Madras High Court
V.Ka.Velusamy vs The District Collector on 21 November, 2014
Author: T.S.Sivagnanam
Bench: T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2014
CORAM
THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM
W.P.No.7942 of 2014
and
M.P.No.1 of 2014
V.KA.Velusamy ... Petitioner
Vs.
1. The District Collector,
Erode District,
Erode.
2. The Regional Manager,
Tamil Nadu State Marketing
Corporation Ltd., (TASMAC)
Coimbatore.
3. The District Manager,
Tamilnadu State Marketing
Corporation Ltd., (TASMAC)
Suriyampalayam,
Vasavi College Post,
Erode, Erode District.
4. N.Sakthivelan ... Respondents
(R4 is impleaded as per order of this Court
dated 21.11.2014 in M.P.No.2 of 2014)
Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of mandamus, forbearing the respondents from starting a new TASMAC shop nearby the Panchayat Union Office, Nambiyur, Erode district, detrimental to the petitioner's right to life and property by considering the representation dated 03.03.2014.
For Petitioner : Mr.N.Manokaran
For R1 : Mr.M.Digvijaypandian
Additional Government Pleader
For R2 and R3 : Mr.S.Muthuraj
For R4 : Mr.Stalin Abhimanyu
ORDER
The petitioner has filed this writ petition praying for issuance of writ of mandamus, forbearing the respondents from starting a new TASMAC shop nearby the Panchayat Union Office, Nambiyur, Erode district, which would be detrimental to the right of the petitioner.
2. The petitioner would state that apart from him, several others have given representations to the Authorities from 05.02.2014 to 03.03.2014 and in spite of their representations, no action has been taken by the authorities. The petitioner and other objectors were not heard and effective steps have been taken to locate the shop in the building owned by 4th respondent/ impleaded party. The petitioner would further state that the proposed shop would create nuisance, if located in their area and inconsistent with Rule 8 of the Tamil Nadu Liquor Retail Vending (Shops and Bars) Rules 2003 (hereinafter referred to as 'the Rules'). Further, it is submitted that there is an orphanage, a temple, a church and a private company in the vicinity of the proposed shop and 20 students are studying in the locality and school girls will have to cross the proposed location to reach the bus stop. Further, there are women working in Textile Mill and they have to cross the proposed site to reach their place of employment. That apart, the petitioner would state that serious issues will arise, if the shop is located in the area and public of the area would be grossly affected. In support of such contentions, the learned counsel appearing for the petitioner placed reliance on the following decisions:
(i) a decision of the Honourable Division Bench of this Court in the case of the Tamil Nadu State Marketing Corporation Ltd., rep. by its Managing Director, CMDA Tower-II, Chennai vs. 1. R.M. Shah and five others, reported in 2010 (2) CWC 337;
(ii) a decision of the Honourable Division Bench of this Court in the case of G.Kanaga Bai, D/o. Israel, Mankuzhy Veedu, Adaikakuzhi, Kanyakumari District vs. The District Collector, Kanyakumari District and others, reported in 2013 (5) CTC 141;
(iii) a decision of this Court in the case of M.Edison vs. The District Collector, Tirunelveli District and others, reported in 2012 (2) CWC 615; and
(iv) a decision of this Court in the case of M.Kasirajan, Co-ordinator, Tamil Nadu Open University, Kovilpatti, Thoothukudi District vs. The District Collecotr, Thoothukudi District and another, reported in 2014 (1) CWC 97.
3. The learned counsel appearing for TASMAC, by relying upon the counter affidavit filed, submitted that Shop No.3611 was earlier located at Door No.450 and 454, Kovai Main Road, Nambiyur and since many people protested for location of the shop, a decision was taken to relocate the shop. It is further submitted that the premise owned by the fourth respondent does not infringe any of the conditions stipulated by Rule 8 of the Rules and the shop is proposed to be located outside the Town Panchayat and is isolated from the residential area and all other institutions and there is no Temple (or) Mosque (or) Church (or) Hospital (or) School (or) bus stand existing within 100 meters from the proposed location. Further, the Panchayat Union office is located more than 100 meters away from the proposed location and the Temple is located more than 300 meters away and the contention that there is a church and a home for destitute children in the proposed location is incorrect as there is no such place of worship and a home for destitute children. Therefore, the learned counsel submitted that TASMAC should be permitted to locate the shop in the building owned by the fourth respondent. Further, it is submitted that if there is any nuisance caused on account of establishment of the shop, then, it is always open to the petitioner to invoke the remedy under Section 133 of the Code of Criminal Procedure Code. In support of such contentions, the learned counsel placed reliance on the order passed by the Honourable First Bench in the case of R.Sangeetha vs. The District Collector, Tiruvannamalai District, Tiruvannamalai and three others, made in W.P.No.20235 of 2014 dated 09.10.2014. The learned counsel produced a sketch prepared by a Private Engineer stating that the shop is not proposed to be located in an objectionable place and the contentions of the petitioner are not tenable.
4. The learned counsel appearing for the 4th respondent submitted that the writ petition is thoroughly misconceived and the contentions raised by the petitioner are factually incorrect and there is no violation of Rule 8 and the writ petition has been filed with preconceived notion and imagination and even before the proposed shop is established and even before any violation is reported, the writ petition has been filed and it is premature. Further, it is submitted that there are enough mechanisms facilitated by legislators to ruthlessly curb nuisance under the provisions of Section 133 Cr.P.C and if there is any nuisance, the concerned authority, who are empowered to remove the liquor shop, could exercise that power. Further, it is submitted that the decision relied on by the learned counsel for the petitioner in the case of The Tamil Nadu State Marketing Corporation Ltd. Rep. By its Managing Director, CMDA Tower-II, Chennai vs. R.M.Shah and five others (supra) has no relevancy to the case on hand. Equally, the decision in the case of M.Edison vs. The District Collector, Tirunelveli District and others (supra) is also not relevant, since in both the cases, the liquor shops were opened and thereafter, nuisance was caused by the consumers of the liquor shops. Whereas in the case on hand, the shop is yet to be opened and even before that, the petitioner has filed this writ petition alleging that nuisance will be caused. Further, the learned counsel submitted that the Honourable Division Bench in the case of K.Sundara Mahalingam made in W.P (MD)No.151 of 2012 dated 20.04.2012 has observed that if there is any nuisance, then, remedy would be to invoke Section 133 Cr.P.C. and similar observations were also made by the Honourable First Bench in W.P.No.80 of 2010, dated 04.03.2011. It is submitted that the 4th respondent has complied with all criteria and the statutory provisions and he should be allowed to carry on his right to trade as enshrined under Article 19(1)(g) of the Constitution of India.
5. Heard the learned counsel appearing for the petitioner, the learned counsel appearing for TASMAC and the learned counsel appearing for the 4th respondent and perused the materials on record.
6. The petitioner has approached this Court even prior to location of the shop by TASMAC in the building owned by the fourth respondent. The 4th respondent would contend that this writ petition is premature and even before the establishment of shop, the petitioner has come forward with a plea that nuisance is likely to be caused and at the same time, justified their proposal stating that there is no infringement of Rules and therefore, no writ of mandamus could be issued to direct the respondents to shift the shop to some other place. The decisions of the Honourable Division Bench of this Court in the case of The Tamil Nadu State Marketing Corporation Ltd. Rep. By its Managing Director, CMDA Tower-II, Chennai vs. R.M.Shah and five others (supra) and M.Edison vs. The District Collector, Tirunelveli District and others (supra) are sought to be distinguished on facts by contending that in those cases, the shops were established and there were materials to show that the shops caused tremendous nuisance to the people in the locality and therefore, the Court considered the factual issue and then directed the Government to issue appropriate directions. But, in the instant case, it is stated that the shop in question is yet to be located and therefore, those decisions are not applicable.
7. It is settled legal principle that no person has a vested right to trade in liquor. There is no fundamental right vested with any person stating that he is entitled to trade in liquor or be associated in that trade. As long as there is no fundamental right to carry on such business, the fourth respondent cannot say that he has the fundamental right to carry to lease out his shop for running a liquor outlet and therefore, his right is an unfretted right. Such submission deserves to be rejected for the simple reason that though the fourth respondent's right to lease out for any other purpose may be the right enshrined under Section 19(1)(g) of the Constitution of India, when it comes to the question of lease for the purpose of running a liquor outlet, there can be no fundamental right for the fourth respondent to do so.
8. In my view, the constitutional bar imposed with regard to right to trade in liquor would also encompass the persons who are associated with the trade in liquor which would include persons, who are establishing a bar or who has leased out a premises or proposes to lease out a premises for such purpose. Therefore, this Court is of the view that there is no fundamental right for the fourth respondent to state that he is entitled to, as a matter of right, lease out the premises for running a liquor shop. Having held so, it is to be seen as to whether the petitioner's grievance is genuine. The petitioner would state that the proposed location is very near to an orphanage, a Temple, a Church and a private company and is also near to the Panchayat office. TASMAC has denied the same stating that all these places stated by the petitioner are not located within the prohibited distance in terms of Rule 8. Nevertheless the location of the school has not been denied in the Counter affidavit. But, they would state that it is not within the radius of 100 meters. Similarly, it is stated that the temple is not within the radius of 100 meters, but, situated about 300 meters. However, with regard to the allegation that there is a church in the vicinity, it is stated that there is no church or orphanage in the locality. If such is the case and counter, then, the Court would be constrained to take into consideration, the grievance, as expressed by the petitioner from the copies of the representations filed by the petitioner in the typed set of papers. It is seen that it is not the petitioner alone who has objected to the location of the shop, but several others have raised their protest. In such circumstances, it is to be seen as to what should be done in the given facts and circumstances.
9. In the case of G.Kanaga Bai vs. The District Collector, kanyakumari District and others (stated supra), the writ petition was filed by the petitioner therein to remove the TASMAC shop from a building at Sangurutti Village, Kanyakumari District, it was stated that the shop was located within the prohibited distance as contained in the Rules. The TASMAC resisted the prayer by stating that the distance rule is not violated. The Division Bench of this Court took into consideration the facts of the case wherein, the Village Panchayat passed a resolution resolving to request the District Collector not to grant permission to open a liquor shop. The facts in the resolution were taken into consideration.
10. The Division Bench of this Court, taking note of the Judgments of the Honourable Apex Court in the case of P.N.Kaushal vs. Union of India, 1978 (3) SCC 558 and N.Nagendra Rao & Co. vs. State of Andhra Pradesh reported in 1994 (6) SCC 205, and also taking note of the constitutional mandate under Article 47, the right to life guaranteed under Article 21, Article 19(1)(d) and the views of Hon'ble Mr.Justice V.R.Krishna Iyer, issued the following directions:
13. It is also relevant to note, at this juncture, that Rule 10(5) of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, mandates that every shop is bound to have a signboard in Tamil in front of the shop in Tamil with slogans in Bold Letters about the evils of drinking both in Tamil and English, viz., kJ ehl;Lf;F. tPl;Lf;F. capUf;F nfL Liquor ruins country, family and life.
14. The said Rule even though preaches about the evils of drinking and when the people of the said locality through their elected Village Panchayat have decided to follow the said slogan in its letter and spirit, the authorities are bound to respect their sentiment and views. The liquor shop is being run with Police protection establishes the fact that the people are not co-operating for the sale of liquor in their village. Further, all the religious people residing in that place namely Hinuds and Christians are opposing the sale of liquor in the village. The action of the Respondents in running the liquor shop with Police protection reflects the attitude of the Respondents in their determination to sell liquor to public at any cost.
15. From the above narrated facts as well as the Constitutional provisions and the Judgments of the Hon'ble Supreme Court, we are of the view that the Resolution passed by the Village Panchayat seeking not to grant permission to open liquor shop within the village should be given due weightage by the Respondents, whose sole intention, as per the written instruction given by the Second Respondent to the learned Standing Counsel, is only to fetch more income to the Government by sale of liquor. When the people in the said locality are unanimously opposing establishment of liquor shop, the democratically elected Government must respect the wishes of the people, unlike establishment of Hospitals and Schools/Reading Room, the people have got a right to express their views regarding the establishment of liquor shops on their doorsteps, particularly, when they are living in the village without liquor shop for the past several decades. The same having not been considered by the Respondents in proper perspective, this Court is bound to exercise its jurisdiction under Article 226 of the Constitution of India. In fact, in W.P.(MD) No.12757 of 2013 by order dated 05.08.2013, this Court ordered not to establish the liquor shop in Vadamalapuram Vilalge, Sivakasi Taluk, Virudhunagar District on identical facts.
11. It is true that in the case, before the Division Bench, the shop was already in existence. But, the contention of the TASMAC was that they did not violate the distance rules. The Honourable Division Bench took into consideration the power of the State to locate liquor shop, which was considered by the Honourable Supreme Court in the case of P.N.Kaushal, N.Nagendra Rao (stated supra) and issued the above mentioned directions.
12. In the case of M.Kasirajan, Co-ordinator, Tamil Nadu Open University, Kovilpatti, Thoothukudi District vs. The District Collector, Thoothukudi District, (stated supra), this Court issued directions not to locate the TASMAC shop near a study center, the objection raised by TASMAC was that the study center could not be a Educational Institution or school and would not offend Rule 8. The Court, after taking into consideration Article 21 of the Constitution of India and the facts of the case, issued the following directions:
9. Admittedly, by the side of the TASMAC shop, a bar is also attached. Therefore, it is crystal clear that not only liquors are sold in the shop, but also it is served to the public. It is well known that the people in inebriated condition, at times, misbehave with others. There are several such incidents, where under the influence of alcohol some elements cause nuisance to the road users bystanders and all other people, who are living in that area. That is the reason why the TASMAC shops are to be located at far off places, so that there is no inconvenience to the general public. Let the people, who like liquors, may go anywhere, be it a longer distance, to take liquor. Let them not cause any nuisance to the non drinkers in this country, where we are sure to follow the Gandhian principles. The nuisance, which is alleged by the Petitioner is certainly proximate and it is violative of Article 21 of the Constitution of India. The term life as enshrined in Article 21 of the Constitution has received very liberal interpretation at the hands of the Supreme Court, where the Hon'ble Supreme Court has gone to the extent of declaring that even right to sleep is a fundamental right falling within the purview of Article 21 of the Constitution of India. Therefore, the students, who study in the petitioner's centre, the petitioner himself and his family members have got fundamental right to have peaceful atmosphere to live, to study and to sleep.
10. But, certainly because the shop is located by the side of the Petitioner's Study Centre, wherein liquor is not only sold but also served, this fundamental right would be materially infringed upon. Therefore, the shop cannot be allowed to run in the said place, because it is violative of the fundamental rights of the petitioner. No Governmental action can be approved by a Court of law, if it violates any of the fundamental rights of a citizen, because the right guaranteed under Article 21 of the Constitution of India is a basic human right. It may be true that the shop has been located in accordance with the Rules. Nevertheless, since it is violative of the fundamental rights of this petitioner, it needs judicial interference.
13. Thus, taking into consideration the above mentioned decision, this Court is of the view that the District Administration cannot ignore the public objection while locating a liquor shop as pointed out by the Honourable Supreme Court in P.N.Kaushal v. Union of India (stated supra). The trade is instinct with injury to individual and community and has serious side-effects recognized everywhere in every age. It is further pointed out that not to control alcohol business is to abdicate the right to rule for the goods of the peal, not to canalise the age and sex of consumers and servers, the hours of sale and cash-and-carry basis the punctuation and pause in days to produce partially the 'dry' habit is to fail functionally as a Welfare State. Further the Honourable Supreme Court in the case of N.Nagendra Rao & Co. vs. State of Andhra Pradesh, pointed out that no civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the Rule of law in a Welfare State is not shaken.
14. Thus, bearing in mind the principles pointed out by the Honourable Supreme Court and observation of the Honourable Division Bench, this Court is of the view that the objection raised by the residents cannot be ignored and the contention of TASMAC that the proposed location does not violate Rule 8 of the Rules cannot solely be the reason to ignore the representations. The respondent, being Welfare State, has to take note of the objections raised by the public. It may be another matter if the objections are on account of certain mala fide intention. In the case of hand, no malafides have been alleged by the respondents. From the bunch of representations filed in the typed set of papers, it is seen that there are serious objections to the proposed shop. Therefore, this Court is of the view that the petitioner need not wait till the damage is done or nuisance created and the preemptive steps taken, cannot be fault with nor can be said to be premature.
15. Accordingly, this writ petition is disposed of by directing the first respondent to take into consideration the petitioner's representation as well as the representation given by other persons of the area and afford an opportunity of personal hearing to the petitioner and other objectors and if necessary depute his officials to conduct a spot inspection and thereafter, consider the objections bearing in mind, the observation made by this Court and pass a reasoned order on merits and in accordance with law. The entire exercise shall be completed by the first respondent within two months from the date of receipt of a coy of this order. Till orders are passed, the shop shall not be located in the proposed location owned by the fourth respondent. No costs. Consequently, the connected miscellaneous petition is closed.
21.11.2014
Index : Yes / No.
Internet : Yes / No.
ogy
To
1. The District Collector,
Erode District,
Erode.
2. The Regional Manager,
Tamil Nadu State Marketing
Corporation Ltd., (TASMAC)
Coimbatore.
3. The District Manager,
Tamilnadu State Marketing
Corporation Ltd., (TASMAC)
Suriyampalayam,
Vasavi College Post,
Erode, Erode District.
T.S.SIVAGNANAM, J.
ogy
W.P.No.7942 of 2014
21.11.2014