Madras High Court
S.Madasamy vs The Tamil Nadu State Marketing ... on 30 April, 2019
Author: Anita Sumanth
Bench: Anita Sumanth
1
In the High Court of Judicature at Madras
Dated: 30.04.2019
Coram
The Honourable Dr.Justice ANITA SUMANTH
Writ Petition Nos.3828 and 4444 of 2019
W.P.No.3828 of 2019:
S.Madasamy .... Petitioner
Vs
1. The Tamil Nadu State Marketing Corporation Ltd.,
Rep. By its District Manager,
Thiruvallur (East) District,
No.1, Bangalore High Road, Thirumazhisai,
Thiruvallur District.
2. The Inspector of Police,
Puzhal Police Station,
Puzhal, Chennai – 600 066.
3. The District Collector,
Thiruvallur
4. The Tahsildar,
Thiruvallur.
R3 & R4 impleaded vide order
dated 13.02.2019 made in W.P.No.3828 of 2019
5. King Maker Kamarajar Thirumana Mandabam
Rep. By its Manager, Mr.T.Sarveshwaran
R5 impleaded vide order dated 27.04.2019
in W.M.P.No.5546 of 2019
6. Mr.C.Tirupathi
R6 impleaded vide order dated 27.04.2019
in W.M.P.No.4785 of 2019 .... Respondents
W.P.No.4444 of 2019:
P.Sekar
http://www.judis.nic.in .... Petitioner
2
Vs.
1. The District Collector,
Chennai District, Chennai – 600 001.
2. The Tamil Nadu State Marketing Corporation Ltd., (TASMAC)
Rep. By its District Manager,
Thiruvallur (East) District,
Thirumazhisai,
Thiruvallur District – 602 103
3. The Inspector of Police,
M-3, Puzhal Police Station,
Puzhal, Chennai – 600 066. .... Respondents
Prayer in W.P.No.3828 of 2019: PETITION under Article 226 The
Constitution of India praying for the issuance of Writ of Mandamus directing the
respondents to forthwith implement the order of the District Collector, Chennai
District dated 31.12.2018 in Letter No.L5/28203/2018, and the consequential
order of the 1st respondent dated 08.01.2019 in Proc.No.A3/3263/2018 and
consequently direct the respondents to open the Tasmac shop No.8918 in the
petitioner’s building Door No.135, GNT Road, Puzhal, Chennai – 600 066.
Prayer in W.P.No.4444 of 2019: PETITION under Article 226 The
Constitution of India praying for the issuance of Writ of Mandamus directing the
respondents to implement the proceedings of the first respondent in
L5/26443/2018 dated 16.11.2018 and consequently direct the respondents to
open the Tasmac shop No.8730 at Door No.140, GNT Road, Puzhal, Chennai –
600 066.
For Petitioner in W.P.No.3828 of 2019 : Mr.K.Selvaraj
For Petitioner in W.P.No.4444 of 2019 : Mr.M.Manimaran
For Respondents in W.P.No.3838 of 2019: Mr.Damodaran – R1
http://www.judis.nic.in
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Mr.Akil Akbar Ali, G.A. – R2 to R4
For Respondents in W.P.No.4444 of 2019: Mr.Akil Akbar Ali, G.A.
– R1 & R3
Mr.Damodaran – R2
COMMON ORDER
The petitioners in both Writ Petitions are owners of property situated in GNT Road, Puzhal, Chennai – 66. Both petitioners were approached by the authorities of the Tamil Nadu State Marketing Corporation Limited (in short ‘Tasmac’) for lease of their premises for locating Tasmac wine shops.
2. In W.P.No.3828 of 2019, the District Collector passed an order dated 31.12.2018 granting permission for opening of the shop bearing number 8918 and consequently the officials of the first respondent/Tasmac directed opening of the shop on 10.01.2019. However, the shop was not opened and hence the petitioner has approached this Court seeking a mandamus to direct the respondents to implement the order of the District Collector dated 31.12.2018 and the consequential order of the first respondent dated 10.01.2019. The District Collector has passed his order based on the recommendation of the District Manager, Tasmac and the No Objection Certificate (NOC) dated 20.10.2018 issued by the Inspector of Police, M-3 Puzhal Police Station.
3. The facts in W.P.No.4444 of 2019 are identical except in relation to the shop number, being 8730, the date of the NOC of the Inspector of Police, R 3, that is 08.09.2018 and the order of the District Collector directing opening of the shop, being 16.11.2018. For the sake of brevity, the facts, dates and circumstances in relation to W.P.No.3828 of 2019 are referred to in this order as http://www.judis.nic.in 4 being representative of the facts, dates and circumstances of both writ petitions except where specifically indicated otherwise.
4. The residents of GNT Road, in Puzhal, state that the area in which the shops are sought to be opened is a residential area. They have sought impleadment as respondents, in support of the Governments’ stand against the opening of the shops and have been impleaded, there being no objection to such impleadment by any of the parties to the writ petition. The stand of the impleaded residents is that the shops in question are sought to be opened in a residential area that would cause substantial public nuisance and that too in proximity to a Temple and a school, in violation of Regulation 3 of the Tamil Nadu Liquor Retail Vending (shops and bars) Rules 2003 (in short and henceforth ‘Rules’). They thus pray that the writ petitions be dismissed.
5. When the matter came up initially, notice was issued to the respondents, who obtained instructions and filed counters. The instructions, records produced and counter affidavits reveal a very indifferent as well as disturbing procedure adopted by the authorities in matters of grant of approval to the locating of the Tasmac wine shops.
6. The Tasmac had inspected the sites and found the same suitable for setting up the wine shops.
7. The Inspector of the Puzhal M-3 Police Station had initially granted a no-objection certificate (in short ‘NOC’) for opening of the shops. It is on the strength of this NOC that the District Collector has directed opening of the shops. The NOC granted by the Inspector is in the following terms:
M3? g[Hy; fhty; epiyak;
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5
mDg;g[eh;: bgWeh;:
fhty; Ma;thsh; S.B.rpahk; Re;jh; MBA.
vk;?3. g[Hy; fhty; epiyak;. khtl;l nkyhsh;.
g[Hy;. brd;id ?66 lh!;khf; ypkpbll;.
jpUts;Sh: ; fpHf;F khtl;lk;/
ehs; 21/10/2018
ghh;it: e/f/vz;/m3-7733-2018. ehs; 17/09/2018 Iah.
j';fspd; ghh;itapy; fz;l fojj;jpd; go vk;?3. g[Hy; fhty; epiyaj;jpw;Fl;gl;l vz;/135. $p/vd;/o rhiy. g[Hy;. brd;id ?66 vd;w ,lj;jpy; kJghd rpy;yiw tpw;gid fil jpwg;gjw;F fhty; Jiwapd; jilapy;yh rhd;W nfhhpa[ss ; J rk;ke;jkhf tprhuiz nkw;bfhz;ljpy; nkw;go ,lj;jpy; g[jpa kJghd rpy;yiu tpw;gid fil jpwg;gjw;F fhty; Jiwia bghUj;jkl;oy; ve;j tpj Ml;nrgida[k; ,y;iy vd;gij bjhptpj;Jf; bfhs;sg;gLfpwJ/ xg;gk;-? (vk;/el;uh$;-21/10/2018) Ma;thsh;.
vk;?3. g[Hy; fhty; epiyak;.
g[Hy;. brd;id ? 66/
8. Having granted the NOC, the very same officer has then filed a counter affidavit, wherein he states at paragraph Nos.8, 9, 10 and 11 as follows:
'8.It is submitted that since the Tasmac Shop No.8730 at Door No.140, GNT Road, Puzhal, Chennai – 66 on 04.12.2018 lot of complaint were received from the general public, Traders and local political parties about the inconvenience caused because of opening of Tasmac shop at that place. Further they are Road Protest to close the Tasmac. Hence the Tahsildar, Madhavaram inspected the site and receive the complaint and the said shop was closed on the next day of 05.12.2018.
9. It is further submitted that since the proposed shop No.8918 is to be located at near the place of Central Prison, Puzhal, there will be a chance for receiving several complaint form the general public since Co- accused are come to the Central Prison, Puzhal as visitors and most of them will be consuming liquor and there is a possibility of happening untoward incidents. Therefore, in the interest of justice the proposed Shop No.8918 may be closed permanently for the benefit of the general public of the locality.
10. It is further submitted that since the shop located at near the http://www.judis.nic.in place of Central Prison, Puzhal, there are several general public, Co- 6
accused are come to the Central Prison, Puzhal as visitors and most of them are consuming liquor and there is a possibility of happening untoward incidents. Therefore the 3rd respondent recommended the Deputy Commissioner of Police, Madhavaram District to close the said shop and in turn the Deputy Commissioner of Police, Madhavaram District recommended to the 1st and 2nd respondent to take steps to close the shop permanently at the said place. The said shop still closed. If the shop is opened, there is a possibility of law and order issue in that particular area since that place is heavy traffic and thick residential area. Therefore, it is just and necessary for the department to close the said shop at that place so as to enable to maintain law and order.
11. It is further submitted that St.Thomas Church and Mosque is located nearer the No.135, GNT Road, Puzhal, Chennai – 600 066. Hence there is a possibility of raising law and order problem because of Tasmac.'
9. The counter affidavit is signed by the same Inspector of Police who has originally granted the NOC. It is thus very apparent to me that the NOCs granted originally have been issued mechanically, without a shred of application of mind as can be seen from the detailed averments in the counter where he reviews his own NOC and states that the approval granted by the District Collector for opening of the shop be revoked. The officer has in the counter, cited various possibilities of ‘untoward incidents’, ‘public nuisance’ and proximity to school, Temple and residential areas, that should have weighed with him in the first instance as being very relevant factors against the grant of the no- objection certificate.
10. The official records were directed to be produced and reveal some complaints received from individuals/residents of the area on 05.12.2019. The Inspector has, on the basis of the aforesaid complaints as well as the other http://www.judis.nic.in factors as stated in the counter, then recommended to the District Collector that 7 the approval granted be withdrawn. In fact, subsequent to the complaints received and the enquiries made, the District Collector has passed an order dated 21.02.2019 even during the pendency of the present Writ Petition revoking the approval for opening of the shop as extracted below:
brd;id khtl;l Ml;rpahpd; bray;Kiw Mizfs; Kd;dpiy ? jpU/ m/ rz;Kf Re;juk;. ,/M/g/.
k5-28203-2018 ehs; 21/02/2018 bghUs;: kJtpyf;F kw;Wk; Maj;jhP ;itj;Jiw? brd;id khtl;lk; ? khjtuk; tl;lk; ? lh!;khf; fil vz; 8918 ? K:lf;nfhhp cj;jutpLjy; ? bjhlh;ghf/ ghh;it: 1/ khtl;l nkyhsh; (fpHf;F) lh!;khf; ypkpbll; foj vz; m3-3268-2018 ehs; 29/10/2108 2/ brd;id khtl;l Ml;rpahpd; bray;Kiw Miz vz; k5-28203-2018 ehs; 16/11/2018/ 3/ fhty;Jiw Mizah;. khjtuk; khtl;lk;. brd;id bgUefu fhty; khjtuk;. brd;id ?110 foj vz; e/f/vz; ? 33-fh/J M- vk/tp/vk;-bghJ-2019. ehs; 12/02/2019 Miz?
ghh;it?1y; fhQqk; khtl;l nkyhsh; (fpHf;F) lh!;khf; ypkpbll;. brd;id ?58 mth;fspd; Kd;bkhHptpid bjhlh;eJ ; ghh;it 2?y; fhQqk; khtl;l Ml;rpahpd; bray;Kiw Mizapy; brd;id ? 66. $p/vd;/o nuhL. fjt[ vz; 135 vd;w Kfthpapy; lh!;khf; fil vz; ? 8918 jpwf;f cj;jutplg;gl;lJ/ ghh;it?3y; fhQqk; fhty; Jiz Mizahsh;. khjtuk;. brd;id bgUefu fhty; Jiw mth;fspd; fojj;jpy; lh!;khf;
fil vz; 8918 muR tpjpKiwfSf;F cl;gl;L mike;J ,Ue;jhYk;. bghJ kf;fs;. tzpfh;fs;. bgz;fs;. murpay; fl;rp rhh;ghf Ml;nrgidfs; tug; bgw;Ws;sjhy; rl;lk; xG';F gpur;rid Vw;gl;L bghJ kf;fspd; mikjpf;F g';fk; Vw;gl tha;g;gs [ s ; jhy;
nkw;go filapid K:l eltof;if nkw;bfhs;syhk; vd mwpf;if mDg;gpa[ss; hh;/ vdnt ,e;neh;tpy; fhty;Jiw Mizahsh;. brd;id bgUefu fhty; Jiw khjtuk; mth;fspd; mwpf;ifapd; mog;gilapy; Vw;fdnt brd;id ? 66. g[Hy;. $p/vd;/o rhiy. fjt[ vz; 135 vd;w Kfthpapy; lh!;khf; fil vz; ? 8918 jpwf;f brd;id khtl;l Ml;rpauhy; cj;jutplg;gl;l Miz uj;J bra;ag;gLfpwJ/ vdnt nkw;go fil vz; 8918 it K:l cj;jutplg;gLfpwJ/ ,t;t[jj ; ut[ ,d;W Kjy; mkYf;F tUfpwJ/ xg;gk;-? A/ rz;KfRe;juk;
khtl;l Ml;rpah;.
brd;id ? 600 001/ ?-cj;jut[g;go-?
xg;gk;-? ~~~~~~~-21/02/2018 Jiz Mizah; (fyhy;) brd;id ? 600 001/ bgWeh;?
http://www.judis.nic.in 1) khtl;l nkyhsh;. (fpHf;F) 8 lh!;khf; ypkpbll;.
brd;id ? 58/
2) fhty;Jiw Mizahsh;.
khjtuk; tl;lk;.
brd;id bgUefu fhty;.
khjtuk;. brd;id ?110/
3) tl;l fyhy; mYtyh;.
khjtuk; tl;lk;.
brd;id (bjhlh; eltof;iff;fhf)
11. Consequent thereupon the TASMAC has also withdrawn the approval for opening of the shop vide its proceedings dated 25.02.2019, extracted hereunder:
jkpH;ehL khepy thzpg fHfk;. jpUts;Sh: ; (fpHf;F) khtl;l nkyhsh;-Jiz Ml;rpah; mth;fspd; bray;Kiwfs; Kd;dpiy ? jpU/G/uhk;Re;jh;.
br/K/f/vz; m3-3263-2018 ehs; 25/02/2019 bghUs;: lh!;khf; ypkpbll;. jpUts;Sh: ; (fpHf;F) khtl;lk; ? kJghd fil vz; 8918 ?id jpwf;f brd;id khtl;l Ml;rpauhy; cj;jut[ gpwg;gpj;jJ ? khtl;l nkyhsuhy; jpwf;fg;gl;lJ ? brd;id khtl;l Ml;rpauhy; uj;J bra;J Miz gpwg;gpj;jJ ? bjhlh;ghf/ ghh;it: 1/ ,t;tYtyf e/f/vz;/m3-3263-2018- ehs; 29?10?2018/ 2/ brd;id khtl;l Ml;rpahpd; bray;Kiw Miz vz; vy;5-28203-2018 ehs; 31?12?2018/ 3/ ,t;tYtyf br/K/f/ vz;/ m3/3263/2018 ehs; 08-01- 2019/ 4/ fhty; Jiw Mizah;. khjtuk; fhty; khtl;lk; fojk; e/f/vz; 33-fh/J/M/-vk;/tp/vk;-bghJ-2019 ehs; 12/02/2019/ 5/brd;id khtl;l Ml;rpahpd; bray;Kiw Miz vz; vy;5-28203-2018 ehs; 21?02?2019 ghh;it?1y; fhQqk; jpUts;S:h; (fpHf;F) khtl;l nkyhshpd; Kd;bkhHptpid bjhlh;eJ ; ghh;it?2y; fhQqk; khtl;l Ml;rpahpd; bray;Kiw Mizapy; brd;id ?66. g[Hy;. $p/vd;/o rhiy. fjt[ vz; 135 vd;w Kfthpapy; kJghd fil vz; 8918id jpwf;f brd;id khtl;l Ml;rpah; mth;fshy; cj;jutplg;gl;lJ/ ghh;it ?4y; fhQqk; fhty; Jiz Mizah;. khjtuk; brd;id bgUefu fhty;Jiw mth;fspd; fojj;jpy; kJghd fil vz; 8918 muR tpjpKiwfSf;F cl;gl;L mike;Js;sJ/ ,Ug;gpDk; bghJkf;fs; tzpfh;fs;. bgz;fs; kw;Wk; murpay; fl;rpfs; rhh;ghf Ml;nrgidfs; tug;bgw;Ws;sjhy; rl;lk; xG';F gpur;rid Vw;gl;L bghJkf;fspd; mikjpf;F g';fk; Vw;gl tha;g;gs [ ;sjhy; nkw;go filapid K:l eltof;if vLf;fyhk; vd mwpf;if mspj;Js;shh;/ fhty; Jiz Mizah;. brd;id bgUefu fhy; Jiz. khjtuk; mth;fspd; mwpf;ifapd; mog;gilapy; rh;nt vz; 448. vz; 135 $p/vd;/o rhiy. g[Hy;. brd;id 66. khjtuk; tl;lk; bd;w http://www.judis.nic.in tpyhrj;jpy; kJghd fil vz; 8918id ghh;it ?5y; fhQqk;9
khtl;l Ml;rpah; mth;fspd; cj;jutpd;go epue;jukhf K:l Mizaplg;gLfpwJ/ xg;gk;-? ~~~~~~~-21/02/2018 khtl;l nkyhsh;-Jiz Ml;rpah;.
lh!;khf; ypl;.
jpUts;Sh: ; (fpHf;F) khtl;lk;/ bgWeh;?
1) jpU/gp/bry;tFkhh;. nkw;ghh;itahsh;. fil vz; 8918 efy;?
1) khtl;l Ml;rpah;. brd;id khtl;lk;. brd;id/
2) nkyhz;ik ,af;Feh;. lh!;khf; ypl;. vGk;g{h;. brd;id ?8/
3) KJepiy kz;ly nkyhsh;. lh!;khf; ypl;. brd;id kz;lyk;.
brd;id 2/ ? mth;fSf;F jftYf;fhf gzpe;jQqg;gg;gLfpwJ/
12. The merits of the orders passed on 21.02.2019 and 25.02.2019 are not in question before me and I will not interfere with the same. Be that as it may, the question that arises is whether the orders of cancellation should have been passed at all, when the authorities were well aware that the entire matter was sub-judice. The mandamus sought is thus sought to be pre-empted by the respondents even before the Court has passed orders, attempting, in a way, to frustrate the writ petitions. To this extent, the procedure adopted by the District Collector and the Tasmac is not appropriate and is deprecated.
13. It would have been apposite for the authorities to await orders of the Court in regard to the mandamus sought before the present display of anxiety in cancelling the orders passed earlier. The anxiety seems very unseemly, particularly in the light of the reluctance expressed by the respondents in proceeding with the matter initially. The impleaded respondents, the District Collector and the Tahsildar, filed their counters only after the court imposed costs for the delay in filing the same. In the aforesaid circumstances, the passing of the orders dated 21.02.2019 and 25.02.2019 cancelling the previous orders to http://www.judis.nic.in 10 open the shops are clearly passed with undue haste and are procedurally irregular.
14. I now address the prayer sought for in the writ petition. A preliminary objection raised by the respondents is that the petitioners in both cases are landlords and have no locus to come forward with these Writ Petitions. As landlords, I am of the view that it is for them to pursue the letting out of their properties profitably and thus I see no difficulty per se for the petitioners in approaching this Court, particularly in the light of the orders of the District Collector and Tasmac passed initially directing the opening of the shops.
15. Reference is made to a decision of this Court in the case of K.Moovendran, Vice President, Kadupatti Panchayat, Kadupatti Vadakadupatti Vikiramangalam Post, Mullipallam via, Vadipatti Taluk, Madurai District v. The District Collector, Madurai District, Madurai and others (2014 SCC OnLine Mad 8446) where, while addressing a similar objection to the locus of the landlord in filing a writ petiiton, this Court has stated in para-14 as follows:
‘14.With regard to the contention of the owner that as lawful owner, he is entitled to let out his property to profitable use, we deem it fit to remind him the basic principle of Law of Tort that ‘one’s liberty ends, where other man’s nose starts’. He may be owner of the flat, that does not mean that only with a view to generate income, he can do whatever he likes, particularly at the cost of safety and security of others. Therefore, this contention raised on the part of the flat owner is also rejected.’
16. There is no quarrel that concerns of safety and security of the neighbourhood http://www.judis.nic.in have to be taken extremely seriously and I have dealt with this 11 issue separately, but this does not extend to a bar of maintainability of a writ petition filed by the landlord as is sought to be made out in this case. The writ petitions are maintainable.
17. There is however, no question in my mind that the views of the public in the neighbourhood of the Tasmac shops should be taken into account along with the specific bars set out in Rule 8 of the Rules in deciding the question of grant or otherwise of approval. The gross flaw in the present case is committed by the police in granting an NOC prematurely, and in a slipshod manner, even without causing proper enquiry with the residents/all relevant stakeholders prior to doing so.
18. Relying on the decision of the First Benches of this Court in the case of G.Kavitha Thirumugam V. State of Tamil Nadu (W.P.No.19181 of 2017 dated 28.07.2017) and A.Thirumaran V. Inspector of Police, Law & Order (W.P.No.80 of 2010 dated 04.03.2011) and a decision of the learned single Judge of this Court in the case of P.G.Murugesan V. The Assistant Commissioner (Excise), Coimbatore (1998) (II) CTC 661), the petitioners vehemently argue that the NOCs granted at the first instance was correct and should not have been reviewed.
19. The first case, viz., G.Kavitha Thirumugam (supra) is distinguishable for the reason that the Bench was concerned with a challenge to Rule 8(1) of the Rules and in conclusion state that the Writ Petitioner therein had not disclosed contravention of Rule 8 of the 2003 Rules or any other judgment or order that might persuade the Court to accept the prayer to direct shifting of the wine shop. The relevant portions of the decision are as follows:
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4. On a perusal of the Rule, it is patently clear that residential buildings are not covered by the restrictions in Rule 8(1) of the 2003 Rules.
This Court cannot legislate. It is not for this Court to amend the subordinate legislation. The object of a statute may be relied upon to interpret the statute when the substantive part of the statute is ambiguous and/or is capable of more meanings than one. However, when a statutory rule is framed, the object of the law-making body is to be ascertained from the language of the statute. In this case, there is no ambiguity in Rule 8(1) of the 2003 Rules, which only restricts establishment of liquor shops within certain distance in case of places of worship and educational institutions and also in tribal areas covered under the Integrated Tribal Development Project and Hill Area Development Project as specified in fourth proviso to Rule 8(1) of the 2003 Rules.
5. Needless to mention that all liquor/wine shops are required to be set up in strict compliance of Rule 8 of the 2003 Rules as also judgments and orders of the Supreme Court which have the force of law under Article 141 of the Constitution of India and are binding on all throughout the country. The interpretation of the law as made by the jurisdictional High Court is also binding on authorities within the area in which the High Court exercises jurisdiction.
6. The writ petition does not disclose contravention of Rule 8(1) of the 2003 Rules or of any judgment and order of the Supreme Court or this Court or for that matter any other Court of Law. The interference of this Court is not warranted. It is for the Government, being the authority to frame Rules, to consider the representation of the petitioner regarding amendment of Rule 8(1) of the 2003 Rules.
20. Thus the Court expressed its opinion that it is for the Government to frame Rules or to consider the representation of the petitioner regarding amendment of the Rules and no interference of the Court was warranted.
21. The case of A.Thirumaran (supra) is distinguishable on facts and for the reason that the shop in question in that case was located in a commercial area as against the present one, where the location of the shops in question are http://www.judis.nic.in 13 in a residential area. The same distinction applies to the case of P.G.Murugesan (supra) as well. Hence, the aforesaid three cases do not help the petitioners.
22. Per contra, a Division Bench of this Court in the case of S.Sellasamy V. The District Collector and others (2017 (4) CTC 248) has specifically stated that the policy in cases of location of wine shops calls for urgent re-visitation. No doubt Rule 8 is specific only about the proximity to Educational Institutions and Schools. However, the matter cannot just end there.
23. In the present case, the proposed location is opposite to Central Prison, Puzhal and the proximity to the prison should itself have been a matter of concern and consideration by the authorities in the first instance. For this reason, I condemn the carelessness with which the Inspector of Police, the same person who has filed the counter in W.P.No.3828 of 2019, has granted the NOC initially. In counter, he cites proximity to the Central Prison, Puzhal as well as complaints received from the public as a reason for reviewing the permission granted earlier. The orders passed on 21.02.2019 and 25.02.2019 also refer to various instances of crimes including murder having been committed in that very locality leading to charge sheets and criminal cases.
24. There is also an earlier instance cited of a TASMAC wine shop having been closed down due to public nuisance and violations of law and order. The Inspector who granted the NOC earlier is expected to have known these factors as these reasons were very much valid even as on 21.10.2018 when he granted the NOC. Certainly Central Prison, Puzhal has not been built between 21.10.2018 and 08.01.2019 and was very much in existence even when the first NOC was granted. This position is equally true of the Church and Mosque, located in the neighbourhood.
http://www.judis.nic.in I wonder where his concern went then. 14
25. The reliance of the Government in the case of The Tamil Nadu State Marketing Corporation Ltd. V. R.M.Shah and others (2010 SCC Online Mad 3931) is well-founded. The Bench was considering a challenge to an order of the learned single Judge directing closure of a liquor shop on the ground that it was situated in a residential area close to a Girls School and a Temple. While considering the challenge, the Bench states that the right to life guaranteed under Article 21 of the Constitution of India has to be interpreted purposefully as including the right to live a peaceful life without nuisance caused to the public.
26. The residents of a neighbourhood are stakeholders in the well-being of their neighbourhood and are certainly entitled to raise valid objections to the setting up of a Tasmac shop in their locality. One way of looking at it is that a wine shop, or any shop for that matter, is expected to cater to the needs of the residents of that neighbourhood and thus the objection expressed by the residents would have to be taken into consideration and accorded due weight.
27. Tamil Nadu is a State sans prohibition. Thus Tasmac, as a commercial entity, will pursue its business interests, but cannot be permitted to do so in a manner detrimental to the immediate neighbourhood and to society in general. It is expected to choose areas that are commercial in nature for the locations of its wine shops to service its clientele. The order passed by the Tasmac in this regard while confirming the location of the shop (in W.P.No.4444 of 2019) is revealing and is extracted below:
khtl;l nkyhsh;. lh!;khf;. jpUts;Sh: ; (fpHf;F) khtl;lk;
mth;fspd; g[yj;jzpf;if Fwpg;g[
khtl;lk; : jpUts;Sh: ;
tl;lk; : khjtuk;
fpuhkk; : g[Hy;
nehf;fk; : cr;rePjpkd;w cj;jutpd;go khepy
beL";rhiyapypUe;j fil vz; 8730
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28.The approval granted by Tasmac reveals the factors that are normally taken into consideration prior to deciding upon the location of a shop and include whether the area is residential, the views of the occupants/residents in that area, the impact that the shop may have on the lives/activities of the neighbours http://www.judis.nic.in 16 and others. Evidently and rightly so, Tasmac, does not restrict the parameters only to those set out in Rule 8 of the Rules but also taken into account important social and economic factors. However, while the factors are enumerated, the consideration accorded to the same is clearly superficial and mechanical. This approach will clearly not do.
29. Both the Police as well as Tasmac have to be seen to be applying their minds to all relevant factors prior to grant of approval and the District Collector/State who has the final word on the opening of the shop must state expressly, his satisfaction that the authorities have applied their minds to all relevant factors prior to grant of approval.
30. One final word. The State relies on a decision of this Court in the case of Rama. Muthuramalingam, State Propaganda Committee Member, Thanthai Periyar Dravidar Kazhagam, Mannargudi, Tiruvarur District v. The Deputy Superintendent of Police, Mannargudi, Tiruvarur District and another (2005 1 M.L.J. 1) that touches upon the power of judicial review of executive decisions, particularly those dealing with maintenance of law and order. The Bench, in the same decision, touches upon the Wednesbury principle, observing that judicial review should concern itself, not with the merits of the decision under scrutiny, but with the process of decision making itself. I have, in the previous paragraphs illustrate the lacunae in the decision making process of all the respondents in granting approval for location of Tasmac Shops. The decision making process is seen to be totally flawed and mechanical and orders dated 31.12.2018 and 10.01.2019 reviewing earlier order dated 31.12.2018 and 10.01.2019 only drive home this point. The decision cited by the State, as above, would thus support my conclusions http://www.judis.nic.in in full.
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31. For the aforesaid reasons these Writ Petitions are dismissed. No costs.
30.04.2019 Index:Yes/No Speaking/non-speaking order Sl To
1. The Tamil Nadu State Marketing Corporation Ltd., Rep. By its District Manager, Thiruvallur (East) District, No.1, Bangalore High Road, Thirumazhisai, Thiruvallur District.
2. The Inspector of Police, Puzhal Police Station, Puzhal, Chennai – 600 066.
3. The District Collector, Thiruvallur
4. The Tahsildar, Thiruvallur.
http://www.judis.nic.in 18 Dr.ANITA SUMANTH,J.
Sl Writ Petition Nos.3828 and 4444 of 2019 http://www.judis.nic.in 19 30.04.2019 http://www.judis.nic.in