{"id":172725,"date":"2010-07-19T00:00:00","date_gmt":"2010-07-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-tamil-nadu-state-marketing-vs-r-m-shah-on-19-july-2010"},"modified":"2016-12-26T06:32:02","modified_gmt":"2016-12-26T01:02:02","slug":"the-tamil-nadu-state-marketing-vs-r-m-shah-on-19-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-tamil-nadu-state-marketing-vs-r-m-shah-on-19-july-2010","title":{"rendered":"The Tamil Nadu State Marketing … vs R.M. Shah on 19 July, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
The Tamil Nadu State Marketing … vs R.M. Shah on 19 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE  HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 19 - 7 - 2010\n\nCORAM\n\nTHE HONBLE MR.JUSTICE  ELIPE DHARMA RAO\nAND\nTHE HONBLE MR. JUSTICE  K.K.SASIDHARAN\n\n\nW.A.No. 1353 of  2010\n\nThe Tamil Nadu State Marketing Corporation Ltd.,\nRep.by its Managing Director\nCMDA Tower  II, Chennai.                                                             ..     Appellant.\n\nVersus\n\n\n1. R.M. Shah\n2. J. Sandeep\n3. Commander O.A. Nair  (Retd.)\n    BO, 13-B Orms Road\n    Kilpauk, Chennai.\n4. Praful.C. Pargel\n5. The Deputy Commissioner of Excise\n     & District Revenue Officer\n6.  The Collector of Chennai\n     Singaravelan Maligai\n     Rajaji Salai,  Chennai.                                                                 ..   Respondents\n                                             For Appellant    :  Mr.J. Ravindran\n                                             For RR 5 & 6    :  Mr. G. Desingu, Spl. GP\n\nWrit Appeal is preferred under Clause  15 of the Letters Patent against the order of the learned single judge in W.P.No. 38494 of 2005 dated 08.6.2010.\n \n                                                        ORDER\n<\/pre>\n
                                 ( made by ELIPE DHARMA RAO, J. )<\/p>\n
            The appellant challenges the  order dated 08.6.2010 in W.P. No. 38494 of 2005 whereby and whereunder the learned Judge  directed the  closure of the liquor shop-cum-Bar  run by the Tamil Nadu State Marketing Corporation Ltd.,  (for short,TASMAC) at Door No. 12\/4 Ormes Road, Kilpauk.\n<\/p>\n
            2. The residents of Ormes Road preferred  the Writ Petition in W.P.No.38494\/05 for shifting  the liquor shop- cum  Bar at Door No.12\/4 at Ormes Road, Kilpauk. The main grievance of the respondents  1 to 4 before the learned single Judge was that the location of the shop was  highly objectionable as it was  situated in a residential area, very  near  to  a Girls School and a temple. The customers coming to the shop, after consuming liquor, used to threw the bottles indiscriminately all over the road and very often misbehaved with the local residents thereby creating lot of nuisance to the public.   Though several representations were sent, there was no followup action, which made them to file the writ petition.\n<\/p>\n
            3. The TASMAC  filed a counter affidavit contending  that there was a private wine shop in the very same premises  earlier for which there was no objection and that the area is not a pure residential area in view of  the presence of  commercial establishments in the street.  It was further stated that the complaint sent by the writ petitioners were duly answered by the Corporation.\n<\/p>\n
            4. The learned single Judge, after hearing the learned counsel for the parties and the materials placed for consideration including the report of the Joint Commissioner of Police and the Topo sketch showing  the location of the shop vis-`-vis the school and the temple, allowed the writ petition, and directed closure of the liquor shop within a period of four weeks from the date of receipt of the order. Challenging the same, the writ appeal has been filed by the TASMAC.\n<\/p>\n
            5.  Heard the learned counsel for the appellant.\n<\/p>\n
            6. Learned Standing Counsel for the Appellant would submit that the TASMAC shop is not located within the prohibitory distance as contemplated in the Rules. According to him previously a private wine shop was located in the very same place, which is a commercial area, and nobody objected to the functioning of the liquor shop. It was only when TASMAC opened the Bar, the  so-called residents have raised their objections. The learned counsel would further submit  that the business of TASMAC would be reduced considerably in case of such shifting. Therefore  he seeks to  set aside the order passed by the learned Judge.\n<\/p>\n
            7. It is a matter of record that pursuant to the direction of the learned single Judge, the Joint Commissioner of Police filed a report which shows that there has been  several nuisance cases filed against various persons by the G.3 Kilpauk Police Station (L & O) and between 2005 and 2006,  10 cases have been registered under Section 75(1)(b) of the Madras City Police Act.  It is also clear from the report  that the accused in the said cases have been fined by the respective Magistrates. The  learned Judge, taking note of the safety of the school  going children,  ordered  the closure of the liquor shop.\n<\/p>\n
            8.  The principal contention of the learned Counsel for the appellant pertains to the distance rule. According to the  learned Standing Counsel   the liquor shop was  located beyond the prohibited  zone prescribed under the Tamil  Nadu  Liquor (Retail Vending) Rules and therefore the learned single Judge was not justified in directing the appellant to shift the shop on the alleged ground of Public nuisance.\n<\/p>\n
            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 the 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.\n<\/p>\n
           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.\n<\/p>\n
            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 area 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 is located  in a commercial or residential area.\n<\/p>\n
            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.\n<\/p>\n
            13. There is nothing on record  to suspect the  bonafides of the respondents 1 to 4 in their request to shift the liquor Bar.\n<\/p>\n
            14  Therefore we reject the contention of the appellant that no direction could be issued to shift the liquor shop in case the shop is located beyond the prohibited distance.\n<\/p>\n
15.  The right to  life  guaranteed under Art. 21 would include  every 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  among 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
\ngeneration of revenue should not be at the expense  of the peaceful life of the people.\n<\/p>\n
             16. The Code of Criminal Procedure 1973  contains provisions for abatement of  nuisance.   Section 133 of the Code of Criminal Procedure 1973 reads thus:\n<\/p>\n
      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\n<\/p>\n
      (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\n<\/p>\n
     (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
\n      (c )  ..\n<\/p>\n
             ..\n<\/p>\n
      (d)   ..\n<\/p>\n
             .\n<\/p>\n
      (e) .\n<\/p>\n
       (f)  ..\n<\/p>\n
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 owning, 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<\/p>\n
              (i)  to remove  such obstruction or nuisance; or<\/p>\n
             (ii)  to desist  from carrying  on, or to remove or regulate in such
\n                    manner  as may be directed, such  trade or occupation, or  to
\n                    remove   such  goods  or   merchandise,   or  to  regulate  the
\n                    keeping thereof  in such manner  as may be  directed; or<\/p>\n
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.\n<\/p>\n
17. The Supreme Court had an occasion to  consider the scope of  section 133 of Cr.P.C. in Ratlam 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 its benign exercise.  The Supreme Court further  observed thus:\n<\/p>\n
             9.  So  the  guns of  Section  133  go  into   action   wherever   there is
\n                   Public nuisance.      The public power of the magistrate under    the
\n                   Code is  public duty to the members of the public who are victims
\n                   of the nuisance, and so  he shall exercise it when the jurisdictional
\n                   facts are present as here.<\/p>\n<\/blockquote>\n
           18. The learned Judge was armed with a  report of the Joint Commissioner of Police which  contains the details of  nuisance cases registered in the locality.  Therefore it  cannot be  said that the direction to  shift the liquor  shop was issued  without basic materials.\n<\/p><\/blockquote>\n
            19. There is no static measure of nuisance which can be applied to all situations  alike.  It is for the  court to decide on the basis of materials as to whether the extent of nuisance was sufficient to direct the  closure of liquor shop located in a particular area.\n<\/p><\/blockquote>\n
            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.\n<\/p><\/blockquote>\n
            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.\n<\/p><\/blockquote>\n
            22.  The Supreme Court in Ratlam Municipal Council case cited supra observed thus:\n<\/p><\/blockquote>\n
      The pressure of the judicial process,expensive and  dilatory, is neither  necessary  nor desirable if responsible  bodies are responsive to duties.<\/p>\n<\/blockquote>\n
23. When we have expressed our view that the respondents 1 to 4  clearly made out a case  for  shifting the liquor shop from the subject location on account of nuisance, the learned standing counsel for the appellant took  time to file an affidavit agreeing to shift  the shop.  Subsequently the Chief   General Manager of TASMAC as per his affidavit dt. 19th July,2010 agreed to shift the Liquor Shop                                                              No. 717 functioning at Door No.12\/4 Ormes Road, Kilpauk, Chennai-10 to another place and made a request for granting reasonable time for such shifting. In
\nview of the  said submission we  grant  six  weeks time to the appellant to comply with the  order passed by the learned single judge.\n<\/p>\n
24.  The Writ Appeal is dismissed with the above  observation.           No costs.\n \n                                                                                   \n\n\n\n\n\n\n\n\n\n\ngri\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Tamil Nadu State Marketing … vs R.M. Shah on 19 July, 2010 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19 – 7 – 2010 CORAM THE HONBLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONBLE MR. JUSTICE K.K.SASIDHARAN W.A.No. 1353 of 2010 The Tamil Nadu State Marketing Corporation Ltd., Rep.by […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-172725","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Tamil Nadu State Marketing ... vs R.M. 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