IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.03.2010 CORAM THE HONOURABLE MR. JUSTICE K.VENKATARAMAN Writ Petition Nos.11239 and 11240 of 2009 and M.P.Nos.1 and 2 of 2009 Imperial Spirits and Wine Private ... Petitioner in Limited, rep. by its Director. both the writ petitions. vs. 1.The State of Tamil Nadu, rep. by the Secretary to Govt., Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-9. 2.The Commissioner and Commissioner of Prohibition and Excise, Ezhilagam, Chennai-5. 3.Tmt.M.R.Ganga Bai, Public Information Officer / Assistant Commissioner-II, Prohibition and Excise, ... Respondents in Chepauk, Chennai-5. both the writ petitions. Writ petition No.11239 of 2009 has been filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the third respondent to provide information to the petitioner as sought for in its application dated 12.05.2009 under the Right to Information Act. Writ petition No.11240 of 2009 has been filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records of the second respondent comprised in its order dated 12.06.2009 under Ref.No. Ma (Ma) A 5(2) / 11982/2006, rejecting the petitioner's application and the consequential order dated 17.06.2009 under Ref.No. Ma(Ma)A 5(2)/11982/2006 issued purporting to return the petitioner's application for grant of privilege and licence under the Indian Made Foreign Spirit (Manufacture) Rules, and quash the same and consequently directing the second respondent to consider the petitioner's application dated 4.5.2006 and grant privilege and licence to manufacture Indian Made Foreign Spirit. For petitioner : Mr.AL.Somayaji, SC, for Mr.Madhan Babu, in both the writ petitions. For respondents : Mr.P.S.Raman, A.G., asst. by Mrs.Pushpa Menon & Mrs.Lita Srinivasan, G.A. COMMON ORDER The petitioner has come up with the writ petition in W.P.No.11239 of 2009 for a mandamus directing the third respondent to provide information as sought for in its application dated 12.05.2009 under the Right to Information Act. 2. Challenging the order of the second respondent dated 12.06.2009 rejecting its application and the consequential order dated 17.06.2009 returning its application for grant of privilege and licence under the Indian Made Foreign Spirit (Manufacture) Rules and consequently directing the second respondent to consider its application dated 04.05.2006 and grant licence to manufacture Indian Made Foreign Spirit, the petitioner has come up with W.P.No.11240 of 2009. 3. The case of the petitioner in both the writ petitions, in nutshell, is set out here under:- (a) The petitioner is a part of the Imperial Group of Companies which was incorporated in the year 2002 under the Companies Act, 1956 and it has vast experience in the field of manufacture of Indian Made Foreign Spirit for almost a decade. (b) In the year 2006, the petitioner decided to establish an Indian Made Foreign Spirit manufacturing unit in the State of Tamil Nadu and accordingly, submitted its application under Rule 4 of the Tamil Nadu Indian Made Foreign Spirit (Manufacture) Rules, 1981 (herein after referred to as "IMFS Rules") for grant of privilege and licence to manufacture Indian Made Foreign Spirit in Pollachi Taluk, Coimbatore District, Tamil Nadu. After submitting the said application, the petitioner has also complied with all the requirements indicated by the respondents from time to time. The petitioner has already identified the land in Marchanickenpalayam Village, Pollachi Taluk, Coimbatore District for establishing its factory. Pursuant to the identification of the land, the petitioner has also obtained "No Objection Certificate" from the Tahsildar, Pollachi for construction of factory in the said land. Notwithstanding the compliance with all legal requirements by the petitioner, its application has been languishing now for over three years for extraneous reasons. (c) The grievance of the petitioner is that due to the non-grant of privilege and licence to manufacture Indian Made Foreign Spirit, despite its scrupulous compliance with all rules and regulations, was further aggravated by the fact that the respondents had granted privilege and licence in favour of three other entities within a matter of few days after their applications, even without waiting for any of the compliances as insisted in the case of the petitioner. Further, the petitioner is the senior most applicant having made its application as early as 4.5.2006 and having complied with all requisites contemplated under law. (d) In view of the deliberate non-consideration of its application, the petitioner approached this Court by filing a writ petition in W.P.No.22742 of 2008 for a mandamus directing respondents 1 and 2 herein to forthwith consider its application dated 4.5.2006 and grant privilege and licence to manufacture Indian Made Foreign Spirit under the IMFS Rules. This Court, by an order dated 30.03.2001, allowed the said writ petition along with connected writ petitions and directed the respondents to forthwith issue requisite licences applied for under the Tamilnadu Prohibition Act and all the rules framed thereunder within an out limit of six weeks from the date of communication of that order. (e) Even after receiving the said order, respondents 1 and 2 were busying themselves with granting further largesse to their favoured ones. Despite its best efforts including issuance of notice dated 12.5.2009 to the third respondent under the Right to Information Act, the petitioner is unable to elicit information from the respondents and the crucial information, which will bring to the public regime the facts relating to the manner of grant of licence and orders granting enhancement of the existing production capacity from time to time to a selective few, had remained guarded secret in the hands of the respondents. A reply dated 4.6.2009 received from the third respondent acting in her capacity as the Public Information Officer is a shocking dereliction of duties cast upon her under the Tamil nadu Prohibition Act as well as the Right to Information Act. Since the mala fide is writ large in the third respondent's reply dated 4.6.2009, the petitioner has impleaded her as a party respondent. (f) The third respondent, after receiving the petitioner's application dated 12.05.2009, seeking particulars relating to grant of privilege and licence to third parties as well as the particulars of the licences, has now informed the petitioner to approach the respective licensees and distillery units directly to secure the particulars without stating her difficulties in furnishing the said information. As regard the particulars relating to TASMAC, the petitioner has been directed to obtain the particulars from TASMAC. The said letter of the third respondent is ex-facie illegal and ultra vires under the provisions of the Right to Information Act and is solely aimed at maintaining the secrecy of matters which clearly deserve public scrutiny and to perpetuate the mala fide and gross abuse of licensing powers. (g) After the directions of this Court in W.P.No.22742 of 2008, the first respondent has passed two Government Orders in G.O.Ms.No.97 dated 19.11.2008 and G.O.Ms.No.98 dated 24.11.2008. In terms of G.O.Ms.No.97, the respondents, in purported exercise of their powers conferred under Rule 35 of the Tamil Nadu Indian Made Foreign Spirit (Manufacture) Rues, 1981, have increased the production capacity of M/s.Mohan Breweries and Distilleries Limited from 42,63,660 cases per annum to 78,73,600 cases per annum with effect from 1.12.2008. In G.O.Ms.No.98, the first respondent has increased the production capacity of M/s.Southern Agrifurane Industries Limited from 30 lakh cases per annum to 49,57,200 cases per annum with effect from 1.12.2008. (h) The petitioner reliably understands that similar orders were hastily passed by the respondents soon after the disposal of W.P.No.22742 of 2008 in favour of other units. However, the application of the petitioner is concerned, respondents 1 and 2 refused to take up the application for consideration and they remained unmoved not only by the numerous letters and reminders issued by the petitioner after the order but also by the contempt petition filed by the petitioner before this Court in Contempt Petition No.284 of 2009. Long after filing of the contempt petition, respondents 1 and 2 filed an application in M.P.No.1 of 2009 in W.P.No.22742 of 2008 seeking extension of time by six months from 1.4.2009 for consideration of the petitioner's application and the same was dismissed by this Court by an order dated 28.04.2009. The appeal preferred against the said order was also dismissed by a Division Bench of this Court, however, extension was granted to the respondents until 30.06.2009 to pass orders on its application. Hence, as stated already, W.P.No.11239 of 2009 was filed for a mandamus directing the third respondent to provide information as sought for in its application dated 12.05.2009 under the Right to Information Act and W.P.No.11240 of 2009 was filed challenging the order of the second respondent dated 12.06.2009 rejecting its application and the consequential order dated 17.06.2009 returning its application for grant of privilege and licence under the Indian Made Foreign Spirit (Manufacture) Rules and consequently directing the second respondent to consider its application dated 04.05.2006 and grant licence to manufacture Indian Made Foreign Spirit. 4. Common counter affidavit was filed on behalf of the second respondent, wherein the following facts have been set out:- (a) In view of the appeal remedy available under the Statute, W.P.No.11240 of 2009 is not maintainable. (b) The petitioner applied in Form I of the Tamil Nadu Indian Made Foreign Spirits (Manufacture) Rules, 1981 for grant of privilege for the manufacture of Indian Made Foreign Spirits in the factory to be located in Marchanaickenpalayam Village, Pollachi Taluk, Coimbatore District. As per Rule 7 of the said Rules, the Commissioner, after having regard to the matters specified in the said Rule 5 and the conditions set out in Rule 6 may, with the prior approval of the Government, grant them privilege for manufacture of Indian Made Foreign Spirits and approve with or without modification of the plan of the building and the statements or reject any application. In cases upon the grant of the privilege, the Commissioner shall issue a licence in Form No.2. (c) To ascertain the details as per the said Rules, the Collector, Coimbatore was requested by the second respondent to send a detailed and specific report. The District Collector furnished his report on 6.11.2007. As the report was short of some details, the Collector, Coimbatore was again requested to furnish the details by the second respondent dated 19.11.2007. The Deputy Commissioner (Excise), Coimbatore was also requested by letter dated 19.11.2007 to cause enquiry through proper authority and ascertain the genuineness of the address and send a report to that effect. (d) The Collector, Coimbatore has sent his report in his letter dated 11.12.2007. The further report was perused and certain clarifications were required as it was reported that there was an Odai as per records and the specific recommendations of the Collector was not furnished. The NOC from Fire and Rescue Department was also called for. The report received from the Collector was perused and it was found that the lay out was not duly authenticated by him. (e) The Collector was also requested to send his further report as to whether distillery is located within ten kilometers of the proposed manufactory site. In the meantime, while the application is in progress, the petitioner has filed W.P.No.22742 of 2009 and this Court, by an order dated 03.11.2008, directed the respondents to process the application of the petitioner and pass necessary orders on merits and in accordance with the Rules within three months from the date of receipt of a copy of that order. Since the orders could not be passed within the stipulated time, miscellaneous petition was filed before this Court seeking extension of time. However, in the meanwhile, the petitioner has filed Contempt Petition No.284 of 2009. This Court has dismissed the application made by the respondents for extension of time. Aggrieved over the same, respondents 1 and 2 filed a writ appeal in W.A.No.675 of 2009 before the Division Bench. The Division Bench directed the appellant therein to give effect to the order of this Court dated 3.11.2008 on or before 30.06.2009 and made it clear that no further extension will be granted. Subsequently, the second respondent issued orders rejecting the request of the petitioner for setting up an Indian Made Foreign Spirit Manufacturing Unit at Marchanaickenpalayam Village, Pollachi Talu, Coimbatore District. (f) The application of the petitioner for grant of privilege was not rejected on the ground of non- compliance of Rule 5 of the said Rules but rejected only based on the present policy of the Government even though its application was processed. Only on compliance of Rule 5 of the said Rules in entirety alone privilege will be issued with the prior approval of the Government and the issuance of licence will be considered only after the completion of the building and erection of machinery etc. (g) The contention of the petitioner that the issuance of licence favouring particular persons for ulterior objects and as political favours even without verifying their solvency, bona fide and other requisite and it is violative of Article 14 of the Constitution of India is not true and untenable. The application of the petitioner as well as the other three companies were processed as per the provisions of the said Rule. The Government arrived at a new policy decision that there will be no new grant of IMFL privilege by a letter dated 10.06.2009. In view of the new policy, not only the application of the petitioner but also all the pending applications were rejected and hence, there is no discrimination or colourable exercise as contended by the petitioner. (h) If the petitioner is aggrieved over the reply of the Public Information Officer, it may work out its remedy as provided under Right to Information Act, 2005 (Central Act 22 of 2005). The contention of the petitioner that it has made huge investment for the purpose of establishing the Indian Made Foreign Spirit Unit is not relevant as the respondents are not responsible for any investment made by the petitioner at its own risk and in the course of the business activities. Thus the counter affidavit of the second respondent seeks for the dismissal of the writ petitions. 5. Additional counter affidavit was filed on behalf of the respondents, wherein the following facts have been set out:- (a) Under the Tamil Nadu Prohibition Act and Rules framed thereunder, an application shall be made to the Commissioner of Prohibition and Excise for grant of privilege and licence by an individual or a company, and the Commissioner, after due consideration, calls upon the Collector of the District wherein the unit is sought to be established for verification of the various criteria / conditions set out under the said Act and the Rules. After ascertaining all the details, the Collector submits a report to the Commissioner of Prohibition and Excise. Thereafter, the Commissioner forwards the Collector's report with his own recommendation to the Government. It is only at this point of time, the State Government which is the authority to approve the grant of privilege gets seized of the matter. (b) The petitioner filed its application on 04.05.2006. Few months earlier, the Government by letter dated 1.3.2006 had already rejected the application of one Sri Murugan Distilleries Ltd, for setting up of their unit at Erode since there was no need to encourage another new manufacturing unit. (c) In July, 2006, the Government formed a Technical Committee at the request of the Commissioner of Prohibition and Excise, who after examination of each individual application for enhancement of production capacity, recommended enhancement of capacity and to take up application of individual units as well. Based on the recommendation of the said Committee, the Government by order dated 4.9.2006 temporarily enhanced the production capacity of the existing units and the temporary period came to be extended from time to time owing to the continued need of TASMAC. It was in these circumstances the said enhancement was granted by the Government and not in any manner motivated by any other reasons. (d) In the month of June, 2007, TASMAC addressed a letter to the Commissioner of Prohibition and Excise bringing to his notice that inspite of an increase in the production capacity of the existing units, they were unable to secure enough supply since the monthly sale in TASMAC has gone up considerably. Therefore, the TASMAC requested the Commissioner to take action for increasing the availability of IMFS. (e) Pursuant to the same, the Commissioner started processing of applications for establishment of new units and wrote a letter to the Collector to investigate and submit a report regarding the petitioner's claim. The final report of the Collector came to be submitted only on 26.12.2008 as the Collector could complete his inspection and secure all the documents from the petitioner only at that time. Along with the petitioner's application, five other distilleries pending consideration were rejected on 24.06.2009 on the same ground. (f) The allegation of political mala fide by the petitioner is without any basis. The decision of the Government in not considering any other individual application beyond the enhanced demand of TASMAC, is only because of the consistent practice of this Government of not allowing local IMFS Unit to export their products, but have their production fully consumed domestically. Thus, the additional counter affidavit sought for the dismissal of the writ petition. 6. Common reply affidavit was filed on behalf of the petitioner to the additional counter affidavit filed by the second respondent, wherein the following facts have been set out:- (a) The present writ petition seeking grant of IMFS privilege and licence to the petitioner is not merely on account of delay caused by the respondents in considering the application of the petitioner. It is coupled with the fact that during such time when the application of the petitioner was kept pending by the respondents through the Coimbatore Collector, the respondents were granting licences and expansions to their favourites. The conduct of the respondents in granting three new licenses while holding back the application of the petitioner and further granting expansions to existing units in excess of 18 lakh cases per month even after the order of this Court dated 3.11.2008 was clearly tantamount to a fraud on power. (b) Since the order of this Court dated 3.11.2008 and 28.4.2009 having become final, the respondents are estopped from contending anything contrary and ought to have considered the application of the petitioner without taking into consideration the change in policy. The averment of the respondents in their additional counter affidavit that the Government had taken a policy decision in 2006 not to grant fresh IMFS licenses and rejected the application of Sri Murugan Distilleries Ltd., on the ground that the State's demand for liquor was met by the existing units is wrong. The petitioner reliably learnt that the application of the said company dated 2002 was in fact entertained and processed by the respondents for over three year and thereafter rejected on technical grounds. The very announcement of the policy relating to liquor has been converted into a device for conferring political favours as a weapon against persons who are handicapped solely on that account. 6.1. I have heard Mr.A.L.Somayaji, learned Senior Counsel appearing for the petitioner in both the writ petitions and Mr.P.S.Raman, learned Advocate General appearing for the respondents. 7. From the pleadings as well as the contentions raised by the learned Senior Counsel appearing for the petitioner and the learned Advocate General appearing for the respondents, the following facts emerge:- On: 04.05.2006 : The petitioner made an application for grant of privilege and licence under Rule 4 of IMFS Rules. 19.11.2007 : The second respondent sought for clarification from the Collector concerned with regard to suitability of applicant and details of business, etc. carried on by the applicant. 11.12.2007 : The Collector submitted a report to the Commissioner. 07.02.2008 : On further clarification from the Commissioner, further report was furnished by the Collector. 14.05.2008 : The report received from the Collector dt.7.2.2008 was perused by the Commissioner and found that the layout sketch was not authenticated by the Collector and the Collector was called upon to furnished the same. 25.06.2008 : The Commissioner sent a communication to the Collector seeking information as to whether there was any other distillery situated within a radius of 10 k.m. from the proposed unit of the petitioner. 15.04.2008 : The petitioner filed a writ petition in W.P.No.22742 2008 for mandamus directing the respondents to consider and pass orders on its application. 24.09.2008 : The Collector sent a report with regard to the request made by the Commissioner vide its letter dated 14.08.2008. 18.10.2008 : Counter affidavit was filed by the Commissioner in W.P.No.22742 of 2008. 03.11.2008 : Orders were passed by this Court in W.P.No.22742 of 2008 filed by the petitioner, granting three months time to the second respondent to consider and pass orders on the application of the petitioner. 07.11.2008 : The petitioner intimated the said order to the second respondent. 14.11.2008 : The Commissioner sent a reminder to the Collector seeking information with regard to the distance between the proposed unit of the petitioner and the existing units. 06.12.2008 : The petitioner writes to the Commissioner for complying with the orders made in W.P.No.22742 of 2008 dated 03.11.2008. 11.12.2008 : The Commissioner sent a reminder to the Collector, Chennai for information about the distance between the proposed unit of the petitioner and the existing unit. 24.12.2008 : The Collector sends a report about the distance issue. 07.01.2009 : The petitioner writes a letter to the Commissioner remaining him about the compliance to be made on the order dated 03.11.2008 referred to above. 23.01.2009 : A report was sent by the Commissioner to Secretary to Government for approval to issue privilege and licence to the petitioner. 19.02.2009 : The Commissioner sends a letter to the Secretary reminding about the pendency of the petitioner's request for I.M.F.S. Privilege. 16.03.2009 : The petitioner reminds the Commissioner to comply with the orders of this Court dated 03.11.2008 - the third reminder. 29.03.2009 : The petitioner filed a contempt petition against respondents 1 and 2 in Cont.P.No.284 of 2009. 03.04.2009 : An application was filed by the Respondents, in M.P.No.1 of 2009 in W.P.No.22742 of 2008 seeking extension of time. 28.04.2009 : M.P.No.1 of 2009 was dismissed. 18.05.2009 : Writ appeal was filed in W.A.No.675 of 2009 against the order dismissing the application for extension of time made in M.P.No.1 of 2009 dated 28.04.2009. 20.05.2009 : The said writ appeal was disposed of extending the time to consider and pass orders. 21.05.2009 : The first respondent, the Secretary to Government sends a communication to the Commissioner informing him about the orders passed in W.A.No. 675 of 2009 and requesting the Collector to furnish a report even though the said report was sent to the Secretary as early as 23.01.2009. 10.06.2009 : The Government of Tamil Nadu has taken a policy decision not to issue any IMFS licence. 12.06.2009 : The impugned order was passed rejecting the application of the petitioner. 17.06.2009 : Orders were passed intimating the petitioner about the refund of deposit made by it. 8. The above referred facts would reveal that though an application was made by the petitioner seeking grant of privilege and licence for manufacturing IMFS on 04.05.2006, after a prolonged correspondence, finally the petitioner's request was rejected on 12.06.2009 stating that policy decision was taken on 10.06.2009, by the Government of Tamil Nadu not to issue any more privilege and licence for manufacturing IMFS, since the supply made by the existing units are sufficient to cater the needs of TASMAC. 9. The question that arises for consideration is, whether the delay that has occurred in considering the application of the petitioner for grant of privilege and license for manufacturing IMFS is justified or not. A. According to the learned Senior Counsel appearing for the petitioner, the delay that has occurred is nothing but an attempt made by the respondents not to grant the privilege and licence for manufacturing IMFS to the petitioner. He has further submitted that at each stage of the matter, the delay has occurred with