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2007 DIGILAW 630 (KER)

Bosco Antony v. State of Kerala

2007-09-20

K.BALAKRISHNAN NAIR, T.R.RAMACHANDRAN NAIR

body2007
Judgment :- K. Balakrishnan Nair, J. This is a Writ Petition filed, seeking police protection to run a shop. The petitioner has been granted Ext.P1 licence to run T.S.No.43 at Garudanmoola in Cherpu Excise Range for the Abkari year 2007-08. The licence is granted in respect of a building bearing door No.X/181 of Thannyam Crania Panchayat. When the petitioner tried to start business in the shop, respondents 9 and 10 and their supporters started causing obstruction. Therefore, he filed Ext.P2 representation before the police, seeking protection for running the shop. Since no help was extended by the police, this Writ Petition was filed, seeking the following reliefs: "i) declare that the petitioner is entitled to get police protection as per the request in Ext.P2; ii) issue a writ of mandamus or other appropriate writ, order or direction commanding respondents 1 to 5 to give necessary and adequate police protection to the petitioner, toddy shop No.43 in Cherpu excise range covered by Ext.P1 licence workers of the toddy shop, customers of the toddy shop and also to keep away the agitators, if any, 100 meters away from the gate of the toddy shop." 2. The learned Government Pleader has filed a statement on behalf of the second respondent. Sub Inspector of Police, stating that earlier there was a toddy shop in the area during the year 1987-88. There was agitation against the functioning of the said toddy shop. It lasted for a period of more than one year. It was headed by Professor G. Kumara Pillai. The Sathyagraha by him continued till the shop was closed down on 6.12.1988. He, went on hunger strike which he continued even after he was removed to the hospital. So, the then Excise Minister visited the hospital and informed the Government's decision to close down the shop. Thus, the shop stopped functioning from December 1988. Now, for the first time it was opened during this year and the people again started agitation, it is submitted. 3. The respondents 9 and 10 have filed a counter affidavit, stating that the agitation led by Professor G. Kumara Pillai and Professor N.P. Manmadhan was settled at the intervention of Mr. Justice V.R. Krishna Iyer, former Judge of the Supreme Court and Mr. Justice T. Chandrasekhara Menon, former Judge of this Court. So, the location of the shop in the same area, now, is unjustified, it is submitted. Justice V.R. Krishna Iyer, former Judge of the Supreme Court and Mr. Justice T. Chandrasekhara Menon, former Judge of this Court. So, the location of the shop in the same area, now, is unjustified, it is submitted. They also point out that the petitioner does not have the necessary licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996. So even if Ext.P1 licence is obtained, the petitioner has no right to run the shop, in the absence of the licence issued under the said Rules. Therefore, the respondents pray for dismissal of the Writ Petition. The petitioner has bled a reply affidavit, stating that the licence under the aforementioned Rules is not necessary. In view of the deletion of sub-ss.(2), (3) and (4) of S.232 of the Kerala Panchayat Raj Act with effect from 24.3.1999. 4. Heard learned counsel on both sides. As long as Ext.P1 licence remains in force, the petitioner may be entitled to run the shop, subject to satisfying the other statutory requirements, if any. For running any business included in Schedule I of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996, licence under the said Rules is required. "Abkari Shops - Storing and Selling" is item No.139 in Schedule I of the above said Rules. So, the petitioner is bound to take licence under the said Rules for running the shop. But, learned counsel for the petitioner pointed out that earlier there were express provisions under sub-ss.(2), (3) and (4) of S.232 of the Kerala Panchayat Raj Act, concerning grant of permission for running toddy shops within the jurisdiction of a Grama Panchayat. Since those provisions were later deleted with effect from 24.3.1999, the learned counsel points out that the above Rules in so far as they concern toddy shops, have no efficacy. But we notice that even in the absence of sub-ss.(2), (3) and (4) of S.232, the remaining provisions contained in sub-s.(1) of the said section of the Kerala Panchayat Raj Act support the inclusion of abkari shops under the Schedule to the Rules. Therefore, the contention of the learned counsel for the petitioner is plainly untenable. But we notice that even in the absence of sub-ss.(2), (3) and (4) of S.232, the remaining provisions contained in sub-s.(1) of the said section of the Kerala Panchayat Raj Act support the inclusion of abkari shops under the Schedule to the Rules. Therefore, the contention of the learned counsel for the petitioner is plainly untenable. So, even though the petitioner has got Ext.P1 licence, he can run the toddy shop in the Panchayat area only after getting licence under the above said rules from the said Panchayat. 5. So, if the petitioner obtains licence under the aforementioned Rules from the 8th respondent Panchayat, he should he conceded right to run the shop. Equally, the rights of the people of the locality including respondents 9 and 10 to hold demonstrations, public meetings and agitations, against the grant of licence and also for bringing their grievance to the notice of the authorities and for getting the licence cancelled, should be recognised. These rights of the people are protected by Art.19(1)(a), (b) and (c) of the Constitution of India. Though the petitioner's business is not protected by Art.19(1)(g), the local people cannot take law into their hands and physically obstruct the functioning of the shop. So, if the petitioner, after getting licence from the Panchayat, moves the police, they shall ensure that the ingress and egress of the customers and workmen of the petitioner are not obstructed. But, the police shall not interfere with any peaceful demonstrations or other forms of agitation of the people of the locality. Respondents 9 and 10 or others will also be free to move the statutory authorities for cancellation of Ext.P1 licence. 6. The claim of the petitioner that the agitators should be kept away at a distance of 100 meters from the gate of the toddy shop, is plainly an untenable claim. Persons protesting against the running of a shop cannot be asked to sit before some other shop 100 meters away. Further, no statute has been brought to our notice prohibiting, demonstrations within 100 meters of a toddy shop and authorising the police to enforce that statute. In our Republic, where rule of law prevails, citizens are, normally, free to do everything not prohibited by law. In this jurisdiction we are concerned only with the failure of duty from the part of the police. In our Republic, where rule of law prevails, citizens are, normally, free to do everything not prohibited by law. In this jurisdiction we are concerned only with the failure of duty from the part of the police. We will remedy only the failure of duty from their part. In other words, our powers in this jurisdiction are co-terminus with the duties of the police. The police do not have any duty to prevent demonstrations within 100 meters of a toddy shop. Therefore, the agitators can stage their demonstrations in front of the shop. The only restriction is that they shall not obstruct the ingress and egress of the customers and workers, as mentioned above. 7. The above direction to the police to grant protection will remain in force as long as Ext.P1 remains valid. If the said licence is suspended or cancelled, the above direction will stand recalled. The Writ Petition is disposed of as above.