IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
Wednesday, the 27th day of July 2022 / 5th Sravana, 1944
WA NO. 954 OF 2022
AGAINST JUDGMENT DATED 26.07.2022 IN WP(C) 24255/2022 OF THIS COURT
APPELLANT/PETITIONER:
HOTEL SEA PALACE ,KOLLAM ,REPRESENTED BY ITS MANAGING PARTNER
SHRI.N.RAJENDRAN, GOURI VIHAR, MYTHRI NAGAR, 7A, KADAPPAKADA, KOLLAM
- 691 008.
BY ADVS.M/S. THOMAS ABRAHAM, MERCIAMMA MATHEW,
ASWIN P.JOHN, R.ANANTHAPADMANABAN & PAUL BABY
RESPONDENTS/RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. COMMISSIONER OF EXCISE ,OFFICE OF THE EXCISE COMMISSIONER, BAKERY
JUNCTION ROAD, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPURAM - 695 033.
3. DEPUTY COMMISSIONER OF EXCISE, OFFICE OF THE DEPUTY COMMISSIONER OF
EXCISE, RESIDENCY ROAD, CHAMAKKADA, KOLLAM - 691 001.
4. DISTRICT COLLECTOR ,COLLECTORATE, CIVIL STATION ROAD, KAANKATHU
MUKKU, KOLLAM - 691 013.
5. COMMISSIONER OF POLICE (KOLLAM CITY), OFFICE OF THE COMMISSIONER OF
POLICE, MUNDAKKAL, KOLLAM - 691 001.
BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum the High Court be pleased to
stay the operation of the judgment dated 26.07.2022 in W.P.C No.24255 of
2022 as well as Exhibit P2 order, to the extent it requires closure of
petitioner's hotel on 27th and 28th of July, 2022 in connection with
Karkidakavavu, during the pendency of the Writ Appeal for the fair play of
justice.
This Writ Appeal coming on for admission on 27/07/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P2:THE TRUE COPY OF THE PROHIBITION ORDER NO.
WITH THE D.C.K.L.M/8643/2022-M DATED 20.7.2022
ALONG WITH TRANSLATED COPY.
EXT.P3:THE TRUE COPY OF THE JUDGMENT DATED 16.2.2005
IN W.P.(C) NO.5187/2005.
EXT.P5:THE TRUE COPY OF THE CIRCULAR DATED 29.4.2009
ISSUED BY THE CHIEF SECRETARY ALONG WITH ITS LEGIBLE COPY.
EXT.P6:THE TRUE COPY OF THE JUDGMENT DATED 12.2.2018
IN W.A.NO.391 OF 2018.
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
==================
W.A.No. 954 of 2022
[Arising out of the impugned judgment dated 26.7.2022 in W.P.(C).No. 24555/2022]
==================
Dated this the 27th day of July, 2022
ORDER
Notice before admission for all the respondents have been taken by the learned Senior Govt. Pleader. Service complete.
2. We have heard both sides in extenso for quite some time in this case, which has been moved as a today motion. The impugned judgment dismissing the instant Writ Petition (Civil), W.P.(C). 24255/2022 has been rendered by the learned Single Judge only yesterday. Going by the time constraints, we are are not in a position to complete the hearing and to render final disposal of the main matter today itself. Hence we are constrained to pass an interim order after due regard to the interlocutory aspects of the matter.
3. We have heard Sri.Thomas Abraham, learned counsel appearing for the appellant and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents.
4. The learned Senior Govt. Pleader has strongly opposed the pleas for interim relief and has submitted that the reasonings given by the learned Single Judge in dismissing the instant W.P.(C).
WA 954/22 - : 2 :-
cannot be said to be grossly illegal or perverse and that this Court may not exercise discretion in this case.
5. Whereas Sri.Thomas Abraham, learned counsel appearing for the appellant would submit that the learned Single Judge has mainly relied on the judgment of the learned Single Judge in W.P. (C).No. 3616/2015, which is in the case, Thomas George & Anr. v. State of Kerala & Ors. [2015 (1) KHC 679]. The learned counsel for the appellant would place reliance on judgments of the Division Bench of this Court as in Ext.P-3 rendered on 16.2.2015 in W.P. (C).No. 5187/2005 as well as Ext.P-6 judgment of the Division Bench rendered on 12.2.2018 in W.A.No. 391/2018 and connected cases. It is pointed out that the learned Single Judge in Thomas George's case supra [2015 (1) KHC 679] [W.P(C) No.3616/2015], has relied on the decision of the Division Bench in W.A No.673/2014, which has been distinguished on facts by the subsequent Division Bench as per Ext.P- 6 herein. In both the decisions of the Division Bench as in Exts.P-3 & P-6, it has been laid down that for exercise of the power in terms of the first limb of Sec.54 of the Abkari Act, there should be materials to show that the District Magistrate is satisfied that there is a law and order situation or there is a reasonable apprehension of breach and WA 954/22 - : 3 :-
peace of public tranquility and mere mechanical recanting of the provisions stated in Sec.54 will not suffice and materials should justify the satisfaction of the District Magistrate regarding the existence of jurisdictional facts stated as above. It is further pointed out that the State Government has also fully accepted the correctness of the dictum laid down by the Division Bench of this Court in Ext.P-3 judgment, as can be seen from the issuance of Ext.P-5 Government Circular No.7497/A2/09/TD dated 29.04.2009, para 3 thereof, more particularly, clauses (b), (f), etc., thereof. Further that, it has been laid down by the Government in Ext.P-5 circular that at least one week's prior notice should be given to the affected bar licencees before such a detrimental order is passed in terms of Sec.54. Further that, the power conferred under Sec.54 of the Abkari Act is only to meet the transient scenario. It is also pointed out that on facts, Ext.P- 2 is stated to have issued on 20.7.2022 and the same was served on the appellant only on 21.7.2022 evening. Further, it is also pointed out that there are only 2 pathways from the location at Mundakkal, where the religious ceremony has to take place, to the site of the petitioner's bar hotel, and the walking distance from the ceremony site up to the bar hotel, through one pathway is 2.6 k.m. and through WA 954/22 - : 4 :-
the other pathway is 2.4 km. Further that without notice to the petitioner, the Police authorities have measured the pathway distance by using their jeep and that, according to their version, the distance is 1.9 km, whereas the limit is only up to 2 km, and that even going by the case of the Police, the distance as far as the petitioner's bar hotel is concerned is on the border line. That, if the petitioner had been given notice by the Police authorities and measured the distance, he could have convinced them that the actual distance is 2.4 k.m. through one pathway and 2.6 k.m. through another pathway, and therefore on facts, the petitioner will not come within the adverse purview of the impugned Ext.P-2 order. The learned Senior Govt. Pleader would submit that the distance of 1.9 kms., is measured in terms of the aerial distance.
6. From a reading of Ext.P-2 order, it is seen that the ban imposed is for 2 days, viz. today (27.7.2022) and tomorrow (28.7.2022). However, the learned Senior Government Pleader has now secured instructions as per the letter No.DCKLM/ 8643/2022/M5 dated 27.7.2022, wherein it is stated that the effect of the ban will be confined only from 4 P.M. today (27.7.2022) up to 2 P.M. tomorrow (28.7.2022) . It is also pointed out by the counsel for WA 954/22 - : 5 :-
the appellant that the number of people, who gather for the religious ceremony in question in the beach side near Mundakkal, is hardly between 50 and 1o0 and not more than that, and that it may be true that in other locations covered by Ext.P-2, more number of people may gather for the ceremony.
7. We have also made a prima facie assessment of the satisfaction of the jurisdictional facts mandated in the first limb of Sec.54 of the Abkari Act vis-a-vis., the facts stated in Ext.P2 order to the extent it affects the petitioner's Bar hotel and we have also assessed the case based on the dictum laid down by the Division Bench of this Court in terms of Exts.P3 & P6 as well as the norms of the Government at Ext.P5 circular. Further it is the case of the appellant that the Police have measured the pathway distance without notice to the petitioner and even according to the Police version, the distance is 1.9 kms., whereas the limit of the ban order in terms of Ext.P2 is only upto 2 kms. The petitioner has made out a probable case that the distance could be 2.4 kms. or 2.6 kms. or, at any rate, slightly above 2 kms. if the measurement had been conducted with prior notice to him and measuring the pathway distance from the exact site of the religious ceremony upto the location of the WA 954/22 - : 6 :-
petitioner's bar hotel on the basis of pathway distance. Even if the aerial distance is to be taken as the yardstick, the said distance of 1.9 k.ms. in the case of the petitioner is on the boarder line. Further we also note that the initial rigor of Ext.P2 bar order has now been substantially relaxed by the respondent District Magistrate.
8. After hearing both sides we see that the appellant has made out a strong prima facie case in the facts and circumstances of the case related to the present bar hotel. We are not dealing with any other bar hotels or liquor outlets covered by Ext.P2. Accordingly, it is ordered in the interest of justice that the operation and enforcement of Ext.P2 order dated 20.07.2022 to the limited extent it affects the petitioner's bar hotel will stand modified by ordering that the petitioner will be permitted to function his bar hotel till 10 p.m. today (27.07.2022). The petitioner shall comply with all the requirements of the bar licence conditions and shall not sell bottled liquor to customer for consumption outside the bar hotel premises. However, the petitioner shall close his bar from tomorrow (28.07.2022) morning upto 2 p.m. as already ordered by the modified ban order. This order will be subject to further orders to be passed in this writ appeal and also will be subject to the final result of this writ appeal. It WA 954/22 - : 7 :-
is made clear that the benefit of this interim order is applicable only in the case of the appellant's bar hotel and not to any other liquor outlets covered by Ext.P2.
List the writ appeal for disposal in the admission list on 01.08.2022.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
SHOBA ANNAMMA EAPEN, JUDGE H/O.
sdk+ 27-07-2022 /True Copy/ Assistant Registrar