In the High Court of Judicature at Madras Dated: 14.09.2010 Coram The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN Writ Petition No.19924 of 2010 & M.P.Nos.1 to 3 of 2010 M.Ravichandran .... Petitioner Vs. 1. The Secretary to the Government, Revenue Department, Government of Puducherry, Puducherry. 2. The Deputy Commissioner (Excise), Government of Puducherry, Puducherry. 3. J.Kamala .... Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records of the 2nd respondent relating to the order No.218/DC(E)/SQD/2010-11 dated 18.8.2010 and to quash the same and consequently to direct respondents 1 and 2 to shift the Arrack Shop No.2 (A) to the original place as notified for the excise year 2010-11 or some other unobjectionable place in Manavely Revenue Village, Puducherry. For Petitioner : Mr.R.Gandhi, S.C. For Mr.R.G.Narendhiran For Respondents 1 & 2 : Mr.R.Syed Mustafa, G.A.(P) For 3rd Respondent Mr.R.Subramanian, S.C. For M/s. S.Hemalathan O R D E R The petitioner herein was allotted an arrack shop for the Excise Year 2010-2011 in S.No.4/9B on the West of Cuddalore Road in Ariyankuppam, Ariyankuppam Commune Panchayat. In respect of shop in Manavely Village, the third respondent is the successful bidder in the auction for a sum of Rs.4,21,000/-. The confirmation orders https://hcservices.ecourts.gov.in/hcservices/ in respect of the petitioner as well as the third respondent was passed so as to enable the respective parties to have their shop located in the respective revenue villages. The cause for filing the Writ Petition arose when the second respondent herein passed an order on 18.8.2010 shifting the third respondent's location of the arrack shop No.2A Manavely Village to Plot Nos.23 and 24 in R.S.No.70/1/A in Manavely Revenue Village, which is nearer to the petitioner's shop at a distance of 800 metres. Hence, the petitioner states that as his right and interest are totally infringed, he has approached this Court by filing the present Writ Petition before this Court seeking issuance of Writ of Certiorarified Mandamus to quash the order dated 18.8.2010 and to consequently direct respondents 1 and 2 to shift arrack shop No.2 (A) to the original place as notified for the Excise Year 2010-11 or some other unobjectionable place in Manavely Revenue Village, Puducherry. 2. Learned senior counsel appearing for the petitioner took me through the relevant Regulations as given in the Notification dated 3rd June, 2010, particularly to Regulation 22, as per which, whenever there is an objection from the public as to the location of the arrack shop, the bidder could shift the shop to a distance of 100 metres and with the concurrence of the authorities concerned, the bidder could locate his shop. Referring to Regulation 23, learned senior counsel pointed out that if the authorities feel that the shop should be located in a different place beyond 100 metres, then there should be a good and sufficient reason for selection of the place. Consequently, if a shop has to be re-located in a different place from the one originally selected and approved, the authority should have heard the other players in the field near the newly selected area and consider their objections before passing the order. He also pointed out that even going by the orders passed, as evident from the counter, the shop was selected only by the public, which is contrary to Regulation 23. When the Rules and Regulations prescribe a particular mode of exercise of the authority, any order passed contrary to the Regulations, hence, is liable to be interfered with by this Court. So too, when the petitioner has not been heard as regards the location of the third respondent's shop near the petitioner's shop, there is a violation of principles of natural justice, which calls for interference by this Court. 3. Learned senior counsel pointed out that the petitioner had bid at the auction by paying a sum of Rs.7,35,000/-, whereas in the case of the third respondent, the bid amount was Rs.4,21,000/- only. In the circumstances, with the disparity in the bid amount and the distance between the two shops is at 800 metres, in public interest too, the order has to be set aside. He pointed out that as the original location of the third respondent's shop was at the https://hcservices.ecourts.gov.in/hcservices/ distance of 1800 metres, bringing closer to the petitioner's shop at a distance of 800 metres would certainly have a serious impact on the business prospects of the petitioner. In any event, when there is no proper exercise of an authority vested on the respondents and that they have succumbed to the choice of the public, it stands to reason that there is no proper observance of the provisions of the Government Order; consequently, the shifting of the shop has to be struck down. Taking note of the counter affidavit filed by the third respondent herein expressing his willingness to take the petitioner's arrack shop, learned senior counsel pointed out that the petitioner has no serious objection to that course of action too. 4. Countering the above-said submissions on behalf of the petitioner, learned senior counsel appearing for the third respondent pointed out to the counter filed by the second respondent, particularly to paragraph 7, that shifting of the shop has been ordered only after conducting the field inspection and after obtaining the view of the site selection Committee, which consists of Deputy Commissioner (Excise), Superintendent of Police, Tahsildar, Taluk Office, Commissioner, Ariyankuppam Commune Panchayat constituted under Rule 191 of the Puducherry Excise Rules, 1970 and taking into consideration relevant factors. He further pointed out to the objections by the villagers represented by Arulmigu Sri Muthu Mariamman Devasthanam, Ariankuppam as to the location of the shop at the notified site causing nuisance to the public, which necessitated the shop being shifted on public demand. Going by the fact that the present shop is located in Manavely Revenue Village alone, the petitioner having his shop in Ariyankuppam Revenue Village cannot have any objection at all. 5. Under Regulation 22, the choice for shifting of a location within 100 metres radius from the shop originally located lies with the successful bidder. Regulation 23 deals with the discretion of the authorities to shift the shop toi a place outside the notified place. As far this Regulation 23 is concerned, the discretion of the authorities to shift the shop must be based on good and sufficient reasons. On recording the reasons and the satisfaction, the authorities have to pass an order shifting the shop from one place to another. Hence, as contemplated under Regulation 23, the order passed has to be set aside. The third respondent could not shift the shop as per Regulation 22 due to stiff public outcry. On the other hand, the authorities decided to shift the shop to a place identified by the objectors of the third respondent, formed their decision as to the suitability and ordered the shifting. The desirability or otherwise of locating another shop in the immediate vicinity of an already existing shop has to be considered as an important factor in ordering the shifting, which, evidently in this case, had not been considered at all. Hence, the order is an https://hcservices.ecourts.gov.in/hcservices/ arbitrary one violative of the principles of natural justice; hence, liable to be interfered with. Placing reliance on Regulations 22 and 23, learned senior counsel appearing for the third respondent pointed out that Regulation 23 is an exception to Regulation 22. As such, there is no violation of the Regulations. 6. Learned Government Pleader appearing for the second respondent supported the stand of the third respondent. The second respondent further contended that Manavely Village and Ariyankuppam Village are two different Revenue Villages; as such, the petitioner having his shop in Ariyankuppam cannot have any objection to the shifting of the shop within the same village of Manavely. In any event, on the admitted fact of 800 metres distance between the two shops, the petitioner's objection lacked any merit. The second respondent further pointed out that during the immediate preceding excise year, there existed two shops with a distance of 600 metres located in the two revenue villages. Learned senior counsel pointed out that after the commencement of business in Manavely Village in the approved shop, from 18.8.2010, normal sales continued to take place in the petitioner's shop and the abnormal business has come down therein. 7. Ariyankuppam Village shop has fetched the monthly bid of Rs.3,78,000/- during 2007-2008; Rs.3,96,900/- during 2008-2009 and Rs.7,05,000/- during 2009-2010. For the year under consideration, the petitioner offered Rs.7,50,000/-, the same being over and above the previous year quotation by 6%. This being considered to be a normal increase, the same was accepted by the second respondent. Hence, the location of the shop in a different revenue village cannot be objected to by the petitioner. Hence, there could be no valid objection from the petitioner as to the location of the shop in a different Revenue Village. Based on the public objection and after identifying the suitable location alone, the present order has been passed. It is further pointed out that as the third respondent could not identify a suitable site within a radius of 100 metres to the notified site due to strong public protest and to avoid loss of revenue to the Government to the tune of Rs.46 lakhs, the authorities concerned have exercised their powers conferred on them under Rule 163 by ordering the shifting of the shop beyond the boundaries specified in the notification. Hence, no exception could be taken to the order passed by the second respondent. 8. Learned senior counsel appearing for the petitioner placed reliance on the decision reported in (1998) 4 SCC page 37 (K.Vijayalakshmi V. Union of India and others) only to point out that in the face of the serious violation of the principles of natural justice in not hearing the petitioner, the order has to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 9. Heard the learned senior counsel appearing for the petitioner, learned senior counsel appearing for the third respondent and the learned Government Advocate appearing for the second respondent. 10. It is not disputed by the petitioner herein that the location of the petitioner's shop and the third respondent's shop, now shifted, are in different Revenue Villages. Given the fact that the auction is for locating an arrack shop in two different Revenue Villages, principally, the petitioner cannot have any sustainable objection for the shifting of the shop within the same Revenue Village, to invoke Article 226 of the Constitution of India. Secondly, as rightly pointed out by the learned senior counsel for the third respondent, Regulation 22 will have relevance only if and when the successful bidder desired shifting of the shop from the originally notified place to another place which should be within a distance of 100 metres radius. In any case, the shifting has to be on account of an objection from the public. In such circumstances , in exercise of the right given under Regulation 22, with the permission of the licensing authority, the licensee could shift his shop within the radius of 100 metres of the original location. The exception to Regulation 22 is found in Regulation 23. The said provision states that if the authorities feel the necessity of shifting the shop to an area beyond the 100 metres stipulated in Regulation 22, for reasons recorded, the licensing authority could order the shifting of the shop. The licensee shall not be entitled to claim any loss on that account. 11. Admittedly, during Excise Year 2009-2010, the licensing authority located a shop at a distance of 650 metres from that of the shop located in Ariyankuppam Village. After the passing of the order shifting the third respondent's shop, the distance between the petitioner's shop in Ariyakuppam Village and the third respondent's shop in Manavely Village is 800 metres. Admittedly, the two shops are in different Revenue Villages. Hence, when the authorities made their decision to shift the shop within Manavely Village in accordance with Regulation 23, the only aspect this Court has to see is the compliance of the requirement therein under Regulation 23 to record the reasons for shifting and the same are backed up by materials. 12. It is not denied by the petitioner that there had been objections from the public as regards the location of the shop in the originally selected site. However, learned senior counsel appearing for the petitioner pointed out that the location of the shop is not a place, which would cause any public disturbance and it is not at the entry point of the village. However, a reading of the order of the second respondent dated 18.8.2010 shows that the https://hcservices.ecourts.gov.in/hcservices/ villagers, represented by Arulmigu Sri Muthu Mariamman Devasthanam, Ariankuppam, have objected to the location of the arrack shop on the ground that it caused innumerable difficulties to the public. Further, the Puduvai Toddy and Arrack shop Owners' Association, Puducherry had stated in the letter dated 15.7.2010 that the arrack shop could not be constructed in the notified site due to the public objection and hence wanted an alternate site in the same village. Paragraph 5 of the order shows that the field enquiry revealed that the villagers were united in opposing the location of the shop in the notified place and hence, it had become necessary to find an alternate site in the same village to protect the revenue of the State. 13. It is not as though that the alternate site was selected by the villagers itself to conduct the arrack shop in Manavely Village. When the villagers pointed out to the availability of an alternate site within the revenue village, the concerned Committee enquired and satisfied itself of the suitability of the site for shifting the shop. After getting the consent letter from the owner of the site for setting up the arrack shop therein, the second respondent passed an order for shifting the same for running the arrack shop. Thus given the reasons for shifting the shop beyond the original notified area, satisfied of the feasibility and suitability of the alternate site chosen, the order was passed as required under Regulation 23. Thus in the background of the public protest that the third respondent could not run the shop in the originally notified site, rightly the second respondent passed an order exercising the authority under Regulation 23 to shift the shop within the Village in R.S.No.17/1/A in Manavely Revenue Village itself. In so shifting, I do not find any violation of Rules as had been contended by the petitioner herein. Hence, satisfied of the grounds stated in the order for shifting the shop, I have no hesitation in rejecting the Writ Petition. The mere fact that it has not been done within the radius of 100 metres is no ground for setting aside the order passed by the second respondent. The shifting of the shop, admittedly, was not at the instance of the third respondent, but prompted by the protest from the Villagers. The mere identification of an alternate location by the Villagers themselves within the Revenue Village does not mean that the authority has yielded his powers to the public desire in identifying the place. In any event, it must be kept in mind that the location of the shop has to be at a site, which does not cause the public any difficulty in their day-to-day living. The fact that the shifting is within the same Revenue Village and different from the village in which the petitioner's shop has been located itself shows that there could be no such objection from the petitioner herein. Hence, the contention that he should have been given an opportunity to lodge his objection cannot be accepted as well placed. The decision reported in 2009 (4) CTC 798 (National https://hcservices.ecourts.gov.in/hcservices/ Insurance Co. Ltd. Vs. Parvathneni and another) relied by the learned senior counsel appearing for the petitioner, has no relevance to the present case herein. As rightly pointed out by the learned senior counsel appearing for the third respondent, given the fact that the order has been passed by the second respondent in exercise of the power traceable to Regulation 23 and satisfied of the demand of the villagers as to the shifting of the shop from the original location to the different location within the village as well as requiring a shop in the village, I do not find any ground, either factual or legal, to interfere with the decision of the second respondent. 14. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, M.P.Nos. 1 to 3 of 2010 are also dismissed. Sd/- Deputy Registrar. /true copy/ Sub Asst.Registrar. sl To 1. The Secretary to the Government, Revenue Department, Government of Puducherry, Puducherry. 2. The Deputy Commissioner (Excise), Government of Puducherry, Puducherry. 1 cc to Mr.R. G. Narendhiran, Advocate, Sr. 67399 1 cc to Government Pleader, Sr. 67581 W.P.No.19924 of 2010 & M.P.Nos.1 to 3 of 2010 GV (CO) kk 14/10 https://hcservices.ecourts.gov.in/hcservices/