1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/07/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.7932 of 2011 and M.P.(MD).No.1 of 2011 S.Asai Thambi ... Petitioner Vs. 1.The District Collector, Sivagangai District, Sivagangai. 2.The District Manager, Tamil Nadu State Marketing Corporation (TASMAC), Sivagangai, Sivagangai District. 3.The Assistant Manager, Tamil Nadu State Marketing Corporation (TASMAC), Sivagangai, Sivagangai District. 4.The Chairman, Puduvayal Town Panchayat, Karaikudi Taluk, Sivagangai, Sivagangai District. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus, directing the respondents 2 & 3 herein to shift the TASMAC liquor shop No.7538 to Puduvayal Town Bus Stand Commercial Complex, Karaikudi, Sivagangai District from Door No.69-A, Sakkottai Main Road, Puduvayal, Karaikudi Taluk, Sivagangai District with immediate effect and consequently to pay a compensation of Rs.5,00,000/- for damages caused by the 3rd respondent herein in breach of conditions of Bar Licences issued by the 2nd respondent herein in Na.Ka.No.B/884/10, dated 31.07.2010, issued to the petitioner. For petitioner .. Mr.S.Bharathy Kannan For respondents .. Mr.K.Mahendran, Special Government Pleader ORDER Seeking for a writ of mandamus, directing the respondents 2 & 3 herein to shift the TASMAC liquor shop No.7538 to Puduvayal Town Bus Stand Commercial Complex, Karaikudi, Sivagangai District from Door No.69- A, Sakkottai Main Road, Puduvayal, Karaikudi Taluk, Sivagangai District with immediate effect and consequently to pay a compensation of Rs.5,00,000/- for damages caused to the petitioner by the 3rd respondent herein for violating the conditions of bar Licence issued by the 2nd respondent herein in Na.Ka.No.B/884/10, dated 31.07.2010, the writ https://hcservices.ecourts.gov.in/hcservices/ 2 petition has been filed. 2.It is the case of the petitioner that he was a successful bidder for running a bar attached to a TASMAC liquor shop No.7538, at Puduvayal Town Bus Stand Commercial Complex, Karaikudi, Sivagangai District, for the year 2010-2011. The licence period, as fixed by the District Manager,TASMAC, Sivagangai, Sivagangai District, the second respondent, was from 01.08.2010 to 31.07.2011. As per the licence condition, a monthly licence fee of Rs.70,100/- has to be paid on or before 10th of every succeeding month. In addition to the above, the licensee has to deposit a sum of Rs.1,40,000/-, along with two months licence fee, in favour of the second respondent, as security deposit. It is the further case of the petitioner that after obtaining necessary licence from the second respondent, he has entered into a lease agreement with the fourth respondent for a period of three years i.e., upto 31.03.2013 and that he has been running the bar, as per the conditions of licence. It is the grievance of the petitioner that even before the completion of the licence period, the Assistant Manager, TASMAC, Sivagangai, Sivagangai District, the third respondent herein, without giving any intimation, has simply shifted TASMAC shop on 11.07.2011, in the midnight, from Puduvayal Town Bus Stand Commercial Complex, Karaikudi, Sivagangai District to a private building at Door No.69-A, Sakkottai Main Road, Puduvayal, Karaikudi Taluk, Sivagangai District, which is owned by one Therbogi Pandi, District Secretary of AIADMK Youth Federation of Sivagangai with a mala fide intention to give the bar licence for the year 2011-2012. It is his further submission that only on 12.07.2011, he came to know about the shifting of the shop. 3.On the above said pleadings and inviting the attention of this Court to the request of Puduvayal Town Panchayat, Karaikudi Taluk, Sivagangai District, Mr.S.Bharathy Kannan, learned counsel for the petitioner submitted that though the said panchayat, taking into consideration the nuisance caused by the consumers to the general public, has sought for relocation of TASMAC shop to some other place, the request of the panchayat was to locate only within the Puduvayal Town Bus Stand Commercial Complex and therefore, the same ought not to have been shifted to a private building owned by the District Secretary of AIADMK Youth Federation of Sivagangai, which clearly shows the mala fide intention of the respondents 2 & 3, in relocating the shop. He further submitted that as per Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rule, 2003, there shall not be any change in the location of the shop, except with the previous permission from the District Collector. According to him, the shop has functioned in Puduvayal Town Bus Stand Commercial Complex for the past 6 years and there is no necessity to shift the shop to some other place at the fag end of the licence period. Learned counsel for the petitioner further submitted that as per the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rule, 2003, the bar shall lie within the shop or adjoining the shop. According to him, the respondents 2 & 3 by shifting the shop to a far of a place, have indirectly forced the writ petitioner to close down the bar, which cannot be done without any notice or giving an opportunity of being heard. For the above said reasons, the petitioner has prayed for issuance of a mandamus. 4.Reiterating the averments made in the counter affidavit filed https://hcservices.ecourts.gov.in/hcservices/ 3 by the District Manager, TASMAC, Sivagangai District, Mr.K.Mahendran, learned counsel for TASMAC submitted that the petitioner, was a successful bidder for the bar attached to TASMAC liquor shop No.7538, Puduvayal Town Bus Stand Commercial Complex, for the year 2010-2011. Though the licence was granted to the petitioner for the period from 18.06.2011 to 31.07.2011, he had not renewed the licence for the month of July, 2011, by paying the licence fee, within the time stipulated in licensing conditions. He further submitted that the Executive Officer of Puduvayal Town Panchayat in his proceeding in Na.Ka.No.74/2011, dated 03.06.2011, has requested the District Manager, TASMAC, Sivagangai, to shift the liquor shop No.7538, from Commercial Complex, since the liquor shop situated in the midst of a Town Bus Stand and it causes nuisance to the public. Based on that, it has been decided to shift the liquor shop from the Commercial Complex to new place. The allegation that Mr.Sundarapandian, Assistant Manager, TASMAC, Sivagangai with a mala fide intention has transferred the liquor shop on 11.07.2011, has been disputed. According to the learned counsel for TASMAC, the Assistant Manager has no jurisdiction or has no role to play in the change of TASMAC shop from one place to another. He further submitted that as instructed by the Director of Town Panchayat, the complaints made by the public were placed before the Town Panchayat Council to take a decision regarding the shifting of liquor shop situated in shop No.18 of the Commercial Complex. In this regard, a meeting was held on 30.06.2011. The Council, in its resolution, dated 30.06.2011, resolved to shift the liquor shop and on the basis of the resolution passed by the Council, the Executive Officer of the Puduvayal Town Panchayat, in his letters dated 03.06.2011 and on 01.07.2011, requested the District Manager, TASMAC, Sivagangai to shift the liquor shop No.7538 from Commercial Complex. Accordingly, the District Manager, in charge of the TASMAC, Sivagangai, has inspected a place proposed by the Town Panchayat, but it was not suitable and hence, it was decided to find another place within the Puduvayal Town Panchayat. One Mr.V.Pandi, resident of Terpogi Village, has given his consent to run the liquor shop in his shop Door No.69A, Puduvayal - Sakkottai Main Road, Karaikudi Taluk, Sivagangai District. As the shop was suitable for running the liquor shop, proposal of shifting the shop No.7538 from Commercial Complex to the New Door No.69-A was sent to the District Collector, Sivagangai, through the Senior Regional Manager, Madurai and that the District Collector, Sivaganga in his proceedings in K.Dis.T2 18606/2011, dated 11.07.2011, has granted permission to shift the liquor shop No.7538, in Door No.69-A, Puduvayal - Sakkottai Main Road, Karaikudi Taluk, Sivagangai District. Learned counsel for the TASMAC further submitted that the location of shop is purely the executive domain of the Government/ TASMAC and that the petitioner, who has not remitted the licence fee for the month of July, 2011, cannot, as a matter of right, come forward with a writ of mandamus and seek for compensation. According to the learned counsel, there is no case for compensation, as it is the exclusive privilege of the Government/TASMAC in relocating a shop. The contention of mala fide has been denied and he further submitted that there is no objection on the side of the respondents for the petitioner to participate in the tender for fresh bar to be held on 27.07.2011, for the current year 2011-2012. For the abovesaid reasons, he prayed for dismissal of the writ petition. 5.Heard the learned counsel for the parties and perused the materials available on record. https://hcservices.ecourts.gov.in/hcservices/ 4 6.The Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rule, 2003, deals with the grant of licence, sale of liquor and location and shifting of shop, bar, etc. Materials on record shows that, vide order in Na.Ka.No.B/884/10, dated 31.07.2010, the District Manager, TASMAC, Sivagangai, has granted licence to locate a bar for collection of empty bottles and sale of eatables from 01.08.2010 to 31.07.2011. As per the licensing conditions, the licensee has to remit monthly advance fee before the 10th of every month, failing which licence would be cancelled and necessary action for forfeiture of the security deposit also would be taken. Reading of the licence conditions shows that payment of monthly advance within the stipulated period is mandatory. The contention of the District Manager, TASMAC, Sivagangai, second respondent herein that the petitioner has not paid any advance amount for the month of July, 2011, has not been disputed by the writ petitioner. Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rule, 2003, deals with the location of shop. As per Rule 9 of the said Rules, there would be no change in the location of the shops, etc, without the previous permission of the Collector. Rule 10 deals with location of the shop and the bar shall lie within the shop or adjoining the shop. In the case on hand, both the shop as well as the bar seemed to have been located in Puduvayal Town Bus Stand, Commercial Complex, Karaikudi, Sivagangai District. Pursuant to the complaints received from the public, there appears to have been a direction from the Director of Town Panchayat, Chennai, to place the complaints before the Panchayat Council to take a decision regarding the shifting of the shop situated in No.10, Commercial Complex building. Accordingly, the Town Panchayat Council seemed to have held a meeting on 30.06.2011 and in its resolution No.386, dated 30.06.2011, has resolved to shift the liquor shop No.7538. The resolution was put in action by the Executive Officer of the Puduvayal Town Panchayat, vide his letters No.74/2011, dated 03.06.2011 and on 01.07.2011, wherein a request has been made to the District Manager, Sivagangai District, to shift the liquor shop No.7538 from the Commercial Complex. Though the resolution was to the effect to shift the liquor shop to some other place in the same complex, it is the exclusive prerogative of the TASMAC/Government to locate the shop. Even if the Council seeks for a relocation of the shop within the complex, still the Government/TASMAC can decide the place, where the TASMAC should be located. Under the rules, the Council or any other person, is not the competent to decide the location. 7.Yet another factor to be considered is that, after the proposal for shifting the complex to the new Door No.69-A, Puduvayal - Sakkottai Main Road, was sent, the District Collector, Sivagangai, through the Senior Regional Manager, TASMAC, the District Collector, Sivagangai, in his proceedings K.Dis.T2 18606/2011, dated 11.07.2011, has granted permission for shifting the liquor shop, as per Rule 9 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rule, 2003. The petitioner, who has not chosen to pay the advance licence fee for the month of July, before 10th of July, 2011, has no legal or statutory right to insist that the shop No.7538 should be located inside the Commercial Complex Town Bus Stand. When the District Collector, Sivagangai, first respondent herein has already exercised his jurisdiction to transfer the shop from the Puduvayal Commercial Complex Bus Stand to Door No.69A, Puduvayal Sakkottai Main Road, under Rule 9 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, without there being challenge to https://hcservices.ecourts.gov.in/hcservices/ 5 the above said order, there cannot be any mandamus directing the respondents 2 & 3 to shift the shop No.7538 back to Puduvayal Town Bus Stand Commercial Complex, Karaikudi Taluk, Sivagangai District, from Door No.69-A, Sakkottai Main Road, Puduvayal, Karaikudi Taluk, Sivagangai District. Issuance of any mandamus will have the effect of nullifying the order passed by the District Collector. Courts have consistently held that the mandamus should not be granted, which has the effect of quashing or setting aside an order, unless it is challenged in the manner known to law. 8.For the reasons stated supra, this Court is of the view that the petitioner has not made out a case, for issuance of mandamus. If the petitioner has been put to any financial loss, it is always open to the petitioner to seek for compensation before the competent authorities, in the manner known to law, by establishing his case. 9.With the above observation, the writ petition stands dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar (P&A) /True copy/ Sub Assistant Registrar To 1.The District Collector, Sivagangai District, Sivagangai. 2.The District Manager, Tamil Nadu State Marketing Corporation (TASMAC), Sivagangai, Sivagangai District. 3.The Assistant Manager, Tamil Nadu State Marketing Corporation (TASMAC), Sivagangai, Sivagangai District. 4.The Chairman, Puduvayal Town Panchayat, Karaikudi Taluk, Sivagangai, Sivagangai District. +1cc to Special Government Pleader, SR.No.24504 GH : 02.08.2011 : 5p/6c W.P.(MD) No.7932 of 2011 21.07.2011 https://hcservices.ecourts.gov.in/hcservices/