IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.25169 of 2008 and M.P.NOS.1 of 2008 and 1 of 2009 Friends Recreation Club, A society under the Societies Registration Act (Reg.No.3/1998), rep. By its Secretary, K.Thangam Perumalpatti II Keela Street, Srivilliputhur-626 125 .. Petitioner Vs. 1.The Commissioner of Prohibition, Chepauk, Chennai-600 005. 2.The Tamil Nadu State Marketing Corporation Ltd. Rep. By its Managing Director, CMDA Office Complex, 4th Floor, Tower II Gandhi Irwin Bridge Road, Egmore, Chennai-600 008. 3.The District Collector, Virudhunagar District, Virudhunagar. 4.The Assistant Commissioner of Prohibition & Excise, Virudhunagar. 5.The Deputy Superintendent of Police, Srivilliputhur. 6.The Depot Manager, The Tamil Nadu State Marketing Corporation Ltd. Virudhunagar District. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent in Proc.No.P&E2(1)/15810/08 dated 07.10.2008 and quash the same and direct the respondents to allow the petitioner club to run the club in their current address/premises on the basis of original license dated 15.4.2008. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Muthukumarasamy, SC for Mr.A.Jenasenan For Respondents : Mr.N.Senthilkumar, AGP for RR1,3,4 and 5 Mr.J.Ravindran for RR2 and 6 ORDER Heard both sides. The petitioner has come forward to file the present writ petition seeking to challenge the order dated 07.10.2008 passed by the first respondent. By the impugned order, the first respondent held that the petitioner Club is not entitled to have FL-2 licence under the Tamil Nadu Liquor (Licence & Permit) Rules, 1981 and the earlier licence given to them was cancelled. However, it was stated that it they desire to run the bar in their club, they can apply for fresh licence after shifting the club to any other suitable place. 2.The writ petition was admitted on 21.10.2008. Pending the writ petition, an interim stay was granted. On behalf of one Chelladurai, a miscellaneous petition was filed in M.P.No.1 of 2009. They also filed a vacate stay application, which is yet to be numbered. However, this court is not inclined to entertain the implead petition as the impugned order will have to speak for itself and they are not necessary and proper party in this W.P. Hence that miscellaneous petition is dismissed. However, the learned counsel was heard as an intervener since it is due to their complaint, which resulted in cancellation of licence. 3.The petitioner club claimed to have been registered under the Tamil Nadu Societies Registration Act. Its registration number is 3/1998. The petitioner's club as per the list furnished has 126 members. They also have rental agreement with the owner of the premises in Perumalpatti II Keela Street, Srivilliputhur. The Club has been in existence from the year 1998. It has got registered lease deed having lease for over 20 years. It occupied a total space of 2400 sq.ft. with proper parking area for the two wheelers and four wheelers. It had erected a compound wall on all four sides and the club is strictly reserved for the members. 4.The petitioner's club approached the first respondent for grant of FL2 licence for serving Indian Made Foreign Liquor under the IMFL (License and Permit) Rules, 1981. After receiving application and after obtaining an opinion from the relevant authorities including the Inspector of Police, Taluk Police Station, Fire Service Department, Srivilluputhur Municipality, the Club was given FL.2 licence by an order dated 15.4.2008 in the same premises. The licence was valid upto 31.3.2009. On 22.4.2008, consequential proceedings was issued by the second respondent TASMAC to supply IMFL to the petitioner. However, certain third parties made a complaint and later, some peace meeting was held. There was constant demand to stop the bar activities inside the club. https://hcservices.ecourts.gov.in/hcservices/ 5.The 4th respondent Assistant Commissioner of Prohibition and Excise, on 2.7.2008 directed the club to relocate to an another premises. At this stage, the petitioner herein filed W.P.No.6327 of 2008 before the Madurai Bench of this court. On 5.8.2008, this court found that the club was not given an opportunity and therefore, a direction was given to pass an appropriate order after giving due opportunity. The court also found that there was no violation of any condition of FL.2 license and only a demand to shift the club premises was echoed. The petitioner was directed to report before the first respondent on 30.09.2008. The petitioner has also sent a representation along with supporting documents. However, the first respondent by the impugned order dated 7.10.2008 cancelled the license. It is this order which is under challenge. 6.The contention raised by the petitioner was that before grant of licence, appropriate clearance was obtained from various authorities. Therefore, the location of the club cannot be made as the ground for cancellation. It was impossible for shifting the club's premises to another place especially when lots of efforts have gone into. It cannot be said that local residents were put into any grave inconvenience since the club is serving liquor only within the premises and its membership is restricted. Whereas there are two other retail vending shops and a bar near the club. One is in the name of Hotal Raja behind Thiru Vi Ka Government Higher Secondary School and another wine shop which is situated just opposite to a temple, residential area and a Church. While in those places, there is open bar attached and no objections are raised, the petitioner's club was a membership club and its activities cannot be considered as illegal. 7.On notice from this court, the first respondent filed a counter affidavit, dated 16.2.2010. In the counter affidavit, reliance was placed upon rule 19A(ii) of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, wherein it is stated that public interest should not suffer by the grant of licence. As correctly pointed out by Mr.R.Muthukumarasamy, learned Senior counsel, Rule 19A(i) will apply to general vending licence. But relevant rule is 19B, wherein under 19B(i)(iv) related to location of the premises. In this case, such an exercise has already been undergone and NOC was obtained from all agencies. 8.In the counter affidavit, as regards ground (F) raised by the petitioner regarding location of the nearby bar and liquor shops, there is no specific denial. It was also stated that persons who made complaint are motivated persons. That there was an attempt to stage road-roko was only self serving statement. In the peace committee meeting, no decision was taken. Each time the local police have given them clearance. Copies of police certificates are also produced upto date. Though the counsel for intervenor contended that there is no impediment for the petitioner to shift their club, it must be stated that merely because certain persons wanted the shop to be shifted, the same cannot be done. The first respondent did not apply his mind before the cancellation of FL.2 https://hcservices.ecourts.gov.in/hcservices/ licence. The grounds on which such cancellation were made are not germane to the licence rule and it is not borne out by records. In the counter affidavit, mechanically mention of a wrong rule was made without noting that the petitioner is having only FL.2 licence and that it is only a private club. Since the order passed by the first respondent suffers from material irregularity and non application of mind, this court is obliged to interfere with the same. 9.Accordingly, the impugned order stands set aside. The writ petition will stand allowed. No costs. Consequently, connected miscellaneous petitions stand closed as unnecessary. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Commissioner of Prohibition, Chepauk, Chennai-600 005. 2.Managing Director, The Tamil Nadu State Marketing Corporation Ltd. CMDA Office Complex, 4th Floor, Tower II Gandhi Irwin Bridge Road, Egmore, Chennai-600 008. 3.The District Collector, Virudhunagar District, Virudhunagar. 4.The Assistant Commissioner of Prohibition & Excise, Virudhunagar. 5.The Deputy Superintendent of Police, Srivilliputhur. 6.The Depot Manager, The Tamil Nadu State Marketing Corporation Ltd. Virudhunagar District. 1 cc To The Government Pleader, SR.29967. 1 cc To Mr.A.Jenasenan, Advocate, SR.29157. 1 cc To Mr.K.Premkumar, Advocate, SR.29858. W.P.NO.25169 of 2008 AKR(CO) RVL 14.05.2010 https://hcservices.ecourts.gov.in/hcservices/