Sasidharan Surendran v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936** **WP(C).No. 31528 of 2014 (M)** **----------------------------** ## **PETITIONER(S):** **--------------** **SASIDHARAN SURENDRAN, S/O SURENDRAN, PROPRIETOR, PROPRIETOR, “ROYALE REGENCY HOTEL & CONVENTION CENTRE”, OACHIRA, KOLLAM DISTRICT. RESIDING AT KUTTIAYATHU HOUSE, KOTTAMPALLY, OACHIRA, KOLLAM DISTRICT, REP. BY P.K.SOMAN, POWER OF ATTORNEY HOLDER, AGED 55, S/O LATE KRISHNA PILLAI, ADMINISTRATION MANAGER, ROYALE REGENCY HOTEL AND CONVENTION CENTRE”, OACHIRA.** **BY ADVS.SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE** ## **RESPONDENT(S): --------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EXCISE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM - 691 013.** **3. THE ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KOLLAM - 691 013.** **4. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 001.** **4. DISTRICT POLICE CHIEF, KOLLAM CITY, KOLLAM - 691 013.** **5. COMMISSIONER OF POLICE, KOLLAM CITY, KOLLAM - 691 013.** **6. REVENUE DIVISIONAL OFFICER, KOLLAM - 691 013.** **7. THE DEPUTY COMMISSIONER OF EXCISE, KOLLAM - 691 001.** **8. THE ASSISTANT COMMISSIONER OF POLICE, KARUNAGAPALLY, KOLLAM - 690 518.** **9. TAHSILDAR, KARUNAGAPALLY, KOLLAM - 690 518.** **10. THE CIRCLE INSPECTOR OF EXCISE, KARUNAGAPALLY, KOLLAM - 691 001.** **11. OACHIRA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OACHIRA P.O., KOLLAM DISTRICT - 690 526.** - **BY GOVERNMENT PLEADER SMT.C.K.SHERIN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31528 of 2014 (M)** **----------------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** |**EXT.P1**|**COPY OF THE CIRTIFICATE ISSUED BY THE CHAIRMAN HOTEL AND**| |---|---| ||**RESTAURANT APPROVAL & CLASSIFICATION COMMITTEE.**| |**EXT.P2**|**COPY OF FL-3 LICENCE NO.KLM-49/2014-15 ISSUED BY THE**| ||**7TH RESPONDENT TO THE PETITIONER.**| |**EXT.P3**|**COPY OF THE LICENCE DATED 04.03.2014 ISSUED BY THE**| ||**OACHIRA GRAMA PANCHAYATH TO THE PETITIONER FOR CONDUCTING**| ||**BAR HOTEL.**| |**EXT.P4**|**COPY OF THE LICENCE DATED 04.03.2014 ISSUED BY THE**| ||**OACHIRA GRAMA PANCHAYAT TO THE PETITIONER FOR CONDUCTING**| ||**HOTEL AND CONVENTION CENTRE.**| |**EXT.P5**|**COPY OF THE INTERIM ORDER DATED 28.11.2011 IN WP(C)**| ||**NO.31720/2011.**| |**EXT.P6**|**COPY OF THE ORDER DATED 17.11.2012 PASSED BY THE 2ND**| ||**RESPONDENT.**| |**EXT.P7**|**COPY OF THE NOTIFICATION (ORDER) DATED 24.11.2013 ISSUED**| ||**BY THE 2ND RESPONDENT PROHIBITING SALE OF LIQUOR.**| |**EXT.P8**|**COPY OF THE INTERIM ORDER DATED 26.11.2013 PASSED BY THIS**| ||**COURT IN WP(C) NO.29089/2013.**| |**EXT.P9**|**COPY OF THE NOTIFICATION DATED 22.11.2014 PASSED BY THE**| ||**3RD RESPONDENT.**| |**EXT.P10**|**COPY OF JUDGMENT REPORTED IN 2012 (2) KHC 21.**| ## **RESPONDENT'(S) EXHIBITS: NIL** **//TRUE COPY//** **bka/-** **PA TO JUDGE** ## **A.M.SHAFFIQUE, J.** = = = = = = = = = = = **W.P.(C).No.31528 of 2014** = = = = = = = = = = = = = = = Dated this the 26[th] day of November, 2014 ## **J U D G M E N T** The petitioner has approached this Court challenging Ext.P9 directing him not to keep open the Bar hotel run by him as “Royale Regency Hotel and Convention Centre, Oachira” from 26.11.2014 to 28.11.2014. Ext.P9 would show that it is an order passed by the District Collector on 22.11.2014, invoking Section 80(h)(v) of the Kerala Police Act. It is, inter alia, stated in Ext.P9 that the festival known as 'Oachira Panthrandu Vilakku Maholsavam', is being conducted in Oachira Temple from 17.11.2014 to 28.11.2014. In addition to thousands of devotees, persons from other religions carrying on commercial activities, amusing parks etc. also assemble in and around the temple. More than ten thousand people from different places assemble in the said temple known as 'Oachira Subramanya Temple'. It is observed that there is a chance for breach of law and order during the period, including the festival period, from 26.11.2014 to 28.11.2014. Therefore, it is not favourable to have liquor outlets and Bar hotels within a radius of 3 kilometres from the WP(C)31528 of 2014 2 temple and the Commissioner of Police has requested for stopping such activities in the said area. Taking into consideration the difficulties that may be faced by the people who assembles there during three days festival, and the law and order situation that may be created, in order to avoid any such eventuality, direction has to be issued to prohibit sale of liquor in the said area from 26.11.2014 to 28.11.2014. Accordingly, direction had been issued to prevent sale of liquor within the jurisdiction of Oachira Police Station from 26.11.2014 to 28.11.2014. Ext.P9 order is served to the petitioner on 23.11.2014. 2. This order is impugned by the petitioner, inter alia, contending that no notice had been issued before passing Ext.P9 order, that the circulars issued by the Government in regard to the powers to be exercised by the District Magistrate under Section 54 of the Abkari Act (for short, “the Act”) clearly indicates the manner in which such power can be exercised. It is to avoid following the conditions specified in the said circulars that the District Collector had invoked power under Section 80 of the Kerala Police Act. That apart, the respondent could only WP(C)31528 of 2014 3 regulate the sale of liquor and cannot issue any prohibition, as has been done in the matter. Reference has also been made to orders passed by this Court in the previous years when similar directions had been issued by the District Magistrate. It is, inter alia, contended that in the present situation during the previous years also, similar orders had been passed by the District Magistrate, which had been stayed by this Court, which is evident from the interim order dated 28.11.2011 in W.P.(C). No.31720 of 2011, interim order dated 26.11.2013 in W.P.(C). No.29089 of 2013, the final judgment dated 27.11.2012 in W.P. (C).No.28053 of 2012 and the judgment in Aneesh Kumar.T.K. and others v. District Collector and others (2012 (2) KHC 21). 3. Heard the learned counsel for the petitioner and the learned Government Pleader appearing on behalf of the respondents 1 to 10, and the writ petition is disposed at the admission stage itself. 4. The first question involved in the above writ petition is whether the District Collector has the power to issue direction in terms of Section 80(h)(v) of the Kerala Police Act. The said provision reads as under : WP(C)31528 of 2014 4 “ **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:- (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. “ ## 5. Section 54 of the Abkari Act reads as under: ## **54. Closing of shop for the sake of public** **peace:** - It shall be lawful for the District 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 WP(C)31528 of 2014 5 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. Going by the provisions of the Kerala Police Act as well as Section 54 of the Abakari Act, the District Magistrate has the power to issue such directions. 6. The next question is, whether as argued by the learned counsel for the petitioner the impugned order amounts to an absolute prohibition. The petitioner became licensee for conducting a bar hotel after getting licence from the Government. The order issued in terms of Ext.P9 is only to prohibit sale of liquor within a certain area coming under Oachira Police Station. The restriction imposed is only for a period of three days and that too, on account of factual circumstances relating to festival being conducted and the large number of people that may assemble who belongs to different communities attending the temple functions and festival. It is based on the report of the Commissioner of Police who WP(C)31528 of 2014 6 apprehended law and order situation that such a direction had been issued by the District Collector. It is not a case of absolute prohibition, whereas it is only regulating the sale by restricting the sale for three days. The intention is to maintain law and order situation and to avoid any law and order problem that may arise after consumption of liquor. Such an approach on the part of the District Magistrate can only be termed as a regulatory measure. The provisions under the Kerala Police Act as well as the Abkari Act give appropriate powers to the District Magistrate to pass such orders and therefore, it cannot be stated that there is any illegality in the order being passed. 7. The learned counsel for the petitioner refers to various circulars issued by the Government with regard to modalities to be followed in terms of Section 54 of the Act. The main contention urged by the petitioner is that the order, if any, under Section 54 of the Act has to be issued one week prior to the event in respect of which the same is issued to enable the licensee to take legal remedies. The order should not be issued in such a manner that the licensee is not permitted to take legal remedies available under law. First of all, the impugned order WP(C)31528 of 2014 7 is not passed under section 54 of the Act, as it is issued invoking power under section 80 (h) of the Act. The circular issued for regulating the power under section 54 of the Act is not a bar to invoke Section 80 of the Kerala Police Act. Further, the petitioner did get an opportunity to challenge the order issued. He has already approached this Court within time and he had an opportunity of being heard in the matter. In such circumstances, I do not think that the order issued can be set aside merely, for the reason of being in violation of the circulars issued by the Government, for invoking Section 54 of the Abkari Act. 8. Yet another contention raised by the petitioner is with reference to the interim orders passed by this Court in various cases especially in favour of the petitioner during the previous case. Reference is made to various interim orders. Those orders are apparently passed on account of specific facts and circumstances of the case. As far as this case is concerned, I am concerned with an order in which the Commissioner of Police had recommended closure of the liquor sale in an area of 3 kilometres radius from the temple apprehending law and order situation. When such a report is available, the District WP(C)31528 of 2014 8 Collector cannot ignore the same. Therefore, the factual situation available in the present case clearly discloses that the District Collector has passed the order based on materials available with him and that apart, since the order dated 22.11.2014 has been served on the petitioner on 23.11.2014, he had the opportunity to approach this Court challenging the same. 9. Reference has been made by the learned counsel for the petitioner to the judgment dated 27.11.2012 in W.P.(C) No.28053 of 2012. That was the case in which the order was passed on 17.11.2012 which was despatched to the petitioner only on 22.11.2012 and he received the same on 23.11.2012. The prohibition was to be effective from 25.11.2012 to 27.11.2012. Under the said circumstances, this Court was of the opinion that there was violation of the terms of the circular. The issue as to whether there was violation of the terms of circular has already been considered by me. Therefore, that part of the judgment has no application to the facts and circumstances of the present case. 10. The learned counsel for the petitioner also relied upon WP(C)31528 of 2014 9 the judgment of this Court in **Sulekha v. State of Kerala** [2008 (2) KLT 23], wherein the learned single Judge of this Court had occasion to consider almost a similar issue. In that case, it is observed that the District Magistrate's order does not refer to any police report and therefore, the order ought have been passed with notice to the petitioner. The factual situation in the said case has also no application to the case on hand. This is an instance, where the District Collector has passed the order on the basis of the report from the Police Commissioner apprehending law and order situation which cannot be brushed aside by this Court 11. It was argued by the learned counsel that the impugned order had been passed in violation of the principles of natural justice. There is no provision either under Section 54 of the Abkari Act or Section 80(h)(v) of the Kerala Police Act to hear the petitioner before passing any such order. 12. That apart, it is an instance where appropriate orders have been passed by the competent authorities to prevent law and order situation in an area. This Court cannot sit in judicial review and come to a conclusion that the situation does not WP(C)31528 of 2014 **==> picture [13 x 10] intentionally omitted <==** warrant such interference by the competent authorities. As far as the power is available to the District Collector to pass such an order and if the order is passed in accordance with the statutory provisions, this Court shall not normally interfere especially when such order cannot be termed as without jurisdiction, illegal or arbitrary. In the result, I do not find any ground to interfere with Ext.P9 and accordingly, the writ petition is dismissed. **A.M.SHAFFIQUE, JUDGE.** stu