Public Ways; Antony Vs. Superintendent of Police [Kerala High Court, 19-07-2011]

Public Ways (Restriction of Assemblies and Processions) Act, 2011 (Kerala) – Section 4 – Prohibition of obstruction on public ways – the prohibition under Section 4 of the Public Ways Act will apply to ‘public way’, ‘foot path’ and ‘road-margin’. Putting up of any shed or structure either temporary or permanent at any such places for the purpose of any business, meeting assembly, procession or demonstration could not be permitted.

2011 (3) KLT 361 : 2011 (3) KLJ 381 : ILR 2011 (3) Ker. 415 : 2011 (3) KHC 179

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PIUS C. KURIAKOSE  AND C.K. ABDUL REHIM, JJ.

W.P. (C) No. 17962 of 2011 (U)

Dated this the 19th day of July, 2011

Antony Vs. Superintendent of Police

For the Petitioner: Renjith Thampan, Advocate; For the Respondents: K. Jayakumar, Senior Advocate, C. Anil Kumar, Advocate, T.K. Vipindas, Government Pleader.

J U D G M E N T

Abdul Rehim, J.

The petitioner is running a Bar attached Hotel with Boarding facility at Kuttipuram Town in Malappuram District, under the name and style ‘Hotel Salkara’, on the strength of Ext.P1, FL 3 licence granted under the provisions of the Abakri Act and the Foreign Liquor Rules 1953 made thereunder. Ext.P1 licence was issued in the year 1985 and was periodically renewed, currently upto 31.3.2012. The licence fee remitted by the petitioner for the current year is to the tune of Rs.22 lakhs and 18 workers are working in the Hotel.

2. On the night of 6.6.2011 there occurred assaults between the suppliers working in the Bar Hotel and a few customers. A person involved in the said incident, Shri. Ayoob, died on the next day, which was a normal death due to cardiac arrest, according to the police authorities. However, the incident lead to protest against conduct of the Bar, and demonstrations started under leadership of some local people. In the said circumstances the petitioner had approached this court on an earlier occasion in WP(C).No.16631/2011 seeking police protection for peaceful conduct of business in the Bar Hotel. Respondents 5 and 6 herein along with one Shri. I.V.Rajagopalan were arrayed as party respondents alleged as creating obstructions under the guise of prohibitionists against the use of liquor. The above said Sri. I.V.Rajagopalan conceded that he has nothing to do with the alleged obstruction, but he had only participated in a meeting convened to highlight the evils of drinking. Respondents 5 and 6 herein, who were respondents 2 and 3 in the said writ petition, contended that the petitioner had procured the licence fraudulently and that the Bar is being conducted in violation of the relevant statutory provisions. However it was conceded that they are not in any way obstructing running of the Bar Hotel, but only peacefully demonstrating in front of the Bar raising objections against violation of the relevant Rules. They undertook that they will not indulge in any contumacious or culpable conducts. Respondents 3 and 4 herein, who were respondents 4 and 5 in that writ petition submitted that there is no threat to the conduct of the Bar and the police will afford necessary protection, if any such threat is there. Through Ext.P2 this court disposed of WP(C). No.16631/2011 on the following terms:-

“In the result, (a) this writ petition is allowed. (b) Respondents 4 and 5 are directed to afford police protection for the petitioner to peacefully run his bar attached hotel-Hotel Salkara, Kuttipuram, Malappuram District against any illegal obstruction that may be raised by respondents 1 to 3 or persons acting under them. ) We make it clear that this direction shall not in any way fetter the rights of respondents 1 to 3 to challenge the licence issued in favour of the petitioner in accordance with law or to hold peaceful demonstrations without in any way obstructing the ingress and egress of the petitioner, his employees and his customers to the hotel. “

3. The present writ petition is filed raising allegations that, immediately on passing of Ext.P2 judgment, the respondents 5 and 6 collected large number of persons and erected a shed in front of the Hotel with temporary roof attached to the building. It is averred that, the shed is erected in front of the entrance to the Bar and entrance to the boarding and lodging area and the petitioner had to close down the shutter of the boarding and lodging area because of the violent protest and showering of abuse by respondents 5 and 6 and their henchmen even on the customers of the petitioner. It is alleged that apart from scouting on the street a group of persons are permanently stationed in front of the Hotel blocking entrance and abusing customers and other persons coming to the Bar and the Hotel. It is stated that the building in question is abutting ‘Kuttipuram Main Road’ at Kuttipuram Town and the temporary shed is erected on the main road, in violation of mandates of the ruling of this court in Chief Secretary to Government vs. Khalid Mundappilly, 2010 (3) KLT 757 and also the provisions of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 (hereinafter referred to as the Public Ways Act, for short). It is contended that the shed was constructed in the presence of police officials and inspite of specific requests made, the respondents 5 and 6 or their men were not prevented from such illegal activity, obviously under the undue influence of respondents 5 and 6. It is further stated that inspite of Ext.P4 complaint submitted before the 4th respondent, no action was taken. Under such circumstances the petitioner is seeking direction to ensure that respondents 5 and 6 do not conduct any ‘dharna’ or meeting atleast within a distance of 100 meters from the entrance of the Hotel building and also to command respondents 1 and 2 to ensure that the respondents 5 and 6 and their men do not erect any temporary shed on the public road and conduct ‘dharna’ and meeting in violation of the ruling of this court cited above and other relevant statutes.

4. In the counter affidavit of respondents 5 and 6 it is stated that, neither the entrance of the Hotel nor the entrance of the boarding and lodging area is blocked by the shed put up in front of the building. It is alleged that the petitioner had deliberately closed the entrance to the boarding and lodging area to create a scene and to make it appear that the entrance is blocked. Contention of the petitioner that a group of persons are permanently stationed in front of the petitioner’s Hotel blocking the entrance and is abusing the customers and other persons, is denied as untrue. According to respondents 5 and 6, there is a 2 Meter wide path way in front of the building and the shed is put up only on the other side of the path way, in the land belonging to the Panchayat, without blocking either the path way or the road, and not in any way obstructing ingress and egress to the petitioner’s Hotel and Bar or the boarding and lodging house. It is further contended that, under Ext.R5(a), the local authority, the Kuttipuram Grama Panchayat, had given consent to use the precincts of ‘Kuttipuram Bus Stand’ for dharna and strike conducted by the “Kuttipuram Madhya Virudha Samithi”. Further contention is that the demonstrators are not conducting dharna on the public road or courtyard and not making any nuisance or obstruction to the general public and that the demonstration is being conducted strictly in compliance with the terms of Ext. P2 judgment.

5. As directed by this court, the 3rd respondent has filed an affidavit stating that, on the date of Ext.P2 judgment, a temporary shed was erected by persons under the leadership of 5th respondent, near the Bar, in the property of the Panchayat. The shed is not obstructing ingress and egress to the Bar Hotel and the police is providing adequate protection to the free ingress and egress, as per the directions contained in Ext.P2, by deploying 10 to 15 policemen at the spot. However it is stated that, a request has been made to the Revenue Divisional Officer , Tirur and to the Secretary of Kuttipuram Grama Panchayat to remove the temporary shed erected in front of the Bar. It is conceded that the agitation is causing disturbed atmosphere in front of the Bar, because some times there occurred exchange of words between the protesters and customers who were coming to the Bar. It is also conceded that chances of clash between the protesters and the customers cannot be ruled out and presence of police is being ensured to maintain the law and order situation under peaceful control. It is assured that the police will take all steps to comply with the directions contained in Ext.P2 judgment.