of 2005, and also the common judgment in W.P.(C)Nos.5748 & 6149 of 2009. A scanning of Ext.P1 order would undoubtedly reveal that the same was passed in total disregard to the directions of this Court in the aforesaid judgments as also Ext.P3 circular issued in compliance with the directions therein. It is the specific contention of the petitioner that the Beer and Wine Parlour belonging to the petitioner situates at a distance of 9 Kms from the MC Road, Nilamel and located in another Panchayath. Ext.P1 did not reflect application of mind to relevant aspects and also on the subjective satisfaction of the ingredients to invoke the power under section 54 of the Abkari Act. The fact that several persons including ladies and children will throng at a place to celebrate by itself cannot be a reason for declaring a `dry day' in respect of all liquor shops in an area going by a plethora of decisions. The Division Bench in the judgment in W.P.(C)No.5187 of 2005 made it clear that it is the duty of the District Magistrate to supervise the law and order situations and the task to tackle the law and order situation is for the Superintendent of Police (now, the District Police Chief). The mere report that people might throng at the temple and the roads that lead to the temple to attend the festival and a law and order situation might arise by the use of alcohol shall not be the sole factor for invocation of the power under Section 54 of the Abkari Act as per the decisions referred supra and also Ext.P3 circular issued imbibing the spirit of those judgments and the very provision itself. In the Division Bench judgment in W.P.(C)No. 5187 of 2005 the fact that no remission could be granted under sub-rule (26) of Rule 6 of the Abkari Shops (Disposal and Auction Rules, 1974) in such circumstances was also taken note of. The essence of the directions and findings in the above mentioned judgments and the instructions in Ext.P3 circular issued in the light of those decisions are pinpointing to the need to have an objective or subjective consideration of all relevant facts and factors before passing an order invoking the power under section 54 of the Abkari Act. In the case on hand, the report of the District Police Chief, Rural Kottarakkara is to the effect that during previous years criminal cases were reportedly committed under the influence of alcohol in connection with the festival in the aforementioned Temple and based on that a consequential recommendation to declare 'dry day' within the entire police circle limits to avoid any law and order problem was also made thereunder. Similar was the report from the Deputy Excise Commissioner, Kollam. Add to it request from the aforesaid temple committee was also there. They were acted upon mechanically while exercising the powers under section 54 of the Abkari Act. To bring forth the said aspects it is only proper and profitable to quote the impugned order:-

“The festival committee of Kadakkal Devi Temple as per read as 1st paper above, has requested for declaring dry day in connection with the Kadakkal Thiruvathira Festival of the Temple. As per reference read as 2nd paper above the District Police Chief, Kollam Rural, Kottarakkara has reported that the 'Thiruvathira Day' and 'Gurusi Day' in connection with the Kadakkal Thiruvathira Festival will be celebrated on 10.03.2014 and 18.03.2014 respectively and that massive collection of devotees including children and ladies will assemble at the Kadakkal temple Kadakkal town and surrounding areas on the said days. He has also stated that consumption of liquor is comparatively high during these festival days and that many criminal cases were reported in the previous years in connection with the festival under the influence of alcohol. Hence the District Police Chief, Kollam Rural at Kottarakkara has recommended to declare the above said days as “Dry Day” in Kadakkal Police Circle limits to avoid any law and order problem in connection with the Festival. As per references read as 3rd and 4th papers above the Deputy Commissioner of Excise, Kollam and Tahsildar, Kottarakkara respectively have also recommended for declaring “Dry Day” in connection with the said festival. In the above circumstances I, the District Collector and District Magistrate, Kollam in exercise of the powers conferred on me under section 54 of the Kerala Abkari Act, do hereby ordered to close all liquor shops, toddy shops, restaurants, non proprietary clubs, star hotels and other establishments which are selling or serving liquor, in the Kadakkal Police Circle limit on the ''Thiruvathira Day” and the “Gurusi Day” of the above said festival ie., on 10.3.2014 and 18.03.2014 respectively. This is for the maintenance of law and order and for the smooth conduct of the festival. The Deputy Commissioner of Excise, Kollam and the District Police Chief, Kollam Rural at Kottarakkara together will implement this order.”

4. Satisfaction by the District Magistrate concerned as to any possible breach of public tranquility, peace or law and order is a sine qua non for invoking the powers under Section 54 of the Abkari Act. Mere narration of the report received from the persons concerned with the event in respect of which the order is solicited, the report of the District Police Chief concerned or the Abkari Officer concerned cannot be a true reflection of application of mind. What is more deprecative is the delay in serving such orders despite the clear direction in the aforementioned judgments and Ext.P3 circular. The orders are being served belatedly with a view to stifle legal remedies available to the aggrieved parties. The petitioner raises specific grievance regarding the delay in serving the impugned order. Purposeful or unexplained delay in serving the orders to the concerned parties who may feel aggrieved with a view to stifle their legal remedies cannot be appreciated whilst it is to be deprecated as it is being done despite the specific directions in that regard by this Court and the clear instructions in Ext.P3 circular. Kerala, being a State where festive occasions are aplenty on account of religious and cultural activities a prudent and pragmatic approach is required for passing orders invoking the aforesaid and allied powers. Adhering to the directions of this Court in the aforementioned judgments Ext.P3 circular would definitely avert unnecessary litigious circumstances.

5. A scanning of the impugned Ext.P1 order in the light of the above mentioned judgments and Ext.P3 circular makes it absolutely unsustainable. In this case, obviously, apart from such narration there is total non-application of mind as to whether the circumstances beckon invocation of the powers under Section 54 of the Abkari Act to pass order of prohibition of liquor business. The fact that the bar hotel in question situates at a distance of 9 Kms from the MC Road, Nilamel and located in another Panchayath makes the order still worse. I do not find any reason in the circumstances, to sustain the order in Ext.P1. In the said circumstances this writ petition is allowed. Ext.P1 is set aside to the extent it pertains to the petitioner's Beer and Wine Parlour by name 'Raj Regency' in Nilamel Panchayath in Kollam District. Needless to say that in the said circumstances the respondents authorities shall not insist the petitioner to close down the Beer and Wine Parlour in question in connection with the festivals mentioned in Ext.P1 order. Before parting with the case I think it only appropriate to re-emphasis the need and the bounden duty, to look in to the authoritative pronouncements before passing orders invoking the powers under section 54 of the Abkari Act as the binding authorities cannot be forsaken by District Magistrate. 

Sd/- C.T.RAVIKUMAR Judge 

TKS