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2017 DIGILAW 983 (KER)

My Hindusthan Paints represented by its Proprietor, Lins v. Babu VS State of Kerala represented by Secretary To Government, Taxes Department

2017-07-05

DEVAN RAMACHANDRAN

body2017
JUDGMENT : 1. Come rain or shine, one feature that appear immune, oblivious and impervious to the seasons is the long winding serpentine queues that are now ubiquitous in front of the retail shops, operated by the Kerala State Beverages Corporation (KSBC), vending liquor. 2. Exordially, I must say, without any ambiguity that I do not, in this judgment, intend to say anything regarding the sale of liquor by the KSBC or about the right or entitlement of the customers to buy such liquor. I am only reacting to the specific instances of nuisance and inconvenience shown and demonstrated by the petitioners on account of the long languorous queue of people waiting on the public streets and public areas causing continual and incessant vexation and discomfiture. 3. In a true democracy, the dignity of each citizen is assured by well publicised and transparent rules governing behaviour - rules that each citizen has a role in affirming. The key of our civil dignity, thus essentially, is an agreement on right action which is strengthened by regulations of common good and mutual responsibility for maintaining beneficial equilibrium. 4. The dignity of the 'human person' and 'human dignity' are phrases that have come to be accepted as an expression of basic value in broad sense by all people. The respect for the inherent dignity of the human person is the cardinal principle by which any democratic society can hope to sustain. 5. The sinuous queues that are found of men (very rarely or never of women) in several parts of Kerala waiting for their turn to buy liquor, which spill over to the road, streets, lanes and other public areas is not merely a sight for the sore eyes but is also an affront on the collective dignity of the citizenry of the State. What is violated is not merely self respect of the persons in the queues but also the collective respect of the citizenry as a whole. 6. What is violated is not merely self respect of the persons in the queues but also the collective respect of the citizenry as a whole. 6. The singular reason why such long queues are formed and why such queues spill over on to public roads and streets is because the KSBC does not retail liquor through shops into which customers can walk into and wait, if required, but through counters which are created by barricading and grilling the entrance area of the licensed shops, effectively forcing the customers to stand outside even on roads and streets on which such shops are situated, thus causing long queues and resultant pandemonium in public space including streets. These queues often cause traffic snarls, brawls and several times unrestrained disorder on public roads and streets, as has been demonstrated by the petitioners in this case. 7. I have heard Sri. Santhosh Mathew and Sri. Vijay Varghese Paul, learned counsel for the petitioners, Sri. T. Naveen, learned Standing Counsel for the fifth respondent, Sri. Santhosh P. Poduval, learned Standing Counsel for the seventh respondent and the learned Senior Government Pleader for the official respondents. 8. The petitioners are stated to be persons running businesses in a bye-road on the Kuruppam Road, Thrissur. They are doing several businesses in the said bye-road and they allege that there is a liquor shop in close vicinity that is licensed in favour of the KSBC. The petitioners allege that the outlet has become a nuisance for all those who reside and do businesses in the said byroad since the queues that are formed from this outlet are so long and are so incessant that the ingress and egress to their residences and shops are continually obstructed. The petitioners have produced Exhibit P1 series of photographs which show the horrendous nuisance that is caused by the queues formed from the outlet of the KSBC. 9. As they say, a picture can say thousand words and therefore I deem it appropriate that I scan and attach Exhibit P1 series pictures as part of this judgment to understand as to why this Court is reacting to the averments and allegations of the petitioners in such a strong manner. The photographs are attached to this judgment as appendix. 10. The photographs are attached to this judgment as appendix. 10. The photographs would show that even between 10 a.m. to 12 noon on a given day the queues are so long that it circles the by-road once and causes complete obstruction to every institution and residents of the said road. This Court had, in reaction to these averments and to the obvious nuisance, directed, on 18.04.2017, that the sixth respondent-Sub Inspector of Police, Trissur shall ensure that the business establishments of the petitioners are not obstructed by the queue formed in the shop owned by the KSBC. On 30.06.2017, when this matter was taken up, the learned counsel for the petitioners submitted that in spite of the orders of this Court on 18.04.2017, no steps have been taken by the police and that the queues continue to be a constant feature. I had, therefore, on that day issued an order directing the sixth respondent to inform this Court as to the specific steps taken by him to ensure that such nuisance is abated. I must say that no such statement or affidavit has been placed on record, but the learned Government Pleader submits that on account of the changed liquor policy of the State of Kerala, it is expected that the queues that are formed in front of the shops will now much lesser, probably because there are several shops now opened along with the Bars. However, this submission is not sufficient because, it was and is the intent of this Court to ensure that queues that are formed in front of the liquor shop counters do not obstruct or cause nuisance to any of the neighbours. 11. Sri. Santhosh Mathew, learned counsel for the petitioners, brings to my notice Exhibit P2 judgment, wherein another learned Judge of this Court had directed the Assistant Excise Commissioner to convene a meeting of the petitioners therein as also the official respondents to consider the complaint of the petitioners therein and to arrive to a reasonable and practicable solution. He says that the facts involved in this present case deserve orders that are more effective and that remedial action at the hands of the competent authorities has now become imminent and is required to be taken without any further delay. 12. Sri. He says that the facts involved in this present case deserve orders that are more effective and that remedial action at the hands of the competent authorities has now become imminent and is required to be taken without any further delay. 12. Sri. T. Naveen, learned Standing Counsel for the fifth respondent, says that the position with respect to the alleged nuisance is completely different as of now in comparison to the situation that may have been obtained when the writ petition was instituted by the petitioners. He says that steps have been taken by the Excise Authorities to ensure that such nuisance is controlled, if not abated completely and that for such purpose, additional counters have been opened to ensure that the queues do not become very long or long winding. 13. I have considered the pleadings on record and the submissions made by the learned counsel quite in detail. It is indisputable that the Excise Authorities are burdened with the statutory obligation to ensure that no nuisance is caused on account of their outlets. In fact, the duty of the Commissioner of Excise to ensure peace and morality in the area where the licensed shops are operating, including by transfer of such offending shops to another site, is strictly and inviolably prescribed under Rule 11 of the Foreign Liquor Rules, which I deem profitable to extract, for ease of reference, as under: “It shall be competent to the Commissioner of Excise to order transfer of shops from one site or locality to another site or locality during the currency of the contract or with the previous sanction of Government. To order any shop to be closed in the interest of public peace or morality or on grounds of expediency and in such an event of transfer, alteration or closure, the contractor shall have no claim for compensation.” It becomes thus manifest that the Commissioner of Excise has been invested with the competence to order transfer of shops from one site to another even during the currency of the licence and to order any shop to be closed in the interest of public peace or morality or on such other relevant grounds of expediency. It is, therefore, ineluctable that the respondents are duty bound, under the provisions of the Statute and in terms of the licence to ensure that public interest, peace or morality is not contravened or infringed on account of the operation of these outlets. This is a cardinal and paramount obligation vested with the Officers of the excise and they cannot resile from it in any manner whatsoever. 14. In such circumstances and taking note of the horrendous nuisance that is projected by the petitioners through the various documents in this writ petition, it becomes incumbent that the Authorities of the Excise and the Police Department are directed to ensure that the long winding queues formed in front of the counters do not in any manner cause nuisance of any nature to the petitioners or to any other persons of the locality. 15. I, therefore, direct respondents 2, 3 and 5 to take every measure, as is required, to ensure that no nuisance is caused to the petitioners or to anyone else in the area on account of the operation of the outlet, including formation of such queues and make such necessary and requisite arrangements to ensure that persons coming to such counter are able to buy their stock of liquor without causing any such nuisance. Among the respondents in this case, the second respondent-Commissioner of Excise will have to ensure that these directions are complied with in its letter and spirit and to further ensure that this judgment is implemented without fail, even resorting to the provisions of the Abkari Act and its Rules and Regulations for shifting of such counters, if such control and abatement of nuisance is not possible. The sixth respondent is directed to ensure that law and order is maintained and the queue that is formed, if any, in front of these counters do not cause any hazard or nuisance to any of the petitioners or to their business establishments or to their customers or any of the other neighbours who are residing or doing business in the said area. 16. The KSBC, of course, would be the best authority to take remedial measures to ensure that such long queues are avoided because they are aware of the logistics involved, the demand that is exhibited and of the numbers of the customers who would flock to such counters. 16. The KSBC, of course, would be the best authority to take remedial measures to ensure that such long queues are avoided because they are aware of the logistics involved, the demand that is exhibited and of the numbers of the customers who would flock to such counters. Obviously, the KSBC would have to take such infrastructural and logistical arrangements in front of their counters to avoid to such nuisance to the neighbours, including by having shops and waiting areas for such customers so that they will not have to spill over and stand in queues into the public streets and lanes. The writ petition is thus ordered.