BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/11/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD).Nos.12651 of 2009 and M.P.(MD).No.1 of 2009 P.Krishna Moorthy . . Petitioner Vs 1.The District Collector, Madurai District, Madurai. 2.The Senior Regional Manager, TASMAC, Madurai Region, Madurai. 3.The District Manager, TASMAC, Madurai District, Madurai. 4.P.K.Chandrasekar . . Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Mandamus directing the respondents 1 to 3 to consider the representation of the petitioner dated 24.08.2009 and pass order to shift the TASMAC Retail Vending Shop No.5274 situating the the Kanchivanamswamy Temple at Melur to some other place. !For Petitioner ... Mr.K.Mahendran ^For Respondents ... Mr.R.Janakiramulu for R1 Special Government Pleader Mr.V.Karthikeyan for R2 & R3 Mr.S.Palanivelu for R4 :ORDER
The petitioner has filed the present writ petition seeking for a direction
to the respondents 1 to 3 to consider his representation dated 24.08.2009 and
the consequent direction to shift the TASMAC Retail Vending Shop No.5274
situated in the Kanchivanamswamy Temple at Melur to any other place.
2. When the matter came up on 04.12.2009, the learned counsel appearing
for the respondents 1 to 3 takes notice and private notice was ordered to the
fourth respondent. Subsequently, on 01.04.2010, this Court directed the first
respondent, the District Collector, to depute his officials to inspect the shop
and find out whether the shop is situated near a temple as well as the Girl’s
school and to submit a report. Subsequently an Advocate Commissioner was also
appointed on 13.04.2010 to inspect the sites and take measurements in the
presence of the petitioner as well as the officials of the respondent
department. By a further order dated 21.05.2010, this Court directed to produce
the entire files in order to ascertain whether the shop was situated in a
Government Poromboke land.
3. The third respondent, the District Manager, TASMAC, Madurai District,
filed a counter affidavit dated 29.06.2010. A reference was made to the report
of the Advocate Commissioner, wherein it was found that from the shutter of the
shop to the front main entrance of the temple is 76.0 meters. If it measured on
aerial direction it is 60.6 meters and from the shop to the western side
compound wall of temple it is 57.0 meters and from backside wall of bar to
western side compound wall of the temple it is 52.0 meters. Likewise, the
Government Girls Higher Secondary School is situated at 95.0 meters. From the
shop to the front compound wall of Government Girls Higher Secondary School is
78.0 meters.
4. On the strength of the report, the third respondent contended that the
shop is not located within the prohibited distance as per Rule 8 of the Tamil
Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003 and therefore, he
requested for dismissal of the writ petition.
5. The rental agreement produced shows that the shop is located in the
property belonging to the Kanchivanasamy Temple and the Ambaalakars did not have
any qualms to let out the Tasmac shop and the bar in the temple land.
6. Mr.K.Mahendran, the learned counsel for the petitioner, submitted that
apart from Rule 8, in which a shop must not be located within a prohibited
distance, he also made reference to the various complaints to the authorities by
the village people. One such representation dated 24/08/2009 signed by several
residents of the villagers. It was forwarded to the respondents, and the
acknowledgement receipt was also enclosed in the type set of papers. Similarly a
reminder was also sent on 09.10.2009.
7. The substance of the complaint was that the TASMAC shop was located on
the road leading to bus stand on the main road and near the Government Girls
Higher Secondary School and the local people are suffering due to the customer,
after getting fully drunk lying in road margin nudely and the girls are mainly
disturbed by seeing such sceptical view.
8. In the counter filed by the third respondent except a reference was
made to that representation, there is no denial of the allegations made therein.
Their hyper technical stand was that the shop was located beyond the prohibited
distance from the school and temple. The allegations made in the representation
forwarded to the respondents, had not been replied till date though it is a
serious case involving public interest.
9. It is not as if only in cases relating to the rules for location of
shop being infringed, relief can be given by this Court.
10. A Division Bench of this Court presided by ELIPE DHARMA RAO, J vide
Judgment THE TAMIL NADUS STATE MARKETING CORPORATION LIMITED V. R.M. SHAH & ORS
reported in 2010 (2) CWC 337 (DB), dealt with similar cases and in paragraph 9
to 17 it was observed 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 areas, from any place of worship or
educational institutions. However, that does not mean that the liquor shops so
established would get a licence 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 that area. The distance rule takes 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.
10. The appellant is right in their contention that there is nothing in
the statute which prohibits conduct of liquor bar in residential zone. But such
absence of restriction would not stand in the way of challenging the location of
liquor bars which causes nuisance to the residents of the area.
11. It is a fact that some of the liquor shops are functioning from early
morning till midnight without adhering to the time schedule. Therefore, the fact
that the liquor shop has been functioning in the are for a considerable period
cannot be put against the public when they approach the authorities with
complaints of nuisance accompanied by a request to shift the liquor outlet. It
is not as if the liquor shop would earn business only if it located in a
commercial or residential area.
12. However, there is a word caution. The attempt of the public should not be to
shift the liquor shop in a selective manner. There should be public interest
behind any such move. The request for such closure should not be with a hidden
agenda and the allegations of nuisance should not be at the instance of rival
traders in liquor.
13. There is nothing on record to suspect the bonafides of the respondents 1 to
4 in their request to shift the liquor Bar.
14.Therefore we reject the contention of the appellant that no direction could
be issued to sift the liquor shop in case the shop is located beyond the
prohibited distance.
15.The right to life guaranteed under Art.21 would include ever aspect of life
so as to make the life real and meaningful. The right to lead a peaceful life
without any kind of nuisance has to be considered as one amount the many facets
of Article 21. India is a welfare state. The state is expected to promote the
well being of its people. It is true that the State have to generate funds for
undertaking welfare measures. The trade in liquor otherwise known as Res-extra-
commercium is a major source of revenue to the State. But the generation of
revenue should not be at the expense of the peaceful life of the people.
16. The Code of Criminal Procedure 1973 contains provisions for abatement
of nuisance. Section 133 of the Code of Criminal Procedure 1973 reads thus:
133. Conditional order for removal of nuisance.(1) Whenever a District
Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate
specially empowered in this behalf by the State Government, on receiving the
report of a police officer or other information and on taking such evidence (if
any) as he thinks fit, considers.
(a) that any unlawful obstruction or nuisance should be removed from any
public place or from any way, river or channel which is or may be lawfully used
by the public; or(b) that the conduct of any trade or occupation, or the keeping
of any goods or merchandise, is injurious to the health or physical comfort of
the community, and that in consequence such trade or occupation should be
prohibited or regulated or such goods or merchandise should be removed or the
keeping thereof regulated; or
(c)…..
(d)…..
(e)…..
(f)…..
Such Magistrate may make a conditional order requiring the person causing such
obstruction or nuisance or carrying on such trade or occupation, or keeping any
such goods or merchandise, or owing, possessing or controlling such building,
tent, structure, substance, tank, well or excavation, or owning or possessing
such animal or tree, within a time to be fixed in the order.
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner
as may be directed, such trade or occupation, or to remove such goods or
merchandise, or to regulate the keeping thereof in such manner as may be
directed; or
16.Therefore in the event of there being a public nuisance in a particular area
the people are not without a remedy. The nuisance caused to the public on
account of the functioning of liquor shops would give a cause of action to the
affected people to approach the Magistrate under Sec.133 of Cr.P.C. or to take
other legal measures to abate such nuisance.
17. The Supreme Court had an occasion to consider the scope of Section 133
of Cr.P.C. in Ratiam Municipal Council case (1980 (4) SCC 162). The Supreme
Court held that Section 133 is categoric, although reads discretionary; and
judicial discretion when facts for its exercise are present, has a mandatory
import. It was also held that discretion becomes a duty when the beneficiary
brings home the circumstances for it benign exercise. The Supreme Court further
observed thus;
9. So, the guns of Section 133 go into action wherever there is Public
nuisance. The public power of the magistrate under the Code is public duty to
the members of the public who are victims of the nuisance, and so he shall
exercise it when the jurisdictional facts are present as here.”
11. With reference to the locus standi of such petitioners it was observed
as follows;
“20. Therefore, we are of the considered view that any person who is
deprived of peaceful life on account of the nuisance created by a liquor shop
could challenge the action in locating the shop in a residential or semi-
residential locality as offending the right to life guaranteed under Article 21
of the Constitution of India notwithstanding the fact that the liquor shop
satisfies the distance criteria.
21. In case the statutory authorities consider these local issues with a
sense of responsibility there would be no occasion for the common man to
approach the courts with Public Interest. Litigation adding numbers to the
Himalayan arrears in courts. The authorities should be sensitive to such issues
of public importance. They should also realize that the people of this great
nation are the political custodian of power and the Government is accountable to
the people.”
12. In the light of the above, the petitioner has locus standi to file the
writ petition. The serious allegations made in the writ petition by the
villagers regarding the shop located closer to the Government Girls School
(located within 78 meters) creating problems for the school girls cannot be
brushed aside. The fact that the distance between the shop and the Government
Girls School is 78 meters, may escape the rule relating to prohibited distance,
but, the fact that hundreds of girl students are passing that shop every day and
the bus stand was located nearby as well as the complaints made by the villagers
are not denied by the respondents and by the legal precedent set out by the
Division Bench, this writ petition must be allowed. Accordingly, the writ
petition is allowed.
13. The respondents 1 to 3 are directed to shift the TASMAC Retail Vending
Shop No.5274 situating near the the Kanchivanamswamy Temple at Melur to any
other place within a period of four weeks from the date of receipt of a copy of
this order. A compliance report must be sent to this Court by the first
respondent (District Collector, Madurai) without fail. Consequently, connected
miscellaneous petition is closed. No costs.
jikr
To
1.The District Collector,
Madurai District, Madurai.
2.The Senior Regional Manager,
TASMAC, Madurai Region,
Madurai.
3.The District Manager,
TASMAC,
Madurai District,
Madurai.