Madras High Court
Ruby Recreation Club vs The Secretary To Government on 23 April, 2013
Author: V. Dhanapalan
Bench: V. Dhanapalan
In the High Court of Judicature at Madras
Dated :: 23..04..2013
Coram ::
The Hon'ble Mr. Justice V. Dhanapalan
Writ Petition Nos: 11526 to 11528,
2069 to 2083, 2136, 694, 1614, 1615, 1802 to
1804, 1896, 1978, 1982, 1990, 2001 to 2003,
1989, 2031, 2498 and 10879 of 2013
and
34241 of 2012
W.P. No: 11526 of 2013
----------------------
Ruby Recreation Club
Vaigai Dam Road
Devathanapatty
Theni District. .. Petitioner
-vs-
1. The Secretary to Government
Home, Prohibition and Excise Department
Fort St. George
Chennai 600 009.
2. The Commissioner of Prohibition and Excise Dept.
Ezhilagam
Chepauk
Chennai 600 005. .. Respondents
.. .. ..
Writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari calling for the entire records relating to the impugned G.O. passed by the 1st respondent in G.O. (Ms.) No: 50, Home,
Prohibition and Excise (VIII) Department, dated 29.10.2012 in which amendment was made to Condition No: 7 of License in Form FL-2 of the Tamil Nadu Liquor (License and Permit) Rules 1981 and quash the same as illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
For petitioners : Mr. R. Muthukumarasamy
Senior Counsel for
Mr. K. Soundarajan
For respondents : Mr. P.H. Arvind Pandian
Additional Advocate General
assisted by Mr.R.Rajeswaran
Spl. Govt. Pleader and
Mr. N. Sakthivel, Govt. Advocate
.. .. ..
C O M M O N O R D E R
As the issue involved in all these writ petitions is one and the same, all the writ petitions are disposed of by this common order.
2. Heard Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the petitioners and Mr. P.H.Arvind Pandian, learned Additional Advocate General assisted by Mr.R.Rajeswaran, learned Special Government Pleader and Mr.N.Sakthivel, learned Government Advocate, appearing for the respondents.
3. In all these writ petitions, the Government Order in G.O. Ms. No: 50, Home, Prohibition and Excise (VIII) Department dated 29.10.2012 passed by the 1st respondent herein, has been called in question, seeking to quash the same as illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India. By the said Government order, an amendment was made to the Condition No: 7 of License in Form FL-2 of the Tamil Nadu Liquor (License and Permit) Rules 1981.
4. According to the petitioners, they are running recreation clubs, selling alcohol/liquor for human consumption holding FL-2 license. The clubs have to obtain a license as per Section 17-C of the Tamil Nadu Prohibition Act, 1937 (hereinafter referred to as 'the Act'), in order to possess and supply the Indian Made Foreign Spirits and Foreign Liquor to Foreign Tourists, ForeignerResident in India and Citizens of India for consumption within the licensed premises of the petitioners' club. Section 21 of the Act prescribes the forms and conditions of license and permits. As per the powers granted under Section 17-C of the Act, the State Government had enacted the Tamil Nadu Liquor (License and Permit) Rules, 1981 (hereinafter referred to as 'the Rules'), in order to streamline the procedure for obtaining licenses for the sale of IMFL and Foreign Liquors. Rule 17 of the said Rules prescribes various kinds of licenses issued for privilege of sale of IMF Spirits in retail under Section 17-C of the Act or for sale of Foreign Liquors. There are eleven types of licenses issued under the Rules for various persons or institutions. The license in FL-1 is for the grant of privilege of retail sale of IMP spirits or sale of foreign liquors, carried on by the Tamil Nadu State Marketing Corporation Limited (hereinafter referred to as 'the TASMAC'), who is the sole selling agent in so far as the State of Tamil Nadu is concerned. Similarly FL-2 license is granted for the nonproprietary club for supply to its members. The license in FL-3 is issued for the Star hotels for the supply to foreign tourist and foreign resident Indian holding personal permits and also citizens of India holding personal permits for consumption within the licensed room of the hotel or for removal to their permit rooms in the same hotel in which they stay, for consumption there.
5. Petitioner-clubs have to obtain FL-2 license for the possession and supply of liquors on payment of the application fee, license fee and privilege fees as fixed by the Government. They have paid the prescribed fees and the Bars are being run for the past several years catering to the needs of the foreign tourists. Rule 25 of the Rules prescribes the general conditions applicable to license issued under the Rules. Apart from the days ordered by the Collector for the closure of the licensed premises, Rule 25II(a) proviso made compulsory that there would be no sale of liquor by licenses holding FL-2 license on the following days :-
a. Thiruvalluvar Day falling on the month of January b. Gandhi Jayanthi Day, namely the 2nd October, and c. Birthday eve of Nabigal Nayagam, in every year The statute mandates that the FL-2 licensee should close the licensed premises on the above said days.
6. Similarly, the conditions annexed to the various license also prescribe the number of holidays for each licensed premises. As per the conditions, the following days were declared as holidays in respect of the said licenses :-
<><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> License Name of Licensee Holidays <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 1 License for the grant of privilege of Retail sale of bottled Indian made Foreign spirits or sale of Foreign Liquor (TASMAC Shop) Gandhi Jayanthi Day <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 2 License for possession of Liquor by a Non-Proprietary club for supply to members Thiruvalluvar Day, Gandhi Jayanthi Day <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 3 License for possession of Liquor by Star Hotels for supply of Foreign Tourists, etc. Gandhi Jayanthi day <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 3 A License for possession of liquor by hotels run by the Franchisee of the TTDC Thiruvalluvar Day Gandhi Jayanthi Day Birthday eve of Nabigal Nayagam Mahavir Jayanthi and Vallalar Ninaivu Naal <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 4 License for possession of liquor by Manager, Canteen Stores Department Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 4 A License for possession of sale of liquor by Military Units & Military Personnel Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 5 License for possession and issue of liquor by the Madras Seamen's Institute Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 6 License for possession and use of liquor for Scientific, Industrial and such like purpose Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 7 License for possession and sale of wine, grape juice or other liquor for sacramental purpose Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 8 License for possession and issue of liquor to International passengers on Board Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 9 License for possession and issue of liquor to International Air Passengers transiting the International Airports Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 10 License for possession and issue of liquor by an Approved Restaurant in the National Air Terminal and International Air Terminal Nil <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> FL 11 License for grant of privilege of retail sale of Foreign Liquor Thiruvalluvar Day Gandhi Jayanthi Day Birthday eve of Nabigal Nayagam Mahavir Jayanthi and Vallalar Ninaivu Naal <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> Petitioner-clubs follow the above said Rules and closed the licensed premises for the above said one day. Now, the 1st respondent has issued the impugned G.O.(Ms.)No: 50, Home, Prohibition & Excise (VIII) Department, dated 29.10.2012 in which amendments to Rule 25-II (a) and Condition No: 7 of License in Form FL-2, Condition No: 6 of License in Form FL-3 and Condition No: 7 of Licence in Form FL-3AA of the Tamil Nadu Liquor (License and Permit) Rules 1981, was made. By the said amendment, five more days are added as holidays for the FL2 license holders which are as follows :
a. Mahavir Jayanthi Day b. Vallalar Ninaivu Naal c. Independence Day d. Republic Day e. May Day By the above said G.O., the Government had also amended Condition No: 87 of license in Form FL2 and thereby added 7 more days as dry days even though the previous un-amended condition No: 7 mentioned only three days as dry days. Petitioners further state that even though the Act and Rules prescribe 11 types of licences for the sale of liquors used for consumption, the 1st respondent had singled out the 3 license holders alone and imposed a ban on the sale of the liquors. In the preamble of the impugned order, it is stated that the three days viz. Independence Day, Republic Day and May Day were declared as dry days, but the concept of dry days would not be made applicable to all other license holders which shows that the 1st respondent had made a discrimination amongst the same class of license holders. More particularly, the amendment regarding the dry days would not be made applicable to the shops owned by the TASMAC ( FL.1 License ) which owns number of shops across the State of Tamil Nadu. If the Government really intends to increase the dry days, it should be made applicable to all the license holders and no discrimination should be made between the same class or license holders. Therefore, they challenge the said Government Order on the ground that it is discriminatory, violative of Article 14 of the Constitution of India and that no valid reasons are given for making such a discrimination and if at all the Government intends to increase the dry days, it should be done uniformly to all the license holders.
7. The 2nd respondent has filed a counter affidavit stating that there are 11 types of licenses under the Rules. The license in FL.1 is for the grant of privilege of retail sale of IMFS carried on by the TASMAC, which has got exclusive privilege for selling IMFS for the entire State of Tamil Nadu through retail vending shops. FL.2 license is granted for the non-proprietary clubs for supply of liquor to the foreign tourists and foreign resident Indians and citizens of India for consumption within the licensed room of the clubs or for removal to their private rooms in the same hotel in which they stay for consumption there. After the receipt of FL.2 licence by the petitioner-clubs, it is the bounden duty of the licensee to cater to the needs of the customers and also to increase and secure their business and monetary interests. The number of dry days to be adopted by FL.2 clubs and other respective licensees prior to the amendment dated 29.10.2012, is admitted by both the petitioners and the respondents.
8. It is further stated that it is the policy decision of the Government to prohibit sale of liquor on certain days and thereby, an announcement was made on the floor of the Assembly during reply to demand No: 37 of Prohibition and Excise on 08.09.2011. Hence, based on the announcement made in the Assembly, necessary amendment proposals were called for by the Government in Letter No: 15279/H.P. & E(VI)/2011-1, dated 10.09.2011. The proposals for amending Rule 25-II(a) and Condition No: 7 of licence in Form FL.2, condition No: 6 of licence in form FL.3 and condition No: 7 of licence in Form FL.3AA of the Rules, were sent to the 1st respondent in the 2nd respondent's Office file No: P & E 2 (1) 13648/2011, dated 12.09.2012. Based on the above amendment proposals sent from the 2nd respondent's office, the 1st respondent issued orders in G.O. Ms. No: 50, H.P. & EVIII Department dated 29.10.2012 amending the above Rule. According to the amendment made to Rule 25-II(a) of the Rules, FL.2 licensees have to follow eight days as dry days on the following days and the sale of liquor is strictly prohibited on these days :
1. Thiruvalluvar day in the month of January
2. Gandhi Jayanthi day namely the 2nd October
3. Birth day eve of Nabigal Nayagam
4. Mahavir Jayanthi
5. Vallalar Ninaivu Naal
6. Independence day
7. Republic day and
8. May day Further, prior to the amendment made to Condition No: 7 of FL.2 licence, only three days, namely Thiruvalluvar Day, Gandhi Jayanthi day and Nabigal Nayagam Birthday eve of every year were followed by the FL 2 licensees. After issuance of G.O.Ms.No:50, H. P. & E VIII Department, dated 29.10.2012, FL.2 licensees have to follow eight days as dry days as adhered to by the TASMAC shops. Hence, there is no variation in following the dry days by FL.2, FL.3, FL.3AA licensees and FL.1 licensees (TASMAC retail vending shops). Further, it is submitted that the dry days amendment is applicable to FL.1 licensees (TASMAC retail vending shops) also. There are no exclusive FL.11 licences. The FL.1 licence is inclusive of all FL.11 licences. Hence there is no disparity. The FL.licencees FL.4, FL.4A, FL.5, FL.6, FL.7, FL.8, FL.9 and FL.10 cater to only a specific group of people like Ex-service men, Seamen, scientific and industrial purpose, Sacramental purpose, Foreign Travellers on Board and in Airport, whereas, FL.1, FL.2, FL.3, FL.3A, FL.3AA and FL.11 cater to the needs of public. The individual licensees in these groups are treated equally among these groups. Hence, there is no question of discrimination within the group or class. It is further averred in the counter affidavit that petitioner could not say that the said G.O.Ms.No:50, H. P & E (VIII) Department, dated 29.10.2012 should be made applicable to all licensees, since in respect of TASMAC being a FL.1 licensee and inclusive of FL.11 licensees, already 8 days dry days are declared, vide G.O.Ms.No:1, H.P. & E (VI) Dept., 01.01.2012 prior to passing of G.O. Ms. No: 50, H.P. & E (VIII) Department dated 29.10.2012. The Department of Prohibition and Excise is not aversive to extend the dry days to FL.3 A licensees ( i.e. TTDC ). Hence, it has been proposed to send necessary amendment proposal to government to extend the dry days to FL.3A licensees, i.e. the Tamil Nadu Tourism Development Corporation (TTDC). Till the final order of the Government is obtained, the Department has no objection in implementing the dry days for the hotels run by TTDC (FL.3A licensees) if this Court orders so.
9. On the above background of pleadings, I have heard the learned counsel appearing for the respective parties and perused the material documents made available on record before this Court and also the legal position.
10. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the petitioners focused his arguments mainly on the discrimination aspect. According to him, when the petitioner-Clubs have been issued with licences with certain restrictions, the same restrictions should be imposed to all the establishments irrespective of the fact that they have been issued licences with various categories. He particularly assailed the amendment as it discriminates the petitioner-Clubs from the TASMAC Shops and other establishments run by T.T.D.C.
11. Contraverting the aforesaid submissions, Mr.P.H.Arvind Pandian, learned Additional Advocate General appearing for the respondents would contend that it is the policy decision of the Government to declare some days as "Dry Days" in order to respect the leaders and also for other national holidays. However, he pointed out that the Government has now decided to declare the "Dry days" equally applicable to all the establishments uniformly including the Government run TASMAC shops and the other establishments maintained by T.T.D.C. He would further add that as the Government has now taken a decision not to discriminate any one, there is no merit in these writ petitions.
12. A circumspection of the facts would reveal that all these petitioners are license holders holding FL.2 or FL.3 licenses. They have obtained necessary license for the possession and supply of liquor on payment of application fee, license fee and privilege fee as fixed by the Government. According to the petitioners, the Government by the impugned G.O., while increasing the dry days from 3 to 8, creates two types of licenses among the same class and thereby, it discriminates among equals without any valid reason for such discrimination. It is the case of the petitioners that only to increase the sales in the TASMAC shops run by the Government that the dry days scheme is introduced only to FL.2 and FL.3 license holders, whereas other licensees are not prohibited from selling liquor on those days.
13. It is worthwhile to mention here that while Rule 17(a) of the Rules deals with the kinds of licences, Rule 25 of the Rules deal with the general conditions applicable to licences issued under the Rules. The relevant portion of the Rules reads as under :
" 25. General conditions applicable to licences issued under the Rules in this Chapter :-
I. ... ... ...
II. (a) The licensed premises shall in cases where business under the licence is transacted be kept open for business or for inspection by authroised officers on all days except weekly holiday under the provisions of the Tamil Nadu Shops and Establishments Act, 1947 ( Tamil Nadu Act XXXVI of 1947 ) or the Weekly Holidays Act, 1942 ( Central Act XVIII of 1942 ) whichever is applicable and such other days on which the Collector may order closure. The licensee may also of his own accord close the licensed premises during any riot or disturbances in the neighbourhood. The licensee shall not be entitled to any compensation on account of the closure of the licensed premises under this Rule :
Provided that no sale of liquor shall be made, by licensees holding F.L. 2 licences on the Thiruvalluvar Day falling on the month of January, Gandhi Jayanthi Day, namely, the 2nd October and Birth Day Eve of Nabigal Nayagam, in every year. "
14. The grant of licence to sell liquor under various kinds of licences, to declare certain days in a year as dry days and prohibiting various licensees to sell liquor on those dry days by way showing its respect to certain leaders and to the nation, are all matters for concern for the Government to decide and over those decisions, the Court cannot have a say as long as such decision is taken in accordance with law. In the case on hand, by the amendment brought forth to Rule 25-II(a) of the Rules, by passing the impugned Government Order, namely G.O.Ms.No:50, H. P. & E VIII Department, dated 29.10.2012, the State Government has decided that the licensees have to follow eight days as dry days and that the sale of liquor is strictly prohibited on those days, viz. :
1. Thiruvalluvar day in the month of January
2. Gandhi Jayanthi day namely the 2nd October
3. Birth day eve of Nabigal Nayagam
4. Mahavir Jayanthi
5. Vallalar Ninaivu Naal
6. Independence day
7. Republic day and
8. May day The grievance put forth by the petitioners in all these writ petitions is that while the impugned Government Order prohibits them from selling liquor, it allows the Government run TASMAC shops and the establishments run by the TTDC to sell liquor and thereby, there is discrimination. But now, the Government has fairly come out with an averment in the counter affidavit that the petitioners cannot say that G.O.Ms.No:50, H. P & E (VIII) Department, dated 29.10.2012 should be made applicable to all licensees, since in respect of TASMAC being a FL.1 licensee and inclusive of F.11 licensees, 8 dry days had already been declared, vide G.O.Ms.No:1, H.P. & E (VI) Dept., 01.01.2012 prior to passing of G.O.Ms.No:50, H.P. & E (VIII) Department, dated 29.10.2012. The Department of Prohibition and Excise is not aversive to extend the dry days to FL.3 A licensees (i.e. TTDC). Hence, it has been proposed to send necessary amendment proposal to the Government to extend the dry days to FL.3A licensees, i.e. the TTDC. Till the final order of the Government is obtained, it is the stand of the respondents that the Department has no objection in implementing the dry days for the hotels run by TTDC (FL.3A licensees) if the Court orders so.
15. Declaring holidays or dry days, prohibiting various licensees to sell liquor on those days, is incorporated as a general condition applicable to licensees issued under the relevant rules. As a matter of policy, the Government took a decision to declare those days to respect the national leaders. Such a policy of the Government cannot be questioned, unless it is contrary to law. The power of the Courts to interfere with such a policy matter is very limited. Though the petitioners have consistently pleaded that there is a discrimination among the establishments and the licensees who are selling the liquor, in view of the present stand taken by the Government to go uniformly to impose the dry days to all the licensees, it cannot be construed that there is a discrimination.
16. In view of the stand taken by the Government that the decision to declare 8 days as dry days is equally applicable to all licensees including the TASMAC shops and the establishments run by T.T.D.C. and that sale of liquor by those licensees also will be prohibited on those days, the apprehension of the petitioners that there is discrimination shown by the Government among the licensees cannot be sustained. Therefore, by recording the submission of the learned Additional Advocate General and the statement made by the respondents in their counter affidavit that the Government's policy to declare 8 days in a year as "Dry Days" is equally applicable to all the licensees of the State Government uniformly and thereby, sale of liquor will be prohibited on those days by all the licensees, these writ petitions stand disposed of. Connected miscellaneous petitions are also closed. There shall be no orders as to the costs.
gp To
1. The Secretary to Government Home, Prohibition and Excise Department Fort St. George Chennai 600 009.
2. The Commissioner of Prohibition and Excise Dept. Ezhilagam Chepauk Chennai 600 005