Judgment :- K.S. Radhakrishnan, J. Petitioner is the licensee of a foreign liquor shop No. 88/98-99 of Vaikom Range. Petitioner submitted an application before the Assistant Excise Commissioner, Kottayam for opening the shop during the nights of 7.12.1998 to 12.12.1998 in connection with the Ashtamy Festival at Vaikom Mahadeva Temple. Application was recommended by the Circle Inspector of Excise, Vaikom Range. Assistant Excise Commissioner, Kottayam, then issued order No. K5-6068/98/L.Dis. dated 5.12.1998 under R.6(10) of the Kerala Abkari Shops (Disposal in auction) Rules, 1974, hereinafter referred as the 'Rules', according sanction to keep open the shop for sale during the nights from 7.12.1998 to 12.12.1998 in connection with the Ashtamy Festival at Vaikom Mahadeva Temple. 2. Ashtamy Festival at Vaikom Mahadeva Temple is being celebrated every year with gay and gaity. Large number of devotees, who come from far and near, participate in the Ashtamy Festival. Large number of women and children also come to the temple to participate in the festival. Processions are carried out inside the temple. Police personnel are used to be deputed in that area so as to maintain law and order. Petitioner who is conducting FL1 shop after getting the order of relaxation dated 5.12.1998 from the Assistant Excise Commissioner, produced the same before respondents 3 and 4, police officers, who took strong exception to the order. According to them, it would cause difficulties for maintaining law and order. There has been public agitation against the opening of the retail shop during nights from 7.12.1998 onwards. Apprehending that police would interfere with the functioning of the shop, petitioner has approached this Court seeking a direction to respondent 1 to 4 to give effect to Ext. P2 order issued by the Assistant Excise Commissioner, or not to cause any obstruction with regard to the functioning of the shop. 3. When Original Petition came up for admission on 9.12.1998,1 felt prima facie the order cannot be sustained. Hence I directed the learned Government Pleader to get instructions in the matter. In the meantime, District Collector has passed an order on 10.12.1998 cancelling the order passed by the Assistant Excise Commissioner. 3. When Original Petition came up for admission on 9.12.1998,1 felt prima facie the order cannot be sustained. Hence I directed the learned Government Pleader to get instructions in the matter. In the meantime, District Collector has passed an order on 10.12.1998 cancelling the order passed by the Assistant Excise Commissioner. It is profitable to extract the said order: "The Circle Inspector of Police, Vaikom, informed that in violation of the decision taken in the meeting held at Taluk Office, Vaikom, conducted by Revenue Divisional Officer, Pala, in connection with the arrangements of "Vaikathasttami', the Assistant Excise Commissioner, Kottayam has permitted the bar, foreign liquor shops at Vaikom for keeping it opened throughout night also from 7.12.98. Circle Inspector also reported that the people there are agitated with this. He has further informed that maintenance of law and order at Vaikom will be difficult by this. In the circumstances, the order of the Assistant Excise Commissioner keeping the bars, foreign liquor shops and toddy shops opened through out night from?. 12.1998 is hereby stayed. No liquor shop, bar, toddy shop will function beyond the specified time in Vaikom Municipality from 10.12.98." Learned Government Pleader appearing for the fifth respondent submitted that, Assistant Excise Commissioner, Kottayam granted the permission, since in the previous years also permission was granted at the time of Ashtamy Festival at Vaikom Mahadeva Temple. Counsel for the petitioner submitted that Assistant Excise Commissioner has got power of relaxation under R.6(10) of the Rules to permit opening of shops during night on special occasions like fairs and festivals. Counsel submitted that during Ashtamy Festival Assistant Excise Commissioner has got powers to permit functioning of the shops during nights, till the festival is over. 4. In this connection, it is relevant to consider the scope of R.6(10) of the Rules and the power of the Assistant Excise Commissioner. The relevant rule is extracted below: "6(10). The Assistant Excise Commissioner may fix the working hours of shops in each area according to his discretion subject to the condition that the total working hours shall not exceed 12 hours in a day and no shop shall remain open earlier than 9 a.m. or later than llp.m. except on special occasions like fairs and festivals. The Assistant Excise Commissioner may fix the working hours of shops in each area according to his discretion subject to the condition that the total working hours shall not exceed 12 hours in a day and no shop shall remain open earlier than 9 a.m. or later than llp.m. except on special occasions like fairs and festivals. B ut the Assistant Excise Commissioner may relax the above condition when found necessary." The working hours of the foreign liquor shop is statutorily fixed as 12 hours in a day. Another condition is that no such shop shall remain open earlier than 9 a.m. or later than 11 p.m. In the instant case, petitioner usually opens his shop at 10 a.m. in the morning and closes the same at 10 p.m. in the night. According to petitioner, the Assistant Excise Commissioner has got power to permit him to function his shop beyond 12 hours as per R.6(10) of the Kerala Abkari Shops (Disposal in auction) Rules. 5. I am of the view that Assistant Excise Commissioner has no power under R.6(10) of the Rules to enhance the total working hours, which is statutorily fixed under R.6(10). The power of relaxation is only in respect of timings. In other words, Assistant Excise Commissioner can only permit a shop to start earlier than 9 a.m. and to close down a shop later than 11 p.m. but the total working hours has to be 12 hours. R.6(10) gives power to the Assistant Excise Commissioner to fix the working hours of a shop in each area, according to his discretion, subject to the condition that the total working hours shall not exceed 12 hours in a day. Therefore, power is given to the Assistant Excise Commissioner to fix the working hours. In his discretion he can fix the working hours, but the said period shall not exceed 12 hours in a day. Another condition to be satisfied under R.6(10) is that no shop shall remain open earlier than 9 a.m. or later than 11 p.m. except on special occasions like fairs and festivals. However, this condition could be relaxed by the Assistant Excise Commissioner, if found necessary. Power is given only to relax timings and not with regard to enhancement of working hours to more than 12 hours in a day. However, this condition could be relaxed by the Assistant Excise Commissioner, if found necessary. Power is given only to relax timings and not with regard to enhancement of working hours to more than 12 hours in a day. Assistant Excise Commissioner can relax the timings with regard to opening and closing down of shops. Power has to be exercised reasonably taking into consideration various relevant factors. 6. Evidently, application was made by the petitioner for sale of foreign liquor during nights from 7.12.1998 to 12.12.1998 in connection with Ashtamy Festival at Vaikom Mahadeva Temple. I am at a loss to understand for whose benefit shop is ordered to be opened during night. Is it to cater to the needs of the people who come to participate in the Ashtamy Festival. Opening of the shops during night at the time of Ashtamy Festival will disturb the orderly functioning of the festival. Police authorities, in my view correctly, reported to the District Collector that if foreign liquor shops are allowed to function during night in connection with Ashtamy Festival, that would create law and order situation. District Collector, in my view correctly, interfered with the order passed by the Assistant Excise Commissioner under S.54 of the Kerala Abkari Act. It is difficult to presume that Legislature had even intended to have foreign liquor shops opened for Festivals in Temples, mosques, Churches, etc. Those festivals have got their own religious sanctity. Opening of shops during night when such festivals are going on in such religious places will only help to disrupt the peace and harmony as well as functioning of such festivals. Police Officials will also find it difficult to maintain law and order situation. 7. I am of the view that Assistant Excise Commissioner has not properly exercised his discretion while issuing Ext. P2 order. As held by Lord Halsbury, L.C. in SHARP V. WAKE FIELD (1981) AC 173: "discretion' means when it is said that something is to be done within the discretion of the autllorities that that some tiling is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. 8. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. 8. In the facts and circumstances of this case, I am of the view that Commissioner has committed a grave error in permitting the foreign liquor shop to remain open during nights from 7.12.1998 to 12.12.1998 of Ashtamy Festival. It will not stand to reason. Since the District Collector has already quashed the order passed by the Assistant Excise Commissioner, I am not interferring with the order passed by the Assistant Excise Commissioner. Original petition is disposed as above. Communicate a copy of this judgment to the District Collector, Kottayam.