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2008 DIGILAW 108 (KER)

S. Sulekha v. State Of Kerala

2008-02-06

THOTTATHIL B.RADHAKRISHNAN

body2008
Judgment : An interim order was passed in these cases on 112.2007, which reads as follows: Learned Government Pleader takes notice for the respondents in these writ petitions. The bar hotel of the petitioner in WP(C)No.36834 of 2007 is outside G31 Edamulackal Grama Panchayat and G57 Elampalloor Grama Panchayat while the bar hotel of the petitioner in WP(C) No.36989 of 2007 is within G57 Elampalloor Grama Panchayat. However, that is beyond Ward No.04 in that Grama Panchayat where a bye-election is scheduled to be conducted on 112.2007. 2. As per the impugned order dated 12.2007, the District Magistrate, in purported exercise of power under Section 54 of the Abkari Act has ordered closure of the bar hotels, including in the adjoining areas of Edamulackal Grama Panchayat and Elampalloor Grama Panchayat. 3. Rule 28A of the Foreign Liquor Rules is a self working provision which does not depend upon any further order being issued by any authority. Condition No.20A in the FL-3 licence is in pari materia with the aforesaid provision. By virtue of that, the licensed premises for sale of liquor, shall remain closed on, among other days, the day of poll and the day, preceding that day of bye-elections to Panchayat constituencies and on the day of counting of votes and the succeeding day. A plain reading of Clause (vi) under Rule 28A of the Foreign Liquor Rules would show that it applies eo instanti the declaration of the election and it extends only to the territorial limits of the constituencies, to which bye-elections are notified. This means that the closure by the operation of that Rule will extend only within the limits of the territory of the constituency in the Ward in relation to which the bye-election is to be held. By the operation of that Rule, there would not be any closure order or prohibitory order in relation to the adjoining area. That Rule also does not empower the extension of such closure or prohibition beyond the area that is statutorily prescribed by that Rule. 4. Falling back to Section 54 of the Abkari Act, that power of the District Magistrate, including the power to order closure when there is an apprehension of breach of public tranquility and peace or unlawful assembly, riot etc., has been elucidated in the different judgments of this Court. 4. Falling back to Section 54 of the Abkari Act, that power of the District Magistrate, including the power to order closure when there is an apprehension of breach of public tranquility and peace or unlawful assembly, riot etc., has been elucidated in the different judgments of this Court. That power has to be, essentially, exercised only on the basis of appropriate police reports as to the apprehension of ground realities which would inspire a District Magistrate to issue an order on grounds available under Section 54 of that Act. In the case in hand, it does not appear that there is a police report to that effect. The District Magistrates order does not refer to any such police report. That apart, in so far as the polling dates are concerned, the dates were those which were known to the District Magistrate well in advance. If that be so, the rule of prior notice ought not to have been excluded under any circumstances. For the aforesaid reasons, there will be an interim order directing that the closure ordered as per Ext.P2 in WP(C) No.36834 of 2007 in so far as it relates to "adjoining areas" of Edamulackal Grama Panchayat and Elampalloor Grama Panchayat would stand stayed in so far it relates to the petitioners in these cases. All consequential directions for closure as are issued to the petitioners would also stand stayed. It is further ordered that the directions contained herein shall enure to the benefit of the petitioners in both these cases. The above interim order is made absolute and the writ petitions ordered accordingly.