Kerala High Court
T.K. Aneesh Kumar vs The District Collector on 23 January, 2013
Author: K. Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
WEDNESDAY, THE 23RD DAY OF JANUARY 2013/3RD MAGHA 1934
WP(C).No. 1939 of 2013 (N)
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PETITIONERS:
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1. T.K. ANEESH KUMAR, AGED 35 YEARS
S/O KOCHUKUTTAN,THEKKEMADATHIL,ARTHUNKAL P.O
CHERTHALA,ALAPPUZHA DISTRICT 688530
2. J. OMANA, AGED 59 YEARS
W/O KOCHUKUTTAN,THEKKEMADATHIL,ARTHUNKAL P.O
CHERTHALA ALAPPUZHA DISTRICT 688530
3. KOMALA NATARAJAN,
MAKKEPARAMBIL,VETTACKAL P.O
CHERTHALA ALAPPUZHA DISTRICT 688587
4. RETNAKARAN, AGED 56 YEARS
S/O SIVARAMAN,THENAMPARAMBIL,CHETHY P.O
MARARIKKULAM NORTH VILLAGE,CHERTHAAL
ALAPPUZHA DISTRICT 688530
5. G. RAJENDRAN, AGED 59 YEARS
S/O GANGADHARAN,PUTHENTHARAYIL,THYCKAL P.O
KADAKKARAPPALLY VILLATE,CHERTHALA
ALAPPUZHA DISTRICT 688554
BY ADV. SRI.K.RAMANATHAN
RESPONDENTS:
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1. THE DISTRICT COLLECTOR,
COLLECTORATE,688001,ALAPPUZHA
2. THE SUPERINTENDENT OF POLICE,
OFFICE OF THE SUPERINTENDENT OF POLICE
ALAPPUZHA 688001
3. THE DEPUTY COMMISSIONER OF EXCISE,
OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE
ALAPPUZHA 688001
4. THE EXCISE INSPECTOR,
EXCISE RANGE,CHERTHALA,ALAPPUZHA DISTRICT 688001
5. THE SUB INSPECTOR OF POLICE,
POLICE STATION,ARTHUNKAL,CHERTHALA
ALAPPUZHA DISTRICT 688530
6. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY
TO GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM 695001
ADDL.R7 ST.ANDREW'S BASCILICA
REP. BY ITS RECTOR FR.STEPHEN J.PAZHAMBASSERIL
ARTHUNKAL P.O.,CHERTHALA, ALAPPUZHA DIST.
(IMPLEADED AS ADDL.R7 VIDE ORDER ON I.A.1251/2013 DT. 23.1.2013)
ADDL R7 BY ADV. SRI.M.K.PRADEEPKUMAR
BY GOVERNMENT PLEADER SMT.SAREENA GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN WPC 1939/2013
PETITIONER(S) EXHIBITS
EXT.P1: THE TRUE COPY OF THE LICENCE OF TODDY SHOP NO: 69 IN GROUP
NO:13 OF THE CHERTHALA EXCISE RANGE
EXT.P2: -DO- LICENCE OF TODDY SHOP NO: 72 IN GROUP NO: 13 OF -DO-
EXT.P3: -DO-74 IN GROUP NO:14 OF -DO-
EXT.P4: -DO- ORDER BEARING NO: N7-56189/11 DT.12.1.2012 ISSUED BY THE
1ST RESPONDENT
EXT.P5: -DO- OF INTERIM ORDER IN WPC 1398/2012
EXT.P6: JUDGMENT IN 2012(2)KHC 21
EXT.P7: THE TRUE COPY OF THE TODDY TRANSPORT PERMIT FOR TODDY SHOP
NOS:69, 70/12-13 OF CHERTHALA EXCISE RANGE DT.28.9.2012
EXT.P8: -DO- TODDY SHOP NOS:72/11-12 OF -DO-
EXT.P9: -DO- TODDY SHOP NOS: 74/11-12 OF CHERTHALA EXCISE RANGE
DT.29.9.2012
EXT.P10: -DO- OF REPRESENTATION FILED BY THE 1ST PETITIONER BEFORE THE
1ST RESPONDENT
EXT.P11: -DO- OF ORDER BEARING NO:N7-62646/12 DT.14.1.2013 ISSUED BY
1ST RESPONDENT
RESPONDENTS' EXHIBITS NIL
JJ /TRUE COPY/
P.S.TO JUDGE
K. SURENDRA MOHAN, J.
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W.P(C) NO: 1939 OF 2013
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Dated this the 23rd January, 2013.
JUDGMENT
The petitioners 1 to 3 are the licencees of toddy shops in Group No:13 of Cherthala Excise Range. Petitioners 4 and 5 are licencees in Group No: 14 of Cherthala Excise Range. They have filed this writ petition aggrieved by Ext.P11 order passed by the first respondent invoking the power under Section 54 of the Abkari Act ordering a ban on the sale of toddy within 2 km radius of St.Andrews Basilica , Arthunkal on 19.1.2013, 20.1.2013, 26.1.2013 and 27.1.2013. Consequently, the petitioners have been directed to keep their toddy shops closed during the festival days. This writ petition was admitted on 18-1-2013 and an interim stay of Ext.P11 in so far as it related to the ban on 19-1-2013 and 20-1-2013 was granted for the reason that the order was not issued in accordance with the circular issued by the sixth respondent for regulating the manner in which such orders are to be issued. It is a stipulation in Circular No: 7497/A2/09/TD dated 29.4.2009 that an order under Section 54 of the Abkari Act should be passed at least one week prior to the event in respect of which the same was issued, so as WPC 1939/2013 2 not to stifle the legal remedies available to those who are aggrieved by such orders. In view of the interim order of stay granted by this Court the toddy shops of the petitioners functioned on 19.1.2013 and 20.1.2013. What survives is only whether the ban on the sale of liquor on 26.1.2013 and 27.1.2013 should be permitted.
2. According to the counsel for the petitioners, the ban on the sale of toddy shops is confined to a radius of 2 kms. from the church within which distance, only the shops of the petitioners are situate. Outside the radius of 2 kms, there are bar attached hotels as well as FL 1 shops run by the Kerala State Beverages Corporation, vending Indian made foreign liquor, without any restriction. For the above reason, it is contended that no purpose would be achieved by the ban on the sale of toddy alone, within a limited area. The petitioners also contend that no notice was served on them before issuing Ext.P11. Though such orders are passed every year during the festival of the church, it is contended that no law and order situation created by the consumption of liquor has been reported at any time. Therefore, the petitioner seeks the issue of orders setting aside Ext.P11 or an extension of the interim order of stay.
3. The learned Govt. Pleader on the other hand points out that Ext.P11 has been issued relying on the reports of the District WPC 1939/2013 3 Police Chief, Alappuzha as well as the Deputy Commissioner of Excise, Alappuzha. Both the authorities mentioned above have submitted reports to the first respondent apprehending law and order problems in the vicinity of the additional seventh respondent Church during the festival season. Therefore, it is contended that exercise of power under Section 54 of the Abkari Act in the present case is justified and does not call for any interference by this Court.
4. The additional seventh respondent has got impleaded in this case. According to the counsel for the additional seventh respondent, Ext.P11 has been issued on the strength of material in the form of reports submitted by the competent authorities who have assessed the situation. Therefore, the counsel contends that the ban order on 26.1.2013 and 27.1.2013 may not be interfered with.
5. Heard. A perusal of Ext.P11 shows that the same has been issued acting on the basis of a report dated 29-12-2012 of the Deputy Commissioner of Excise, Alappuzha and a report dated 5.1.2013 of the District Police Chief. The said authorities are the persons competent to assess the situation available at site and to report whether an order banning sale of liquor is required in the circumstances and also specifying the area over which the said ban is to be operative. Ext.P11 notices that there have been instances WPC 1939/2013 4 in the past of people getting drowned in the sea, under the influence of liquor. In order to avoid such untoward incidents the order Ext.P11 has been issued. Though the counsel for the petitioners dispute the assertions made in Ext.P11, I find that the impugned order has been issued on a consideration of the reports of the competent authorities, after evaluating the situation available at site. It is true that the order was not issued seven days prior to the date on which it was to take effect. For the above reason, the order was not permitted to be enforced during the first two days. The petitioners who have challenged the said order herein, in exercise of their legal remedies, are not able to point out any other infirmity. I do not find any reason to interdict the authorities from enforcing the said order on 26-1-2013 and 27-1- 2013.
For the above reasons, this writ petition fails and is accordingly dismissed.
Sd/-
K. SURENDRA MOHAN
Judge
jj /True copy/
P.S.to Judge
WPC 1939/2013 5