High Court · 2011

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 22.03.2011CORAM:THE HONOURABLE MS.JUSTICE K.SUGUNAANDTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYW.P.(MD).No.507 of 2011and M.P.No.1 of 2011Ashtalakshmi Nagar,Lakshmipuram Kudieruppu Nala Sangam,Plot No.34, Astalakshmi Nagar,KTC Nagar, Tirunelveli 627 011,through its President, H.Lakshmanan. : Petitioner Vs.1.The District Collector, Tirunelveli.2.The District Manager, TASMAC, Tirunelveli.3.Thiru.Samidurai Pandian, Plot Nos.39 & 40, Ashtalakshmi Nagar main Road, Ashtalakshmi Nagar, KTC Nagar, Tirunelveli. : RespondentsPRAYER: Writ Petition is filed under Article 226 of the Constitutionof India praying to issue a Writ of Mandamus directing therespondents to re-locate the TASMAC shop No.10723 and Bar situated atPlot Nos.39 and 40 of Ashtalakshmi Nagar, Palayamkottai Taluk,Tirunelveli District to any other place. For Petitioner: Mr.J.AshokFor Respondent 1: Mr.R.Janakiramulu Special Government PleaderFor Respondent 2: Mr.J.RavindranFor Respondent 3: Mr.R.Anand O R D E R[Order of the Court was made BY K.SUGUNA, J]This Writ Petition is filed by an association by name,Ashtalakshmi Nagar, Lakshmipuram Kudieruppu Nala Sangam, seeking a https://hcservices.ecourts.gov.in/hcservices/ 2Writ of Mandamus directing the respondents to re-locate the TASMACshop No.10723 and Bar situated at Plot Nos.39 and 40 at AshtalakshmiNagar, Palayamkottai Taluk, Tirunelveli District, to some otherplace. 2. The grievance of the petitioner is that the TASMAC shopNo.10723 and Bar situated at Plot Nos.39 and 40, are causinginconvenience to the residents of Ashtalakshmi Nagar and because ofthe location of TASMAC shop and Bar in the said area, untowardincidents have taken place frequently, consequently, according to thelearned counsel for the petitioner, the said TASMAC shop and Bar haveto be re-located to some other place. 3. The learned counsel for the petitioner, in support of hiscontention, has relied on a Judgment of a Division Bench of thisCourt in The Tamil Nadu State Marketing Corporation Ltd., v. R.M.Shahreported in 2010 (2) CWC 337, at Paragraph No.9, which reads asfollows:-"9. It is true that the Retail Vending Rules providethat no shops shall be established within a distance of 50metres in Municipal Corporations and Municipalities and 100metres in other ares, from any place of worship oreducational institutions. However, that does not mean thatthe liquor shops so established would get a licenseautomatically to cause nuisance to the local people. Theprescription of distance for opening the Bar is a matterbetween the State and the excise licensees. Merely becausethe shop is situated beyond the distance stipulated in therules, it cannot be said that there would be no nuisance tothe people of the area. The distance rule take care of onlythe place of worship or educational institutions. It doesnot say that the liquor shops should be away fromresidential houses. The nuisance created by the drunkardswould extend even beyond the safety area prescribed underthe Rules. Therefore, it all depends upon the facts andcircumstances of each case. The factum of location of theshop beyond the prohibited distance would not come to therescue of the licensee of liquor shops in the event ofthere being perennial nuisance to the residents of thearea." 4. According to the learned counsel for the petitioner, thoughthere is no prohibition with regard to the location of TASMAC shop inthe residential area, as per the said Judgment, this aspect has to belooked into. 5. On the other hand, it is the stand of the learned counselappearing for the third respondent that as far as the issue inquestion is concerned, it is personally motivated, i.e., in therepresentation dated 23.08.2010, which has been enclosed at page No.3of the typed set of papers, one Mr.M.Francis, 17th Ward Councillor, is https://hcservices.ecourts.gov.in/hcservices/ 3also one of the signatories to the representation and according tohim, he belongs to a particular political party, viz., M.D.M.K.According to the learned counsel for the third respondent, as far asthe third respondent is concerned, he also belongs to a politicalparty viz., D.M.K and basing on this alone, the objections have beenraised. Apart from this, according to the learned counsel for thethird respondent, as on date, there is no house located in the saidplace and one house is in the way of construction, consequently,according to the learned counsel for the third respondent, nobody isresiding in the said place. Therefore, question of causingdisturbance or inconvenience to the residents of the said area by thelocation of the Bar does not arise. 6. Apart from the above, it is the specific stand of the learnedcounsel for the third respondent that the brother of the saidCouncillor, by name Mr.M.Francis, is also running two bars within 100meters of the said area. Since the third respondent had put up thebar, due to business rivalry, this Writ Petition has been filed atthe instigation of the other two bar owners. According to the learnedcounsel for the third respondent, when the brother of the saidCouncillor is running two bars within 100 meters of the said area,question of causing disturbance or inconvenience by the location ofbar run by the third respondent to the residents of the said areawill not arise at all. 7. The learned counsel for the third respondent has also broughtto the notice of this Court that even in the representation also,what is stated is only plot number and not door number, whichindicates that there is no house situated in the said area and it isonly a vacant site. Relying on Rule 8 of the Tamil Nadu Liquor RetailVending (in Shops and Bars) Rules, 2003, [hereinafter referred to as"the Rules"] the learned counsel for the third respondent hassubmitted that no TASMAC shop shall be established in MunicipalCorporations and Municipalities within a distance of 50 metres and inother areas 100 metres from any place of Worship or EducationalInstitutions and there is no prohibition with regard to location ofTASMAC shop in the residential area.8. It is the stand of the learned counsel for the secondrespondent – TASMAC that only from November 2010, the TASMAC shop inquestion is running, and therefore, question of making any complaintprior to that does not arise at all. Apart from this, according tothe learned Standing Counsel for the second respondent – TASMAC,though the shop is running from November 2010 onwards, so far nocomplaint of any nature has been received by the second respondent –TASMAC, consequently, according to the learned counsel for the secondrespondent – TASMAC, basing on an apprehension alone, the presentWrit Petition has been filed. 9. We have considered the above rival submissions made by therespective learned counsels. https://hcservices.ecourts.gov.in/hcservices/

410. It is not in dispute that the brother of the said CouncillorMr.M.Francis is also running two bars within 100 meters of the saidarea. We are also in conformity with the said stand taken by thelearned counsel for the third respondent that as on date, no housesare located in the said area, for the reason that if actually housesare located in the said area, certainly, as rightly pointed out bythe learned counsel for the third respondent, either door number orflat number would have been mentioned in the representation, but onlyplot number is mentioned. A perusal of the signatures also revealsthat for the very same plot, two signatures have been made, that isto say, for Plot No.30 at serial Nos.34 and 50, for Plot No.53 atSerial Nos.28 and 29 and for plot No.55, at serial Nos.35 and 36. Asrightly pointed out by the learned counsel for the third respondent,so far no complaint of any nature has been brought to our notice byway of typed set of papers or by way of an affidavit. Apart fromthis, under the Rules also, there is no prohibition with regard tolocation of TASMAC shop in the residential area. However, if locationof the TASMAC shop and Bar is causing any disturbance orinconvenience to the inmates of any residential area, certainly, thathas to be gone into. Now, the stand of the learned Standing Counselfor the second respondent - TASMAC as well as the learned counsel forthe contesting respondent is that no residential houses are situatedin the said place. Under such circumstances, we are not able acceptthe stand taken by the learned counsel for the petitioner. However,if any complaint is received from the residents of the said area, thefirst respondent herein is directed to consider the same and passorders in accordance with law.With this, the Writ Petition is disposed of. No costs.Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To1.The District Collector, Tirunelveli.2.The District Manager, TASMAC, Tirunelveli.+1cc to Mr.J.Ashok Advocate, Sr.No.7492+1cc to Mr.J.Ravindran Advocate, Sr.No.7414+one cc to Special Government Pleader, Sr.No. 7815ORDER MADE INW.P.(MD).No.507 of 201122.03.2011nb/sma/5.4.2011/6c/4p