Dismissed

P.Selvarajan, v. The Commissioner

Madras HC1 Nov 2018WP/11773/2017

Case brief

AI extract

What is this about?

The petitioner sought closure of two liquor establishments allegedly violating highway proximity rules. The court dismissed the writ petition, ruling that a subsequent Collector order, issued in compliance with Supreme Court directives allowing licenses within municipal areas, rendered the prayer moot.

What did the court decide?

The writ petition praying for closure of the liquor shop and bar was dismissed as the Collector had already ordered their reopening under valid government instructions.

P.Selvarajan, Vs The Commissioner — Constitutional and Fundamental Rights | Madras HC (2018)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 01.11.2018

¶3

CORAM

¶4

THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Petition No.11773 of 2017 and
W.M.P.No.12748 of 2017
P.Selvarajan .. Petitioner
Vs.
1.The Commissioner,
Prohibition and Excise,
Chepauk, Chennai – 5.
2.The Collector,
Salem District,
Salem.
3.Senior Regional Manager,
Tamil Nadu State Marketing Corporation Ltd.,
Salem.
4.The District Manager,
Tamil Nadu State Marketing Corporation Ltd.,
Mallur Post,Salem.
5.R.Raja .. Respondents
Prayer :-
Writ Petition filed under Article 226 of the Constitution of
India for a writ of mandamus directing the respondents to close
the liquor shop No.7436, run by the TASMAC which is situated at
0.320 metre away from the National Highways Road No.68 (New
No.79), K.M.48/500 in the Narasingapuram Municipal limit in
Salem District and the liquor Bar in R.R.Plaza Hotel (FL3
licence stands in the name of 5 th respondent) which is situated
only at 0.005 metre away from State High Ways viz., Salem –
Ulundurpet Road No.55, K.M.51/100 in Attur Municipal Town limit.

¶5

For Petitioner : Mr.S.Doraisamy For Respondent 2 : Mr.S.Kamalakannan, Government Advocate

¶6

https://hcservices.ecourts.gov.in/hcservices/

¶7

For Respondents 3 & 4 : Mr.K.Sathishkumar, Standing Counsel

¶8

For Respondent 1 : No Appearance

¶9

ORDER

¶10

(Order of the Court was made by S.Manikumar.J)

¶11

Instant writ petition is filed for a writ of mandamus, directing the respondents, respondents to close the liquor shop No.7436, run by the TASMAC which is situated at 0.320 metre away from the National Highways Road No.68 (New No.79), K.M.48/500 in the Narasingapuram Municipal limit in Salem District and the liquor Bar in R.R.Plaza Hotel (FL3 licence stands in the name of 5^th respondent) which is situated only at 0.005 metre away from State High Ways viz., Salem – Ulundurpet Road No.55, K.M.51/100 in Attur Municipal Town limit.

¶12

2.Heard Mr.S.Doraisamy, learned counsel for the petitioner; Mr.S.Kamalakannan, learned Government Advocate appearing for the respondent 2 and Mr.K.Sathishkumar, learned Standing Counsel appearing for the respondents 3 and 4.

¶13

3.Mr.K.Sathishkumar, learned Standing counsel for the TASMAC drew the attention of this Court, to G.O.Ms.No.32, Home, Prohibition & Excise (VI) Department, dated 21/5/2018, passed in consonance with the various orders of the Hon'ble Supreme Court, in C.A.Nos.12164-12166 of 2016. Paragraph Nos.15 and 17 of the Government Order, which applies to the case on hand, reads as under:-

¶14

“15. Hence, the Commissioner of Prohibition and Excise has suggested that the following self-governing bodies may be treated at par with municipal areas when applicants submit their applications for new/renewal of licenses for sale of liquor:

¶15

Local self-governing bodies forming part of a Statutory Department Authority for which a development plan has been approved as per the provisions contained in the Tamil Nadu Town & Country Planning Act, 1971.

¶16

Census Towns which are Panchayats that are not statutorily notified and administered as a town but nevertheless the population has attained urban characteristics.

¶17

https://hcservices.ecourts.gov.in/hcservices/

¶18

The Commissioner of Prohibition and Excise has further stated that FL1 and FL11 licenses are issued for retail vending of liquor in shops. He has requested the Government to issue instructions to the District Collectors that wherever the shops are located/proposed to be located within the municipal areas (i.e., Municipal Corporations, Municipalities and Town Panchayats), and areas mentioned in para 15 above, the District Collectors can grant approval for location of the retail vending liquor shops on a case by case basis after causing field inspection, if they are in accordance with Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003. They must also ensure that these shops (which are in the highways or within such distance from the highways as laid down by the Hon'ble Supreme Court in its orders dated 15/12/2016 and 31/3/2017) should fall in any one of the following categories:-

¶19

a. Where By-passes for Municipal area (i.e. Municipal Corporations, Municipalities and Town Panchayats) and areas mentioned in para 15 above have been constructed, long distance travelers take the by-pass road while commuting from one city/town/village to another city/town/village. Even though by-passes have been constructed, the stretches of Highways passing within such areas continue to be classified as Highways for the purpose of maintenance from the maintenance allotment of Government funds. These stretches of roads essentially provide connectivity within the local self-governing body. There are a number of traffic regulations and speed regulations within these areas. In cities, heavy vehicles like trucks are not allowed to enter the city limits during the day time. Hence, wherever by-passes have been constructed for a municipal area (Corporations, Municipalities and Town Panchayats) or an area mentioned in para 15 above, the roads classified as Highways and passing within such local self-

¶20

https://hcservices.ecourts.gov.in/hcservices/

¶21

governing body can be considered for location of shops.

¶22

b. There are roads classified as Highways which originate and terminate within the limits of a local self-governing body or a Statutory Development Authority. These are short stretches of road which essentially provide connectivity within the local self-governing body or the Statutory Development Authority. These stretches of roads are subject to traffic regulations and speed regulations like any other city/town road. They do not connect one city/town with another city/town. Hence, in a municipal area (Corporations, Municipalities and Town Panchayats) or an area mentioned in para 15 above, wherever the highways road originates and terminates within the local self-governing body or the statutory development authority, applications for new/renewal of licenses can be considered on these roads.

¶23

c. As per G.O.Ms.No.451, Transport Department, dated 12/4/1984, whenever a bypass is formed or if there is an realignment of National Highways, the old National Highways stretches which are abandoned are handed over to the State Highways Department for maintenance and reclassified as State Highways (Urban stretches). These are essentially roads which have been abandoned by the National Highways after formation of by-pass/reallignment. These roads are of very short length, most of them are below 20 kilometers. Long distance travelers and heavy vehicles do not use these roads for travel. These roads provide connectivity within a city/town. These roads have been classified as State Highways (urban stretches) for the purpose of maintenance from the maintenance allotment of State funds. Hence, applications for location of a shop in a State Highways (Urban stretches) road in a municipal area (Corporations, Municipalities and Town Panchayats) or an area mentioned in para 15 above can be considered for location of shops.

¶24

https://hcservices.ecourts.gov.in/hcservices/

¶25

d. Areas within a Municipal area (Corporations, Municipalities and Town Panchayats) or an area mentioned in para 15 above, which are classified as 'Commercial' in an approved Development plan can be considered for grant of licenses, since these are commercial centres and market places essentially catering to the needs of the residents of the nearby areas of the concerned local self-governing body.”

¶26

4.Pursuant to G.O.Ms.No.32, Home, Prohibition & Excise (VI) Department, dated 21/5/2018, the District Collector, Salem/the second respondent, has issued a proceeding in Roc.18179/2016/AB1 dated 01.09.2017, which is as follows:-

¶27

“ORDER

¶28

The Hon'ble Supreme Court in its order in the reference 1^st cited, has directed that “All states and union territories shall forthwith cease and desist from granting licences for sale of liquor along national and state highways”, and in its order dated 31.03.2017 has directed that “the directions shall be read, as they stand.

¶29

Hence, in obedience to the above order and instructions from Commissioner Prohibition and Excise, totally 41 licence premises (FL2, FL3, FL3A and FL3AA and FLA4) which are located on the National Highways and State Highways in Salem District are ordered to closed.

¶30

The Hon'ble Supreme Court in its order in the reference 4^th cited, has directed that “The purpose of the directions contained in the order dated 15 December 2016 is to deal with the sale of liquor along and in proximity of highways properly understood, which provide connectivity between cities, towns and villages. The order does not prohibit licensed establishments within municipal areas. This clarification shall govern other municipal areas as well.”

¶31

https://hcservices.ecourts.gov.in/hcservices/

¶32

Based on the Hon'ble Supreme Court of India order dated 11.07.2017, the Tamil Nadu Bar and Club owners Association in their letter dated 24.08.2017 have requested to accord permission to re-open bars and permit rooms in hotels and clubs within the City/Town limits.

¶33

In this regard, the Advocate General to the Government of Tamil Nadu has been requested to offer his opinion of the Hon'ble Supreme Court of India judgment dated 11.07.2017. The Advocate General has in his opinion (reference 6 above) stated that in view of the order of the Hon'ble Supreme Court, which is binding on all courts, there is no longer any prohibition in respect of locating the licensed establishments (licencees holding FL1 to FL11 licence) within the proximity of National/State Highways, if the licenced establishments are within Municipal area. This would include Corporations, Municipalities and Town Panchayats.

¶34

Based on the, opinion of Advocate General of Tamil Nadu, the Commissioner of Prohibition and Excise instructed the District Collectors in the reference 7^th cited, may permit all FL.1 to FL.11 licenced establishments which are located within the limits of Municipal Corporations, Municipalities and Town Panchayats to function with immediate effect.

¶35

Hence, based on the above instructions, the following bars mentioned in the Annexure in the licenced premises of FL2, FL3, FL3AA and FL4A which are located within the limits of Municipal Corporations, Municipalities and Town Panchayats in Salem District are ordered to reopen and function with immediate effect.”

¶36

5.In view of the subsequent development, proceeding of the District Collector/second respondent dated 01.09.2017, the

¶37

https://hcservices.ecourts.gov.in/hcservices/

¶38

prayer sought for in this writ petition cannot be granted. Accordingly, writ petition is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.

¶39

Sd/-
Assistant Registrar(CCC)
//True Copy//
Sub Assistant Registrar
jbm
To
1. The Commissioner,
Prohibition and Excise,
Chepauk, Chennai – 5.
2. The Collector,
Salem District,
Salem.
3. Senior Regional Manager,
Tamil Nadu State Marketing Corporation Ltd.,
Salem.
4. The District Manager,
Tamil Nadu State Marketing Corporation Ltd.,
Mallur Post,
Salem.
+1cc to Mr.K.Sathishkumar, Advocate, S.R.No.75239
+1cc to Mr.S.Doraisamy, Advocate, S.R.No.75498
W.P.No.11773 of 2017
BS(CO)
CS/11/02/2019

¶40

https://hcservices.ecourts.gov.in/hcservices/

P.Selvarajan, v. The Commissioner

Case brief

What is this about?

What did the court decide?

P.Selvarajan, v. The Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr.U.Aslam, Vs The Secretary to Government

Traffic Dr.K.R.Ramaswamy Vs State Rep. by 1.The Chief Secretary

Lion.G.Devarajan Vs The District Collector

Murugesan Vs The District Collector

Srinidhi Karti Chidambaram Vs The Principal Chief

P.Jayagopi, Vs The District Collector