- District Magistrate
- Section 54 of the Abkari Act
- Hotel Vijaya Palace v. State of Kerala, 2016 (1) KLT 284
- Mohinder Sing Gill and another v. The Chief Election Commissioner and Others, (1978) 1 SCC 405
- Thomas George and Another v. State of Kerala and Others, 2015 (1) KHC 679
- 54. Closing of shop for the sake of public peace
Abkari Act – Section 54 – Invocation of – Closing of shop for the sake of public peace – Power of District Magistrate – Held, Prevention of crime is not based on a preponderance of probabilities or possibilities, but is based on zero tolerance.
# District Magistrate
Abkari Act – Section 54 – Invocation of – Closing of shop for the sake of public peace – District Police Chief’s recommending the ban to be confined to a particular radius – District Magistrate, however, imposed it much beyond the recommended area – Held, the District Police Chief has ‘felt’ or ‘opined’ that ‘this’ is the radius the ban ‘may’ be confined to – the District Magistrate, in his wisdom, has played safe; he has extended the area of the ban a little wider – both the authorities have had their subjective satisfactions on the issue – the decision-making authority, the District Magistrate, has exercised his discretion on the safer side. Thus, if at all he has erred, he has erred on the safer side – do not see, in these circumstances, any perversity—which alone could have vitiated the decision—in the order passed by the said authority.
IN THE HIGH COURT OF KERALA ATERNAKULAM
DAMA SESHADRI NAIDU, J.
W.P.(c) Nos. 13203 of 2016, 13221 of 2016 & 13483 of 2016
Dated this the 06th day of April, 2016
K.V. SADANANDAN, MANAGING PARTNER, HOTEL ELITE DRIVE INN, KODUNGALOOR.
BY ADVS.SRI.T.A.SHAJI (SR.) SMT.NAMITHA JYOTHISH SRI.V.VINCENT DIDACOSE
1. THE DISTRICT COLLECTOR, THRISSUR.
2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 001.
3. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR.
4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT,THIRUVANANTHAPURAM-695 001.
BY SR. GOVERNMENT PLEADER SRI. V. VIJULAL
Yet again, another invocation of
# Section 54 of the Abkari Act
It triggers, as usual, a spate of writ petitions. In this God’s Own Country, there is no dearth for festivals and festivities—nothing pejorative is intended. Given the complications that arise in the wake of practitioners of faith converging on a particular day, at a particular place, in multitude; the officials are on their toes to ensure that no untoward incident happens—law and order is maintained. The business persons, be it vendors of liquor, are worried that the measures taken by administration come in the way of their conducting the business unhampered. Predictably, they rushed to the Court. This Court has already seen repeated rounds of litigation on the same issue and rendered a plethora of judgments, but the issue refuses to abate; it rises again and again. It is phoenix like.
2. In all the writ petitions, the petitioners are the licensees of toddy or Indian Made Foreign Liquor. The place of festivity is Kodungalloor, where Bharani festival takes place from 5 th to 8 th April, annually. The District Magistrate invoking Section 54 of the Act issued proceedings interdicting the liquor sale within the jurisdiction of Kodungalloor Police Station on those three days. Aggrieved, the licensees have filed these three writ petitions. As all the writ petitions raise the same question of law in nearly identical fact-setting, involving the same set of respondents; this Court has decided to dispose of the three cases through a common judgment.
3. In the uncontroverted, narrow factual setting as has been adverted to above, Sri. T.A. Shaji, the learned Senior Counsel for the petitioner in W.P. (C) No. 13203 of 2016, has submitted that the order is verbatim as those that had been issued in the previous years and it exposes the non-application of mind by the District Magistrate, who mechanically invoked Section 54 of the Act. The learned Senior Counsel has contended that this Court through a plethora of precedents has laid down the parameters to be followed for invoking Section 54. He has further brought to my notice a circular earlier issued by the Government setting out the pre-conditions to be met before an authority could invoke Section 54 of the Act.
4. Placing heavy emphasis on
# Hotel Vijaya Palace v. State of Kerala, 2016 (1) KLT 284
the learned Senior Counsel has strenuously contended that the District Magistrate had adhered to none of the precautions enlisted therein before his invoking Section 54 of the Act. He has further submitted that the impugned order records only the fact that the ban was imposed on earlier occasions, and it should be repeated this year as well. That apart, it cannot be gathered, contends the learned Senior Counsel, from the order that there was any subjective satisfaction by the District Magistrate on the imperative of the ban. According to him, the impugned order violates the judgment rendered by a learned Division Bench of this Court and the consequential circular issued by the Government, too.
5. To support his submissions that an order could be sustained, essentially, on what it says rather than what is said about it, the learned Senior Counsel has placed reliance on
# Mohinder Sing Gill and another v. The Chief Election Commissioner and Others, (1978) 1 SCC 405
6. Sri. M.G. Karthikeyan, the learned counsel for the petitioners in W.P. (C) No. 13221 of 2016, has submitted that the District Magistrate has ritualistically invoked Section 54 without assessing the ground realities. In elaboration, he has submitted that even on the recommendation of the District Police Chief the only observation is that the ban can be imposed this year also. He has also contended that in all previous years this Court issued interim directions and, despite the sale of liquor in the vicinity, no untoward incident occurred. In further elaboration, the learned counsel has submitted that there is no finding in the impugned order issued that there is any situation warranting the ban on the sale of liquor.
7. Sri. N. Raghuraj, the learned counsel for the petitioner in W.P. (C) No. 13483 of 2016, has submitted that the District Magistrate has relied on the recommendation of the District Police Chief, whose communication is shown as reference No.1 in the impugned order. Having obtained a copy of the Police Chief’s communication through the Right to Information Act, the learned counsel has strenuously contended that the recommendation is confined to a radius of 100 meters so far as bars are concerned and 500 meters regarding retail outlets. According to the learned counsel, the impugned order is beyond the recommendation. Apart from adopting the submissions made by the other two learned counsel, Sri. Raghuraj has submitted that the Police Chief being the competent authority to assess the law and order situation, the ban, if at all required, ought to have been strictly confined to the distance recommended by that official. The learned counsel has drawn my attention to
# Thomas George and Another v. State of Kerala and Others, 2015 (1) KHC 679
8. Sri Raghuraj has particularly contended, on the strength of what seems to be a google map, that the petitioner shop is about 4.5 Kms from the place of festival. Summing up his submissions, he has urged the Court to set aside the impugned order.
9. Indeed, this Court is called upon to decide whether the third respondent, while passing Exhibit P1 order, has exercised powers under Section 54 of the Act after objectively considering the ground realities. In other words, whether Exhibit P1 can be termed as a speaking order signifying application of mind, as has been required under the Government Circular, as well as this Court’s earlier precedents, on the issue.
10. Section 54 of the Act, the fulcrum of our discussion, reads as follows:
# 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 sold] is closed at such times or for such period as he may think 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.”
11. As mentioned already, the issue has engaged the attention of this Court often. Because of one such adjudication in the judgment dated 5.3.2009 of a learned Division Bench in WP(c). No. 5748 & 6149 of 2009, the Government issued these instructions to all District Collectors in the State requiring them strictly to comply with them while their exercising powers under section 54 of the Abkari Act:
(a) 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 be aggrieved by such orders.
(b) Section 54 of the said Act shall be invoked only when there is a law and order situation or there is a reasonable apprehension of breach of peace and public tranquility and the circumstances so warrant.
(c) The exercise of the powers under the said section may not be mechanical and if there is any apprehension of breach of peace and public tranquility, the grounds or acceptable reasons in support of such apprehension shall be stated in the order.
(d) The order shall not be on vague grounds and a speaking order shall be passed.
(e) The order shall not be based on desirability but to the objective and subjective satisfaction of the District Collector that there is possible breach of peace or law and order.
(f) There shall be cogent material to show that on account of opening of liquor shops there is distinct likelihood of breach of peace and law and order situation.
(g) The facts and circumstances of a particular situation shall not be treated as continuous or perpetual warranting an order under section 54 for the coming year.
12. True, it is a specific, uniform contention of the learned counsel for the petitioners that previously often this Court stayed the orders, the liquor sale continued, and no untoward incident occurred. Attractive as the submission sounds, I may observe that this Court on an earlier occasion has already repelled this contention: In W.P. (C) No. 3616 of 2015, the Court observed that preventive measures cannot be a matter of statistics. Prevention of crime is not based on a preponderance of probabilities or possibilities, but is based on zero tolerance. To quote a quotidian instance, I may observe that law enjoins a citizen from riding a motorcycle without wearing a helmet, not that he meets with an accident the moment he goes out without wearing one; it is only to ensure that the rider of the motorcycle is safe—always.
13. The next issue is whether the District Magistrate has passed the order mechanically without applying his mind; worse still, the authority has passed a verbatim order as found in the previous years. Verbatim it may be, but does that rob the order of its validity or force?
14. Not in dispute is that the religious conventions and congregations are an annual affair; with multitudes of men and women converging at one place for a day or two, the authorities—every year under identical circumstances—take up preventive measures to maintain law and order and also to ensure that nothing untoward happens. Under these unchanging circumstances, can we expect the authorities to pass variegated orders, as if it were an exercise of their creative faculties? Identical problems engender identical issues; identical issues require identical remedies; and identical remedies, no wonder, get reflected in orders worded identically. There is neither copyright nor plagiarism in administrative orders, so to say.
15. Addressing the issue whether the District Magistrate has passed orders without application of mind, I may observe that once a competent authority forms an informed opinion and comes to a conclusion, after considering all the material at his disposal, that to maintain law and order or to preserve peace and tranquility in the society, he is required to take certain measures. That subjective satisfaction, indeed, may not be disturbed by this Court, unless it has compelling reasons to do so. An executive, who is best suited to have a hands-on assessment of a situation, should be given sufficient play at the joints so that the administration can go on unhindered. An opinion is an opinion, so long as it is not outrageously chimerical, offending the Wednesbury’s unreasonableness. There is no irrefragability to any opinion, which can be genuinely doubted or differed from, but such doubt or difference cannot dethrone it from the pedestal of acceptability [See Thomas George (supra)].
16. It pays to recollect what has been tellingly observed in
# Aneesh Kumar v. District Collector, 2012 (2) KLT 91
“9. The statutory requirement contemplated under S. 54 is only, an apprehension in the mind of the District Magistrate regarding any breach of peace. The wording in the Section, “as he may think necessary for the preservation of the public peace’ indicate that, the District Magistrate need only to be satisfied that such a prohibition is necessary for preserving public peace. Merely because there was no antecedents of any criminal case or breach of peace, during the previous years, or merely because there was no such incidents occurred during the intervening days of the festival, it cannot be contended that the apprehension of breach of peace is baseless, especially with respect to the particular dates on which there will be more crowd. When the apprehension is supported by reports of the competent authorities, the satisfaction regarding necessity for issuing such a direction for preservation of peace, cannot be questioned…”
17. Recently, a learned Division Bench of this Court in an unreported judgment dated 09.05.2014 in W.A. No. 673 of 2014 reiterated the same ratio holding that once the District Collector opines that there are chances of a breach in law and order and that, to prevent such instances, it is necessary to prohibit the sale and consumption of liquor during a particular period, the opinion of the executive cannot be dismissed outright as unreasonable and untenable.
18. In Hotel Vijaya Palace (supra), a learned Full Bench of this Court has held that the necessity to read the principles of natural justice into the provision, as felt by a learned Judge of this Court in the judgment dated 05.03.2009 in W.P.(C) Nos. 5748 and 6149 of 2009, led to the issuance of the Circular dated 29.04.2009 by the Government. But such proceedings to be issued with a minimum gap of ‘one week’ before the event, as ordered in the writ petition and as stipulated by the Government in the Circular, can only be in relation to the ‘first limb’ of Section 54 of the Kerala Abkari Act. If there is any imminent danger or threat, the position is separately carved out under the ‘second limb’ of Section 54 of the Abkari Act. The second limb of the provision stipulates that, if any riot or unlawful assembly occurs or apprehended near any such shop, it shall be lawful for any Magistrate, or for any police officer, who is present, to require such shop to close for such period as may be necessary. According to the learned Full Bench, this measure is to meet the ‘need of the hour’, where the principles of natural justice have to be given a ‘go-bye’. If the issuance of prior notice is to be read into the ‘second limb’, the purpose of the Statute, the learned Full Bench has gone on to observe, would be defeated. And it cannot be the intention of the lawmakers.
19. The learned Full Bench has emphatically observed thus:
“[I]t is very much open for the Executive Magistrate to rise to the occasion, analyse, and appreciate the situation and pass appropriate orders in accordance with law to promote the rule of law, meeting the law and order situation. This is more so, since, as observed by the Division Bench of this Court in the judgment dated 16.05.2005 in W.P.(C) 5187 of 2005, the said verdict shall not be read or understood as to preclude the District Magistrate to exercise the powers under Section 54 of the Abkari Act in future and that the same could be invoked, if the circumstances so warranted, subject to the rider as aforesaid.”
20. Though Hotel Vijaya Palace has been relied on by the petitioners, the above proposition of law, however, seems to be against their line of argument. True, the proposition laid down in Mohinder Singh Gill (supra) is time tested: that an order should sustain itself on what it contains rather than what it has had as a supplement, later, in its support. In the present instance, the impugned order, I am afraid, does not suffer from any vice pointed out in Mohinder Singh Gill.
21. Further, much emphasis has been laid on the District Police Chief’s recommending the ban to be confined to a particular radius. The District Magistrate, however, imposed it much beyond the recommended area. No quarrel. But the fact remains that the District Police Chief has ‘felt’ or ‘opined’ that ‘this’ is the radius the ban ‘may’ be confined to. The District Magistrate, in his wisdom, has played safe; he has extended the area of the ban a little wider. I dare say that both the authorities have had their subjective satisfactions on the issue. And the decision-making authority, the District Magistrate, has exercised his discretion on the safer side. Thus, if at all he has erred, he has erred on the safer side. I do not see, in these circumstances, any perversity—which alone could have vitiated the decision—in the order passed by the said authority.
22. In the facts and circumstances, I find no merit in the writ petitions; accordingly, I dismiss them. No order on costs.