Madras High Court
P.Ponraj vs The State Rep. By on 14 September, 2018
Bench: S.Manikumar, Subramonium Prasad
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.09.2018 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD WP.No.24414 of 2017 and WMP No.25809 of 2017 P.Ponraj ... Petitioner vs. 1. The State Rep. by The District Collector, Thiruvallur District, Thiruvallur. 2. The Managing Director, TASMAC Ltd., Egmore, Chennai - 600 008. 3. The District Manager, TASMAC Ltd., Sembarampakkam, Thirumazhisai, Thiruvallur District, Thiruvallur. ... Respondents WRIT Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Mandamus, to direct the respondents to close the TASMAC Wine Shop (Shop No.8767), which is functioning in Survey No.534, at Door No.1, Chettay Street Main Road, Ayanambakkam, Chennai - 600 095, pursuant to the petitioner representation dated 04.09.2017. For Petitioner : Mr.V.Govardhan for M/s.R.Thirumoorthy For Respondents : Mr.E.Manoharan (for R1) Additional Government Pleader Mr.P.Arumugarajan (for R2 & R3) Standing Counsel. ORDER
(Order of the Court was made by SUBRAMONIUM PRASAD, J) The instant writ petition, is for a writ of mandamus, directing the respondents to close TASMAC Wine Shop No.8767, which is functioning in Survey No.534, at Door No.1, Chettay Street Main Road, Ayanambakkam, Chennai - 600 095.
2. The petitioner claims that he is the Vice President of Annal Ambedkar Kudiiruppor Nala Sangam and that the Sangam has been working for the welfare of the residents in Ayanambakkam, Chennai. It is the submission of the petitioner that the respondents had proposed to open the TASMAC Shop, which was objected to by the general public and there was a protest for opening the TASMAC shop.
3. It is stated in the writ petition that in view of the agitation conducted before the wine shop on 13.08.2017, TASMAC shop was locked temporarily, but, TASMAC shop has started to function again. Contending that in the said area, there are educational institutions and temples and that it is creating nuisance, the instant writ petition has been filed.
4. Notice was issued in the writ petition and the respondents have filed counter.
5. In the counter, it is specifically stated that there is no educational institutions or a place of worship, within 50 meters of the TASMAC shop. The Learned Additional Government Pleader has also produced order dated 07.08.2017 passed by the District Collector (in-charge) and paragraph Nos.2, 3 and 4 of the order, reads as under.
"2. Consequent to the order passed by the Hon'ble Supreme Court, it is recommended by the District Manager, TASMAC Ltd., Thiruvallur (East) District to re-locate two TASMAC retail shops as under vide the letter referred to in Reference 2 above.
Sl.No. Shop No. Present Address Address where the shops to be relocated 1 8767 NM Road, Avadi, Chennai.54 S.No.534, Patta No.75, No.85, Ayanambakkam, Ambattur, Chennai 2 8813 No.84/2B3, Door No.5/2, Thiruvallur Road, Ramapuram, Chennai-89 S.No.85/33, Thiruvallur Salai, Ramapuram, Chennai-89.
3. Recommendations are made by the District Manager, TASMAC Ltd., Thiruvallur (East) District and the Asst. Commissioner (Excise) (Incharge) Thiruvallur, for relocating 2 TASMAC shops to the new proposed place where the shops to be relocated, since 2 TASMAC retails shops were functioning within 500 radius of State and National Highways after making joint visit of the shops. The above decision is taken in view of the fact that there are no objection received for locating the shops at the proposed new place and further as there is no nuisance to the general public as well as to the traffic.
4. After accepting the recommendations made by the District Manager, TASMAC Ltd., Thiruvallur (East) District and the Asst. Commissioner (Excise) (Incharge), Thiruvallur, that the places where two TASMAC Retails shops bearing shop Nos.8767 and 8813 proposed to be shifted are situated in terms of the conditions stipulated under Rule 8(1) of the Tamil Nadu Liquor Retail Sales, it is ordered that the District Manager, TASMAC Ltd., Thiruvallur (East) District, is directed to shift the TASMAC shops Nos.8767 and 8813, to thenew address by sending the liquor bottles from the Go-down to TASMAC retails shops after ensuring that whether prevention wall and the grills are erected."
6. A perusal of the counter and the order of the District Collector, show proper application of mind, before passing orders for opening of the wine shop, which is functioning now. Admittedly, there is no educational institutions or a place of worship, within the specified distance.
7. The learned counsel for the petitioner, placed reliance on a Division Bench judgment dated 19.07.2010, passed by this Court in WA No.1353 of 2010, in particular, he relies on paragraph Nos.9 and 15, which are reproduced hereunder.
"9. It is true that the retail vending rules provide that no shops shall be established within a distance of 50 metres in Municipal Corporations and Municipalities and 100 metres in other areas, from any place of worship or educational institutions. However, that does not mean that the liquor shops so established would get a licence automatically to cause nuisance to the local people. The prescription of distance for opening the Bar is a matter between the state and the excise licensees. Merely because the shop is situated beyond the distance stipulated in the rules it cannot be said that there would be no nuisance to the people of the area. The distance rule takes care of only the place of worship or educational institutions. It does not say that the liquor shops should be away from residential houses. The nuisance created by the drunkards would extend even beyond the safety area prescribed under the rules. Therefore it all depends upon the facts and circumstances of each case. The factum of location of the shop beyond the prohibited distance would not come to the rescue of the licensee of liquor shops in the event of there being perennial nuisance to the residents of the area.
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15. The right to life guaranteed under Art. 21 would include every aspect of life so as to make the life real and meaningful. The right to lead a peaceful life without any kind of nuisance has to be considered as one among the many facets of Article 21. India is a welfare state. The state is expected to promote the well being of its people. It is true that the State have to generate funds for undertaking welfare measures. The trade in liquor otherwise known as Res-extra-commercium is a major source of revenue to the state. But the generation of revenue should not be at the expense of the peaceful life of the people."
8. The Government of Tamilnadu, has framed Tamil Nadu Liquor Retail Vending (Shop and Bars) Rules 2003. Rule 8 prescribes the conditions for location of the TASMAC shop. Rule 8(1) prescribes that no shop shall be established in Municipal Corporations and Municipalities within a distance of 50 (fifty) metres and in other areas 100 (hundred) metres from any place of worship or educational institutions. Rule 8(2) stipulates that every TASMAC shop, should be housed in a pucka building and no part of the shops shall be thatched either on the sides or on the roof.
9. It is a well settled proposition of law that Courts cannot add or delete words or punctuations in a statute. No doubt, it is the duty of the Government, to take into account the will of the people and the nuisance created by the existence of such shop. But that cannot be taken into account, on bald allegations and averments in the writ petition, without any concrete evidence. The Court can take judicial notice, on concrete events, where nuisance have been reported, to take a decision, as to whether a shop may be permitted to continue or not. In the absence of any material, Courts cannot read into Rule 8, a new stipulation, which is the opinion of the local people.
10. It is also contended by the learned counsel for the petitioner that a perusal of the photographs would show that the roof of the structure is made of 'asbestos' and that therefore, it violates Rule 8(2) of the Tamil Nadu Liquor Retail Vending (Shop and Bars) Rules 2003.
11. Rule 8(2) of the Tamil Nadu Liquor Retail Vending (Shop and Bars) Rules 2003, provides that the shop shall be housed in a pucka building and no part of the shops shall be thatched either on the sides or on the roof. The photographs produced by the petitioner would show that no part of the shop is thatched either on the sides or on the roof. The fact that the roof of the building is made of 'asbestos', as stated by the petitioner, will not fall foul of Rule 8(2) of the Tamil Nadu Liquor Retail Vending (Shop and Bars) Rules 2003.
12. No cause has been made out, which warrants an issuance of writ of mandamus, to close down Shop No.8767, functioning in Survey No.534, at Door No.1, Chettay Street Main Road, Ayanambakkam, Chennai - 600 095. Hence, writ petition is dismissed. No Costs. Consequently, the connected Writ Miscellaneous Petition is closed.
(S.M.K., J.) (S.P., J.) 14.09.2018 Index: Yes/No. Internet: Yes Speaking/Non speaking ars/dm S.MANIKUMAR,J.
AND SUBRAMONIUM PRASAD, J.
ars/dm To
1. The District Collector, Thiruvallur District, Thiruvallur.
2. The Managing Director, TASMAC Ltd., Egmore, Chennai - 600 008.
3. The District Manager, TASMAC Ltd., Sembarampakkam, Thirumazhisai, Thiruvallur District, Thiruvallur.
WP.No.24414 of 2017 and WMP No.25809 of 201714.09.2018