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.
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