IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.11.2008 CORAM THE HONOURABLE MR. JUSTICE S. RAJESWARAN W.P.Nos.22742 & 25368 of 2008 M/s.Imperial Spirits and Wine Private Limited, Rep. By its Director, No.51, Appusamy Layout, Red fields, Coimbatore 641 045 ...Petitioner in W.P.No.22742/08 & 3rd Respondent in W.P.No.25368/08 M/s.Shiva Distilleries Limited, Rep. By its Asst. Vice President Having registered office at 1212, Trichy Road, Coimbatore 641 018. ...Petitioner in W.P.No.25368/08 ..Vs.. 1. State of Tamilnadu, Rep. by the Secretary to Government, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-9. 2. The Special Commissioner and Commissioner of Prohibition and Excise, Ezhilagam, Chepauk, Chennai 600 005. ...Respondents in both W.Ps. W.P.Nos.22742 of 2008 The Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents to forthwith consider the petitioner's application dated 4.5.2006 and grant privilege and licence to manufacture Indian Made Foreign Spirit. https://hcservices.ecourts.gov.in/hcservices/ W.P.No. 25368 of 2008 The Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents 1 & 2 to refix the production capacity of the petitioner at 9.25 lakh cases per month based on the orders passed in G.O.(Ms) No.30 Home, Prohibition and Excise (III) Department dated 26.5.2008. For Petitioner : Mr.A.L.Somayajee in W.P.No.22742/08 Senior counsel for M/s.Harishankarmani For Petitioner : Mr.M.Muthukumarasamy in W.P.No.25368/08 Senior counsel for Mr.A.Jenasenan Senior counsel For Respondents : Mr.Masilamani 1 & 2 Advocate General Assisted by Mr.A.Arumugam, Spl. Govt. Pleader COMMON ORDER I. W.P.No.22742 of 2008 : This petition has been filed to issue a Writ of Mandamus, directing the respondents to consider the petitioner's application dated 4.5.2006 and grant privilege and licence to manufacture Indian Made Foreign Spirit (IMFS). 2. The petitioner claims that they have vast experience in the manufacture of IMFS for almost a decade. At present, they have manufacturing units in the states of Kerala, Karnataka and Goa. In the year 2006, the petitioner decided to establish an Indian Made Foreign Spirit (IMFS) manufacturing unit in the state of Tamilnadu and accordingly, submitted their application under Rule 4 of the Tamil Nadu Indian Made Foreign Spirits (Manufacture) Rules, 1981 for grant of privilege and licence to manufacture IMFS in Pollachi Taluk, Coimbatore District. According to the petitioner, they have complied with all the requirements as indicated by the respondents from time to time. Notwithstanding the compliance of all the legal requirements by the petitioner, no orders have been passed by the respondents on the application submitted by them. It is their further grievance that when their application is kept pending without any reason, the respondents have granted privilege and licence in favour of three other entities within a short period https://hcservices.ecourts.gov.in/hcservices/ from the date of their application. The petitioner has also pointed out the three such companies to whom the respondents granted privilege and licence within a short period. Hence, they filed the above Writ petition for the aforesaid relief. Along with the writ petition, the petitioner filed M.P.No.1 of 2008 for an interim injunction restraining the respondents from considering any application for grant of privilege and or licence to manufacture IMFS or from enhancing the capacity of the existing licensees pending disposal of the writ petition. This court on 19.9.2008, posted the writ petition for orders on 25.9.2008 and again it was adjourned to 26.9.2008 and 29.9.2008 for passing orders. On 29.9.2008, this court granted an order of interim injunction as prayed for and posted the matter to 20.10.2008 for counter and disposal. II. W.P.No.25368 of 2008: 3. This petition has been filed for a Mandamus, directing the first and second respondents in that writ petition to refix the production capacity of the petitioner at 9.25 lakhs cases per month based on the orders passed in G.O.Ms.No.30 (Home) Prohibition and Excise III (Department) dated 26.5.2008. 4. According to the writ petitioner, the petitioner had been granted licence under IMFS (Manufacture) Rules 1981, on 25.5.1983 and the said licence is being renewed from time to time. In accordance with the said licence, the petitioner has been manufacturing various brands of IMFS products and supplying the same to Tamil Nadu State Marketing Corporation Ltd. (TASMAC). The present manufacturing capacity of the petitioner's unit is 6.25 lakhs cases per month. The petitioner requested the second respondent i.e., The Commissioner of Prohibition and Excise to permit the petitioner to carry out additions/alterations in the existing plants to refix the production capacity considering the demand for their products. On the basis of the recommendations of the Technical Committee, the first respondent Government passed an order on 26.5.2008 authorising the second respondent Commissioner to permit the petitioner to install the additional machineries and equipments. The second respondent Commissioner by his order dated 2.7.2008 approved the plan submitted by the petitioner and permitted the petitioner to install additional plant and machinery/equiments sanctioned in the order dated 26.5.2008. On the basis of the permission granted by the Government and the Commissioner, the petitioner completed the installation of the additional machines/equipments by spending around Rs.3 Crores. The petitioner has also communicated the factum of completion to the Commissioner by letter dated 6.10.2008 and requested him to refix the capacity, as the petitioner is ready and equipped to produce 9.25 lakhs cases per month. https://hcservices.ecourts.gov.in/hcservices/ 5. But, it is the grievance of the petitioner that because of the injunction granted by this court to the writ petitioner in W.P.No.22742 of 2008 (who is the third respondent in this writ petition), they are under the apprehension that the Government and the Commissioner might not pass any further orders in respect of their request of refixing of production capacity. Hence, they have filed the above writ petition for the aforesaid relief. 6. Along with the writ petition, they have filed M.P.No.1 of 2008 for an interim direction, directing the Government and the Commissioner to permit the petitioner to produce the increased capacity of 9.25 lakhs cases per month based on the order dated 26.5.2008 pending disposal of the above writ petition. 7. This court, on 22.10.2008, posted this writ petition along with the other writ petition i.e, W.P.No.22742 of 2008. 8. The respondents in W.P.No.22742 of 2008 filed M.P.No.2 of 2008 to vacate the interim injunction granted by this court on 29.02.2008. 9. In the counter affidavit filed in support of the M.P.No.2 of 2008, it is stated by the Joint Secretary to the Government that the Collector, Coimbatore was requested by the Commissioner in his letter dated 26.7.2007 to send a detailed and specific report as per Tamil Nadu Indian made Foreign Spirits (Manufacture) Rule 1981. The District Collector by letter dated 6.7.2007 furnished his report. As the report submitted by the District Collector did not contain the necessary particulars, the Collector was again requested to furnish a report with more details by the Commissioner, in his letter dated 19.11.2007. The Deputy Commissioner, Excise, Coimbatore was also requested by the Commissioner by letter dated 19.11.2007 to conduct an enquiry through proper authority and ascertain the genuineness of the registered address of the writ petitioner and to send a report to that effect. The Collector has sent his report in his letter dated 11.12.2007. But, on a perusal of the report, it was found that further clarifications were necessary and NOC from the Fire and Rescue Department was also called for. The Collector furnished his report in his letter dated 7.2.2008 and in the meanwhile, the writ petitioner informed that their name has been changed. Further, it was found that the lay out was not duly authenticated by the Collector and the Panchayat resolution was also not furnished. Therefore, the Collector was requested to furnish the same by the Commissioner by letter dated 14.05.2008. Thereafter, the Collector furnished all the details in his letter dated 24.9.2008, which was received by the Commissioner on 3.10.2008 only. As the writ petitioner has not stated the approximate production capacity in the Project report, the writ petitioner was requested to furnish the same by the Commissioner by letter dated 7.8.2008 and the https://hcservices.ecourts.gov.in/hcservices/ company furnished the same on 25.8.2008 only. Further, the Collector was requested to send his report and to report whether any Distillery is located within 10 Kms of the proposed site and the further report is yet to be received from the Collector. Therefore, according to the respondent, the application of the writ petitioner is under process. 10. According to the respondents, the interim injunction obtained by the writ petitioner is causing detriment and undue hardship to the Government. They pointed out that the Writ petition itself has been filed on the assumption that their application would be rejected and therefore, the writ petition is premature. 11. In so far as the allegations of the writ petitioner that three other companies were granted privilege within a short span of time while the writ petitioner's application is being kept pending unnecessarily, the respondents have stated that those companies fulfilled all the requirements and specifications mentioned in the Rules and only after obtaining necessary details and certificates under the Rules and after obtaining the prior approval of the Government, the requisite licence was issued to them. The petitioner's application is pending under active consideration for want of necessary material particulars and specifications in conformity with the Rules. 12. It is further stated by the respondents in the counter affidavit that the State Government is taking earnest steps to increase the production capacity to meet out the increased demand. At that time, the writ petitioner in order to restrain the respondents from taking such action to increase the production capacity by expanding the existing units, approached this court with some ill-motive which is detrimental to the augumentation of the revenue of the Government. Even assuming that the petitioner is entitled to for grant of licence, it would take some more time for commencing their production and therefore till then, it is unnecessary to stall the existing industries to enhance their production capacity by way of expansion. The respondents contend that merely because the writ petitioner made an application, they are not entitled to halt and restrain the performance of the duties and responsibilities conferred on the respondents. Hence, they have now approached for vacating the interim injunction granted in M.P.No.1 of 2008 and also to dismiss the writ petition, W.P.No.22742 of 2008. 13. I have heard Thiru A.L. Somayajee, the learned Senior counsel appearing for the Writ petitioner in W.P.No.22742 of 2008, Thiru M.Muthukumaraswamy, the learned Senior counsel for the writ petitioner in W.P.No.25368 of 2008 and Thiru Masilamani, the https://hcservices.ecourts.gov.in/hcservices/ learned Advocate General for the Government. I have also perused the documents and judgments filed in support of their submissions. 14. Even though elaborate arguments were made by citing a number of judgments by all the learned Senior counsel appearing for the parties, I do not propose to refer to them at all, considering the narrow scope of the prayer sought for in both the writ petitions. 15. In so far as W.P.No.22742 of 2008, it is not in dispute that the application submitted by the writ petitioner, in the year May 2006, for grant of privilege and licence to manufacture IMFS in Pollachi Taluk, Coimbatore District, is not yet disposed of by the State Government and the same is still under consideration. It is also not denied by the respondents that three other companies were granted privilege and licence, as according to the State Government, they have fulfilled all the requirements and specifications mentioned in the Rules and then only their applications were taken up for consideration for grant of privilege. It is further stated by the Government that other companies were granted the privilege and licence after obtaining necessary details and certificates required under the Rules and after obtaining the prior approval of the Government. 16. But, a perusal of the counter affidavit will show that the petitioner's application is kept pending because of the inadequate and insufficient particulars sent by the District Collector and the other officials of the Government to the Commissioner, for which, the petitioner is not at all responsible. When all the details and particulars could be sent by the other Collectors, with regard to grant of privilege and licence to the other companies, it is not known why the Commissioner is getting only piecemeal particulars and information from the District Collector, Coimbatore, which keeps the application of the petitioner still pending. To that extent, the grievances of the writ petitioner is genuine and justified. 17. Therefore, I am of the considered view that the respondents in W.P.No.22742 of 2008 are to be directed to process the application of the Writ petitioner and pass necessary orders on merits and in accordance with the Rules within a period of three months from the date of receipt of a copy of this order. It is made very clear that the second respondent Commissioner should take all steps to get the information from his subordinate officers in full and not in piecemeal, so that orders could be passed within the time stipulated by me. It is further made clear that if some particulars or information or formality to be sent or complied with by the writ petitioner, the same should also be intimated to the writ petitioner to enable the writ petitioner to comply with the same immediately. Therefore, the respondents are directed to https://hcservices.ecourts.gov.in/hcservices/ ensure that orders are passed on the writ petitioner's application on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order. 18. In so far as the interim injunction sought for and obtained by the writ petitioner in M.P.No.1 of 2008, I am of the considered view that the same is to be vacated as the relief sought for in M.P.No.1 of 2008 by way of an interim injunction is beyond the scope of the prayer sought for in the writ petition. For better appreciation, the prayer of interim injunction as sought for by the writ petitioner in M.P.No.1 of 2008 is extracted below: "This petition has been filed to grant an order of interim injunction, restraining the respondents, their officers, subordinates and employees from in any manner considering any application for grant of privilege and/or licence to manufacture Indian-Made Foreign Spirit under the Indian-Made Foreign Spirits (Manufacture) Rules, 1981 or from enhancing the capacity of the existing licensees under the Indian- Made Foreign Spirits (Manufacture) Rules, 1981, pending disposal of the writ petition. 19. From the above, it is very clear that the writ petitioner wants to restrain the Government from considering any other application for grant of privilege and licence or from enhancing the capacities of the existing licensees pending disposal of the writ petition, whereas the prayer in the writ petition is to consider the application dated 4.5.2006 and to grant privilege and licence to manufacture IMFS. It is one thing to ask for a writ of mandamus directing the respondents to consider the petitioner's application, which is permissible in law, it is another thing to ask for an interim injunction restraining the respondents from processing any other application for grant of licence and privilege to manufacture IMFS or from enhancing the capacities of the existing licensees under the IMFS Rules, which is impermissible. It is settled law that this court by way of an interim order can only protect the existing rights of the writ petitioner and it cannot create a right in favour of the writ petitioner by way of an interim order. Therefore, such an omnibus prayer sought for by the writ petitioner in M.P.No.1 of 2008 is beyond the scope of the writ petition and therefore, the same is vacated and thereby M.P.No.1 of 2008 is dismissed and M.P.No.2 of 2008 is allowed. 20. In the result, W.P.No.22742 of 2008 is disposed of in the above terms. No cost. 21. In so far as W.P.No.25368 of 2008 is concerned, the grievances of the petitioner is that, because of the interim injunction granted by this court to the writ petitioner in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.22742 of 2008, they were given to understand that the State Government might not pass any further orders in respect of the petitioner's request of refixation of production capacity, based on the orders passed by the State Government dated 26.5.2008. 22. As I have already disposed of W.P.No.22742 of 2008, wherein I have vacated the interim injunction granted by this court in M.P.No.1 of 2008, no orders need to be passed by this court in W.P.No.25368 of 2008. Therefore, it is open to the writ petitioner to approach the Government who shall pass orders on merits and in accordance with Rules to refix their production capacity as requested by them. 23. In the result, W.P.No.25368 of 2008 is disposed of in the above terms and M.P.No.1 of 2008 is closed. No cost. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vaan To 1. The Secretary to Government, Government of Tamilnadu, Prohibition and Excise Department, Secretariat, Fort St.George, Chennai-9. 2. The Special Commissioner and Commissioner of Prohibition and Excise, Ezhilagam, Chepauk, Chennai 600 005. + 2 c.cs. to Mr. Harishankarmani, Advocate. S.R.No.60941. + 1 c.c. to Mr. A. Jenasenan, Advocate. S.R.No.60989. + 1 c.c. to The Government pleader. S.R.No.61214. Common Order in SSV (CO) W.P.Nos.22742 & 25368 of 2008 GSK 04.11.2008. https://hcservices.ecourts.gov.in/hcservices/