D.THYAGARAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The challenge in this writ petition is against Ext.P1 order passed by the 3rd respondent invoking the power under section 54 of the Abkari Act. Upon hearing the learned counsel for the petitioner and also the learned Government Pleader I ween it only appropriate to express the displeasure and concern of this Court over the invocation of powers under section 54 of the Abkari Act disregarding the binding directions and guiding observations of this Court as also Ext.P3 circular of the Government, on the subject. Usually, such a situation arises not as a bolt from the blue and quite often, based on destined events. Even then such orders are being passed ignoring the repeated judicial pronouncements making it clear in unambiguous terms that an order under section 54 of the Abkari Act shall be passed only with application of mind and the power thereunder shall not be invoked on the mere asking by the persons associated with the event in respect of which the order is solicited or based on a report from the District Police Chief showing concern over a likely breach of tranquility or law and order situation without subjective and objective satisfaction. The matter, certainly, beckons correction in the sense, critical notice and chastisement.

(2.) What is the justification for extending prohibition of business in liquor in bar hotels that situate even beyond the periphery of about 10 Kms of Kadakkal Devi Temple in connection with Thiruvathira Festival for, two days that too, in total disregard to the directions in the judgment dated 5.3.2009 in W.P.(C)Nos.5748 and 6149 of 2009 and the judgment in W.P.(C)No.5187 of 2005 and also Ext.P3 Circular? The 3rd respondent or in that matter any of the District Collectors within the State of Kerala cannot feign ignorance about the said judgments and also of Ext.P3 circular. The aforesaid judgments have been specifically referred to in Ext.P3 circular dated 29.4.2009 and it is evident from Ext.P3 circular itself that copies of the same have been served on all District Collectors and also to the Excise Commissioner. Paragraphs 3 and 4 of Ext.P3 circular assume relevance in the context and they read thus: -

(3.) In this case, evidently, the request of the festival committee of Kadakkal Devi Temple for declaring 'dry days' in connection with the Thiruvathira Festival of the Temple in respect of all the liquor shops within the Kadakkal area and a report recommending declaration of 'dry days' in Kadakkal police circle limits to avoid any law and order situation and also similar recommendations from the Deputy Excise Commissioner, Kollam and Tahsildar, Kottarakkara were the basis for Ext.P1 order. Admittedly, Ext.P3 circular carrying instructions for strict compliance was issued pursuant to the judgment of a Division Bench of this Court in W.P.(C) No. 5187 of 2005, and also the common judgment in W.P.(C)Nos.5748 & 6149 of 2009. A scanning of Ext.P1 order would undoubtedly reveal that the same was passed in total disregard to the directions of this Court in the aforesaid judgments as also Ext.P3 circular issued in compliance with the directions therein. It is the specific contention of the petitioner that the Beer and Wine Parlour belonging to the petitioner situates at a distance of 9 Kms from the MC Road, Nilamel and located in another Panchayath. Ext.P1 did not reflect application of mind to relevant aspects and also on the subjective satisfaction of the ingredients to invoke the power under section 54 of the Abkari Act. The fact that several persons including ladies and children will throng at a place to celebrate by itself cannot be a reason for declaring a 'dry day' in respect of all liquor shops in an area going by a plethora of decisions. The Division Bench in the judgment in W.P.(C)No.5187 of 2005 made it clear that it is the duty of the District Magistrate to supervise the law and order situations and the task to tackle the law and order situation is for the Superintendent of Police (now, the District Police Chief). The mere report that people might throng at the temple and the roads that lead to the temple to attend the festival and a law and order situation might arise by the use of alcohol shall not be the sole factor for invocation of the power under Section 54 of the Abkari Act as per the decisions referred supra and also Ext.P3 circular issued imbibing the spirit of those judgments and the very provision itself. In the Division Bench judgment in W.P.(C)No. 5187 of 2005 the fact that no remission could be granted under sub -rule (26) of Rule 6 of the Abkari Shops (Disposal and Auction Rules, 1974) in such circumstances was also taken note of. The essence of the directions and findings in the above mentioned judgments and the instructions in Ext.P3 circular issued in the light of those decisions are pinpointing to the need to have an objective or subjective consideration of all relevant facts and factors before passing an order invoking the power under section 54 of the Abkari Act. In the case on hand, the report of the District Police Chief, Rural Kottarakkara is to the effect that during previous years criminal cases were reportedly committed under the influence of alcohol in connection with the festival in the aforementioned Temple and based on that a consequential recommendation to declare 'dry day' within the entire police circle limits to avoid any law and order problem was also made thereunder. Similar was the report from the Deputy Excise Commissioner, Kollam. Add to it request from the aforesaid temple committee was also there. They were acted upon mechanically while exercising the powers under section 54 of the Abkari Act. To bring forth the said aspects it is only proper and profitable to quote the impugned order: -