Rajesh Gopal v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY, THE 12TH DAY OF MAY 2017/22ND VAISAKHA, 1939** ## **WP(C).No. 15123 of 2017 (M)** **-------------------------------------------** ## **PETITIONER(S) :** - **------------------------** **RAJESH GOPAL, AGED 45 YEARS, S/O.V.K.GOPALAN, MANAGING PARTNER, V.K.G.GROUP HOLIDAY HOTEL, MUNAMBAM ROAD, CHERAI.P.O, ERNAKULAM-683 514.** **BY SRI.ABRAHAM VAKKANAL (SENIOR ADVOCATE) ADVS. SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS SRI.SAMPATH V. TOMS** **RESPONDENT(S) :** - **--------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPT., SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE CHIEF ENGINEER, PWD (ROADS AND BRIDGES) PUBLIC OFFICE, MUSEUM, THIRUVANANTHAPURAM-695 033.** **3. THE PRINCIPAL SECRETARY, TAXES DEPT., SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **4. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, NANDAVANAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.** **5. THE DEPUTY COMMISSIONER OF EXCISE, BANERJI ROAD, ERNAKULAM-681 001.** **BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-05-2017, ALONG WITH W.P(C).NO. 14102 OF 2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 15123 of 2017 (M) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 TRUE COPY OF THE FL-11 LICENSE 170/2015-16 ISSUED TO THE PETITIONER DATED 23.04.2015.** - **EXHIBIT P2 TRUE COPY OF THE FL-11 RENEWAL CERTIFICATE DATED NIL.** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF S.R.O.549/2000 RELATING TO ERNAKULAM DISTRICT DATED 07.04.2000.** - **EXHIBIT P4 TRUE COPY OF THE ORDER IN W.P(C)NO.13837/2017 DATED 12.04.2017.** - **EXHIBIT P5 TRUE COPY OF THE ORDER IN W.P(C)NO.14258/2017 DATED 21.04.2017.** **EXHIBIT P6 TRUE COPY OF THE NOTIFICATION DATED 02.12.2005.** - **EXHIBIT P7 TRUE COPY OF THE G.O.(MS)NO.18/2011/PWD DATED 01.03.2011.** - **EXHIBIT P8 TRUE COPY OF THE PROFORMA ACCOMPANYING PROPOSAL DATED NIL.** **EXHIBIT P9 TRUE COPY OF THE RTI APPLICATION DATED 24.04.2017.** - **EXHIBIT P10 TRUE COPY OF THE REPLY FROM THE PWD ROADS SUBDIVISION, N.PARUR DATED 27.04.2017.** - **EXHIBIT P11 TRUE COPY OF THE APPLICATION FROM THE PETITIONER DATED 22-04-2017.** - **EXHIBIT P12 TRUE COPY OF THE PETITION GIVEN TO R1 AND R2 DATED 22.04.2017.** - **EXHIBIT P13 TRUE COPY OF THE INTERIM ORDER IN W.P(C).NO. 15123/2017(M) DATED 05.05.2017.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE.** Msd. **CR** ## Devan Ramachandran, J. ------------------------------------------------------------------ W.P.(C)No.14102, 14200, 14681, 14685, 15118, 15123, 15125, 15127, 15129, 15163, 15327, 15771, 15776, 15793, 15797, 15798, 15799, 15806, 15807, 15809, 15811, 15814, 15816, 15818, 15819, 15820, 15838, 15839, 15842, 15844, 15863, 15865, 15866, 15867, 15871, 15875, 15908, 15918, 15919, 15934, 15944, 15973, 15986, 15990, 15991, 15995, 15996, 16010, 16013 and 16050 of 2017 ------------------------------------------------------------------- Dated this the 12[th] day of May, 2017 ## **JUDGMENT** As is often stated, extraordinary circumstances sometimes require extraordinary solutions. The horrendous rise in road accidents in India, particularly in highways, on account of the drivers being inebriated by consumption of alcohol, forced the Honb'le Supreme Court to take notice and prescribe extraordinary directions to curb, what has now come to be called 'drunken driving'. WPC 15123/17 & con. cases 2 2. The Hon'ble Supreme Court saw that the availability of liquor vending shops on National/ State Highways across the country was the most proximate reason for the rise in accidents caused by the drunk drivers and therefore, the Hon'ble Court though it idoneous to issue orders ensuring that such source and availability of liquor was immediately eliminated from the proximity and adjacency of the National/State Highways. 3. The Hon'ble Supreme Court in its seminal judgment in **State of Tamil Nadu v. V.K.Balu** (2017 (1) KHC 26 (SC)) issued the directions as under: “(i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways; (ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority; (iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but not later than 1 April 2017; WPC 15123/17 & con. cases 3 (iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways; (v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway. (vi) All States and Union Territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken. (vii) These directions issue under Article 142 of the Constitution.” 4. Even though attempts were made by the various States to obtain dilution of these directions, the Hon'ble Supreme Court, by order dated 31.03.2017, rejected all such attempts and declared that no relaxation can be made, which would defeat the object sought to be achieved, emphatically reiterating that the singular WPC 15123/17 & con. cases 4 objective of these directions is to prevent drunken driving. 5. Even though relaxations to a very limited extent were granted by the Hon'ble Supreme Court to certain other States, as far as State of Kerala is concerned, no such was allowed and hence the position is now irrefragably covered by the directions extracted above. 6. The various petitioners in these writ petitions claim to have applied for grant/ renewal of licence and for continuation of operation on the strength of licences already renewed under the applicable Abkari Act to vend liquor and they assert that they have either approached or made applications for such purposes before the competent authority. It is the petitioners' case that even though their requests or applications are pending before the competent authority, the same has not been considered on account of the said authority allegedly being under the impression that the afore directions WPC 15123/17 & con. cases 5 forebear him from taking any decision on such requests or applications. The petitioners specifically assert that their shops/bars are not situated on a National/State Highway and that it is not visible or directly accessible from any such highway. They also avouch that their shops/bars are situated beyond a distance of 500 metres of the outer edge of an highway or a service lane appurtenant to it. 7. Essentially therefore, the petitioners maintain that their shops or their claim for licence is not hit by the rigor of any of the directions of the Hon'ble supreme Court afore extracted. The petitioners have, therefore, filed this writ petition seeking directions to the respondents to grant/renew their licence to vend liquor or to allow them to continue to vend liquor under the sanction of already renewed licences. 8. I have heard the learned Senior Counsel and the various learned counsel for the petitioners and the WPC 15123/17 & con. cases 6 learned Government Pleader for the official respondents. Since the issues involved in these writ petitions are similar, I dispose of these writ petitions together by this judgment. 9. As I have already noticed above, the rigor of the directions of the Hon'ble Supreme Court would apply to shops for sale of liquor which is situated on a National/ State Highway or which is visible or directly accessible from it. The prohibited distance, as prescribed by the Hon'ble Supreme Court, is 500 metres from the outer edge of the National/State Highway or of a service lane along it. The pleading and averments contained in the writ petition are to the effect that the petitioners' shops do not in any manner stand foul of any of these prescriptions and, therefore, that the directions of the Hon'ble Supreme Court could not apply to them. The petitioners have produced various documents, as are appended to these writ petitions, to show that the road on which their shops are situated is only a city/district road WPC 15123/17 & con. cases 7 and not a National/ State Highway. 10. It is indubitable that if the assertions of the petitioners are true, then the mandate of the judgment of the Hon'ble Supreme Court cannot be applied to their detriment. 11. However, the question as to whether the petitioners' shops for sale of liquor are situated on a National/State Highway, whether they are visible or directly accessible from such a highway or whether they are situated beyond a distance of 500 metres from the outer edge of the highway or its service lane are issues that are in the realm of facts which require assessment of the relevant documents and materials. This court, while acting under Article 226 of the Constitution of India, is jurisdictionally circumscribed and constrained to a large extent in deciding questions of facts, especially when they are severely disputed or subject to detailed verification. These are issues that are certainly in the domain of the WPC 15123/17 & con. cases 8 competent authorities under the provisions of the Abkari Act who are enjoined even by the directions of the Hon'ble Supreme Court to consider it and decide upon, while dealing with the applications for grant/ renewal of licences to vend liquor. 12. I specifically advert to Clause 6 of the directions of the Hon'ble Supreme Court afore, where their Lordships have commanded the States and Union Territories to strictly enforce the directions. It is pertinent to note that the Hon'ble Court has declared unequivocally that the District Collectors and Superintendents of Police and other competent authorities shall be assigned the responsibility to enforce these directions. 13. In a summation and conspectus of all that is recorded above, it is obviously necessary that strict assessment is made as regards the petitioners' requests and applications, to verify if they would be eligible for WPC 15123/17 & con. cases 9 grant/renewal of licence or to continue to operate on licences already renewed within the ambit of the inviolable prescriptions issued by the Hon'ble Supreme Court. The authority competent under the Abkari Act and as per the directions of the Hon'ble Supreme Court is ineluctably the Deputy Commissioner of Excise having jurisdiction of the respective area, where the petitioners' shops are situated. It will, therefore, be incumbent upon him to take up and consider the petitioners' requests and applications to grant/renewal of licence or to continue on the strength of renewed licences, strictly and specifically in terms of the mandate of the directions of the Hon'ble Supreme Court and in compliance of the various other provisions of the applicable Abkari Laws. 14. The competent authority, namely the Deputy Commissioner, will, therefore, be obligated by law and in terms of this judgment to consider the requests and applications of the petitioners and pass appropriate WPC 15123/17 & con. cases 10 orders thereon after verifying if their respective shops are situated on a National/State Highway, if they are visible or directly accessible from such highway and if they are at least 500 metres away from the outer edge of the National/State Highway or its service lane. The Deputy Commissioner of Excise shall be entitled to seek the assistance of such Government authorities or the PWD authorities, as are required, to aid the verification of the above factors before issuing appropriate orders. This exercise shall be completed by the respective Deputy Commissioners as expeditiously as possible but not later than three weeks from the date of receipt of a copy of this judgment. 15. Since this judgment is intended to operate generally in empowering the various Deputy Commissioners of Excise in the State, I deem it apposite and necessary, in order to obtain a certain amount of uniformity in consideration by the various Officers and in WPC 15123/17 & con. cases 11 order to avoid any cause of possible confusion in enforcement of the factors prescribed by the Hon'ble Supreme Court, to lay down the basic parameters and protocol to be followed while making the evaluation and examination, as directed herein, by the competent authority. 16. The singular and acme intent and purpose behind the Hon'ble supreme Court in issuing the directions afore, being to exterminate the bane of drunken driving from the Highways of this country and for such purpose, to asphyxiate the sources and availability of liquor from the National/State Highways, the respective Deputy Commissioners shall, while acting under the terms of this judgment, abide by the said directions in its letter and spirit, imbibing the obvious concern of the Hon'ble Court and clearly recognising the mischief sought to be remedied in the judgment in **V.K.Balu** (supra) rather than in a pedantic and WPC 15123/17 & con. cases 12 formalistic manner. 17. The respective Deputy Commissioners shall ensure that no shop/Bar to vend liquor is sanctioned or authorised to operate on a National/State Highway or within the prohibited distance of 500 metres from it, as prescribed by the Hon'ble Supreme Court. The Deputy Commissioners are, for this purpose, obligated to verify keeping in mind the specific purpose behind the directions of the Hon'ble Supreme Court, the nature of the roads, on which petitioner's shops/Bars are situated, to the either notified National or State Highways or are now being used as such, under valid notifications. 18. I notice that some of the petitioners assert that the roads, on which their shops/Bars are situated, though notified as a highway in the past, have lost such character on account of later notifications or on account of new roads and bye-passes being constructed, to cater to the Highway traffic, thus effectively and permanently WPC 15123/17 & con. cases 13 reducing it, operationally, to be mere district or city/town roads. These submissions and assertions would be pertinent if they are supported by valid certification or documents issued by the competent authorities under the various statutes relating to notifications of National/State highways. The respective Deputy Commissioners of Excise would certainly have to consider these factual contentions in its proper perspective and if the petitioners are able to show and establish, to his satisfaction, by cogent, valid and reliable evidence, materials, documents or certificates issued by the competent authorities, that the roads referred to by the petitioners are not notified National/State Highways or are not now being issued to cater to long distance traffic, akin to such National/State Highway, on account of construction of new roads/bye-passes for such traffic, or on account of further notifications/orders de-notifying it as Highways or notifying other roads as Highways in its WPC 15123/17 & con. cases 14 earlier place, the Deputy Commissioners will be at liberty, for reasons to be recorded, to accord permission to operate and grant/renew licence of shops/Bars to vend liquor. However, only such orders, if any, de-notifying the roads, as highways, issued prior to the date of the judgment in **V.K.Balu** (supra), namely 15.12.2016, will be taken into account for the purposes of these cases. 19. The petitioners will, therefore, be at liberty to place before the respective Deputy Commissioners all such additional materials, documents or certifications issued by competent authorities to prove their assertions and the officer will be obligated to consider all such as also the documents produced in the various writ petitions, to arrive at an appropriate conclusion. 20. Quad hoc the issue of prohibited distance of 500 metres, if a measurement is sought for by the petitioners or found required to be taken by the Deputy Commissioners, it shall be done from the edge of the WPC 15123/17 & con. cases 15 National/State Highway or its service lane, through the shortest motorable route or road till the entrance of the shops/bars. While doing so, all illogical and artificial deviations, detours and deflections meant solely to increase the distance, shall strictly be disregarded by the Deputy Commissioners and the measurement shall be of the shortest, logical and normal motorable route/road. This is the best way to implicitly adhere to the spirit of the directions of the Hon'ble Supreme Court to eliminate the availability of liquor to the driver of a vehicle plying the Highway. 21. The above have been stated only as the basic parameters and protocol and the respective Deputy Commissioners may, if it is required, cause such additional evaluation or examination in order to implicitly comply with the Hon'ble Supreme Court's directions. 22. Finally, the fourth direction afore extracted regarding signages and advertisements shall be WPC 15123/17 & con. cases 16 implemented without any reservation or exception. 23. I make it clear that with regard to those shops/Bars of the petitioners seen to be not in variance or in dissonance to the directions of the Hon'ble Supreme Court, after the examination/evaluation of the factors as directed herein, the Deputy Commissioners, subject to the other provisions of the Abkari Act, will be obligated to grant/ renew the licence or to issue orders permitting operation on the strength of already renewed licences, as the case may be, as applied for by the various petitioners within the time of three weeks fixed in this judgment. 24. To enable an expeditious disposal of the petitioners' requests/applications as directed herein, I permit the petitioners to place before the competent Deputy Commissioners of Excise, a certified copy of this judgment along with a copy of the writ petition and its exhibits and the time frame of three weeks fixed in this judgment shall commence on the petitioner so producing WPC 15123/17 & con. cases 17 the judgment before the said authority. These writ petitions are ordered as above. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs. Devan Ramachandran, Judge tkv