Madras High Court
M.Edison vs The District Collector on 3 September, 2012
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03/09/2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.2454 of 2012
M.Edison ... Petitioner
Vs.
1.The District Collector,
Tirunelveli District,
Tiruneveli.
2.The Managing Director,
Tamil Nadu State Marketing Corporation Ltd.,
Chennai.
3.The Regional Manager,
Tamil Nadu State Marketing Corporation Ltd.,
Madurai.
4.The District Manager,
Tamil Nadu State Marketing Corporation Ltd.,
Tirunelveli. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for
the issuance of a writ of Mandamus directing the respondents to shift the Tasmac
shop No.1066 situated at North Main Road, Valliyoor, Tirunelveli District to
another place in the light of petitioner's representations dated 05.02.2012.
!For Petitioner ... M/s.Eddy and Embboss
^For Respondents ... Mr.M.Murugan, GA (For R1)
Mr.Muniasamy (For R2 to R4)
:ORDER
The petitioner has filed the present writ petition seeking for a direction to the respondents to shift the TASMAC shop No.1066 situated at North Main Road, Valliyoor, Tirunelveli District to another place in the light of the petitioner's representation dated 05.02.2012.
2.In the representation of the petitioner addressed to the District Collector, Tirunelveli District, the petitioner has stated that he is living at Door No.264A, North Main Road, Valliyoor, Tirunelveli District, and the TASMAC Shop No.1066 was opened in their street. Even before opening the said shop, objecting that the said shop may cause hindrance and lack of safety, the petitioner and one Susairaj made an application. Even after giving the said representation, the shop has been opened. He furthers stated that after opening of the said shop, aged people and women in that area including college going girls are not able to walk peacefully and after getting inebriated, the consumers of liquor are misbehaving with the public and even throw the liquor bottles on the roof of the house of the petitioner and his family is living in that area without any safety. Near the said TASMAC shop, there is an ITI Institute and a hospital by name Eeswary Hospital situated. Many temples also situated in and around the said area. Further, nearby the said TASMAC shop, the Sub-Court, Civil Court and Registrar Offices are also situated. Hence, opening of the said TASMAC shop in that area is illegal. The petitioner, thereafter, sent representations to the Managing Director of TASMAC and the Regional Manager of TASMAC. But, no action was taken. Hence, he has filed the present writ petition.
3.When the writ petition came up on 01.03.2012, notice was taken by the learned Additional Government Pleader for the 1st respondent and directed notice to be issued to the other respondents and permitted private notice also.
4.On notice from this Court, a counter affidavit was filed by the 4th respondent / District Manager, Tamil Nadu State Marketing Corporation Ltd., Tirunelveli, dated (Nil) June 2012.
5.In the counter affidavit it was stated that originally the said TASMAC shop was located in Door No.59, Main Road, Vadakku Valliyoor and it was necessitated to shift the said shop because of the change of lessee of the bar attached to the said shop. The building in Door No.264D was selected by the 4th respondent and the proposal was sent to the Senior Regional Manager, TASMAC, Madurai, (3rd respondent herein) for shifting the shop along with the site inspection report of the 4th respondent. After citing the report and findings that there is no educational instructions and worship places in and around the prohibited distance, the Senior Regional Manager (3rd respondent herein) recommended the proposal to the District Collector, Tirunelveli (1st respondent herein) vide reference dated 19.09.2011. In the meantime, Dr.S.Muthukrishnan, Eswari Nurshing Home, Valliyoor, gave a letter dated 03.11.2011 raising his objections for the said location. Then, the lessee of the bar attached with the said shop made an agreement with the said Dr.S.Muthukrishnan on 14.12.2011 stating that there will be no hindrance to the Nursing Home by the bar & shop, failing which the bar will be shifted immediately. Thereafter, the 1st respondent accorded permission to locate the shop at Door No.264D, Main Road, Valliyoor and the shop is functioning from 10.01.2012. The petitioner herein sent a representation and on the basis of the representation of the petitioner, a report was called for by the 4th respondent. The 4th respondent sent a report to the 2nd respondent stating that there is no violation of rules in locating the said shop in the said place. Therefore, it was contended that there is no educational instructions and places of worship in and around the said location and that the location has satisfied the conditions laid down in Rule 8 of the Tamil Nadu Liquors (Retail Vending) Rules 1989.
6.It is curious to note that the respondents have contended as if there is no complaint from the public and hence, there is no necessity to relocate the said TASMAC shop. But, it is not clear as to how the respondents contended that there is no complainant from the public, as if the petitioner is not a member of the public and he is not residing in that area, while the shop is located in Door No.264D and the petitioner is the resident of neighboring house in Door No.264A in the same street. It cannot be said that there is no other location to have the functions of the said TASMAC shop. Even as per the admission of the respondents that during the earlier objection raised by one DR.S.Muthukrishnan for the said location, it was agreed by the lessee of the bar attached with the said shop that in case of any complaint the shop will be shifted. The respondents have not denied that the shop has bee creating nuisance to the local public including the women, college going girls and aged people, with whom the drunken consumers of liquor are misbehaving and creating nuisance. The allegation of the petitioner that the consumers of liquor throw the liquor bottle on the roof of the house of the petitioner is also not denied. The nuisance created by the consumers of liquor has been clearly made out by the petitioner, which has not been denied by the respondents.
7.In this context, it is necessarily to refer to a judgment of a Division Bench of this Court in 2011 Writ.L.R. 267 [The Tamil Nadu State Marketing Corporation Ltd., v. R.M.Shah]. In that judgment, the Division Bench in paragraph 19 and 20 observed as follows:-
"19. There is no static measure of nuisance which can be applied to all situations alike. It is for the court to decide on the basis of materials as to whether the extent of nuisance was sufficient to direct the closure of liquor shop located in a particular area.
20.Therefore we are of the considered view that any person who is deprived of peaceful like on account of the nuisance created by a liquor shop could challenge the action in locating the shop in a residential or semi-residential locality as offending the right to life guaranteed under Article 21 of the Constitution of India notwithstanding the fact that the liquor shop satisfies the distance criteria."
In paragraphs 22 and 23, the Division Bench gave the following direction:-
"22. The Supreme Court in Ratlam Municipal Council Case [(1980) 4 SCC 162] observed thus:
"The pressure of the judicial process, expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties."
23. When we have expressed our view that the respondents 1 to 4 clearly made out a case for shifting the liquor shop from the subject location on account of nuisance, the learned Standing Counsel for the appellant took time to file an affidavit agreeing to shift the shop. Subsequently, the Chief General Manager of TASMAC as per his affidavit dated 19th July 2010 agreed to shift the Liquor Shop No.717 functioning at Door No.12/4, Orms Road, Kilpauk, Chennai - 10 to another place and made a request for granting reasonable time for such shifting. In view of the said submission we grant six weeks time to the appellant to comply with the order passed by the learned single Judge."
8.A reference made to the subsequent judgment of a Division Bench of this Court reported in 2011 Writ.L.R. 318 [A.Thirumaran v. The Inspector of Police, Law and Order], wherein the Division Bench rejected the claim of the petitioner therein in a public interest litigation, having found that the shop was in a commercial area and does not violate the rules relating to location of shops and it has been functioning over 25 years and there were no complaints from the general public. It is not clear as to how the said judgment will have any application to the case on hand.
9.By quixotic interpretation to the Prohibition Act and even in the teeth of Article 47 wherein the State had undertaken its endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health, the State is running liquor shops. By the closure of one shop, no one will shed tears and it will not bring about any loss to the State especially, the turn over from the liquor sales in this State had already crossed Rs.16,500 crores per annum.
10.In view of the above, the writ petition is allowed and the respondents are directed to shift the TASMAC Shop in Door No.264D, North Main Road, Valliyoor, to some other authorised place within two weeks from the date of receipt of a copy of this order. However, there is no order as to costs.
ssv To:
1.The District Collector, Tirunelveli District, Tiruneveli.
2.The Managing Director, Tamil Nadu State Marketing Corporation Ltd., Chennai.
3.The Regional Manager, Tamil Nadu State Marketing Corporation Ltd., Madurai.
4.The District Manager, Tamil Nadu State Marketing Corporation Ltd., Tirunelveli.