Madras High Court
E.Kumar vs The District Collector on 16 August, 2018
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.08.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.19469 of 2018
E.Kumar .. Petitioner
Vs.
1. The District Collector,
The Collectorate Office,
Thiruvallur District,
Thiruvallur.
2. The District Manager TASMAC,
No.1, Bangalore Highway,
Chembarampakkam, Thirumazhaishai,
Thiruvallur-East District, Chennai 600 123.
3. The Inspector of Police,
Ramapuram Police Station,
Thiruvallur District. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India seeking a Writ of Mandamus directing the respondents to close down the TASMAC retail liquor shop bearing No.8813 presently located in the building in S.No.85/33, Thiruvallur Road, Ramapuram, Chennai 600 089 by considering the objections of the petitioner dated 18.08.2017.
For Petitioner : Mr.K.Balu
For Respondents 1 & 3: Mr.E.Mahendran, A.G.A.
For Respondent 2 : Mr.Shanmugarajan
- - - - -
O R D E R
(Order of the Court was made by S.MANIKUMAR, J.) Instant writ petition is filed in public interest by Mr.E.Kumar, a member of State Executive Committee of Pattali Makkal Katchi (PMK) Party, seeking for a direction to the respondents to close down TASMAC retail liquor shop bearing No.8813, presently located in the building in S.No.85/33, Thiruvallur Road, Ramapuram, Chennai - 600 089, by considering his objections dated 18.08.2017.
2. Mr.K.Balu, learned counsel for the petitioner submitted that respondents 1 and 2 have located a TASMAC retail liquor shop No.8813 at S.No.84/2B3 bearing Door No. 5/2, Thiruvallur Road, Ramapuram, Chennai - 600 089. The said TASMAC retail liquor shop located in a thickly populated residential area and abutting the road leading the main road. There is a residential apartment complex under the name and style of Kamalam Enclave Residential Apartments just behind the said liquor shop. There is also a Ladies Hostel, in the name and style of Queens Ladies Hostel, within a distance of 20 feet from the said liquor shop.
3. He further submitted that the public and local residents in and around the said liquor shop are experiencing nuisance of drunken and brawl caused by the perennial customers visiting the said TASMAC retail liquor shop. Many of the customers buy liquor, squat on the road and consume the same to the detriment of safety and security of the residents, young girls students and elderly people passing through the street. As a result, peace of the area has been lost and public are living in constant fear of disturbance to their safety and security by the unruly customers and drunkards.
4. Learned counsel for the petitioner further submitted that writ petitioner has made several representations to the first respondent in person with a request to shift the said TASMAC retail liquor shop bearing No.8813 from the residential area to a far away place so that the public in the area can live peacefully and use the road, without any fear of disturbance by the customers.
5. He further submitted that the District Collector, Thiruvallur District, first respondent herein, in his proceedings dated 26.10.2015, in Na.Ka.Vi/11758/2015 ordered closure of the said shop immediately and decided to relocate it, at a place away from the existing location, where there is no objection from the public. However, the District Manager, TASMAC Ltd., Chennai, second respondent herein, for reasons best known to him, choose to close the said TASMAC retail liquor shop only on 10.08.2017 and relocated it, at S.No.85/33, Thiruvallur Road, Ramapuram.
6. Learned counsel for the petitioner further submitted that the action of the District Manager, TASMAC Ltd., Chennai, second respondent herein, is a clear abuse of his power and it defeats the very purpose of the order issued by the District Collector, Thiruvallur District, first respondent herein, vide his letter dated 26.10.2015. The second respondent has relocated the said TASMAC retail liquor shop from S.No.84/2B3 bearing Door No.5/2, Thiruvallur Road, Ramapuram, Chennai - 89 to a building in S.No.85/33, Thiruvallur Road, Ramapuram, Chennai - 89. The relocated place is just 10 meters away from the original location where the retail shop No.8813 was located and invited lot of objections from the public.
7. He further submitted that the action of the second respondent has invited severe criticism and angered the public of the area, who were struggling for more than 2 years to shift the said TASMAC retail liquor shop from the said residential area.
8. Learned counsel for the petitioner further submited that he gave a written representation in person to the first respondent on 18.08.2017, to close the retail shop No.8813 for the benefit of the general public and implement the closure order, dated 26.10.2015, in letter and spirit and order relocation of the shop by the second respondent to a far away place, free from objections from the public.
9. He further submitted that as per Rule 8(2) of Tamil Nadu Liquor Retail Vending (Shop and Bars) Rules 2003, the shops should be located and run in the pucka building, but the present shop is run in a cramped place, with an attached bar, which has no adequate space, for the customers. Hence, they spill over on the road and spoil the atmosphere of the residential area by their continued nuisance of spitting, vomiting, urinating and committing all inconceivable kind of nuisance, in and around the liquor shop.
10. Learned counsel for the petitioner further submitted that the second respondent has not properly followed the orders of the District Collector, Thiruvallur District, first respondent herein, in shifting the retail shop and just for the sake of shifting, the District Manager, TASMAC Ltd., Chennai, second respondent herein, has relocated the same, in the same area, which had already attracted lot of objections and constant demand for closure of the shop. Further the first respondent has not taken any effective steps to redress the grievance of the public of the area mentioned in the representation of the writ petitioner. He further submitted that door number of the relocated shop is not given.
11. He further submitted that the action of the respondents 1 and 2 strikes at the very root of the fundamental right to life and liberty assured under Article 21 of the Constitution of India to the public residing in this area for a peaceful, secure and safe living in their locality. For the abovesaid reasons, the petitioner has prayed for a direction to the respondents to close TASMAC retail liquor shop bearing No.8813, presently located in the building in S.No.85/33, Thiruvallur Road, Ramapuram, Chennai - 600 089, by considering the objections of the writ petitioner dated 18.08.2017.
12. Upon service of notice, the District Manager - TASMAC, Thiruvallur (East) District, Chennai - 600 123, second respondent herein, has entered appearance and filed a counter affidavit.
13. Mr.Shanmugarajan, learned counsel for the second respondent contended that earlier TASMAC retail vending shop no.8813 was originally located in S.R. No:84/2B3 bearing door no.5/2, Thiruvalluvar Salai, Ramapuram, Chennai 600 089. However, there was no protest or agitation from the people. But others instigated the general public. Hence, the District Collector, Thiruvallur, first respondent herein, directed the second respondent to shift shop No.8813, which was located at 490 meters away from the State Highway, and the said retail vending shop was closed as on 12-06-2017.
14. It is the further contention of the learned standing counsel for the second respondent that Kamalam Enclave residential apartments is located on the back side of the Shop, at a distance of 520 meters; that from above said premises, the shop no.8813 is relocated at S.R.No.85/33, as on 11-08-2017, which is far away from the State Highways, i.e. 520 meters and 30 meters from the old premises; that Queen Ladies Hostel functioned before October 2015. Subsequently, due to heavy floods, in November 2015, Queen Ladies Hostel and other places were severely affected. Subsequently, Ladies Hostel did not function and it was closed. Till date the said hostel is not opened.
15. It is the further contention of the learned counsel for the second respondent that due to public agitation, shop No:8813 was closed and then the above said relocation site was selected by a team of officers comprising of the Assistant Commissioner of Excise and the District Manager, TASMAC. While selecting the above place, the team has considered all the relevant facts including the guidelines stipulated in rule 8(1) of Tamil Nadu Liquor Retail Vending (in shops and bars) Rule, 2003. After careful perusal of the relevant documents and reports placed before him, the District Collector, Tiruvalluvar, first respondent herein, came to an independent conclusion and approved the place, as suitable for relcocation of TASMAC shop.
16. It is the further contention of the learned counsel for the second respondent that in around the relocated shop no.8813, there is no educational institution, religious temple and women hostel and that they are situated far away from the shop and that norms and rules of the TASMAC rules have been followed without any violation. Hence, the above said relocation is not in violation to any of the norms laid down by the Honble Supreme court or any rules stipulated in Rule 8(1) of Tamil Nadu Liqour Retail Vending (in shops and bars) Rules, 2003 framed under Tamil Nadu Prohibition Act, 1937.
17. Learned counsel for the second respondent further submitted that the Honble First Bench of this court on 13-04-2017 in WP.No.8902 of 2017, in a similar line of cases held that Needless to mention that the liquor shop shall only be relocated in accordance with law and in particular the Tamil Nadu Liqour Retail Vending (in shops and bars) Rules, 2003 framed under the Tamil Nadu Prohibition Act, 1937 taking into consideration the judgement of the Supreme Court of India and of this court in this regard. Hence, he prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials on record.
18. Before adverting to the merits of the case, it is relevant to extract Rules 8, 9 and 12 of Tamil Nadu Liquor Retail Vending (In Shops and Bars) Rules, 2003 which are as follows:
8. Location of shop:- (1) 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: Provided that the distance restriction shall not apply in areas designated as Commercial or Industrial by the Development or Town Planning Authorities:
Provided further that no shop shall be established within the premises of any hotel:
Provided also that if any place of worship, educational institution comes into existence subsequent to the establishment of the shop, the provisions of this rule shall not apply: Provided also that no liquor shops shall be established in any tribal areas covered under Integrated Tribal Development Project and Hill Area Development Project in the Hill area of Vellore, Salem, Namakkal, Dindigul, Tirunelveli and Kanniyakumari districts.
(2) Every 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.
(3)The shop shall be in the location approved by the Collector before commencing the business in the shops.
9. Shifting of shop:- There shall be no change in the location of shops except with the previous permission of the Collector.
***
12. Closure of shops:- (1) The shop shall remain closed on Thiruvalluvar Day falling in January, Gandhi Jayanthi Day on the 2nd October, Mahavir Jayanthi Day, Birthday Eve of Nabigal Nayagam and Vadalur Ramalingar Ninaivu Naal and there shall be no sale of liquor in the shops on the aforesaid days. (2) The shop shall also be closed as per the directions issued by the Government, the Commissioner of Prohibition and Excise or the Collector.
19. On 26.10.2015, the District Collector, Thiruvallur, first respondent herein, has ordered as hereunder:
The Kamalam Enclave Residential Association is situated at Ramapuram Village Door.No. 5/3, Thiruvalluvar salai, Chennai- 600 089. The Above Association Leader Mr.T.Ganesan had given a representation in the Tamil Nadu Chief Ministers Problem Settlement Camp dated 11.8.2015 in that representation he had mentioned that the TASMAC shop No. 8813 situated at Door.No. 5/2, Ramapuram Village,Maduravoyal Taluk, Thiruvallur District is situated at the next building, of their Residential area and the Ladies Hostel. And the persons coming there parking their bikes near the roads, drinking alcohol in the road itself, so the ladies in the Residence and the hostel is fearing to walk and requested to transfer the shop to another place. The Women Self Help Group has been continuously emphasizing to ban the TASMAC shop No. 9120 situated at Kondamanallur Village, Gummidipoondi Taluk, Thiruvallur District is informed by the Gummidipoondi Tashildar in his vide letter no.A1/507/2015 dated 8.7.2015, 16.7.2015 and 17.8.2015. And also, the TASMAC shop No. 8753 is situated at Venbakkam Village, Ponneri Taluk and it is in the way to the Ponneri Jayagopal Kaodia Ladies Higher Secondary School and so the public is continuously emphasizing the Ponneri Divisional Revenue Inspector and he informed in the letter.
So, the TASMAC shop No.8813 situated at Door.No. 5/2, Ramapuram Village, Maduravoyal Taluk, Thiruvallur District, the TASMAC shop No.9120 situated at Kondamanallur Village, Gummidipoondi Taluk, Thiruvallur District, the TASMAC shop No. 8753 is situated at Venbakkam Village, Ponneri Taluk, all the above shops based on the protection Law and Order should be closed. And it is also ordered that the TASMAC shop No. 8813, 8753 and 9120 to choose the no objection area and to send proper motion and to get proper approval for incorporation of the shops.
20. The District Collector, Tiruvallur, vide proceedings, dated 07.08.2017, has granted approval for shifting the shop, as follows:
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21. From the materials on record, it could be deduced that pursuant to the orders of the Hon'ble Supreme Court, shops have been relocated. The Assistant Commissioner (Excise), Thiruvallur District, and District Manager, TASMAC, have conducted a joint inspection and submitted a report. New location is stated to be, at a distance of 520 Meters, from Kamalam Residential Apartments; 520 Meters from State Highways and according to the 2nd respondent, Ladies Hostel has been closed. The said averments are not disputed.
22. Having regard to the above, contention of the petitioner that there is infraction to Rule 8(1) of the Tamil Nadu Liquor Retail Vending (In Shops and Bars) Rules, 2003, cannot be countenanced.
23. Further contention of the petitioner that the District Manager, TASMAC, 2nd respondent herein, has ordered relocation, contrary to the order, dated 26.10.2015, is factually incorrect. Based on the joint inspection and report and upon considering the material on record, the District Collector, Thiruvallur, 1st respondent herein, has passed orders, directing relocation. Merely because, door number is not given, that would not render the order, directing relocation, as invalid. The petitioner has not made out a case for issuance of Mandamus.
24. For the abovesaid reasons, writ petition is dismissed. No costs.
[S.M.K., J.] [S.P., J.]
16.08.2018
Index : Yes / No
Internet: Yes / No
asr/dm
S.MANIKUMAR, J.
AND
SUBRAMONIUM PRASAD, J.
asr/dm
To
1. The District Collector,
The Collectorate Office,
Thiruvallur District,
Thiruvallur.
2. The District Manager TASMAC,
No.1, Bangalore Highway,
Chembarampakkam, Thirumazhaishai,
Thiruvallur-East District, Chennai 600 123.
3. The Inspector of Police,
Ramapuram Police Station,
Thiruvallur District.
W.P.No.19469 of 2018
16.08.2018