Madras High Court
K.Sundara Mahalingam vs The District Collector on 20 April, 2012
Author: M.Sathyanarayanan
Bench: R.Banumathi, M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2012 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P(MD)No.151 of 2012 and M.P(MD)No.1 of 2012 K.Sundara Mahalingam ... Petitioner Vs. 1.The District Collector, Dindigul District, Dindigul. 2.The District Manager, Tamil Nadu State Marketing Corporation, (TASMAC), Dindigul. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus forbearing the respondents from in any way establishing or locating a TASMAC liquor shop cum bar opposite to Children's Park, Batlagundu Main Road, Pattiveeran Patti, Nilakkottai Taluk. !For Petitioner ... Mr.M.Ajmal Khan ^For Respondents ... Mr.A.Muthukaruppan, Additional Government Pleader for R.1 Mr.M.Muniyasamy for R.2 * * * * * :ORDER
M.SATHYANARAYANAN,J The petitioner claiming to be a resident of Laser Nagar, Pattiveeran Patti, Nilakkottai Taluk, Dindigul District, filed the present writ petition in public interest, praying for an issuance of a Writ of Mandamus forbearing the respondents from in any way establishing or locating a TASMAC liquor shop cum bar opposite to Children's Park, Batlagundu Main Road, Pattiveeran Patti, Nilakkottai Taluk.
2. In the affidavit filed in support of this writ petition, the petitioner averred that he is a resident of Laser Nagar and he is engaged in the cultivation of coffee and there are temples by name Sri Vinayagar Temple and Pandi Kovil situated in the said place and the people are leading their life peacefully. The petitioner would further aver that the total population of Pattiveeran Patti is about 5,600 and a Children's Park is located and it is used to be open for the general public daily and since it is the only park, the people from all age including the children used to throng there for their regular walks and other recreational purpose and it was constructed by the local body six years ago in order to fulfil the long pending desire of the people of that area.
3. It is further stated by the petitioner that there is a TASMAC Liquor Shop cum Bar situated in the commercial complex of the Municipality and it is functioning for the past 7 years and at the instance of some vested interested persons, the concerned authorities decided to shift the shop into the residential area where they can fetch more profit. In this regard, serious objections were raised by the people and hence, the second respondent sent a recommendation to the first respondent informing about the objection of the public and also opined that there is no necessity to shift the TASMAC Liquor Shop from the present location.
4. The petitioner would further aver that the new building is constructed just opposite to the Children's Park at Pattiveeran Patti on a Government land which is classified as 'Odai' in the revenue records and on enquiry, he came to know that the shop No.3166 which is located in the commercial complex, is going to be shifted to the place and in the event of shifting, the living condition of the residents of the area will be affected and also would result in intolerable nuisance and increase in criminal activities.
5. The petitioner also took a stand that shifting and locating of a liquor shop just opposite to the Children's Park would offend the fundamental rights guaranteed under Article 21 of the Constitution of India and hence, filed this writ petition.
6. The second respondent filed the counter affidavit stating that the wine shop No.3166 is functioning in the commercial complex of Pattiveeran Patti Town Panchayat for the past 7 years and since the traders and merchants in the locality, social organisations, schools and local public raised strong objections as to its location, a decision has been taken to shift the said shop and the local body of Pattiveeran Patti also agreed to provide a space in the outskirts of Pattiveeran Patti for locating the shop.
7. Insofar as the locus standi of the petitioner to file the Public Interest Litigation, the second respondent would aver that the writ petition is filed at the behest of the real estate owners who want to develop the lay out in the outskirts and since the location of the liquor shop may hinder the development, they set up the writ petitioner to file the present writ petition.
8. The second respondent would further aver that the Park is not in use and only for the purpose of filing the writ petition, the photographs were filed showing that the Park is in regular use and also took a stand that since the local body has not been arrayed as the respondent, the writ petition is liable to be dismissed on the ground of non-joinder of necessary parties. Hence, for the above said reasons, the second respondent prayed for the dismissal of this writ petition.
9. Mr.M.Ajmal Khan, learned Counsel appearing for the petitioner would submit that no rhyme or reason has been disclosed as to the shifting of shop No.3166 from the commercial complex at Pattiveeran Patti to a place just opposite to the Children's Park. It is the further submission of the learned Counsel for the petitioner that in the event of shifting and locating of the shop just opposite to the Children's Park, the residents of that area will suffer very much on account of nuisance created by the drunkards and also it will also lead to serious law and order problems.
10. It is the further submission of the learned Counsel for the petitioner that the shifting of the shop would also result in grave hardship and inconvenience to the users of the Park, especially, children and a larger public interest requires that the respondents are to be forborne from shifting and locating of the shop just opposite to the Children's Park.
11. In support of his contentions, the learned Counsel for the petitioner placed reliance upon the decision in The Tamil Nadu State Marketing Corporation Ltd., v. R.M.Shah reported in 2010(2) CWC 337 (DB).
12. The learned Additional Government Pleader appearing for the first respondent would submit that with regard to shifting and locating of shop No.3166, the representations were received from the general public and in this regard, an enquiry was also held by the Tahsildar, Nilakkottai, before whom the petitioner himself appeared and gave a statement admitting that the temples and schools are locating only 200 metres away and in the event of location of shop, the general pubic may not be affected.
13. The learned Standing Counsel appearing for the second respondent would submit that Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, is no way offended as the shifting and locating of the shop is in full compliance of the said Rule only.
14. It is the further submission of the learned Counsel for the second respondent that on the basis of the representations received from the general public as to the shifting and locating of the shop, an enquiry was conducted and the petitioner himself appeared and gave a statement wherein he admitted that the shifting and locating of the shop is not within the prohibited distance.
15. It is further contended by the learned Counsel for the second respondent that there is no public interest involved in the writ petition as the petitioner is acting at the behest of some real estate owners and filed the writ petition with false particulars and hence, prayed for the dismissal of the writ petition with exemplary costs.
16. This Court paid its best attention to the rival submissions and also perused the materials available on record in the form of typed set of documents.
17. It is useful and relevant to extract Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, thus:
"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."
18. The grievance of the writ petitioner seems to be that the shop No.3166 is located in the commercial complex of Pattiveeran Patti and it is to be shifted to a place just opposite to the Children's Park and in that event, there will be definitely law and order problems on account of the conduct of the drunkards and the users of the public Park including the children are also affected on account of the unruly conduct of the drunkards and it is also within the prohibited distance of temples, schools, etc. and hence, the respondents are to be forborne from shifting and locating the liquor shop just opposite to the Children's Park.
19. The decision relied on by the learned Counsel for the petitioner in The Tamil Nadu State Marketing Corporation Ltd., v. R.M.Shah reported in 2010(2) CWC 337 (DB), laid down the proposition that the distant rule under Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, takes care of only the place of worship and educational institutions and it does not say that the liquor shop should be away from the residential houses and the nuisance created by drunkards would extend even beyond safety area prescribed under Rules. It is further held in the said decision that 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.
20. A perusal of the said facts of the said decision would disclose that the writ petition was filed for shifting the liquor shop cum bar and pursuant to the direction of the learned Single Judge, the Joint Commissioner of Police filed a report and as per the report, there has been several nuisance cases were filed against various persons by the jurisdictional police numbering about 10 between 2005 and 2006 and the concerned accused were also fined by the respective learned Magistrates. The Division Bench of this Court taking into consideration the said factual aspects, laid down the said proposition and further observed as follows:
"12. However, there is a word caution. The attempt of the public should not be to shift the liquor shop in a selective manner. There should be public interest behind any such move. The request for such closure should not be with a hidden agenda and the allegations of nuisance should not be at the instance of rival traders in liquor.
......
16. Therefore, in the event of there being a public nuisance in a particular area the people are not without a remedy. The nuisance caused to the public on account of the functioning of liquor shops would give a cause of action to the affected people to approach the Magistrate under Section 133 of Cr.P.C. or to take other legal measures to abate such nuisance."
21. A perusal of the counter affidavit filed by the second respondent would disclose that the traders and the residents of the locality in which the shop No.3166 is located, raised objections and accordingly, a decision has been taken to shift the shop and the local body also promised to provide a suitable space and locate a place opposite to the Children's Park. The prohibited distance contemplated under Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, is only in respect of location of the liquor shop at 50 (fifty) metres from any place of worship or educational institutions in Municipal Corporations and Municipalities and 100 (hundred) metres in respect of other areas.
22. As per the decision in The Tamil Nadu State Marketing Corporation Ltd., v. R.M.Shah reported in 2010(2) CWC 337 (DB), there shall be public interest with regard to the shifting of the liquor shop and such a request for such closure of liquor shop should not be with a hidden agenda and the allegations of nuisance should not be at the instance of the rival traders in liquor.
23. The second respondent in the counter affidavit took a specific stand that the petitioner is acting at the behest of some real estate owners, who want to develop the lay-out and the proposed shifting may affect their interest and there is no denial in the form of rejoinder filed by the petitioner.
24. Be that as it may, in the absence of any prohibition in Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, with regard to the shifting and location of the liquor shop opposite to a Park and in the absence of materials to show that such location is within the prohibited distance of 100 (hundred) metres, this Court is of the view that no Mandamus can be issued forbearing the respondents from shifting and locating the liquor shop.
25. It is also pertinent to point out at this juncture even assuming without admitting that the petitioner and other residents of the locality are going to be affected on account of nuisance caused by the drunkards, they are always at liberty to invoke Section 133 of the Code of Criminal Procedure and the decision relied on by the learned Counsel for the petitioner in The Tamil Nadu State Marketing Corporation Ltd., v. R.M.Shah reported in 2010(2) CWC 337 (DB), also laid down the said proposition.
26. The writ petition is devoid of merits and hence, the same is liable to be dismissed.
27. In the result, this writ petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. However, in the circumstances of the case, there shall be no order as to costs.
rsb To
1.The District Collector, Dindigul District, Dindigul.
2.The District Manager, Tamil Nadu State Marketing Corporation, (TASMAC), Dindigul.