Madras High Court
G. Kanaga Bai vs The District Collector on 6 August, 2013
Bench: N. Paul Vasanthakumar, P. Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06/08/2013
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
And
THE HONOURABLE MR. JUSTICE P. DEVADASS
W.P.(MD)No.11992 of 2013
and
M.P.(MD)No.1 of 2013
G. Kanaga Bai,
D/o. Israel,
Mankuzhy Veedu,
Adaikakuzhi,
Kanyakumari District. ... Petitioner
Vs
1. The District Collector,
Kanyakumari District.
2. The Assistant Commissioner (Excise),
Collectorate Building,
Nagercoil, Kanyakumari District.
3. The Principal Regional Manager,
Tamil Nadu State Marketing Corporation,
Anna Nagar, Madurai - 20.
4. The District Manager,
Tamil Nadu State Marketing Corporation,
Kanyakumari District.
5. The Managing Director,
Tamil Nadu State Marketing Corporation,
Fort. St. George, Chennai. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for
issuance of a Writ of Mandamus to direct the respondents to remove the TASMAC
shop or the Shop No.4823 in the building in S.No.8-1A1B at Sangurutti Village,
Adaikkakuzhi, Vilavancode Taluk, Kanyakumari District.
!For Petitioner ... Mr. K. Vinayagan
^For Respondents ... Mr. R. Velmurugan for R-1 and R-2
Government Advocate
Mr. M. Muniyasamy for R-3 to R-5
- - - - - - -
:ORDER
(Order of the Court was made by N. PAUL VASANTHAKUMAR, J.) The petitioner has filed this Public Interest Litigation, seeking to direct the respondents to remove the TASMAC Shop No.4823 from the building in S.No.8-1A1B at Sangurutti Village, Adaikkakuzhi, Vilavancode Taluk, Kanyakumari District.
2. According to the petitioner, she is the District Committee Member of Communist Party of India (Marxist) and the State Committee Member of All India Democratic Womens Association and at present, she is the Board Member of Methukummal Primary Agricultural Co-operative Bank. The first respondent issued permission to function a TASMAC Shop at Door No.3/43-F, Padasalai to Kollankodu Sangurity, which is located in Adaikakuzhi Village Panchayat. On 12.07.2013, the Adaikakuzhi Village Panchayat passed a resolution No.58, opposing the opening of the TASMAC Shop in the said place. The action Committee also met respondent Nos.1 and 2 on 12.07.2013 and submitted a detailed representation. The Headmistress of St. Thomas M.S.C. Middle School, Mankuzhi also gave a representation on 12.07.2013 to the first respondent. The Principal of Saraswathy College of Nursing, Karode, Uchakkada also gave his objection on 12.07.2013. The local Member of Tamil Nadu Legislative Assembly namely Thiru. John Jacob, along with different political party members conducted protest / Dharna opposing the opening of TASMAC Shop on 17.07.2013, which was reported in Daily Thanthi newspaper Nagercoil Edition dated 18.07.2013. Despite the agitation and representation, the TASMAC Shop was opened in S.No.8-1A1B in Sankurutti Village, Adaikakuzhy Post, Vilavancode Taluk, Kanyakumari District. The said shop is located very near to Sankurutti bus stand and from there within 80 metres, St. Thomas M.S.C.Middle school is situated and the adjacent way is meant for entering Pookkuli Boothanathan Temple and within 50 metres Shrine Catholic Church and CSI Church are situated. Further, one Nursing College viz., Saraswathy College of Nursing is situated within the radius of 90 metres, where 350 girls are studying.
3. It is stated by the respondents that as per the order of this Court, Shop No.4823 which was located in NH 45 at Padanthalumoodu was shifted and is now located at S.No.8-1A1B in Sankurutti Village, Adaikkakuzhi Post, Vilavancode Taluk, Kanyakumari District.
4. The learned counsel appearing for the petitioner during the course of arguments submitted that in spite of agitation and representation made by the public, the TASMAC shop, which was originally ordered to be closed was again re-opened with police protection. He further submitted that even today, sale is effected in the said TASMAC shop with police protection.
5. When the Writ Petition was posted for admission on 25.07.2013, Mr.M.Muniasamy, learned Standing Counsel, was directed to take notice on behalf of respondent Nos.3 to 5 and get instructions. Today, the learned Standing Counsel produced the written instructions given by the fourth respondent dated 06.08.2013, wherein it is stated that due to public agitation, the TASMAC shop was closed on 10.05.2013, even though the same was opened only on 09.05.2013. He further submitted that no temple or educational institution or Hospital is located within 100 metre radius of the said TASMAC shop and the said shop is being run without hindrance to the general public and following the relevant Rules.
6. We have considered the rival submissions and perused the relevant papers.
7. From the records, it is seen that on 12.07.2013, the Adaikakuzhi Village Panchayat passed resolution No.58, resolving that the District Collector should not grant permission for opening any Liquor Shop. The action Committee also met respondent Nos.1 and 2 on 12.07.2013 and submitted a representation opposing the location of the TASMAC Shop. Despite the resolution and representation, the TASMAC Shop was opened in S.No.8-1A1B in Sankurutti Village, Adaikakuzhy Post, Vilavancode Taluk, Kanyakumari District. Further, in the affidavit filed in support of this Public Interest Litigation, the petitioner has stated that the said shop is located very near to Sankurutti bus stand and from there within 80 metres, St. Thomas M.S.C.Middle school is situated and the adjacent way is meant for entering Pookkuli Boothanathan Temple and within 50 metres Shrine Catholic Church and CSI Church are situated. Further, one Nursing College viz., Saraswathy College of Nursing is situated within the radius of 90 metres, where 350 girls are studying. However, the fourth respondent has submitted that the said shop is being run without hindrance to the general public and following the relevant Rules. From the photographs annexed in the typed set of papers, we could see that the entrance of the Temple (Arch) is built within 10 metres from the TASMAC Shop.
8. The Hon'ble Supreme Court in P.N.Kaushal Vs. Union of India, reported in 1978 (3) SCC 558, considered the right of State to regulate the sale of liquor and the power of the State to locate the liquor shop and also considered as to how the liquor trade is affecting the health of the public. In Paragraph No.49, the Hon'ble Supreme Court held thus:-
"...... The trade is instinct with injury to individual and community and has serious side-effects recognized everywhere in every age. Not to control alcohol business is to abdicate the right to rule for the good of the people. 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. The whole scheme of the statute proclaims its purpose of control in time and space and otherwise. Section 58 vests in Government the power for more serious restrictions and laying down of principles. Detalis and lesser constraints have been left to the rule-making power of the Financial Commissioner. The complex of provisions is purpose-oriented, considerably re-inforced by Article 47."
9. In the decision in N.Nagendra Rao & Co, Vs State of Andhra Pradesh, reported in 1994 (6) SCC 205, the Hon'ble Supreme Court held thus:-
"...... 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......"
10. Article 47 of the Constitution of India mandates the State to improve the public health, as it is a primary duty and the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs, which are injurious to health.
11. Article 21 of the Constitution of India gives protection of life and personal liberty. Right to live with human dignity and right to healthy environment etc are also declared as fundamental rights. The apprehension of the villagers is that if the liquor shop is located within the village, the rights of the school going students, women and children will be jeopardized and they may not be in a position to move freely during night hours, which is a guaranteed right to every citizen, including women and children, as guaranteed in Article 19(1)(d) of the Constitution of India. Freedom of movement is guaranteed not only in any part of India, but also within the village itself. If any obstruction is made by any person due to intoxicating, the same would amount to violation of fundamental right. In order to protect the said right, the villagers and the village panchayat passed the said resolution opposing the establishment of liquor shop.
12. At this juncture, it is worthwhile to quote an Article published in Hindu dated 12.01.2010, which published the views of Hon'ble Mr.Justice V.R.Krishna Iyer, on the topic of the State and the Evil of Drink, which reads thus:-
"All great men were free from alcoholism; they range from Bemand Shaw to Mahatma Gandhi. From Vedanta to Islam and every faith which is committed to dignity, decency and sobriety has advocated this. If the elimination of poverty and bankruptcy will constitute patriotism, the highest priority to implementing this principle should be given to an absolute ban on alcoholism."
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 BfL"
"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 Hindus 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 Village, Sivakasi Taluk, Virudhunagar District on identical facts.
16. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
Dpn/-
To
1. The District Collector, Kanyakumari District.
2. The Assistant Commissioner (Excise), Collectorate Building, Nagercoil, Kanyakumari District.