1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:26.04.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY WP(MD)Nos.39 and 131 of 2011 and MPNos.1, 2 and 1 and 3 of 2011 B.Thangaraj :Petitioner in WP(MD)No.39 of 2011 -Vs- 1.Tamil Nadu State Marketing Corporation Limited., Represented by the Senior Regional Manager, Plot No.100, Anna Nagar, Madurai, Madurai District. 2.The District Collector, Kanyakumari District, Nagercoil 629 001. 3.The District Manager, Tamil Nadu State Marketing Corporation Ltd., Konam, Nagercoil, Kanyakumari District. 4.H.T.Sathyadoss :Respondents in WP(MD)No.39 of 2011 [R-4 impleaded as per order dated 07.03.2011 made in M.P.No.4 of 2011] S.R.Sree Ram :Petitioner in WP(MD)No.131 of 2011 -Vs- 1.The District Collector, Kanyakumari District, Nagercoil. 2.The District Manager, Tamil Nadu State Marketing Corporation Ltd., (TASMAC), Nagercoil. 3.The Senior Regional Manager, (TASMAC), Anna Nagar, Madurai. 4.The Assistant Commissioner, (TASMAC), Excise, Nagercoil. 5.H.T.Sathyadoss :Respondents in WP(MD)No.131 of 2011 [R-5 impleaded as per order dated 07.03.2011 made in M.P.No.2 of 2011] PRAYER in W.P.(MD).No.39 of 2011: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to tender notification bearing No.045/B/10, dated 21.12.2010 issued by the third respondent and quash the same and consequently direct the respondents to close down the liquor shop bearing No.4836 situated at Dennison Road, Nagercoil. https://hcservices.ecourts.gov.in/hcservices/ 2 PRAYER in W.P.(MD).No.131 of 2011: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents to shift the liquor shop bearing Shop No.4836 in Dennison Road, Nagercoil, which is situated in prohibited area under the Tamil Nadu Liquor Retail Vending (In shops and Bars) Rules 2003 to some other place. In W.P.(MD).No.39 of 2011: For Petitioner :Mr.Prasanna Vinoth for Mr.G.R.Swaminathan For Respondents 3 :Mr.V.Karthikeyan ForMr.J.Ravindran,Standing Counsel For Respondent 1 & 2:Mr.M.Rajarajan,Government Advocate For Respondent 4 :Mr.V.K.Vijayaraghavan In W.P.(MD).No.131 of 2011: For Petitioner :Mr.P.Prabhakaran. For Respondents 2 ,3 & 4 :Mr.V.Karthikeyan For Mr.J.Ravindran,Standing Counsel For Respondent 1 :Mr.M.Rajarajan,Government Advocate For Respondent 5 :Mr.R.Anand. COMMON ORDER [Order of the Court was made BY K.SUGUNA, J] As far as Writ Petition (MD).No.39 of 2011 is concerned, it is filed challenging the tender notification bearing No.045/B/10, dated 21.12.2010 issued by the third respondent - TASMAC and for a direction to the respondents to close down the liquor shop bearing No.4836 situated at Dennison Road, Nagercoil. 2.As far as W.P.(MD).No.131 of 2011 is concerned, it is filed seeking to issue a Writ of Mandamus directing the respondents to shift the liquor shop bearing No.4836 in Dennison Road, Nagercoil, which is situated within the prohibited area, to some other place. 3.Since both the Writ Petitions relate to the same shop and with regard to the same issue, they were heard together and are disposed of by means of this Common Order. 4.According to the learned counsel for the petitioner in W.P.(MD).No.131 of 2011, the shop in question is situated within the prohibited area, i.e., near the college as well as near the religious institution and in view of the location of the shop in the particular site, the students will get affected and they may have to face so many inconvenience. 5.The District Collector and the District Manager, TASMAC have filed separate counter affidavits. As per the stand taken in the counter affidavits, as far as the shop in question is concerned, it is located in compliance with Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003, [hereinafter referred to as "the Rules"]. 6.According to the learned counsel for the private respondents, as per the first proviso to Rule 8 of the Rules, even the distance restriction shall not apply in the area designated as "Commercial" or "Industrial" by the Development" or Town Planning Authorities. According to the learned counsel for the private respondents, originally, the said shop was located https://hcservices.ecourts.gov.in/hcservices/ 3 at Marthandam, and thereafter, by order dated 16.12.2010, the said shop has been shifted to Dennison Road, Nagercoil. The said order dated 16.12.2010 is not under challenge in the Writ Petition. Based on the above, the respective learned counsels seek for dismissal of the Writ Petitions. 7.We have considered the above submissions. 8.As far as W.P.(MD).No.39 of 2011 is concerned, it cannot be entertained, since what is under challenge is only a tender notification issued by the third respondent - TASMAC calling for applications for establishment of eatable shop and also for collection of empty bottles. With regard to the said tender notification, pointing out any infirmity neither any ground is raised in the affidavit filed in support of the Writ Petitions nor any argument is advanced with regard to the subject in issue. As rightly pointed out by the learned counsel for the private respondents, though originally, the said shop was located at Marthandam, subsequently, by order dated 16.12.2010, the said shop has been shifted to Dennison Road, Nagercoil. The said order dated 16.12.2010 is not under challenge in the Writ Petition. Without challenging the said order, we are not able to understand as to how the petitioner can have a grievance with regard to the location of eatable shop and also collection of empty bottles. Therefore, the relief sought for by the petitioner in this Writ Petition cannot be granted. 9.As far as W.P.(MD).No.131 of 2011 is concerned, as referred to earlier, the relief sought in the Writ Petition is for a Writ of Mandamus directing the respondents to shift the liquor shop bearing No.4836 in Dennison Road, Nagercoil, to some other place. 10.In the typed set of papers filed by the second respondent – TASMAC, a sketch is annexed. As per the said sketch, the shop is located at a distance of 406 metres from the college. Besides, the shop in question is located in the rear side of the college campus. As far as Nagaraja temple is concerned, it is the contention of the learned counsel for the petitioner that the said shop is located within the prohibited area. However, as per the sketch produced by the second respondent TASMAC, the distance between the shop and the said temple is 283 metres. Apart from this, as rightly pointed out by the learned Standing Counsel for the TASMAC as well as the learned counsel for the private respondents, under Rule 8 of the Rules, certain guidelines have been issued with regard to the location of the shop, which reads as follows:- , "No shop shall be established in Municipal Corporations and Municipalities within a distance of 50 (fifty) meters and in other areas 100 (hundred) meters from any place of worship or educational institutions: Provided that the distance restriction shall not apply in areas designated as "Commercial" or "Industrial" by the Development or Town Planning Authorities." https://hcservices.ecourts.gov.in/hcservices/ 4 11.In the typed set of papers filed by the second respondent - TASMAC, a proceedings dated 17.01.2011 has been enclosed. As per the said proceedings, the said place comes under the commercial zone and as such, the prohibited distance will not have an application at all. In the counter affidavit filed by the first respondent - District Collector, it is stated that the distance restriction is exempted for the commercial and industrial areas. At Paragraph No.7 of the counter affidavit filed by the District Collector, there is a specific averment that the TASMAC Shop No.4836 is located in the commercial area and denying the said averment, no reply affidavit is filed by the petitioners. 12.Apart from the above, the shop in question is not in the same side of the college and also it is not disputed by the learned counsel for the petitioner that the concerned area is a commercial area. If it is a commercial area, as per first proviso to Rule 8 of the Rules, the distance restriction will not have an application at all. 13.For the foregoing reasons, we do not find any merit in the Writ Petitions. Hence, the Writ Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed. Sd/- Assistant Registrar (CO) / TRUE COPY / Sub Assistant Registrar To: 1.The District Collector, Kanyakumari District, Nagercoil. 2.The District Manager, Tamil Nadu State Marketing Corporation Ltd., (TASMAC), Nagercoil, Kanyakumari District. 3.The Senior Regional Manager, (TASMAC), Anna Nagar, Madurai. 4.The Assistant Commissioner, (TASMAC), Excise, Nagercoil. +2CC to Mr.J.Ravindran, Advocate. SR.No.15317. +1CC to Mr.P.Prabhakaran, Advocate. SR.No.15125. +2CC to The Special Government Pleader. SR.Nos.15524 and 15501. NB RP/31.05.2011/4P/10C. ORDER MADE IN W.P.(MD).Nos.39 and 131 of 2011 26.04.2011 https://hcservices.ecourts.gov.in/hcservices/