Hotel Sea Palace, Kollam v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944** **WP(C) NO. 24255 OF 2022** ## **PETITIONER:** HOTEL SEA PALACE, KOLLAM REPRESENTED BY ITS MANAGING PARTNER SHRI. N RAJENDRAN, GOURI VIHAR, MYTHRI NAGAR, 7A, KADAPPAKADA, KOLLAM 691008 BY ADVS. THOMAS ABRAHAM MERCIAMMA MATHEW ASWIN.P.JOHN R.ANANTHAPADMANABAN PAUL BABY ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695001 2 COMMISSIONER OF EXCISE, OFFICE OF THE EXCISE COMMISSIONER, BAKERY JUNCTION ROAD, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM 695033. 3 DEPUTY COMMISSIONER OF EXCISE, OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE, RESIDENCY ROAD, CHAMAKKADA, KOLLAM 691001 4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION ROAD, KAANKATHU MUKKU, KOLLAM 691013 5 COMMISSIONER POLICE (KOLLAM CITY), OFFICE OF THE COMMISSIONER OF POLICE, MUNDAKKAL, KOLLAM 691001 SRI JIMMY GEORGE, GOVE1RNMENT PLEADER **BY ADV.** W.P. (C) No. 24255 of 2022 -2- **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P. (C) No. 24255 of 2022 -3- ## **AMIT RAWAL, J ----------------------W.P. No. 24255 of 2022 ---------------------Dated this the 26[th] day of July, 2022** ## **JUDGMENT** Order dated 20.07.2022 of the District Collector/ District Magistrate, Kollam ordering prohibition for sale of liquor in connection with Karkadaka Vavu, 2022 in the area of Kollam, Thirumullavaram, Mundaikal, Papanasam Sea Shore, Paaravoor Kongal Panamuttu Kudumba Mahadeva Temple for a period of two days i.e., 27.07.2022 and 28.07.2022, is under challenge, on behalf of the petitioner which is running a hotel with a facility of Bar having FL-3 licence and situated within 1.9 kilometers of the said temple. 2. Ext.P1 is the copy of the licence renewal certificate of FL-3 on payment of the licence fee and there has not been a single complaint of functioning of the hotel as well as the bar. Numerous events in the past have been held including non-renewal of the licence W.P. (C) No. 24255 of 2022 -4- owing to change in the Abkari Policy or spread in the COVID-19 pandemic. Order dated 20.07.2022 has been passed as per the provisions of Section 54 of the Abkari Act which empowered the District Magistrate keeping in view the circumstances referred to herein, to close the shops for a certain period. 3. Mr.Thomas Abraham, learned counsel appearing on behalf of the petitioner submits that Government of Kerala had issued a circular dated 29.04.2009 directing the closure of abkari shops for the preservation of peace on certain accounts. The aforementioned circular was issued in view of the judgment dated 05.09.2009 laid down by the Division Bench of this Court in W.P.(C).No.5748 and 6149 of 2009 wherein the the District Magistrate is to issue notices before a period of seven days. 4. The petitioner submitted a detailed representation dated 23.07.2022 Ext.P7 pointing out that in respect of the function called 'Karkadaka Vavu' W.P. (C) No. 24255 of 2022 -5- the distance stipulated in the order is two kilometers from the point in the beach where ritual takes place and the distance from the hotel of the petitioner to the two access roads available are 2.4 and 2.6 kilometers. Thus the order has been passed without application of mind and no cogent of reasons have been assigned for closure of the bar. There had been binding directions issued by this Court making it obligatory on the authorities to issue prohibition order only as per the rule laid down by this Court in repeated decisions and land mark decision was in respect of writ petition bearing No.5187/05 dated 06.02.2005 Ext.P3. It was a case where the action of the District Collector, Pathanamthitta while exercising the power under Section 54 of the Kerala Abkari Act was questioned whereby a prohibition order of closure of liquor vend for a period of nine days in case of Maramon Convention which was held at Kolancherry in Pathanamthitta District, was issued. Considering all the provisions of the Act and the Rules framed thereunder, it W.P. (C) No. 24255 of 2022 -6- was held only viz-a-viz the petitioner therein that the order of prohibition was bad in law. There is an interim order passed by this Court in W.P.(C) No.8455 of 2022 dated 14.03.2022 in the case of Hotel Cee Dee Regency, Anicode, Chittur, Palakkad allowing the petitioner therein to function, wherein the prohibitory order was passed in connection with the Konganpada festival, 2022 Ext.P8 and another order dated 05.04.2022 in W.P.(C) No.12462 of 2022 Ext.P9 in connection with Kaliyatta Mahotsavam in Pisharikavu Temple, Koyilandi, Ext.P10 as well. 5. Petitioner is having an FL-3 licence to carry on the business and is prevented from exercising the right to business would be violative of Article 19 (1)(a) of the Constitution of India. There is no cogent material to show that on account of opening of the liquor bar on a particular occasion there would be likelihood of breach of peace or law and order situation, therefore the order impugned passed by the District Magistrate is wholly W.P. (C) No. 24255 of 2022 -7- illegal and perverse. Petitioner was also not provided intelligence report relied on by the District Magistrate while passing the prohibition order. 6. It is further contended that the petitioner was not given a sufficient seven days' time which is the mandatory requirement of law as per the judgments relied upon. 7. On the other hand, learned Government Pleader submits that the order has been passed by the District Collector on the ground that there is likelihood of a large congregation of people belonging to a particular community for performing 'Bali Tharpanam' and consumption of liquor may not cause inconvenience to the public thronged by more number of women, devotees and for police to maintain the law and order. It is in that background sale of liquor in Kollam, Thirumullavaram, Mundaikal, Papanasam Sea Shore, Paaravoor Kongal Panamuttu Kudumba Mahadeva Temple has been prohibited on 27.07.2022 and 28.07.2022. W.P. (C) No. 24255 of 2022 -8- 7. It is also submitted that the order has been passed giving sufficient time to the petitioner to take remedial measures. The very purpose of providing the seven days' time before beginning of the festivity is to ensure that the affected person has been left with sufficient time to test the validity of the order in question. Imposition of seven days' time is not an invariable principle but only to serve the purpose enabling the affected parties to take recourse to any statutory legal remedies. The order is dated 20.07.2015 and there is a clear cut seven days notice. The reliance on the order dated 16.02.2005 in W.P(C). No.5187 of 2005 would not be applicable as there was a total imposition of ban for a period of nine days and passed a day before the prohibition order. Judgment was considered to be in rem with a clarification that the District Magistrate and Collectors were not precluded to exercise the power under Section 54 of the Act. The bar is situated within two kilometers and not 2.4 kilometers W.P. (C) No. 24255 of 2022 -9- as alleged, from the place of the temple where the festival is to take place, nor any material has been placed in support. The order is not based upon vague consideration nor can be said to be opaque. 8. I have heard learned counsel for the parties and appraised the paper books. 9. Section 80 of the Kerala Police Act, 2011 empowers the District Magistrate to make regulations. The same reads as under: **“80. District Magistrate to make regulations.** - (1) The District Magistrate may in consultation with the Local Self Government and with the District Police Chief make and notify regulations, from time to time, in any local area, as he deems fit,- for the following purposes - - (a) Preventing any activity, damaging, defiling or destroying of public property, or endangering public hygiene or environment or defiling water bodies and water sources, - (b) Preventing the dumping of any material in any public place other than at such times and places specified by the competent authority including the Local Self Government, - (c) Controlling the movement, not in conformity with regulations specified in this regard, of any waste or hazardous materials through public streets and to or from houses and buildings on public streets, in order to ensure necessary hygiene, - (d) Regulating the exposure or movement in any street of persons or animals suffering from contagious or infectious diseases, the W.P. (C) No. 24255 of 2022 -10- carcasses of animals or human beings, or parts of such carcasses or waste from abattoirs or deadly biological or chemical products, - (e) Regulating the construction, repair and demolition of buildings, platforms and other structures which any endanger the users of any street or public place, - (f) Formulating and regulating the steps for co-ordination among Departments and between the Police and such Departments before undertaking any work on the streets for purposes such as provision for electricity, water, sewage, exchange of information, communication, removal, repairs, advertising, digging, separation etc, in a manner affecting the traffic, prior to commencement of such work so as to enable the Police to make suitable alternative arrangements during the period of such work and to reduce inconvenience caused to the public, - (g) Making arrangements to ensure that owners or occupiers of property, clean and disinfect their respective houses and surroundings and shifting the persons and animals deceased or suspected to be deceased, in order to prevent spreading of epidemic or contagious diseased, - (h) Regulating, in order to prevent obstruction, inconvenience, annoyance, risk, danger, injury etc, to passers-by or to the residents in the vicinity,- - (i) Activities relating to places of public resort, - (ii) Arrangements relating to public safety in streets, public places and buildings in such places, - (iii) The blasting of rocks, - (iv) Any construction, repair or maintenance work, - (v) Any commercial activities. (2) Every such regulation shall be published at the place where it is to be implemented and all persons concerned shall be liable to comply with the same. ## 10. From the perusal of the same, District ## Magistrate is empowered to pass order, preventing W.P. (C) No. 24255 of 2022 -11- obstruction, inconvenience, annoyance, risk, danger, injury etc., to passers-by or to the residents in the vicinity, activities relating to places of public resort; arrangements relating to public safety in streets, public places and buildings, preventing any activity, damaging, defiling or destroying of public property, or endangering public hygiene, controlling the movement etc. Section 54 of the Abkari Act empowers the District Magistrate to close the shop for the sake of public for the preservation of public peace. ## 11. Section 54 of the Abkari Act reads thus: **“54.Closing of shop for the sake of public peace:-** It shall be lawful for the [Disdtrict 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. If a riot or unlawful assembly is apprehended or occurs in the vicinity of any such shop, it shall be lawful for any Magistrate, or for any Police Officer who is present, to require such shop to be kept closed for such period as may be necessary.” 12. W.P(C) No.5187 of 2006 was a case where District Magistrate had imposed the ban for a total W.P. (C) No. 24255 of 2022 -12- period of nine days during which Maramon Convention was to be held at Kolancherry. The said order was set aside as per the facts mentioned therein but with a clear indication that it would be only confined to the petitioner and would not be treated as a judgment in rem. 13. Mr.Jimmy George, during the course of hearing relied upon the judgment of Single Bench dated 26.02.2015 rendered in Writ Petition (C)No.5925 of 2015 whereby the order of the District Magistrate prohibiting the foreign liquor licence holder and other hoteliers in the vicinity from vending liquor on 28.02.2015 on account of “Thiruvathira Festival” to be held in Kadakkal Devi Temple in district Kollam for two days, was upheld on the ground that there was sufficient material before the District Magistrate. It was further held that it was subject to satisfaction of the District Magistrate in passing such orders which cannot be interdicted at the drop of the hat. In the instant case the reasoning assigned in the impugned order Ext.P2 is worth mention, W.P. (C) No. 24255 of 2022 -13- ## which is extracted hereunder: “In connection with the Karkadaka Vavu of this year (2022), to avoid inconvenience that may be caused to the public and devotes by the persons who consumed liquor and to maintian law and order and by considering safety and peace to be maintained, it is ordered as per Section 54 of Abkari Act to close the sale of liquor in the areas Kollam Thirumulla Varam, Mundaikal, Papanasam Sea Shore, Paravoor Kongal Panamuttu Kudumba Mahadeva Temple and 27[th] and 28[th] of July 2022. The Kollam City Police Chief and Deputy Excise Commissioner are hereby directed to implement the above order.” On perusal of the same, “Bali Tharpanam” festival has to take place in the area referred to therein and City Police Commissioner Kollam submitted a request to the District Magistrate for closure of the outlet for 27.07.2022 and 28.02.2022. 14. During the course of the hearing the vernacular copy of the report of the police dated 19.07.2022 submitted to District Magistrate has been handed over to this Court, which is attached as Ext.C1. It W.P. (C) No. 24255 of 2022 -14- relies on the collected intelligence. The Single Bench of this Court in the order dated 26.02.2020 in W.P(C)No.5925 of 2015 relied upon the decisions of Single Bench in paragraph Nos.13 and 14 of the judgment in W.P(C).3616 of 2015, the same reads as under: “13.Under almost identical circumstances, this Court in W.P(C).3616/2015 has observed as follows: “13. If a person having the requisite licence to carry on the business is prevented from exercising his right to business under the mandate of any statute, if at all the said person has a grievance that he has been made to suffer any loss on that account, his remedy, at best, can be to seek the necessary compensation or remission, as the case may be. I am conscious of the fact that no lawful activity of a citizen can be prevented on a mere apprehension of law and order problem or breach of societal tranquility. States failure, if any, to maintain law and order cannot be an excuse to prevent a citizen from practicing his fundamental rights. I am afraid when it comes to the petitioners’, time and again Courts have held that a right to carry on business in liquor is no fundamental right, but is only a privilege extended by the State on the principle of res extra commercium. Once the said privilege is W.P. (C) No. 24255 of 2022 -15- withdrawn under any circumstance, with necessary statutory backing though, at best the petitioner can seek remission for the period the privilege stands withdrawn. 14. In fact, the learned counsel for the petitioners has placed reliance on Kora Abraham v. State of Kerala and others [2008 (1) KHC 894], wherein this Court has observed thus: “5. The statutory duty of the police under S.149 of the Code of Criminal Procedure and S.29 of the Kerala Police Act 1961 to prevent the commission of cognizable offences, if the police are notified, is not a duty that can be washed off. Such empowerment of the police is as part of the police power of the State and it is part of the police duty to ensure that none takes the law into his hands… The state and the police cannot stand as mute spectators, if one exceeds his limit in the matter of exercising his fundamental right to freedom of expression in terms of the Constitution. Therefore, if the private respondents, in the process of holding the 'dharnas', lead to any situation where a cognizable offence is likely to be committed and if there is a reasonable apprehension that a cognizable offence is about to be committed, it is the bounden duty of the police to prevent the commission of such offences…” 15. I cannot have any quarrel with the legal proposition extracted above; however, the dictum was laid down in the context of a person W.P. (C) No. 24255 of 2022 -16- exercising his fundamental rights under Article 19(1)(a) of the Constitution of India. A validly licensed toddy shop was objected to by certain private persons. When they staged dharnas, this Court has said that so long as they were peaceful, they could not be objected to. Eventually, as a result of the dharnas, the police recommended for the closure of shop permanently. In that context, this Court has held that the right cannot be denied at the threshold on a mere apprehension that it leads to a law and order problem. Any transgression in exercise of a person’s fundamental right can always be met with suitable remedial measures thereof. I fail to see, despite my best efforts, how the above ratio applies to the facts of the present case, for there can be no precedent without reference to the fact situation it is obtained under. 16. Even with regard to fundamental rights — though it is not the case here — short of total abrogation or obliteration, a right under Article 19(1) of Constitution of India is always subject to reasonable restriction. The position with regard to trading in a substance like liquor is much less defensible on the ground of unreasonable restriction. 17. At any rate, once a competent authority forms an informed opinion and thereby comes to a conclusion, after considering all the material at his disposal, that to maintain law and order or to W.P. (C) No. 24255 of 2022 -17- preserve peace and tranquility in the society, he is required to take certain measures, that subjective satisfaction, indeed, may not be disturbed by this Court, unless it has got compelling reasons to do so. An executive, who is best suited to have hands on assessment of a situation, should be given sufficient play at the joints so that the administration can go on unhindered. An opinion is an opinion, so long as it is not outrageously chimerical, offending the Wednesbury’s unreasonableness. There is no irrefragability to any opinion, which can be genuinely doubted or differed from, but such doubt or difference cannot dethrone it from the pedestal of acceptability. In fact, this Court has tellingly observed in Aneesh Kumar v. District Collector, [2012 (2) KLT 91], thus: “9. The statutory requirement contemplated under S. 54 is only, an apprehension in the mind of the District Magistrate regarding any breach of peace. The wording in the Section, “as he may think necessary for the preservation of the public peace' indicate that, the District Magistrate need only to be satisfied that such a prohibition is necessary for preserving public peace. Merely because there was no antecedents of any criminal case or breach of peace, during the previous years, or merely because there was no such incidents occurred during the intervening days of the festival, it cannot be contended that the W.P. (C) No. 24255 of 2022 -18- apprehension of breach of peace is baseless, especially with respect to the particular dates on which there will be more crowd. When the apprehension is supported by reports of the competent authorities, the satisfaction regarding necessity for issuing such a direction for preservation of peace, cannot be questioned…” (emphasis added) 18. Recently, a learned Division Bench of this Court in an unreported judgment dated 09.05.2014 in W.A. No. 673 of 2014 reiterated the same reasoning holding that once the District Collector is of the opinion that there are chances of a law and order situation arising and that, to prevent such instances, it is necessary to prohibit the sale and consumption of liquor during a particular period, the opinion of the executive cannot be dismissed outright as unreasonable and untenable. 19. On a consideration of the totality of circumstances, I am of the considered opinion that Exhibit P1 cannot be held to be unreasonable, much less arbitrary. In the facts and circumstances, this Court regrets its inability to persuade itself to hold that Exhibit P1 is a product of non-application of mind or ultra vires of the third respondent with reference to Section 54 of the Act. ” 14.Having extracted in extenso the judicial findings in the judgment under reference, I am of the considered opinion that in Exhibit P1 there is sufficient material, W.P. (C) No. 24255 of 2022 -19- being cogent too, to uphold the decision of the fourth respondent concerning imposing a ban on one particular day, i.e., 28.02.2015. A perusal of Exhibit P1 makes it manifestly clear that on earlier occasion three murders occurred on the same day of festivities, two of them taking place in Beer and Wine parlours.” 15. There is no proof that the order impugned dated 20.07.2022 Ext.P2 was passed at 4 P.M. or prior in time. It is a clear cut seven days notice as the sale of liquor has been prohibited on 27.07.2022 and 28.07.2022. No document has been filed to prima facie prove distance is more than 2 kilometers. I do not find any illegality or irrationality in the order imposing the ban for a period of two days. Writ petition sans merit. Accordingly dismissed. Sd/- **AMIT RAWAL JUDGE** VV W.P. (C) No. 24255 of 2022 -20- ## **APPENDIX OF WP(C) 24255/2022** ## **PETITIONER EXHIBITS** Exhibit P1 THE TRUE COPY OF THE FL-3 LICENSE ISSUED TO THE PETITIONER Exhibit P2 THE TRUE COPY OF THE PROHIBITION ORDER NO. WITH THE D.C.K.L.M/8643/2022-M DATED 20.7.2022 ALONG TRANSLATED COPY Exhibit P3 THE TRUE COPY OF THE JUDGMENT DATED 16.2.2005 IN W.P. (C).NO.5187/2005 Exhibit P4 THE TRUE COPY OF THE JUDGMENT DATED 4.7.2008 IN CON. CASE (C) NO.1210 OF 2006 Exhibit P5 THE TRUE COPY OF THE CIRCULAR DATED 29.4.2009 ISSUED BY THE CHIEF SECRETARY ALONG WITH ITS LEGIBLE COPY Exhibit P6 THE TRUE COPY OF THE JUDGMENT DATED 12.2.2018 IN W.A. NO. 391 OF 2018 Exhibit P7 THE TRUE COPY OF THE REPRESENTATION DATED 23.7.2022 SUBMITTED BY THE PETITIONER Exhibit P8 THE TRUE COPY OF THE INTERIM ORDER DATED 14.3.2022 IN W.P.(C)NO.8455 OF 2022 ALLOWING THE PETITIONER HOTEL TO FUNCTION DURING KONGANPADA FESTIVAL, 2022 IN PALAKKAD Exhibit P9 THE TRUE COPY OF THE INTERIM ORDER DATED 5.4.2022 IN W.P. (C)NO.12462 OF 2022 Exhibit P10 THE TRUE COPY OF THE JUDGMENT DATED 3.3.2022 IN W.P. (C)NO.7088 OF 2022 Exhibit P11 THE TRUE COPY OF THE ORDER DATED 10.5.2022 IN W.P.(C)NO. 15645 OF 2022