ANEESH KUMAR T K Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) Challenge in this Writ Petition is against Ext. P4 order issued by the District Collector in exercise of powers conferred under S. 54 of the Abkari Act. In Ext. P4 the District Collector had issued direction to close down toddy shops situated within 2 Kms from St. Andrews Basilica, Arthunkal, on the dates on 19.01.2012, 20.01.2012, 26.01.2012 and 27.01.2012, in connection with a festival conducted in the Basilica. It reveals that such an order is issued in view of ensuring smooth conduct of the festival and for preservation of public peace. It is evident from Ext. P4 that the proceedings was issued on the basis of an application submitted by the authorities of the Basilica and on taking into consideration of the reports submitted by the Deputy Commissioner (Excise) Alappuzha and the District Police Chief, Alappuzha. Petitioners are challenging Ext. P4 mainly on the ground that the same was issued in an arbitrary manner. According to the petitioners, for issuing the impugned proceedings the District Collector had only considered the reports of the Excise Commissioner and the District Police Chief, which will only indicate that a large crowd, including ladies and children, will be participating in the festival. The same cannot be taken as a valid ground to apprehend breach of public peace. The reasoning that such a prohibition is imposed considering the expected crowd, is not sustainable ground, is the argument. It is contended that, unless it is reported that there is apprehension of law and order situation or breach of public peace, such an order was not at all warranted. Learned counsel for the petitioners also pointed out that R. 7(10) of the Kerala Abkari Shops Disposal Rules 2002 enables the Deputy Commissioner (Excise) to regulate the working hours of toddy shops. Hence an order to close down the shops for the full day was not warranted. Sum and substances of the contentions is that Ext. P4 was not warranted based on any factual situation prevailing which will indicate that public peace has been put to danger. Petitioners pointed out that there was no antecedents of any crime registered in connection with the festival. Further contention is that Ext. P4 will violate the rights protected under the Constitution. Petitioners also raise contention to the extent that Ext. P4 was issued without affording any opportunity of hearing. Lastly, the petitioners contended that Ext. P4 is not a notice issued as contemplated under S. 54.

(2.) Heard, learned Govt. Pleader appearing on behalf of the respondents. It is contended that Ext. P4 was served on the petitioners through authorities of the Excise Department on 16.01.2012 and on 17.01.2012, respectively. It is further contended that Ext. P4 was issued on the basis of an application submitted by the authorities of the church, after calling for detailed reports from the Excise authorities as well as from the Police authorities. It is only after subjective satisfaction arrived by the District Magistrate that the impugned order was issued, on the basis of the finding that it is necessary to prohibit sale of toddy on the respective dates for preservation of public peace.

(3.) While considering the challenges raised, I am reminded of the fact that the petitioners are not entitled to claim protection of fundamental rights under the Constitution with respect to business or trade in liquor, as settled through various precedents of this court and the honourable Supreme Court. The contention regarding non-serving of Ext. P4 need not be considered, since the petitioners have chosen to challenge its validity itself, and in view of the specific contention of the respondents that Ext. P4 was served on the petitioners through the Excise authorities.