1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24/8/2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9376 of 2011 and MP(MD)No.1 & 2 of 2011 M. Muruganandam ... Petitioner/Petitioner Vs 1. The District Collector Sivagangai District. 2. The District Manager TASMAC, Sivagangai District. ... Respondents/Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of certiorarified mandamus to call for the records pertaining to the order passed by the second respondent in his proceedings in Na.Ka.No.R/760/2011 dated 3/8/2011 and call for the records in Na.Ka.No.CV.P/900/2011 retender notice published in the Daily Thanthi newspaper dated 9/8/2011 issued by the second respondent in so far as the TASMAC Shop No.7627 and quash the same and consequently, direct the respondents to relocate the TASMAC shop No.7627 to the building of the petitioner forthwith. *** For Petitioner : Mr.D.Sasikumar For Respondents : Mr.M.Muniasamy --------- O R D E R Challenge in this writ petition is to an order dated 3/8/2011 of the District Manager, TASMAC, Sivagangai District, relocating, TASMAC shop No.7627 from Door No.400/2, Kalayar Kovil-Paramakudi Main Road, near Ilayankudi Pudur, Ilayankudi, Sivagangai District to Door No.22/6 Arif Nagar, Ilayankudi, Sivagangai District and the Notification dated 9/8/2011 issued by the said authority, inviting applications for running a bar attached to the said shop. Consequently, he has prayed for a direction to relocate the TASMAC shop No.7627 to the premises of the petitioner at Door No.400/2 Kalayar Kovil-Paramakudi Main Road, near Ilayankudi Pudur, Ilayankudi, Sivagangai District. 2. It is the case of the petitioner that, he is the owner of a shopping complex at Door No.400/2, Kalayar Kovil-Paramakudi Main Road, near Ilayankudi Pudur, Ilayankudi, Sivagangai District. He has let out two shops, for running a TASMAC shop and bar, bearing shop No.7627, by entering into a lease agreement with the second respondent, vide agreement dated 28/2/2011, after following the procedure contemplated under the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003. It is his further contention that smoothly TASMAC shop was https://hcservices.ecourts.gov.in/hcservices/ 2 functioning with the bar, for the past four years, without any complaints from public and that the lease period has been renewed periodically. While, that be so, the District Manager, TASMAC, Sivagangai, in order to help a person belonging to a ruling party, who owns a building, just opposite to the existing shop has shifted the IMFL shop to Door No.22/6 Arif Nagar, Ilayangudi, Sivagangai District. 3. On the above said pleadings, Mr.D.Sasikumar, learned counsel appearing for the petitioner submitted that, as per the lease agreement entered into between the petitioner and the District Manager, TASMAC Ltd., Sivagangai District, it expires only on 28/1/2012. Inviting attention of this Court, to clause 3 of the lease agreement, he submitted that the lease can be terminated only after giving three months, prior notice. It is his further contention that, in order to help a person belonging to ruling party, the District Manager, TASMAC, Sivagangai District, has shifted the IMFL shop. It is his further contention that, even a local MLA has given a letter to the second respondent/the District Manager TASMAC Ltd., requesting to shift the shop to Door No.22/6 Arif Nagar, Ilayangudi, Sivagangai District. 4. Learned counsel for the petitioner further submitted that, IMFL shop is now relocated on the same road, i.e., just opposite to the petitioner's building, within a distance of 15 feet. The allegation that local public have raised objections to locate TASMAC shop in the petitioner's building is only a creation of the District Manager, TASMAC, Sivagangai District. According to him, the impugned order is nothing but an arbitrary exercise of power and the second respondent, in collusion with a person belonging to ruling party. For the above said reasons, he prayed to set aside the order of relocation dated 3/8/2011 and sought for a further direction to shift the shop to his building. 5. A counter affidavit has been filed by the District Manager, TASMAC, the second respondent herein and reiterating the same, Mr.Muniyasamy, learned counsel for the respondents, submitted that relocation has been made, taking into consideration, the administrative reasons and that the petitioner has no locus standi to question the same. He further submitted that, to shift an IMFL shop from Door No.400/2 Kalayar Koil Road, Near Pudur Ilayankudi to the new place, all the procedures contemplated under Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003 have been duly followed and having regard to the consent given by the building owner at Door No.22/6 Arif Nagar, Ilayangudi, Sivagangai District, the shop has been relocated. According to him, the petitioner has no legal or statutory right to question the relocation of an IMFL shop and it is the respondents' exclusive and prerogative right. For the above said reasons, he prayed for dismissal of the writ petition. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. Before adverting to the rival submissions, this Court deems it fit to extract few provisions from the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003. a. Rule 2 (d) defines, 'bar' as https://hcservices.ecourts.gov.in/hcservices/ 3 "A place located within the shop or adjoining the shop used for consumption therein of liquor." b. As per Rule 2 (n) of the above said Rule, 'licence' means "A licence granted under sub-section (1-B) of Section 17 C of the Act to the Tamil Nadu State Marketing Corporation Limited." c. 2 (r) defines 'shop' as "The building in which the liquor is stocked and sold." d. 'Grant of licence' is dealt with in Rule 4 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, which states that, (1) On application, Commissioner of Prohibition and Excise shall grant licence in Form-I for the retail vending of liquor in shops and bars in the whole state. The licence shall be issued in the name of the Corporation. (2). The licence granted under this rule shall be subject to the provisions of the Act and the rules made thereunder. (3). The Corporation shall issue an authorization in Form-II in respect of each shop where the business of retail vending of IMFS is to be carried on either directly by the Corporation or through the Co-operative societies as agents of the Corporation. (4). The Corporation shall furnish the list of authorized retail vending shops located within each district to the Collector indicating the details of such shops run directly by the Corporation and the shops run by the Co-operative societies as its agents. List of such shops shall be furnished by the Corporation to the Collector concerned within 10 days of the commencement of business. e. Rule 8 speaks about the 'location of shop' and reads as follows:- (1) No shop shall be established in Municipal Corporations and Municipalities within a distance of 50 (fifty) metres and in other areas 100 (hundred) metres from any place of worship or educational institutions. Provided that the distance restriction shall https://hcservices.ecourts.gov.in/hcservices/ 4 not apply in areas designated as "Commercial" or "Industrial" by the Development or Town Planning Authorities: Provided further that no shop shall be established within the premises of any hotel: Provided also that if any place of worship, educational institution comes into existence subsequent to the establishment of the shop, the provisions of this rule shall not apply: Provided also that no liquor shops shall be established in any tribal areas covered under Integrated Tribal Development Project and Hill Area Development Project in the Hill area of Vellore, salem, Namakkal, Dindigul, Tirunelveli and Kanniyakumari Districts. (2) Every shop shall be housed in a pucka building and no part of the shops shall be thatched either on the sides or on the roof. (3). The shop shall be in the location approved by the Collector before commencing the business in the shops. f. Rule 9 deals with 'shifting of shop', which states that, "There shall be no change in the location of shops except with the previous permission of the Collector." g. As per Rule 10, the bar shall lie within the shop or adjoining the shop. 8. Considering the allegations levelled against the District Manager, TASMAC, files were directed to be produced. Pleadings and material on record disclose that, the petitioner is only a land owner in whose premises, IMFL shop No.7627 was located by Tamil Nadu State Marketing Corporation Ltd., by entering into an agreement dated 28/2/2011 and that the same is valid upto 28/1/2012. The petitioner is not a licensee to the bar attached to IMFL shop No.7627. Assuming that, the agreement holder viz., the writ petitioner has not been put on, three months prior notice, before termination of the lease agreement, for location of IMFL shop in his premises, the relocation of IMFL shop is only a violation of the terms and conditions of the lease agreement, for which, he can only seek for appropriate relief under the Civil law. Breach of civil right, if any, can only be agitated in the manner known to law. 9. As per the above Rules, a bar has to be located within the shop or adjoining the shop and it should be used for consumption of liquor. The State Marketing Corporation Ltd., has to furnish a list of authorised retail vending shops located within each District, to the Collector, https://hcservices.ecourts.gov.in/hcservices/ 5 indicating the details of such shops run directly by the Corporation and the list of shops run by the Co-operative Societies as its agent. From the reading of the rules, it is clear that, the details of the retail vending shops, have to be furnished by the Corporation to the Collector and that there shall be no change in the location of the shops with the previous permission of the Collector. 10. Though the learned counsel for the petitioner has alleged that, the local MLA has given a letter to the second respondent, requesting to shift the IMFL shop from the petitioner's building, to the building owned by a member of the ruling party, no such letter or traces of the same is found in the files. However, the files contain an undated letter, said to have been submitted by one Mr.Jahangir and others, alleging that the location of Shop No.7627 at Door No.400/2, Kalayar Kovil-Paramakudi Main Road, near Ilayankudi Pudur, Ilayankudi, Sivagangai District, is causing hindrance to traffic and it is located in a tenement put up with tin sheets. There is an allegation, that, there are lot of Muslim houses in and around the bar. In the petition found in the files, there are no particulars about the signatories, no door numbers, etc. Prior to taking, a decision to relocate the shop, the files do not indicate, as to whether any inspection was done, by any of the TASMAC or Collectorate officials, to ascertain as to whether the IMFL shop was located within the restricted distance, as specified in Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, or whether location of the shop, in the existing place has caused any traffic congestion or hindrance as alleged in the petition, said to have been given by the public of Arif Nagar, Ilayangudi, Sivagangai District. 11. But the file disclose a letter dated 14/6/2011 said to have been given by one Mr.V.M.Ravichandran, President of the Panchayat Union and Member of the ruling party and the same is extracted hereunder. "vdf;F brhe;jkhd fl;olk; fjt[ vz; 22/6 nisahd;Fo BgUuhl;rp Mhpg; efhpy; cs;sJ. ne;j fl;olj;jpy; fil vz; 7627 lh!; khf; fil elj;Jtjw;F rk;kjpf;fpBwd;. 12. It is evident from the records that, when the request of the said V.M.Ravichandran, for location of the shop has been made to the District Manager, TASMAC, there was no reference to the complaint of the public, regarding traffic congestion, etc., but, he has voluntarily, come forward to give his consent to locate IMFL shop No.7627, in his building. Subsequently, a file note has been put up in R/760/2011 dated 20/6/2011 by the office, which reads that Shop No.7627 was functioning in Arif Nagar for five years and due to the political change, the shop had been relocated to Door No.400/2 Kalayar Kovil-Paramakudi Main Road, near Ilayankudi Pudur, Ilayankudi, Sivagangai District and as on today, a requisition has been made by Mr.V.N.Ravichandran, to re-locate Shop No.7627, in his building. Except the undated petition said to have been submitted by the public, no other materials are available in the file. The inspection notes further indicate that, the decision has been taken to shift the IMFL shop, even without any due verification on the veracity of the complaint and, just by receiving a petition from Mr.V.N.Ravichandran, a decision has been taken to relocate the shop from the petitioner's premises to Door No.22/6 Arif Nagar, Ilayankudi, https://hcservices.ecourts.gov.in/hcservices/ 6 Sivagangai District. But, there is no reference to either a report from the Police or any other authority regarding traffic congestion or hindrance in any form. There is also a reference in the inspection note that earlier, IMFL shop No.7627 was run in Door No.22/6 Arif Nagar, Ilayangudi, Sivagangai District and due to the political change, the shop has been relocated to Door No.400/2 Kalayar Kovil-Paramakudi Main Road, near Ilayankudi Pudur, Ilayankudi, Sivagangai District. The last sentence 'due to the change in the politics' has been written and struck off by the District Manager, TASMAC, Sivagangai District. 13. On the basis of the report submitted, by the District Manager/TASMAC, the District Collector, Sivagangai District, has granted permission on 3/8/2011 and accordingly, orders have been issued to relocate the shop, under Rule 9 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003. As per the tender schedule, floated on 9/8/2011, the applicants, for grant of license to run a bar, has to enclose a No Objection Certificate from the land owner. Now, in view of the decision to relocate the shop, at a particular place, it would be difficult for the intending bidders to obtain the No Objection Certificate from the said land owner, Mr.V.M.Ravichandran. All the bidders would be indirectly forced to approach the said person to give a "No Objection Certificate" and only the said land owner would be in a position to offer his bid for the grant of licence or he would let the premises, to a person of his choice, which would run contrary to the terms and conditions of the tender schedule that the bidders can choose a place of location, of their choice, not within the restricted distance and submit a "No Objection Certificate" from the land owners, where they purpose to locate a bar. The said condition would be made otiose. Going through the material on record and the available files, it is also evident that, the present relocation of the shop, is just opposite to the petitioner's building. When such is the case, the decision of the District Manager, TASMAC, to relocate the shop alleging that, there is traffic congestion and hindrance, has been done, obviously to help a member of the ruling party. In terms of the provisions of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, there are absolutely materials warranting sudden shifting. The action of the District Manager is nothing but reflection of arbitrariness. 14. As the licensee of the bar attached to IMFL shop No.7627 from the place of 400/2 Kalayar Koil Road, Near Pudur Ilyankudi to Door No.22 Arif Nagar, Ilayangudi, Sivagangai District has not come forward to challenge relocation and having regard to the limited right that can be claimed and exercised, under the lease agreement, the petitioner cannot insist that the shop should be directed to be relocated, in his premises, till the expiry of the lease period. If there was any violation of the lease conditions, by the sudden relocation, he can seek for enforcement of the terms and conditions of the lease in the manner known to law and cannot force the lessee to stay put in his premises. In view of the above, the petitioner has no legal or statutory right to seek for a writ of certiorari to quash the tender notice dated 9/8/2011. 15. For the foregoing reasons, the impugned order of relocation alone is set aside. The writ petition is ordered as indicated above. While considering the tender applications, the District Manager, Sivagangai is directed to consider the location of IMFL shop with the https://hcservices.ecourts.gov.in/hcservices/ 7 bar, in terms of Rule 8 of the above said Rules, and also consider the rival claims of all the bidders, who had produced necessary "No Objection Certificates", from the respective land owners. By locating a shop, at a particular Door number, the rights of the other bidders cannot be curtailed to participate in the tender, and if such procedure is followed, then there is no meaning in asking them to produce a "No Objection Certificate" from the respective land owners. The tender is intended to be given to a highest bidder who can locate both the shop and the bar, within the shop, or adjoining the shop. Yet another aspect to be considered is that, if the bidder, who produces the "No Objection Certificate", from Door No.22, Arif Nagar, Ilayangudi, Sivagangai District, quotes a lesser price than others, then he cannot, be granted licence for the reason that, the very purpose of granting bar licence is to augment more revenue. No costs. Mr.Muniasamy, learned counsel appearing for TASMAC, is directed to communicate the orders of this Court, made in the above writ petition, to the District Managers, TASMAC Limited of the Districts, where the process for granting licences to bars, had already been commenced. He is also directed to bring it to the notice of the District Collectors/District Managers of TASMAC Limited, where tender notice, had already been issued or yet to be issued, so as to have transparency in the matter of finalisation of tenders, as per the provisions of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003. Consequently, the connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar (C.S) To 1. The District Collector Sivagangai District. 2. The District Manager TASMAC, Sivagangai District. + 1 cc to Mr.D.Sasikumar, Advocate, SR No.29259 W.P.(MD) No.9376 of 2011 and MP(MD)No.1 & 2 of 2011 24/8/2011 mvs. RJ/26.8.11 (IT) 7p/4c https://hcservices.ecourts.gov.in/hcservices/