1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.03.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.P.(MD).No.507 of 2011 and M.P.No.1 of 2011 Ashtalakshmi Nagar, Lakshmipuram Kudieruppu Nala Sangam, Plot No.34, Astalakshmi Nagar, KTC Nagar, Tirunelveli 627 011, through its President, H.Lakshmanan. : Petitioner Vs. 1.The District Collector, Tirunelveli. 2.The District Manager, TASMAC, Tirunelveli. 3.Thiru.Samidurai Pandian, Plot Nos.39 & 40, Ashtalakshmi Nagar main Road, Ashtalakshmi Nagar, KTC Nagar, Tirunelveli. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents to re-locate the TASMAC shop No.10723 and Bar situated at Plot Nos.39 and 40 of Ashtalakshmi Nagar, Palayamkottai Taluk, Tirunelveli District to any other place. For Petitioner : Mr.J.Ashok For Respondent 1 : Mr.R.Janakiramulu Special Government Pleader For Respondent 2 : Mr.J.Ravindran For Respondent 3 : Mr.R.Anand O R D E R [Order of the Court was made BY K.SUGUNA, J] This Writ Petition is filed by an association by name, Ashtalakshmi Nagar, Lakshmipuram Kudieruppu Nala Sangam, seeking a https://hcservices.ecourts.gov.in/hcservices/ 2 Writ of Mandamus directing the respondents to re-locate the TASMAC shop No.10723 and Bar situated at Plot Nos.39 and 40 at Ashtalakshmi Nagar, Palayamkottai Taluk, Tirunelveli District, to some other place. 2. The grievance of the petitioner is that the TASMAC shop No.10723 and Bar situated at Plot Nos.39 and 40, are causing inconvenience to the residents of Ashtalakshmi Nagar and because of the location of TASMAC shop and Bar in the said area, untoward incidents have taken place frequently, consequently, according to the learned counsel for the petitioner, the said TASMAC shop and Bar have to be re-located to some other place. 3. The learned counsel for the petitioner, in support of his contention, has relied on a Judgment of a Division Bench of this Court in The Tamil Nadu State Marketing Corporation Ltd., v. R.M.Shah reported in 2010 (2) CWC 337, at Paragraph No.9, which reads as follows:- "9. It is true that the Retail Vending Rules provide that no shops shall be established within a distance of 50 metres in Municipal Corporations and Municipalities and 100 metres in other ares, from any place of worship or educational institutions. However, that does not mean that the liquor shops so established would get a license automatically to cause nuisance to the local people. The prescription of distance for opening the Bar is a matter between the State and the excise licensees. Merely because the shop is situated beyond the distance stipulated in the rules, it cannot be said that there would be no nuisance to the people of the area. The distance rule take care of only the place of worship or educational institutions. It does not say that the liquor shops should be away from residential houses. The nuisance created by the drunkards would extend even beyond the safety area prescribed under the Rules. Therefore, it all depends upon the facts and circumstances of each case. The factum of location of the shop beyond the prohibited distance would not come to the rescue of the licensee of liquor shops in the event of there being perennial nuisance to the residents of the area." 4. According to the learned counsel for the petitioner, though there is no prohibition with regard to the location of TASMAC shop in the residential area, as per the said Judgment, this aspect has to be looked into. 5. On the other hand, it is the stand of the learned counsel appearing for the third respondent that as far as the issue in question is concerned, it is personally motivated, i.e., in the representation dated 23.08.2010, which has been enclosed at page No.3 of the typed set of papers, one Mr.M.Francis, 17th Ward Councillor, is https://hcservices.ecourts.gov.in/hcservices/ 3 also one of the signatories to the representation and according to him, he belongs to a particular political party, viz., M.D.M.K. According to the learned counsel for the third respondent, as far as the third respondent is concerned, he also belongs to a political party viz., D.M.K and basing on this alone, the objections have been raised. Apart from this, according to the learned counsel for the third respondent, as on date, there is no house located in the said place and one house is in the way of construction, consequently, according to the learned counsel for the third respondent, nobody is residing in the said place. Therefore, question of causing disturbance or inconvenience to the residents of the said area by the location of the Bar does not arise. 6. Apart from the above, it is the specific stand of the learned counsel for the third respondent that the brother of the said Councillor, by name Mr.M.Francis, is also running two bars within 100 meters of the said area. Since the third respondent had put up the bar, due to business rivalry, this Writ Petition has been filed at the instigation of the other two bar owners. According to the learned counsel for the third respondent, when the brother of the said Councillor is running two bars within 100 meters of the said area, question of causing disturbance or inconvenience by the location of bar run by the third respondent to the residents of the said area will not arise at all. 7. The learned counsel for the third respondent has also brought to the notice of this Court that even in the representation also, what is stated is only plot number and not door number, which indicates that there is no house situated in the said area and it is only a vacant site. Relying on Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, [hereinafter referred to as "the Rules"] the learned counsel for the third respondent has submitted that no TASMAC shop shall be established in Municipal Corporations and Municipalities within a distance of 50 metres and in other areas 100 metres from any place of Worship or Educational Institutions and there is no prohibition with regard to location of TASMAC shop in the residential area. 8. It is the stand of the learned counsel for the second respondent – TASMAC that only from November 2010, the TASMAC shop in question is running, and therefore, question of making any complaint prior to that does not arise at all. Apart from this, according to the learned Standing Counsel for the second respondent – TASMAC, though the shop is running from November 2010 onwards, so far no complaint of any nature has been received by the second respondent – TASMAC, consequently, according to the learned counsel for the second respondent – TASMAC, basing on an apprehension alone, the present Writ Petition has been filed. 9. We have considered the above rival submissions made by the respective learned counsels. https://hcservices.ecourts.gov.in/hcservices/ 4 10. It is not in dispute that the brother of the said Councillor Mr.M.Francis is also running two bars within 100 meters of the said area. We are also in conformity with the said stand taken by the learned counsel for the third respondent that as on date, no houses are located in the said area, for the reason that if actually houses are located in the said area, certainly, as rightly pointed out by the learned counsel for the third respondent, either door number or flat number would have been mentioned in the representation, but only plot number is mentioned. A perusal of the signatures also reveals that for the very same plot, two signatures have been made, that is to say, for Plot No.30 at serial Nos.34 and 50, for Plot No.53 at Serial Nos.28 and 29 and for plot No.55, at serial Nos.35 and 36. As rightly pointed out by the learned counsel for the third respondent, so far no complaint of any nature has been brought to our notice by way of typed set of papers or by way of an affidavit. Apart from this, under the Rules also, there is no prohibition with regard to location of TASMAC shop in the residential area. However, if location of the TASMAC shop and Bar is causing any disturbance or inconvenience to the inmates of any residential area, certainly, that has to be gone into. Now, the stand of the learned Standing Counsel for the second respondent - TASMAC as well as the learned counsel for the contesting respondent is that no residential houses are situated in the said place. Under such circumstances, we are not able accept the stand taken by the learned counsel for the petitioner. However, if any complaint is received from the residents of the said area, the first respondent herein is directed to consider the same and pass orders in accordance with law. With this, the Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To 1.The District Collector, Tirunelveli. 2.The District Manager, TASMAC, Tirunelveli. +1cc to Mr.J.Ashok Advocate, Sr.No.7492 +1cc to Mr.J.Ravindran Advocate, Sr.No.7414 +one cc to Special Government Pleader, Sr.No. 7815 ORDER MADE IN W.P.(MD).No.507 of 2011 22.03.2011 nb/sma/5.4.2011/6c/4p https://hcservices.ecourts.gov.in/hcservices/