Dismissed

M.Raja, v. The District Collector

Madras HC26 Oct 2018WP/12220/2018

Case brief

AI extract

What is this about?

Petitioner challenged the licensing of a TASMAC shop located within a local municipality, arguing it violated Supreme Court orders requiring a 220-meter distance from highways. The Court held that the measured path was 248.6 meters, satisfying the statutory requirement, and allowed the shop's operation.

What did the court decide?

No relief granted; the writ petition is dismissed and the connected miscellaneous petition is closed.

M.Raja, Vs The District Collector — Constitutional and Fundamental Rights | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26/10/2018 C O R A M THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD

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Writ Petition No.12220 of 2018

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M. Raja ... Petitioner

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The District Collector District Collectorate Kancheepuram District Kancheepuram.

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The District Manager Tamil Nadu State Marketing Corporation Limited

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SIDCO Industrial Estate Orikkai Kancheepuram.

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S. Sankar. ... Respondents (R3 impleaded as per order dated 13/08/18 in WMP.NO.15274/18 in WP.12220/18)

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Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to direct the respondents to ensure shutting of the TASMAC retail outlet shop No.4320 located in S.No.263/1 at Mambakkam Village, in the light of the judgment of this Court in W.P.No.23974 of 2017 and the letter issued by the Tamil Nadu State Marketing Corporation Limited in Lr.No.R3/5482/2017, dated 28/4/2018.

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(Order of the Court was made by Subramonium Prasad,J)

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This Public Interest Litigation has been filed by the petitioner, praying for the issuance of a writ of mandamus to close down the retail outlet Shop No.4320 located at S.No.263/1 at Mambakkam Village, Kancheepuram District.

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

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The petitioner is an agriculturalist and a resident of Mambakkam Village, Kancheepuram District. The writ petitioner has contended that the second respondent/TASMAC, Kancheepuram, opened a retail outlet shop, on 23/1/2018. According to the petitioner, the said shop is located about 130 meters, from Medavakkam to Mambakkam road, which is a State Highway and this is contrary to the orders of the Hon'ble Supreme Court, which has directed that no TASMAC shop should be opened within 500 meters, from the Highway and within 220 meters, in case of Municipality, having a population of less than 20,000.

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The respondents have filed a counter. The second respondent would contend that Shop No.4230 was originally located at No.29/1 Kancheepuam Highway road, Kancheepuram. The said shop was closed down, in view of the orders, dated 15/12/2016 and 31/3/2017 of the Hon'ble Supreme Court, in C.A.Nos.12164-12166 of 2018, wherein the Hon'ble Supreme Court directed that no liquor vending shops could be visible from the National or a State Highway and it should not be situated within 500 meters of the outer edge of the National Highway or State Highway, or of service lane along with the highway and 220 meters in case of areas comprised in local bodies, with a population of 20,000 people or less.

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The respondents would submit that the new shop which was located at 248.6 meters, away from National/State Highway. According to the respondent, the shop has been relocated, keeping in view of the judgment of the Hon'ble Supreme Court and guidelines stipulated, in Rule 8 (1) of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003.

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The owner of the shop in question, has filed an application in W.M.P.No.15274 of 2018 in W.P.No.12220 of 2018, to get himself impleaded, as a party, in the writ petition. Application was allowed, by this Court, vide, order, dated 13/8/2018.

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Heard Mr.R.Prem Narayanan, learned counsel for the petitioner, Mr.P.Arumugarajan for the second respondent and Mr.G.Vijayakumar for the third respondent and perused the materials available on record.

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Section 2 (j) of the Tamil Nadu Liquor (Retail Vending) Rules, 1989, defines, distance, as follows:-

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“Distance means the distance by the shortest pathway, lane, street or road, generally used by the members of the public”.

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

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Learned counsel for the petitioner and the learned counsel for the third respondent have filed a sketch, to show the location of the shop. A perusal of the sketch would show that though the distance between the highway and the shop would be less than 220 meters, as the crow flies, but, if the shortest pathway lane, street, used by the public is considered, then the shop is located beyond the prohibited distance. According to the second respondent, the said shop is located at a distance of 248.6 meters by using the shortest path.

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Material on record also shows that the Tahsildar, Thiruporur, has written a letter, to the District Manager (Incharge), TASMAC, Kancheepuram (South), on 4/3/2018. The said letter reads as under:-

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“Pursuant to the opening of the TASMAC Shop No.4320, on the land owned by Thiru.Shankar, S/o. Sambandan, comprised in Survey No.263/1B, No.5, Mambakkam Village, Thiruporur Taluk, Kancheepuram District, the distance between the place where the above shop is situate and the State Highways is as per the report of the Sub-Divisional Land Surveyor as per the reference 3 herein above, 248.6 metres gap between the above said TASMAC Shop.”

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It is also not disputed that there is no place of worship or educational institution within the prohibited area of the shop. In view of the admitted facts that there is no necessity to discuss the various orders of the Hon'ble Supreme Court. It is further pertinent to mention that pursuant to the order of the Hon'ble Supreme Court, the State Government has brought out, G.O.Ms.No.32, Home, Prohibition & Excise (VI) Department, dated 21/5/2018, bringing out the guidelines regarding issuance of licence to various Establishments under the Tamil Nadu Liquor License and Permit) Rules, 1981 and Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003. Rule 15, 17 and 18 of the said Rules, reads as under:-

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Rule 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:-

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

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

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

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Rule 17:- The Commissioner of Prohibition and Excise has further stated that FL1 and FL11 licenses are issued for retain 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 filed 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:-

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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-governing body can be considered for location of shops.

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

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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.

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c. As per G.O.Ms.No.451, Transport Department, dated 12/4/1984, whevever a by-pass is formed or if there is am re-alignment of National Highways, the old National Highways Stretches which are abandoned are handed over to the State Highways Department, for maintenance and re-classified as State Highways (Urban stretches). These are essentially roads which have been abandoned by the National Highways after formation of bypass/realignment. 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 locations 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.

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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

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

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essentially catering to the needs of the residents of the nearby areas of the concerned local self-governing body.

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Rule 18. The Commissioner of Prohibition and Excise has further suggested that in the case of FL1 and FL11 (retail vending shops) licensees who are not located in a municipal area or an area mentioned in para 15 above, the distance criteria on/from the Highways, laid down by the Hon'ble Supreme Court in its orders dated 15/12/2016 and 31/3/2017 needs to be followed.”

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In view of the fact that the second respondent has not violated the conditions, in G.O.Ms.No.32, Home, Prohibition & Excise (VI) Department, dated 21/5/2018, and the Tamil Nadu Liquor (Retail Vendors Rule 989) there is no infirmity in the decision taken by the respondents, to locate the TASMAC shop, from the place it is operating. 12. In view of the above, writ petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed. Sd/Assistant Registrar //True Copy// Sub Assistant Registrar To 1. The District Collector District Collectorate Kancheepuram District Kancheepuram. 2. The District Manager Tamil Nadu State Marketing Corporation Limited SIDCO Industrial Estate Orikkai Kancheepuram.

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

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+1cc to Government Pleader sr.no.73880

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+1cc to Mr.P.Arumugarajan, Advocate sr.no.73238 +1cc to Mr.R.Prem Narayan, Advocate sr.no.73347 +1cc to Mr.G.Vijayakumar, Advocate sr.no.73365

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W.P.No.12220 of 2018

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vd(co) nr 26/03/2019

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