THE HONOURABLE MR v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 31.10.2007Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.2900 of 2003A.RavikumarAppellant/Petitionervs.1. The Commissioner, Prohibition & Excise Department, Chetput, Chennai 600 005.2. The District Collector, Salem District.3. The Assistant Commissioner (Excise), Salem District.Respondents/RespondentsAppeal filed under Clause 15 of the Letters Patent against theorder of the learned single Judge dated 09.04.2003 made in writ petitionNo.5634 of 2003 Certiorarified Mandamus to call for the recordspertaining to the orders passed by the 1st respondent in his proceedingsin ROC P & E IX (2)/41723/2002 dated 23.01.2003 confirming to the orderspassed by the 2nd and 3rd respondents in their proceedings inROC.64601/2001 AB dated 08.10.2001 ROC.30883/01 AB1 dated 12.07.2001respectively and quash the same consequently direct the respondents torefund 1/3rd of the privilege amount of Rs.4,66,700/- with interest at24% per annum from 12.07.2001 till the date of realisation.For Appellant:Mr.R.SwaminathanFor Respondents:Mr.P.Subramanian,Government AdvocateJUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.)The appellant applied for grant of IMFL retail vending licence inDivision No.28 of Salem Corporation on 09.07.2001 complying with all thestatutory requirements as per the notification dated 01.07.2001 issuedby the Collector of Salem. The drawal of the lot was conducted on https://hcservices.ecourts.gov.in/hcservices/

12.07.200. Only two applications were received for the said divisionthought three shops were notified. The appellant was one among the two.Since the eligible applicants were less than the number of shopsnotified in that area, the appellant was selected as successful bidder,but had failed to remit 2/3rd of the amount of privilege fee on the sameday, i.e., on 12.07.2001. Hence, the Assistant Commissioner (Excise)Salem Division by his proceedings dated 12.07.2001 ordered forforfeiture of the sum of Rs.4,66,700/- deposited by the petitioner atthe time of filing the application under the Tamil Nadu Liquor (RetailVending) Rules, 1989. Against that order, the appellant filed arevision before the Collector and further revision before theCommissioner of Prohibition and Excise. Both the Collector and theCommissioner of Prohibition and Excise confirmed the order of theoriginal authority. 2. Being aggrieved by the order, the petitioner filed writpetition No.5634 of 2003 before this Court seeking for the relief ofissuance of writ of certiorarified mandamus to call for the recordspertaining to the order passed by the respondents in their respectiveproceedings forfeiting the amount and quash the same and direct therespondents to refund the 1/3rd of the privilege amount of Rs.4,66,700/-with interest at 24% per annum from 12.07.2001 till the date it wasrealised. The learned single Judge non suited the petitioner bydismissing the writ petition. The correctness of the said order iscanvassed in this appeal before this Court. 3. Heard the learned counsel on either side and perused thematerials available on record.4. Learned counsel for the appellant submitted that as per Rule 13of the Tamil Nadu Liquor (Retail Vending) Rules, 1989, where the numberof applications received for a notified area is less than the number ofshops in that area or where no application is received for a notifiedarea, such shops in that area shall be re-notified for grant ofprivilege by the Collector. In this case, though three shops werenotified only two applications were received. In such circumstances ofthe case, as per sub rule 3 of Rule 13, the application received for twoshops have to be rejected and all the three shops must have been re-notified. The very same contention has been raised before the learnedsingle Judge and was rejected by the learned single Judge. 5. In order to appreciate the contention of the learned counselfor the petitioner, we are of the view that the relevant provision canbe extracted :13. Application for the grant of privilege and licence:(1) ......(2) When the number of eligible application does notexceed the number of shops notified for an area, allapplicants shall be selected for grant of privilege. When https://hcservices.ecourts.gov.in/hcservices/ the number of applications in respect of the shops in anotified area is more than the number of shops in that area,the selection of applicant for grant of privilege shall bedecided by drawal of lot by the licensing authority in thepresence of the Collector and the applicants who prefer to bepresent.(3) Where the number of applications received for anotified area is less than the number of shops in that areaor where no application is received for a notified area, suchshops in that area shall be re-notified for grant ofprivilege by the Collector.6. On a conjoint reading of sub rules (2) and (3), it is amplyclear that when the number of eligible applications do not exceed thenumber of shops notified for an area, all the applications shall beselected for the grant of privilege. When the number of applications inrespect of the shops in a notified area is more than the number of shopsin the area the selection of the application for grant of privilegeshall be decided by drawal of lot by the licensing authority in thepresence of the Collector or District Revenue Officer authorised by theCollctor and the applicants who prefer to be present.7. As per the provisions of the Act, it is clear that when thenumber of applications for the shops does not exceed the availablenumber of shops, a drawal has to be made and the applicants have to begranted the privilege for the shops. There is no choice for theauthorities to reject the applications if the applications are otherwisein accordance with the requirements of the section as would be theposition if the applications received by the respondents are less thanthe shops notified in that area as has been stated in sub-rule (3) tothe effect that where the number of applications received for a notifiedarea is less than the number of shops in that area or where noapplication is received for a notified area such shops in that areashall be renotified for grant of privilege by the Collector. 8. Here, the word 'such' before the shops assumes significance.Because if three shops are available in the notified area and theapplications has been received only for two shops as per sub rules (2)and (3), shops have to be given to the applicants who made theapplication for the shops. In respect of the remaining shops onlyrectification has to be made. In the alternate, if no application isreceived for all the shops, here again, a re-notification has to bemade. If the argument of the learned counsel for the appellant isaccepted, the first limb of sub clause (2) cannot be given effect to, asstated in the Rules. Likewise, if the argument of the learned counselthat if the number of applications for a notified area is less than the https://hcservices.ecourts.gov.in/hcservices/ number of shops in that area, those lesser number of applications haveto be rejected and all the shops should be re notified, cannot also beaccepted for the very same reasons stated above. Hence, we are notable to countenance the argument of the learned counsel for theappellant. The appeal is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmfTo1. The Commissioner, Prohibition & Excise Department, Chetput, Chennai 600 005.2. The District Collector, Salem District.3. The Assistant Commissioner (Excise), Salem District.1 cc To Mr.Sathish Rajan, Advocate, SR.65651.1 cc To The Government Pleader, SR.65822.W.A. No.2900 of 2003 ASM(CO)RVL 26.11.2007