G. Soman Rohini v. District Collector & District Magistrate Kollam; Deputy Excise Commissioner, Kollam; Excise Inspector, Kottarakkara Exise Range

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 10TH DAY OF MAY 2016/20TH VAISAKHA, 1938 WP(C).No. 17038 of 2016 (D) ---------------------------- PETITIONER: ----------------- G.SOMAN ROHINI HOUSE NO.VI/415, PALLICKAL P.O., KOLLAM. BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR RESPONDENTS: - ---------------------- 1. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE KOLLAM, CVIL STATION, KOLLAM-691 001. 2. THE DEPUTY EXCISE COMMISSIONER OFFICE OF THE DEPUTY EXCISE COMMISSIONER, KOLLAM-691 001. 3. THE EXCISE INSPECTOR KOTTARAKKARA EXCISE RANGE, KOTTARAKKARA, KOLLAM-691 506. BY GOVERNMENT PLEADER SMT.SUNITHA VINOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17038 of 2016 (D) ---------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS ----------------------------------- P1. TRUE COPY OF THE ORDER NO.M5-32769/16 DATED 3/5/2016 ISSUED BY THE1ST RESPONDENT P2. TRUE COPY OF THE ORDER DATED 6/2/2015 IN WPC NO.3933/2015. RESPONDENT(S)' EXHIBITS: NIL True copy P.S.to Judge dsn ## **ANIL K.NARENDRAN, J. ---------------------------------------** ## **W.P.C.No.17038 of 2016** ## **---------------------------------------Dated this the 10[th] day of May, 2016** ## **JUDGMENT** The petitioner, who is the owner of Hotel Akash, Pulamon at Kottarakkara in Kollam District, has filed this writ petition mainly seeking a writ of certiorari to quash Ext.P1 order bearing No.M5-32769/16 dated 3.5.2016 issued by the first respondent. The reliefs sought for in this writ petition read thus; - “(i) to issue a writ of certiorari or such other appropriate writ, order or direction quashing Ext.P1 order No.M5-32769/16 dated 3.5.2016 issued by the first respondent as it is arbitrary, illegal and void; - (ii) to issue a writ of mandamus or order or direction to the first respondent to allow the petitioner to function FL-11 licence in Hotel Akash, Pulamon at Kottarakkara in Kollam District owned by the petitioner on the date mentioned in Ext.P1, i.e, 10.5.2016; - (iii) to declare that Ext.P1 is not applicable to the petitioner's hotel namely, Hotel Akash, Pulamon at Kottarakkara in Kollam District, as the same is located beyond 3Km. of the place of Sree Maha Ganapathy Temple, Kottarakkara; - (iv) to issue such other appropriate writ, order or W.P.C.No.17038 of 2016 2 direction as is deemed just and necessary in the circumstances of the case. ## Interim Relief:- For the reasons stated in the writ petition and accompanying affidavit it is most humbly prayed that this Court may be pleased to stay Ext.P1 order No.M5-32769/16 dated 3.5.2016 issued by the first respondent to the extent of affecting sale of liquor in the petitioner's Hotel Akash at Pulamon, Kottarakkara, pending disposal of the writ petition.” 2. In the writ petition, the specific stand taken by the petitioner is that, the hotel in question is situated at a distance of more that 3kms. away from Sree Mahaganapathy Temple at Kottarakkara and as such, the prohibition as contained in Ext.P1 order has no application to his hotel. (See: Paras.1 and 5, Ground B and D and the Synopsis of the writ petition) The averments to the effect, as contained in Paras.1 and 5 of the writ petition, read thus; “1. The petitioner is the owner of Hotel Akash, Pulamon at Kottarakara in Kollam District. The hotel is situated at a distance of more than 3kms. away form Sree Maha Ganapathy Temple at Kottarakkara. xxx xxx xxx xxx 5. As per Ext.P1 prohibition order, sale of liquor is prohibited in three kilometers radius of the Ganapathy Temple. The petitioner's hotel is situated at a distance 3 W.P.C.No.17038 of 2016 of 3Kms. from the Ganapathy Temple. If the distance is measured from the entrance of the hotel to the temple, the same will be more than 3.5Kms. The prohibition is ordered within 3Kms. from the temple. Since the petitioner's hotel is having more than 3Kms. distance from the temple, the prohibition is not applicable to the petitioner. However, the 3[rd] respondent served a copy of Ext.P1 notice to the petitioner and directed him not to function the hotel on 10.5.2016 as ordered in Ext.P1.” 3. By Ext.P1 prohibitory order issued in connection with the annual festival at Kottarakkara Sree Mahaganapathy Temple, the District Police Superintendent submitted a report recommending closure of liquor shops within a distance of 10Kms. from the aforesaid temple on 10.5.2016. The said recommendations was on the ground that, since large number of public gather for attending the festival and also for participating in the procession held in connection with the festival, it is desirable to close down the liquor shops in that area, in order to maintain law and order. After considering the aforesaid report made by the District Police Superintendent, the 1st respondent issued Ext.P1 order by which the restriction was limited to 3Kms. around the temple. It was after considering the relevant materials, the 1st respondent ordered W.P.C.No.17038 of 2016 4 temporary closure of liquor shops on 10.5.2016, within a distance of 3Kms. around the temple, in exercise of his powers under Section 54 of the Abkari Act. 4. On 6.5.2016, when this writ petition came up for admission as 'today motion', it was brought to the notice of the learned counsel for the petitioner that, the very same order of the 1st respondent dated 3.5.2016 was under challenge in W.P. (C)No.17001 of 2016 filed by another FL-11 licensee having hotel within 3Kms. distance from Kottarakkara Sree Mahaganapathy Temple, which was listed for admission as Item No.173 in the Admission List (Part-II), in which interim order of stay was declined by a detailed order dated 6.5.2016, on a _prima facie_ finding that it was after considering the relevant materials that the District Collector has taken such a decision for closure of liquor shops on 10.5.2016 in exercise of his powers under Section 54 of the Abkari Act. The aforesaid order passed by this Court dated 6.5.2016 in W.P.(C) No.17001/2016 reads thus: “ The petitioner, who is conducting a four star classified hotel in Kottarakkara, has approached this Court in this writ petition seeking for a writ of certiorari to quash Ext.P1 order to the extend it affects his right to conduct the hotel on 10.5.2016. By Ext.P1 the 4[th] 5 W.P.C.No.17038 of 2016 respondent has passed an order directing closure of liquor shops within an area of 3kms of Sree Kottarakkara Maha Ganapathy Temple on 10.5.2016, in connection with the annual festival in that Temple. 2. The grievance of the petitioner is that Ext.P1 order is vitiated by total non-application of mind and that the said order has been passed without giving one week's notice as contemplated in Ext.P2 Circular dated 29.04.2009. In order to support the aforesaid contention, the learned counsel for the petitioner would rely on the judgment of the Division Bench of this Court in **Hotel Vijaya Palace** v. **State of Kerala** [2016 (1) KLT 284]. 3. A reading of Ext.P1 order would show that in connection with the annual festival at Sree Kottarakkara Maha Ganapathy Temple, the 5[th] respondent submitted a report before the 4[th] respondent recommending closure of liquor shops within the distance of 10kms from the aforesaid temple on 10.5.2016. The said recommendation was on the ground that since large number of public assemble for the festival and for participating the procession in connection with the festival, it is desirable to close down the liquor shops in order to maintain law and order. After considering the aforesaid report, the 4[th] respondent issued Ext.P1 order, by which, restriction was limited to 3kms around the temple. A reading of Ext.P1 order would _prima facie_ indicate that it was after considering the relevant materials that the 4[th] respondent has taken such a decision for closure of liquor shops on 10.5.2016, in exercise of his powers 6 W.P.C.No.17038 of 2016 under Section 54 of the Abkari Act. 4. Ext.P1 order is dated 3.5.2016. Learned counsel for the petitioner would point out that though the said order is dated 3.5.2016, the same was communicated to the respective licensees only pursuant to an endorsement dated 4.5.2016 and as such, there is non-compliance of Ext.P2 circular dated 29.4.2009. 5. Clause (a) of Ext.P2 circular provides that 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 by such orders. After referring to the aforesaid Clause in Ext.P2 circular, a Division Bench of this Court in **Hotel Vijaya Palace v. State of Kerala [2016 (1) KLT 284]** held that the procedure as evolved by the Government in Ext.P2 circular shall be strictly complied with, giving a minimum of one week's notice. 6. In the instant case, Ext.P1 order issued by the 4[th] respondent dated 3.5.2010 is under challenge in the present writ petition, which was filed before this court on 5.5.2016. When the intention behind giving at least one week's prior notice is only to ensure that legal remedies are available to those who are aggrieved by the same, one days delay, if any, in communicating a copy of Ext.P1 order to the affected persons will not vitiate the decision taken in Ext.P1, especially when the affected person has availed the legal remedy by filing the present writ petition. In that view of the matter, I find absolutely no 7 W.P.C.No.17038 of 2016 reason to grant interim order as prayed for. Hence, the interim order is declined.” 5. Then, the learned counsel for the petitioner asserted that, the petitioner's hotel is situated at a distance of 3.5Kms. away from the temple in question and as such, the prohibition in Ext.P1 order has no application. In view of the assertion so made before this Court by the learned counsel for the petitioner, the learned Government Pleader submitted that, the restriction in Ext.P1 order is confined to hotels within 3Kms. from the temple and if the hotel run by the petitioner is 3.5Kms. away from the temple, as contended by the petitioner, necessary steps will be taken by the Deputy Excise Commissioner, the 2nd respondent herein. Therefore, after recording the submission made by both sides, the case was posted today for further consideration. 6. Today, when the case was taken up for further consideration, the learned Senior Government Pleader, on instructions from the Circle Inspector of Excise, Kottarakkara, submitted that the petitioner's hotel is situated at a distance of only 2Kms. away from Kottarakkara Sree Mahaganapathy Temple and as such, his claim that the hotel is at a distance of 3.5 Kms. away from the temple is baseless and legally W.P.C.No.17038 of 2016 8 unsustainable. In view of the submission so made, the learned Senior Government Pleader was directed to file a statement, with copy to the learned counsel for the petitioner, and the case is accordingly taken up in the afternoon session. The statement filed by the learned Senior Government Pleader dated 10.5.2016 reads thus; “1. It is submitted that as per Order No.M5-32769/10 dated 03.05.2016 the District Collector & Additional District Magistrate, Kollam declared Dry Day on 10.05.2016 in connection with the festival at Kottarakkara Sri.Maha Ganapathy Temple. The order is applicable to the license premises under Abkari Act within a radius of three kilometers. The Circle Inspector of Excise, Kottarakkara has served the order to all the licensees within three kilometer radius. Against the order, Sri.G.Soman, Licensee, Hotel Akash, Kottarakkara (Fl-11 License No.30/2016-17) filed W.P. (C).No.17038/16 claiming that the said Hotel Akash is situating outside the specified limit. 2. The Circle Inspector of Excise, Kottarakkara has reported that the petitioner's Hotel Akash, Kottarakkara is situated 2 kilometers from the temple. The claim of the licensee is baseless and not sustainable.” 7. Heard the learned Senior Counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. W.P.C.No.17038 of 2016 9 8. In response to a specific query made by this Court, the learned Senior Counsel for the petitioner submitted that, the petitioner is not disputing the finding in the statement dated 10.5.2016 that, his hotel is situated at a distance of only 2Kms. away from Kottarakkara Sree Mahaganapathy Temple. The learned Senior Counsel for the petitioner also seeks permission to withdraw this writ petition. 9. As I have already noticed, the specific stand taken by the petitioner in the writ petition is that, the hotel in question is situated at a distance of more than 3kms. away from Sree Mahaganapathy Temple at Kottarakkara and as such, the prohibition as contained in Ext.P1 order has no application to his hotel. On 6.5.2016, when this writ petition came up for admission as 'today motion', it was brought to the notice of the learned counsel for the petitioner that, the very same order of the 1st respondent dated 3.5.2016 was under challenge in W.P.(C)No.17001 of 2016 filed by another FL-11 licensee having hotel within 3Kms. distance from Kottarakkara Sree Mahaganapathy Temple, in which interim order of stay was declined by a detailed order dated 6.5.2016. Then, the learned counsel for the petitioner asserted that, the petitioner's hotel is situated at a distance of 3.5Kms. away W.P.C.No.17038 of 2016 10 from the temple in question and as such, the prohibition in Ext.P1 order has no application. In view of the assertion so made by the learned counsel for the petitioner, this Court passed order dated 6.5.2016. Now, as per the statement filed by the learned Senior Government Pleader dated 10.5.2016, the petitioner's hotel is situated at a distance of only 2Kms. away from Kottarakkara Sree Mahaganapathy Temple. The petitioner is also is not disputing the said finding in the statement dated 10.5.2016. Therefore, irresistible conclusion that can be drawn is that, the petitioner has filed this writ petition with false statements. 10. In Para.6 of the writ petition the petitioner has stated that, during the last year when prohibitory order was ordered for 1 KM, he approached this Court by filing W.P.(C) No.3933/2015 and this Court by Ext.P2 order dated 6.2.2015 allowed him to function the FL-11 shop, since it is situated beyond 2 KMs. However, a reading of Ext.P2 order would show that the said writ petition was filed by one Sujith Soman, Maramon Hotel & Resorts, Maramon P.O., Kozhencherry in Pathanamthitta District, challenging an order dated 2.2.2015 issued by the District Collector, Pathanamthitta. 11. In **Dhananjay Sharma v. State of Haryana** W.P.C.No.17038 of 2016 11 **(1995 (3) SCC 757)** , the Apex Court held that filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving of false statements and fabricating false evident in a Court of law. The relevant portion of paragraph 38 of the said verdict reads as follows : “38. Section 2(c) of the Contempt of Courts Act 1971 (for short the Act) defines criminal contempt as the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to candalise or lower or tend to lower the authority of any Court : (2) prejudice or interfere or interfere or tend to interfere with the due course of judicial proceedings or (3) Interfere or tend to interfere with, or obstruct or tend to obstruct the administration of justice in any other manner. Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceeding amounts to the commission of criminal contempt. The swearing of false affidavits in 12 W.P.C.No.17038 of 2016 judicial proceeding not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any Court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving of fase statements and fabricating false evident in a Court of law. The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial proceedings 13 W.P.C.No.17038 of 2016 or the administration of justice. In Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421 : the respondents produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interference with the administration of justice. Brother Hansaria, J. speaking for the Bench observed : (At p. 4995, of AIR) _'the stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitaility to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceeding; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.”_ ## 12. In **Muthu Karuppan V. Parithi Ilamvazhuthi** ## **(2011 (6) SCC 496)** the Apex Court expressed the view that filing of a false affidavit should be effectively curbed with a W.P.C.No.17038 of 2016 14 strong hand. In **Sciemed Overseas Inc. Vs. BOC India Ltd. (2016 (1) SCALE 264)** , the Apex Court observed that though the observation in **Muthu Karuppan's case** (supra) was made in the context of contempt of court proceedings, the view expressed must be generally endorsed to preserve purity of judicial proceedings. 13. Viewed in the light of the principle laid down by the Apex Court in the decisions referred to supra, the conduct of the petitioner in filing this writ petition with false statements has to be deprecated in the strongest terms and I do so. The petitioner has approached this Court in this writ petition with unclean hands, suppressing material facts from the notice of this Court and the present writ petition is noting but an abuse of process of law. 14. Accordingly, this writ petition is dismissed with a cost of ₹ **50,000/-** (Rupees Fifty Thousand only), which the petitioner shall pay to the Kerala State Legal Services Authority, an authority constituted under the Legal Services Authorities Act, 1987 to provide free legal service to the weaker sections of the society, within **2 months** from this date. In case the petitioner fails to pay cost within the time limit as above, it would be open to the Kerala State Legal W.P.C.No.17038 of 2016 15 Services Authority to recover the said amount from the petitioner by initiating revenue recovery proceedings. Registry to communicate a copy of this judgment to the Member Secretary, Kerala State Legal Services Authority, Kochi. Sd/- **ANIL K.NARENDRAN JUDGE** avk True copy P.A. to Judge