IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE K. ABRAHAM MATHEW
FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
WP(C).No. 13464 of 2016 (G)
PETITIONER:
R. RAVIKUMAR, AGED 49 YEARS,
S/O.RAGHAVAN PILLAI,
SREE BHADRA HOTEL, KAVANAD,
RESIDING AT KALLINGAZHIKATHU HOUSE,
SAKTHIKULANGARA, KAVANADU P.O.,
KOLLAM DISTRICT.
BY ADV. SRI.K.B.DAYAL
RESPONDENTS:
1. THE SUB INSPECTOR OF POLICE
SAKTHIKULANGARA POLICE STATION,
KOLLAM DISTRICT - 691 581.
2. THE STATEOF KERALA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF HOME,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
BY SENIOR GOVERNMENT PLEADER SRI.A.J.VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.08.2016, THE COURT ON 18.11.2016 DELIVERED THE FOLLOWING:
WP(C).No. 13464 of 2016 (G)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 PHOTOSTAT COPY OF THE HEALTH CARD ISSUED BY KOLLAM
MUNICIPAL CORPORATION TO THE PETITIONER.
EXT.P1(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P1.
EXT.P2 PHOTOSTAT COPY OF THE IDENTITY CARD ISSUED BY THE FOOD
STANDARDS AUTHORITY OF INDIA TO THE PETITIONER.
EXT.P3 PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE CORPORATION
OF KOLLAM TO THE PETITIONER.
EXT.P3(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P3.
EXT.P4 PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE CORPORATION
OF KOLLAM TO THE PETITIONER.
EXT.P4(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P4.
EXT.P5 PHOTOSTAT COPY OF THE ORDER ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER DATED 25/3/2016.
EXT.P5(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P5.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
AHZ/
"C.R."
K.T.SANKARAN &
K. ABRAHAM MATHEW, JJ.
----------------------------------------------------
W.P.(C) No.13464 of 2016 (G)
----------------------------------------------------
Dated this the 18th day of November, 2016
JUDGMENT
K.T.Sankaran, J.
The question involved in this Writ Petition is whether a Sub
Inspector of Police can issue an order directing the owner of a hotel
to close down the hotel after 11 p.m. on the ground that anti social
elements used to go to the hotel during night and also on the ground
that traffic block would occur as a result of parking of container
lorries and goods vehicles near the hotel premises.
2. The petitioner is running Sree Bhadra Hotel at
Sakthikulangara. He has got the necessary licences, registration
and certificates from the authorities to run the hotel. Ext.P1 Health
Card and the licence issued by the Corporation of Kollam and the
identity card issued by the Food, Safety and Standards Authority of
India would show that he is entitled to run the hotel. The hotel has
no lodging facility. In the area where the hotel is situated, fishing
W.P.(C) No.13464 of 2016 (G)
:: 2 ::
operations take place during day and night. It is stated that there
are three or four petrol bunks and more than four hotels in the
locality. Two workshops are situated nearby. It is stated that even
during midnight, business activities are going on in the place. Boats
will be taken to sea during midnight and early morning for fishing.
Sakthikulangara police station is situated about 150 metres away
from the hotel in question. The petitioner resides with his family
near to the said hotel. The hotel works during 24 hours a day.
Business also takes place during these hours.
3. While so, the first respondent (Sub Inspector of Police,
Sakthikulangara Police Station) issued Ext.P5 order, that too without
hearing the petitioner, directing the petitioner to close down the hotel
after 11 p.m. It is stated in Ext.P5 that the premises of the hotel
have become the centre of activities by the anti social elements. It is
stated that several warnings were given to the petitioner, he ignored
the same. Hassles used to take place in the hotel premises. Due to
the parking of huge container lorries and trucks, even traffic block
used to occur. On these grounds, the petitioner was directed to
close down the hotel after 11 p.m.
W.P.(C) No.13464 of 2016 (G)
:: 3 ::
4. The main grounds taken by the petitioner in the Writ
Petition are that (1) Ext.P5 order is arbitrary, discriminatory and
without jurisdiction; (2) the petitioner was not afforded an
opportunity of being heard before passing Ext.P5 order and thus
Ext.P5 order is violative of the principles of natural justice; and (3)
the fundamental right of the petitioner under Article 19(1)(g) has
been infringed as a result of Ext.P5 order.
5. The reliefs prayed for by the petitioner are to issue a writ of
certiorari to quash Ext.P5 order and to issue a writ of mandamus
directing the first respondent not to harass the petitioner or not to
interfere with his business.
6. The first respondent, in his counter affidavit stated, inter
alia, the following: On the basis of the information that attempts for
thefts and thefts are rampant in Sakthikulangara, Kavanadu and
nearby areas, instructions were being given that shops and markets
should not be opened and functioned from 11 p.m. to 4 a.m. Theft
was reported from some textile shops, bakery etc. Thieves and anti
W.P.(C) No.13464 of 2016 (G)
:: 4 ::
social elements camped near Kavanadu junction during midnight
and "unfavourable hours in the night". Notorious thief, namely,
Navayikulam Deepu, who is involved in a crime registered at
Sakthikulangara police station, has made a visit to Sree Bhadra
Hotel on 23.3.2016. Deepu and Santhosh were arrested. Clashes
occurred at Sree Bhadra Hotel and crimes were registered. Road
blocks used to occur due to unfair parking of vehicles when the
drivers and other workers visited the hotel during night hours. To
check these activities, Ext.P5 order was issued. Only to prevent anti
social elements during night at Kavanadu junction, action was taken
by the police. The petitioner was never harassed by the police.
7. Ext.P1 Health Card, which contains several conditions for
running the hotel, does not provide that the hotel shall not function
after 11 p.m. The Food, Safety and Standards Authority of India also
did not stipulate any such condition. No authority had made any
such stipulation while issuing the licences for running the hotel.
8. Chapter V of the Kerala Police Act contains provisions
providing for the duties and responsibilities of a police officer.
W.P.(C) No.13464 of 2016 (G)
:: 5 ::
Chapter VI of the Kerala Police Act contains Sections 72 to 83.
Section 76 provides power to the District Police Chief to reserve any
street or public place for any public purpose and to prohibit persons
from entering the area so reserved. Such orders shall be passed
subject to the orders of the Government and by giving public notice.
Section 77 empowers the District Police Chief to issue necessary
special or general directions. Section 78 gives power to the District
Police Chief to take necessary action for preservation of public
peace or public safety. Section 79 empowers the District Police
Chief to take such action in the interest of maintenance of law and
order or preservation of public peace or public safety. Section 80
provides power to the District Magistrate, in consultation with the
Local Self Government and with the District Police Chief, to make
and notify regulations, from time to time, in any local area for the
purposes mentioned therein. Section 81 provides for issuing
appropriate orders in the manner mentioned in the Section for
maintenance of law and order at assemblies where disputes exist.
None of the provisions in the Kerala Police Act provides for any
power to a Sub Inspector of Police to issue any order like Ext.P5
directing the owner of a hotel to close down the same after certain
W.P.(C) No.13464 of 2016 (G)
:: 6 ::
hours during night. Learned Government Pleader could not point
out any provision of law empowering the Sub Inspector of Police to
issue Ext.P5 order.
9. All citizens shall have the right to practise any profession or
to carry on any occupation, trade or business as enshrined in Article
19(1)(g) of the Constitution of India. The restriction to such right is
contained in clause (6) of Article 19 which provides that nothing in
sub-clause (g) shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in
the interests of the general public, reasonable restrictions on the
exercise of the right conferred by sub-clause (g). There is no
existing law imposing restrictions as contained in Ext.P5.
10. It is the rights which are fundamental, not the limitations
and it is the duty of the Supreme Court and all Courts in the land to
guard and defend those rights, zealously. The question whether
there is a fundamental right or not cannot be dependent upon
whether it can be made the subject matter of control. As far as
Art.19 is concerned, what is fundamental is the freedom and not the
W.P.(C) No.13464 of 2016 (G)
:: 7 ::
exception. Restraints are permissible only to the extent they have a
nexus with the approved object. Limitations imposed by Arts.19(2)
to 19(6) on the freedoms guaranteed by Arts.19(1)(a) to (g) serve a
two-fold purpose, viz., on the one hand, they specify that these
freedoms are not absolute, but are subject to regulations; on the
other hand, they put a limitation on the power of the legislature to
restrict those freedoms. A legislature cannot restrict these freedoms
beyond the requirement of Art.19(2) to 19(6). (See: Durga Das Basu
- Commentaries on the Constitution of India, 8th Edition Vol.2 page
2122 - Ram Singh v. State of Delhi : AIR 1951 SC 270; T.M.A. Pai
Foundation v. State of Karnataka : (2002) 8 SCC 481 and Maneka
Gandhi v. Union of India :AIR 1978 SC 597 referred to.)
11. Running of a hotel is not detrimental to the interests of the
public. On the other hand, it caters to the needs of the general
public. There is no case for the fifth respondent that the petitioner
committed any offence. No crime is registered against him. That
anti social elements used to visit the hotel is not a ground to direct
the owner of a hotel to close down the hotel after 11 p.m. That
W.P.(C) No.13464 of 2016 (G)
:: 8 ::
offences are being committed in the locality by anti social elements
is also not a ground to stop the running of the hotel after 11 p.m.. If
any offence is committed by any person, it is for the police to
investigate and apprehend the accused. The police can also
prevent commission of offences. So long as the first respondent has
no case that the petitioner has committed any offence or that any
conspiracy to commit any offence took place in the hotel premises,
he was not justified in preventing the petitioner from running the
hotel during permitted hours.
12. Ext.P5 order was passed in violation of the principles of
natural justice. On that ground also, Ext.P5 order is unsustainable.
13. For the aforesaid reasons, we hold that Ext.P5 order is
illegal and it violates the fundamental right of the petitioner as
aforesaid. Accordingly, Ext.P5 order is quashed. Since the
petitioner has not pointed out any specific instance of police
harassment, it is not necessary to issue any order in that regard.
W.P.(C) No.13464 of 2016 (G)
:: 9 ::
In the result, the Writ Petition is allowed to the extent indicated
above.
K. T. Sankaran
Judge
K. Abraham Mathew
Judge
ahz/
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE K. ABRAHAM MATHEW
FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
WP(C).No. 13464 of 2016 (G)
PETITIONER:
R. RAVIKUMAR, AGED 49 YEARS,
S/O.RAGHAVAN PILLAI,
SREE BHADRA HOTEL, KAVANAD,
RESIDING AT KALLINGAZHIKATHU HOUSE,
SAKTHIKULANGARA, KAVANADU P.O.,
KOLLAM DISTRICT.
BY ADV. SRI.K.B.DAYAL
RESPONDENTS:
1. THE SUB INSPECTOR OF POLICE
SAKTHIKULANGARA POLICE STATION,
KOLLAM DISTRICT - 691 581.
2. THE STATEOF KERALA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF HOME,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
BY SENIOR GOVERNMENT PLEADER SRI.A.J.VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.08.2016, THE COURT ON 18.11.2016 DELIVERED THE FOLLOWING:
WP(C).No. 13464 of 2016 (G)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 PHOTOSTAT COPY OF THE HEALTH CARD ISSUED BY KOLLAM
MUNICIPAL CORPORATION TO THE PETITIONER.
EXT.P1(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P1.
EXT.P2 PHOTOSTAT COPY OF THE IDENTITY CARD ISSUED BY THE FOOD
STANDARDS AUTHORITY OF INDIA TO THE PETITIONER.
EXT.P3 PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE CORPORATION
OF KOLLAM TO THE PETITIONER.
EXT.P3(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P3.
EXT.P4 PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE CORPORATION
OF KOLLAM TO THE PETITIONER.
EXT.P4(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P4.
EXT.P5 PHOTOSTAT COPY OF THE ORDER ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER DATED 25/3/2016.
EXT.P5(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P5.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
AHZ/
"C.R."
K.T.SANKARAN &
K. ABRAHAM MATHEW, JJ.
----------------------------------------------------
W.P.(C) No.13464 of 2016 (G)
----------------------------------------------------
Dated this the 18th day of November, 2016
JUDGMENT
K.T.Sankaran, J.
The question involved in this Writ Petition is whether a Sub
Inspector of Police can issue an order directing the owner of a hotel
to close down the hotel after 11 p.m. on the ground that anti social
elements used to go to the hotel during night and also on the ground
that traffic block would occur as a result of parking of container
lorries and goods vehicles near the hotel premises.
2. The petitioner is running Sree Bhadra Hotel at
Sakthikulangara. He has got the necessary licences, registration
and certificates from the authorities to run the hotel. Ext.P1 Health
Card and the licence issued by the Corporation of Kollam and the
identity card issued by the Food, Safety and Standards Authority of
India would show that he is entitled to run the hotel. The hotel has
no lodging facility. In the area where the hotel is situated, fishing
W.P.(C) No.13464 of 2016 (G)
:: 2 ::
operations take place during day and night. It is stated that there
are three or four petrol bunks and more than four hotels in the
locality. Two workshops are situated nearby. It is stated that even
during midnight, business activities are going on in the place. Boats
will be taken to sea during midnight and early morning for fishing.
Sakthikulangara police station is situated about 150 metres away
from the hotel in question. The petitioner resides with his family
near to the said hotel. The hotel works during 24 hours a day.
Business also takes place during these hours.
3. While so, the first respondent (Sub Inspector of Police,
Sakthikulangara Police Station) issued Ext.P5 order, that too without
hearing the petitioner, directing the petitioner to close down the hotel
after 11 p.m. It is stated in Ext.P5 that the premises of the hotel
have become the centre of activities by the anti social elements. It is
stated that several warnings were given to the petitioner, he ignored
the same. Hassles used to take place in the hotel premises. Due to
the parking of huge container lorries and trucks, even traffic block
used to occur. On these grounds, the petitioner was directed to
close down the hotel after 11 p.m.
W.P.(C) No.13464 of 2016 (G)
:: 3 ::
4. The main grounds taken by the petitioner in the Writ
Petition are that (1) Ext.P5 order is arbitrary, discriminatory and
without jurisdiction; (2) the petitioner was not afforded an
opportunity of being heard before passing Ext.P5 order and thus
Ext.P5 order is violative of the principles of natural justice; and (3)
the fundamental right of the petitioner under Article 19(1)(g) has
been infringed as a result of Ext.P5 order.
5. The reliefs prayed for by the petitioner are to issue a writ of
certiorari to quash Ext.P5 order and to issue a writ of mandamus
directing the first respondent not to harass the petitioner or not to
interfere with his business.
6. The first respondent, in his counter affidavit stated, inter
alia, the following: On the basis of the information that attempts for
thefts and thefts are rampant in Sakthikulangara, Kavanadu and
nearby areas, instructions were being given that shops and markets
should not be opened and functioned from 11 p.m. to 4 a.m. Theft
was reported from some textile shops, bakery etc. Thieves and anti
W.P.(C) No.13464 of 2016 (G)
:: 4 ::
social elements camped near Kavanadu junction during midnight
and "unfavourable hours in the night". Notorious thief, namely,
Navayikulam Deepu, who is involved in a crime registered at
Sakthikulangara police station, has made a visit to Sree Bhadra
Hotel on 23.3.2016. Deepu and Santhosh were arrested. Clashes
occurred at Sree Bhadra Hotel and crimes were registered. Road
blocks used to occur due to unfair parking of vehicles when the
drivers and other workers visited the hotel during night hours. To
check these activities, Ext.P5 order was issued. Only to prevent anti
social elements during night at Kavanadu junction, action was taken
by the police. The petitioner was never harassed by the police.
7. Ext.P1 Health Card, which contains several conditions for
running the hotel, does not provide that the hotel shall not function
after 11 p.m. The Food, Safety and Standards Authority of India also
did not stipulate any such condition. No authority had made any
such stipulation while issuing the licences for running the hotel.
8. Chapter V of the Kerala Police Act contains provisions
providing for the duties and responsibilities of a police officer.
W.P.(C) No.13464 of 2016 (G)
:: 5 ::
Chapter VI of the Kerala Police Act contains Sections 72 to 83.
Section 76 provides power to the District Police Chief to reserve any
street or public place for any public purpose and to prohibit persons
from entering the area so reserved. Such orders shall be passed
subject to the orders of the Government and by giving public notice.
Section 77 empowers the District Police Chief to issue necessary
special or general directions. Section 78 gives power to the District
Police Chief to take necessary action for preservation of public
peace or public safety. Section 79 empowers the District Police
Chief to take such action in the interest of maintenance of law and
order or preservation of public peace or public safety. Section 80
provides power to the District Magistrate, in consultation with the
Local Self Government and with the District Police Chief, to make
and notify regulations, from time to time, in any local area for the
purposes mentioned therein. Section 81 provides for issuing
appropriate orders in the manner mentioned in the Section for
maintenance of law and order at assemblies where disputes exist.
None of the provisions in the Kerala Police Act provides for any
power to a Sub Inspector of Police to issue any order like Ext.P5
directing the owner of a hotel to close down the same after certain
W.P.(C) No.13464 of 2016 (G)
:: 6 ::
hours during night. Learned Government Pleader could not point
out any provision of law empowering the Sub Inspector of Police to
issue Ext.P5 order.
9. All citizens shall have the right to practise any profession or
to carry on any occupation, trade or business as enshrined in Article
19(1)(g) of the Constitution of India. The restriction to such right is
contained in clause (6) of Article 19 which provides that nothing in
sub-clause (g) shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in
the interests of the general public, reasonable restrictions on the
exercise of the right conferred by sub-clause (g). There is no
existing law imposing restrictions as contained in Ext.P5.
10. It is the rights which are fundamental, not the limitations
and it is the duty of the Supreme Court and all Courts in the land to
guard and defend those rights, zealously. The question whether
there is a fundamental right or not cannot be dependent upon
whether it can be made the subject matter of control. As far as
Art.19 is concerned, what is fundamental is the freedom and not the
W.P.(C) No.13464 of 2016 (G)
:: 7 ::
exception. Restraints are permissible only to the extent they have a
nexus with the approved object. Limitations imposed by Arts.19(2)
to 19(6) on the freedoms guaranteed by Arts.19(1)(a) to (g) serve a
two-fold purpose, viz., on the one hand, they specify that these
freedoms are not absolute, but are subject to regulations; on the
other hand, they put a limitation on the power of the legislature to
restrict those freedoms. A legislature cannot restrict these freedoms
beyond the requirement of Art.19(2) to 19(6). (See: Durga Das Basu
- Commentaries on the Constitution of India, 8th Edition Vol.2 page
2122 - Ram Singh v. State of Delhi : AIR 1951 SC 270; T.M.A. Pai
Foundation v. State of Karnataka : (2002) 8 SCC 481 and Maneka
Gandhi v. Union of India :AIR 1978 SC 597 referred to.)
11. Running of a hotel is not detrimental to the interests of the
public. On the other hand, it caters to the needs of the general
public. There is no case for the fifth respondent that the petitioner
committed any offence. No crime is registered against him. That
anti social elements used to visit the hotel is not a ground to direct
the owner of a hotel to close down the hotel after 11 p.m. That
W.P.(C) No.13464 of 2016 (G)
:: 8 ::
offences are being committed in the locality by anti social elements
is also not a ground to stop the running of the hotel after 11 p.m.. If
any offence is committed by any person, it is for the police to
investigate and apprehend the accused. The police can also
prevent commission of offences. So long as the first respondent has
no case that the petitioner has committed any offence or that any
conspiracy to commit any offence took place in the hotel premises,
he was not justified in preventing the petitioner from running the
hotel during permitted hours.
12. Ext.P5 order was passed in violation of the principles of
natural justice. On that ground also, Ext.P5 order is unsustainable.
13. For the aforesaid reasons, we hold that Ext.P5 order is
illegal and it violates the fundamental right of the petitioner as
aforesaid. Accordingly, Ext.P5 order is quashed. Since the
petitioner has not pointed out any specific instance of police
harassment, it is not necessary to issue any order in that regard.
W.P.(C) No.13464 of 2016 (G)
:: 9 ::
In the result, the Writ Petition is allowed to the extent indicated
above.
K. T. Sankaran
Judge
K. Abraham Mathew
Judge
ahz/
No comments:
Post a Comment