W.A. No. 391 of 2018 in W.P.(C) No.4147/2018 & W.P.(C) No.4752/2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939 ## **WA.No. 391 of 2018 IN WPC. 4147/2018** ## **-----------------------------------** AGAINST THE ORDER/JUDGMENT IN WP(C) 4147/2018 of HIGH COURT OF KERALA DATED 07-02-2018 ## **APPELLANT(S)/RESPONDENTS 1-5 IN THE WRIT PETITION:** ## **----------------------------------------------------** 1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2 COMMISSIONER OF EXCISE THIRUVANANTHAPURAM. 3 DEPUTY EXCISE COMMISSIONER, PATHANAMTHITTA. 4 DISTRICT COLLECTOR, PATHANAMTHITTA. 5 DISTRICT SUPERINTENDENT OF POLICE, PATHANAMTHITTA. BY ADV.GOVERNMENT PLEADER SRI V MANU ## **RESPONDENTS/PETITIONERS AND 6TH RESPONDENT IN THE WRIT PETITION.:** ## **-------------------------------------------------------------------** 1. MARY KURIAN JOINT MANAGING PARTNER, HOTEL PARK, KOZHENCHERRY, 2. SUNOJ KURIAN, JOINT MANAGING PARTNER, HOTEL PARK, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. 3. THE MALABAR MAR THOMA SYRIAN CHRISTIAN EVANGELISTIC ASSOCIATION, REPRESENTED ITS GENERAL SECRETARY, THIRUVALLA.689101. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-02-2018, ALONG WITH W.P(C) NOS.4147/2018&4752/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma ## **K. Vinod Chandran & Ashok Menon, JJ** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - -** **W.A No.391 of 2018 in W.P(C) No.4147 of 2018, W.P(C) No.4147 of 2018 P & W.P(C) No.4752 of 2018 T** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of February, 2018** ## **J U D G M E N T** ## K. Vinod Chandran, J The appellant in the writ appeal is the State and its officials, including the District Collector, Pathanamthitta challenging the interim order passed by the learned Single Judge staying Ext.P2 order in W.P(C) No.4147/2018. Ext.P2, passed by the District Collector directed closing down all establishments selling liquor and toddy within a radius of 1 Kilometer of the Maramon Convention. The petitioner in the writ petition challenged the order, on the ground that it is against the spirit of Ext.P3 judgment of a Division Bench as also against the clear guidelines laid down by the Government in compliance with the directions of the Division Bench as W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 2 : produced at Ext.P6. 2. The learned Senior Government Pleader, on behalf of the State submits that the order has been passed by the District Collector only since there is a large congregation of people belonging to a particular denomination of Christian religion, including women and children and unless the sale of intoxicating liquor is prohibited within 1 kilometer of the radius of such congregation, there could be disruption of law and order situation by reason of apprehended mischief and trouble created on intoxication. This is more so since a massive inflow of people, including women and children are expected and if any mischief as apprehended is occasioned, the communal harmony prevailing in the State would be put to jeopardy. It is argued that when such a large religious convention is held, it is expedient that the abkari shops in the locality are closed down, during the said period. The order passed by the District Magistrate under W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 3 : Section 54 of the Kerala Abkari Act has to be sustained; is the specific contention raised by the learned Senior Government Pleader. 3. The learned Counsel appearing for the respondent would specifically point to the orders passed in the earlier years, produced as Ext.P8 series in W.P(C) No.4147/2018, which alone would indicate that the impugned order is a mechanical repetition of the very same reasoning in the earlier years and that too a verbatim reproduction. Such a mechanical order cannot not stand the test of the guidelines issued by the Government at Ext.P6, is the specific ground taken. The learned Counsel for the respondent would also contend that the respondent Bar hotel is the only one, which has been denied functioning for nine days, while others beyond a kilometer and even within the prohibited distance, on the other bank of the river is carried on. The prohibition brought about for nine days, applicable only to the respondent Bar hotel does W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 4 : not serve any purpose and does not prohibit the supply or use of liquor in the Convention area or the nearby precincts as it is freely available in the other parts of the State and even within the District. The confined and restrictive prohibition visits the respondent with prejudice, irreparably injury and violates the terms of the license granted by the State; which is after remittance of large amounts as license fees. There is no reasonable ground or apprehension based on which the District Magistrate has invoked Section 54 of the Abkari Act. 4. We see from Ext.P2 that a Division Bench of this Court had considered the very same subject matter elaborately with respect to a similar ban order issued at that point with respect to the very same Maramon Convention, held for the year 2005. The Division Bench noticed the concern of the Superintendent of Police, Pathanamthitta who apprehended breach of peace, if sale of liquor/alcohol is allowed, on the ground that some years W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 5 : back the people gathering for the Convention having attacked and vandalized bar hotels. The same was found to be not a valid ground to close down liquor sales, since it was for the District Magistrate to supervise maintenance of law and order and the Superintendent of Police to tackle any problem arising. Section 54 was held to be a transient provision capable of invocation only when there is a law and order situation or a reasonable apprehension of breach of peace. The Court also noticed in juxtaposition the fact that no remission of the license fee being possible for the period in which there is a ban imposed of liquor sales. 5. We fully agree with the findings of the Division Bench, especially in the context of the submission of the learned Counsel appearing for the respondent that the respondent’s Bar is the only one which is closed down as existing within the 1 km radius. There are other bar hotels and retail outlets within the outer circle of 1 km and we do not think that the closing down of one bar hotel would W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 6 : serve the purpose or put at rest the apprehension expressed in Ext. P2 as to a disruption of peace by reason of intoxication. We also see from the impugned order that the District Magistrate has merely reproduced, verbatim, the orders passed in the earlier instances, when a similar ban was imposed; justifying the contention that the imposition of ban was a mere mechanical exercise. 6. The learned Senior Government Pleader has placed before us a host of decisions both of Single Benches and Division Benches where such bans were upheld. We have to notice that the decisions, except one, which was a ban for 15 days on account of the very same convention, the others imposed a ban for one to three days on account of festivals of a specific temple or for reason of election to the representative bodies. There is a specific prohibition with respect to the elections in the Abkari Act itself, which hence is not applicable here. The other decisions are of minimal impact of one or at the worst three days. It is not W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 7 : comparable to the instant ban of nine days nor are the reasons mechanical as in the instant case. We would not refer to the Single Bench decisions, since they are not binding on us. All the same we would refer to one, which deals with the subject convention itself; but a little later. As for the Division Bench decisions, the judgment dated 09.05.2014, in W.A. No 673 of 2014 and connected appeals, deals with a ban for one-and-a-half days imposed on account of Thrissur Pooram. The Division Bench considered the ground raised of clashes in the past and discarded it on the reasoning that there is no specific instance pointed out. However the report of the Police as to one person having died on account of intoxication and the specific instance of attack, unleashed against Christian churches and a hartal called by a Hindu organisation was highlighted. W.A. No. 2398 of 2009 was decided by another Division Bench on 28.10.2009, which was a ban imposed on the day of counting votes in an election conducted to a local authority, W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 8 : which cannot have any application here. 7. In _**2015 (1) KHC 679**_ ( _**Thomas George and Another**_ _**v. State of Kerala and others**_ ) a learned Single Judge upheld a ban of 15 days for the Maramon Convention. The decision of the Division Bench with which we agreed was not placed before the learned Single Judge. The judgment relied on was that of the Division Bench in W.A. No. 673 of 2014, which we have distinguished on facts. The observations in Ext.P3 decision with respect to no remission being possible of license fees also was not noticed by the learned Single Judge, who left open such remedy. We also notice that the contentions were similar in so far as no cogent material being available to arrive at a reasonable apprehension of a breach of peace and the mechanical orders issued in various years. The learned Single Judge was not impressed. But even in the wake of such contentions; the District Administration continues to trod the beaten path. We are not impressed on the continued W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 9 : ## assertion of apprehension, by verbatim reproduction. 8. We see that at every instance, as in the present case, a request is made by the General Secretary of the Convention to maintain law and order and prohibit sale of liquor within the stipulated area. It is not for the General Secretary of a convention to decide on how the law and order situation is to be maintained and dictate prohibition of liquor or other measures. We find that the District Collector had taken the opinion of the District Police Chief as also Deputy Excise Commissioner which has been produced across the Bar by the learned Senior Government Pleader. We do not find anything other than a vague apprehension of disruption of law and order being caused for reason of intoxication. We do not think, with the prevalence of liquor shops and retail outlets in the State and also within the District itself, the apprehended evil sought to be avoided can be effectively curbed, by the impugned order. 9. As to the specific plea raised on the possibility W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 10 : of communal violence, we do not think that it would be occasioned merely on intoxication or averted on restricting supply of liquor within a one kilometer radius. The District Administration and Police having allowed the holding of the Convention should be alert and on their toes, to ensure that no untoward incident is occasioned, with or without intoxication. The Administration cannot abdicate their powers nor be slack in the performance of their duties; in so far as maintenance of law and order. We hence set aside Ext.P2 order of the District Magistrate and direct the District Magistrate as also the District Police Chief to ensure that no untoward incident is caused in the Convention area or its precincts and anywhere in the locality; which even otherwise it is their duty to ensure. 10. We called for the writ petition also since the issue is confined to a ban only of nine days during which the Convention is held. When the matter was called up in the admission list in the morning, we were informed by the W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 11 : learned Counsel for the respondent in the appeal that yet another order was passed by the District Collector under the Police Act, which was challenged in another writ petition. The learned Single Judge before whom the said writ petition came up has directed the same to be posted along with the appeal before the Division Bench. We have gone through the papers of W.P(C) No.4752/2018. We see that Ext.P10 produced in the writ petition is the order passed by the very same District Collector invoking powers under Section 80 of the Kerala Police Act, 2011. The learned Senior Government Pleader with due expediency communicated the displeasure of this Court to the District Collector and has produced an order which recalled the order passed under the Kerala Police Act. However we cannot but deprecate the action of the District Collector in having attempted to circumvent the interim order passed by this Court. A learned Single Judge stayed the order passed by the District Magistrate under Section 54 of the W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 12 : Kerala Abkari Act, banning the sale of liquor within 1km radius of the Convention area. The stay order was issued on 07.02.2018. The learned Government Pleader would submit that a certified copy of the same was issued only on 09.02.2018. But, definitely the Office of the Advocate General would have communicated the order to the District Collector, which obviously prompted the District Collector to issue an identical ban under Section 80 of the Kerala Police Act. The District Collector ought to have been more circumspect in invoking powers under a different statute to achieve the very same end when the order passed earlier was stayed by a learned Single Judge of this Court. We do not say anything further, but merely require and direct the officer, who is the Administrative Head of the District, to be careful and circumspect in future; since howsoever high in the administrative hierarchy the Officer is; there can be no attempt to frustrate the orders issued by the jurisdictional High W.A.No. 391/2018 & W.P(C)4147/2018&4752/2018 : 13 : Court, which could even lead to initiation of contempt proceedings which we refrain from initiating. Since the order challenged in W.P(C) No.4752/2018 no longer survives, the said writ petition would stand dismissed. The writ appeal would stand dismissed. We make it clear that the findings are with respect to the impugned order and not to be treated as curtailing the powers under Section 54 of the Abkari Act; when invoked on valid grounds. W.P(C) No.4147/2018 would stand allowed setting aside the impugned order. No costs. Sd/- **K. Vinod Chandran, Judge** Sd/- **Ashok Menon, Judge** jma //true copy//