Hotel Sea Palace vs State Of Kerala
2022 Latest Caselaw 9003 Ker

                  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.

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27-07-2022                  /True Copy/                           Assistant Registrar