Sasidharan v. The District Collector & District Magistrate Kollam, District Police Chief, Kollam City, The Deputy Excise Commissioner, Excise Division Office, Kollam, Circle Inspector of Excise, Karunagapally, Kollam, and SMT Vidya KuriaKose (GP)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 ``` ``` WP(C) NO. 39437 OF 2023 ``` ``` PETITIONER: ``` ``` SASIDHARAN, AGED 62 YEARS, S/O SURENDRAN, KUTTIAYYATH VEEDU, KOTTAMALAI MURI, OACHIRA, KOLLAM-690526, REPRESENTED THROUGH THE POWER OF ATTORNEY HOLDER MR. SUDHAKARAN K., S/O MR. KARUNAKARAN , AGED 64 YEARS, RESIDING AT KARUNALAYAM, PUTHUPPALLY P.O,KAYAMKULAM, ALLEPPEY DISTRICT, PIN – 686011 BY ADVS. UMMUL FIDA C.IJLAL P.PARVATHY JAI GOVIND M.J. ``` ## `RESPONDENTS:` ``` 1THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, REVENUE DIVISIONAL OFFICE, CIVIL STATION, KOLLAM, PIN – 691013 2DISTRICT POLICE CHIEF, KOLLAM CITY, KOLLAM, PIN – 691013 3THE DEPUTY EXCISE COMMISSIONER, EXCISE DIVISION OFFICE , EXCISE COMPLEX, KOLLAM, PIN – 691001 4HE CIRCLE INSPECTOR OF EXCISE KARUNAGAPALLY, KOLLAM, PIN – 691001 SMT.VIDYA KURIAKOSE – GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 2 ``` ``` JUDGMENTC.R. ``` ``` “The Oachira Parabrahma Temple” is one of the most ancient and revered places of worship. The Temple observes “Panthrandu Vilakku”, a twelve day festival every year, in the middle of ``` ``` November, during the malayalam month of “Vrischikam”. Devotees in large numbers seek darsan at this time, in search of its infinite divinity. ``` ``` 2.The Festival of the Temple this year began on 17.11.2023 and is to end on 28.11.2023 (today). ``` ``` 3.The District Collector, Kollam, in his ``` ``` capacity as the District Magistrate, issued Ext.P2 order dated 21.11.2023, acting under ``` ``` Section 54 of the Kerala Abkari Act (‘Act’ for short), declaring three kilometre radius around the Temple as prohibited area for vending of ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 3 ``` ``` liquor, on the last day of the Festival, namely 28.11.2023. ``` ``` 4.The petitioner, who is stated to be a ``` ``` licence holder for retail sale of alcohol, impugns Ext.P2 on various grounds, primarily that it has been issued in violation of the ``` ``` applicable statutory Scheme; as also the mandate ``` ``` of the circular issued by the Government, bearing No.7497/A2/09/TD dated 29.04.2009. ``` ``` 5.Smt.Ummul Fida – learned counsel for the ``` ``` petitioner, argued that even though the schedule ``` ``` of the Temple Festival was known to the ``` ``` Authorities much earlier - perhaps even several ``` ``` months ago - an order akin to Ext.P2 has been ``` ``` sought to be issued by the District Collector ``` ``` only at the “11[th] hour”, namely on 21.11.2023, knowing fully well that the festival is to end on 28.11.2023. She argued that, apart from the ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 4 ``` ``` fact that it has been issued with less than seven days notice to her client – who she asserts has invested large amounts of money for the purpose of running his business and towards license fees - it is also vitiated because it does not cite any cogent reason for ordering such prohibition. She argued that, as is evident from Ext.P2, all which the District Collector has said is that there is an apprehension of untoward incidents on 28.11.2023, on account of large crowding; to thus justify the prohibition that has been ordered therein. She argued that this, apart from the fact that it is amorphous in nature and based on speculations and conjunctures, also militates against her client’s constitutional right to continue with his business particularly, because “he has taken all the requirements prior for running the ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 5 ``` ``` business during the ‘Oachira Panthrandu Vilakku Maholsavam’ as it is one of the most seasonal time” (sic) (extracted from the pleadings in paragraph 4 of the writ petition). She thus prayed that Ext.P2 be set aside. ``` ``` 6.In response, the learned Government ``` ``` Pleader – Smt.Vidya Kuriakose, relied upon two judgments of this Court, namely,Aneesh Kumar T.K and others v. District Collector and Others ``` ``` [2012 (2) KHC 21] and Hotel Vijaya Palace (M/s) ``` ``` v. State of Kerala and Others [2016 KHC 15], to argue that the requirement of issuing notice seven days prior to the event is not a statutory one, but brought in through an executive circular; and hence is only directory in nature, intended to enable the person affected to initiate and pursue legal action. She added that ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 6 ``` ``` this is ineluctable because Section 54 of the ``` ``` “Act” contains no such stipulation. ``` ``` 7. Smt. Vidya Kuriakose then argued that, ``` ``` the Temple Festival is one which attracts large number of people and since the police is in charge of crowd control, it is for them to ``` ``` visualize and anticipate events to happen; and ``` ``` cannot do so with precision, as the petitioner now asserts. She submitted that the situation is very dynamic and fluid and that police will have to act on a minute-to-minute basis, rather than ``` ``` an hour-to-hour; and hence that it was found ``` ``` necessary, because of the confluence of ``` ``` indeterminate number of persons, to control ``` ``` vending of alcohol, so that law and order will ``` ``` not be breached. She asserted that this is ``` ``` supported by the affirmative declarations in the afore cited precedents. ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 7 ``` ``` 8.I have evaluated and considered the afore rival submissions; and am delivering judgment today itself, with the consent of both sides, since the festival is concluding today. ``` ``` 9.There can be little doubt – as is also admitted - that Section 54 of the “Act” only mandates that 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 sold, be closed at such times, or for such period, as he ``` ``` may think necessary for the preservation of the public peace. It is indubitable therefrom that there is no stipulation relating to the time frame for such notice to be issued; and it is left to the discretion of the District Magistrate to act judiciously, to the extent ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 8 ``` ``` possible, to achieve the ultimate aim of preservation of public peace. 10.That said, of course, there are precedents covering the field, that a licensee cannot be subjected to detriment through a notice issued at the last minute; and that it is necessary to give such persons sufficient time, so as to invoke their legal remedies, if they are so interested. It is this imperative which has found its way into the circular which stipulates 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 aggrieved by such orders” (sic). ``` ``` 11. It isperspicuous, therefore, that, contrary to the assertions of Smt.Ummul Fida, ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 9 ``` ``` the provision for issuance of notice to the licensee a week before the event is not a statutory one, but administrative in nature; and ``` ``` intended for the afore purpose. ``` ``` 12. In the case at hand, Ext.P2 is dated ``` ``` 21.11.2023 and the event in question is on ``` ``` 28.11.2023. There was a clear seven day difference between these two. However, the argument of Smt.Ummul Fida is that her client was served with Ext.P2 only on 23.11.2023; and ``` ``` therefore, that the afore prescription of time ``` ``` has been breached. Even assuming that this Court ``` ``` accepts this, it would really cause no prejudice ``` ``` to the petitioner because, as I have already said above, the purpose of affording the afore time frame to him was to ensure that “his legal remedies are not “stifled”. ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 10 ``` ``` 13. As far as the facts presented in this case goes, it is evident from the writ petition itself that petitioner has approached this Court only on 27.11.2023 and this Court asked the learnedGovernmentPleadertoobtain ``` ``` instructions and listed it today as the first case. Obviously, none of his legal remedies have been therefore, “stifled”. ``` ``` 14.Coming to the next limb of the arguments of Smt.Ummul Fida, she predicates that Ext.P2 ``` ``` does not contain sufficient reasons for the ``` ``` District Magistrate to have invoked Section 54 ``` ``` of the “Act”. As I have already said above, the ``` ``` District Magistrate is expected to act under its ``` ``` purlieus, if he “thinks necessary” for ``` ``` preservation of public peace. ``` ``` 15.In the afore perspective, when one examines Ext.P2, it isluculent that District ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 11 ``` `Magistrate has taken cognizance of the fact that it is likely for persons from 56 "` കര `" (lands) to congregate at the Temple; and that it will not be even possible to anticipate the number of persons who are likely to come. It further says` ``` that, as part of closure of the Festival, ``` ``` religious and cultural functions and conferences ``` ``` have been scheduled; and that since there would be presence of large number of women and ``` ``` children, as also senior citizens, it is certainly plausible that there would occur law and order issues. ``` ``` 16.I must record at the juncture, that the ``` ``` learned Government Pleader has, in fact, made available a copy of the Report of the District ``` ``` Superintendent of Police – which has been referred to in Ext.P2 – across the Bar. The said Report also speaks about the possibility of ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 12 ``` ``` large number of persons attending the event and ``` ``` the Police Officer has recorded that there are inputs to indicate that there would be law and order issues, if people are allowed to participate in it, after imbibing liquor. ``` ``` 17.In the afore scenario, I must say that ``` ``` this Court finds favour with the declaration of law by this Court inAneesh Kumar (supra) because,areasonableandverifiable ``` ``` apprehension of breach of peace would certainly ``` ``` fall within the ambit of power of the District ``` ``` Magistrate, since statutorily, Section 54 of the ``` ``` ‘Act’ requires that he should act when ‘he may think necessary for the preservation of the ``` ``` public peace’ (sic). When the provision of law enjoins the District Magistrate to act if he thinks it necessary, it can only postulate a situation where there is reasonable apprehension ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 13 ``` ``` of breach of law and order, which can surely be ``` ``` not determined with mathematical precision by ``` ``` anyone, since what is to happen is in the future. ``` ``` 18.Certain events in the recent past have ``` ``` reaffirmed that crowd control is a specialized ``` ``` exercise, which has to be designed and executed ``` ``` by expert agencies. The situation in the Temple ``` ``` would certainly be dynamic, changing from ``` ``` minute-to-minute, as correctly said above by ``` ``` the learned Government Pleader; and it would not ``` ``` be, therefore, possible for this Court to ``` ``` interfere in any manner, when the Police Authorities feel that a particular measure/step ``` ``` is to be taken to avert any untoward incident, ``` ``` especially when large number of persons are to ``` ``` congregate. These are to be left with the ``` ``` competent Authorities to decide, whose wisdom ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 14 ``` ``` can never be substituted for that this Court, ``` ``` for lack of competence in such areas. I, ``` ``` therefore, do not deem it prudent to intervene in this matter at all. ``` ``` 19.My afore view is fortified by the fact ``` ``` that, while, what the petitioner requires is an ``` ``` enhancement of his business, taking note of the ``` ``` large congregation on a particular day; what the Police anticipates is law and order issues, on account of the same factum. Obviously, a balance between the two will have to be obtained; and this Court can only find in favour of public interest. ``` ``` In the afore circumstances,thisWrit ``` ``` Petition is dismissed. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ## `JUDGE` ``` SAS/RR ``` ``` WP(C) NO. 39437 of 2023 ``` ``` 15 ``` ## `APPENDIX OF WP(C) 39437/2023` ``` PETITIONER’S EXHIBITS: ``` ``` Exhibit P1 Exhibit P2 ``` ``` A TRUE COPY OF THE FL-3 RENEWAL LICENSE CERTIFICATE DATED 31/03/2023 A TRUE COPY OF THE ORDER DATED 21/11/2023 ISSUED BY THE 1ST RESPONDENT ```