Dismissed

R.Inbasekaran v. The State of Tamil Nadu

Madras HC1 Apr 2019WP/8759/2019

Case brief

AI extract

What is this about?

A retired police officer challenged the opening of a TASMAC shop and bar on a state highway via Article 226. The court examined Supreme Court directions regarding liquor shop locations, Government Order 32 exceptions for highways originating/terminating within municipal areas, and found no violation. Mere apprehension of nuisance was deemed insufficient to quash the decision.

What did the court decide?

Writ petition dismissed; connected writ miscellaneous petition closed. No costs.

R.Inbasekaran Vs The State of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.04.2019

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CORAM:

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD

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W.P.No.8759 of 2019

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and WMP No.9328 of 2019

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Mr.R.Inbasekaran .. Petitioner

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Vs. 1. The State of Tamil Nadu, Rep. By the Chief Secretary to Government, Secretariat, Fort St.George, Chennai – 600 009. 2. Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai – 600 009.

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The Commissioner, Prohibition and Excise Department, Chepauk, Chennai – 600 005.

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TASMAC Ltd., Rep. By its Managing Director, 4^th Floor, CMDA Tower, Gandhi Irwin Bridge, Egmore, Chennai – 600 008. .. Respondents

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Prayer: Writ Petition is filed under Article 226 of the Constitution of India, issuance of a Writ of Mandamus, forbearing the respondents from operating or selling any liquor products in the TASMAC shop No.421 and bar at Senthil Nagar, Second Street, Arumbakkam, Chennai – 600 106 or its surrounding and grant such other suitable relief as this case my deem fit and proper.

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For Petitioner : Mr.C.Uma Shankar for Mr.B.P.Vinoth For Respondents: Mr.Akhil Akbarali (for R1 to R3) Government Advocate. Mr.K.Sathish Kumar (for R4) Standing Counsel for TASMAC

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

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O R D E R

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(Order of this Court was made by SUBRAMONIUM PRASAD, J.)

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Challenge in this writ petition is for running of TASMAC shop No.421 at Senthil Nagar, Second Street, Arumbakkam, Chennai. Petitioner, a retired Assistant Commissioner of Police, has filed the instant writ petition. According to the petitioner, on 04.03.2019, a temporary structure was erected using iron sheets, in and around a vacant site and on enquiry, he came to know, and informed that a TASMAC liquor shop and bar would be opened, at the site on 06.03.2019, being a auspicious day. Petitioner has stated that another TASMAC shop No.468, is near to the present shop i.e., TASMAC shop No.421 at Senthil Nagar, Second Street, Arumbakkam, Chennai. Petitioner states that the shop No.421, which is under challenge, is on the Jawaharlal Nehru 100 ft Road and both the shops 421 and 468 are at a distance of 50 meters from each other. Petitioner is objecting to the opening of the TASMAC Shop No.421, for the following reasons.

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a) TASMAC shop No.421 is right on the National Highway viz. Jawaharlal Nehru High Road (100 feet road)

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b) TASMAC shop No.421 and Bar are situated in the Senthil Nagar second street which is 20 feet in width.

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c) Second Street, Senthil Nagar is the entrance, for the residents of 2nd, 3rd and 4th streets and Periyar Road and being used by more than 1000 people, in a day from morning to night.

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d) There are so many shops and establishments, in and around the said area and it is always, bubbling with heavy traffic.

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e) Many school children have to pass through the Senthil Nagar second street, to reach Main Road.

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f) Arumbakkam Metro Rail Station is just 100 metres away from the TASMAC Shop No.421 and the bar in Senthil Nagar second street.

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g) Bar is running under a thatched roof shed, which would be a potential danger, in case of fire emergency.

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h) Opening of the liquor shop no.421, is on the national highways and state highways which is against the well settled legal precedents of Hon'ble Apex Court in this regard.

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2. Writ petition came up for hearing on 28.03.2019 and the

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learned standing counsel for TASMAC was asked to verify as to

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whether the 100 ft road, pointed out by the learned counsel for the petitioner, is a State Highway or not and also to be precise as to exact place where State Highway commences. It was also contended that location of the shop is in violation of the judgment of the Hon'ble Supreme Court, which prohibits, opening of a wine shop, within the distance of 500 meters from State / National Highway.

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3. Heard the learned counsel for the parties and perused the materials available on record.

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4. Hon'ble Supreme Court in Civil Appeal No.12164 to 12173 of 2016, (between T he State of Tamilnadu Rep. by its Secretary Home, Prohibition & Excise Dept. & Ors. and K. Balu & Anr., reported in 2017 2 SCC 281) passed the following orders.

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"24. We accordingly hereby direct and order as follows :

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(i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways; (ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority;

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(iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but no later than 1 April 2017;

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(iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways;

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(v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway.

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(vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken.

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(vii) These directions issue under Article 142 of the Constitution.

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We dispose of the appeals and transfer petitions in the above terms. There shall be no order as to costs."

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5. Abovesaid orders were diluted, in respect of State Highways and subsequent orders were passed by the Hon'ble Supreme Court. In consonance with the orders, Government of Tamil Nadu in G.O.Ms.No.32 Home, Prohibition & Excise (VI) Department dated 21.05.2018, has passed order, for opening and continuation of TASMAC shops, in Municipalities and Corporation. Paragraph Nos.15 and 17 of the said Government Order, relevant for the purpose of this case, are extracted hereunder.

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"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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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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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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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 31.03.2017) should fall in any one of the following categories:-

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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 bypass road while commuting from one city/town/village

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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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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 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 12.04.1984, whenever a by-pass is formed or if there is an 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). There are essentially roads which have been abandoned by the National Highways after formation of by-pass/re-alignment. 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

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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 approval 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.

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6. Perusal of the order of the Hon'ble Supreme Court and the stipulation imposed, would show that if a IMFL shop falls under any of the four categories, mentioned therein, a liquor shop, can be permitted to be located.

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7. On the above, we called for the files and perused the same, regarding location.

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8. Perusal of the records shows that while sending the proposal for opening Shop No.421, District Manager, Chennai (Central) Office of TASMAC, in his letter has specifically addressed the issue raised in paragraph No.17(b) of G.O.Ms.No.32, which reads as under.

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B) The proposed shop No.421 is located on State Highway-2 (Chennai Inner Ring Road) within 15 Meters from (SH-2) Highway. The Highways SH-2 mentioned above originates at Manali, Inner Ring Road (Location) and terminates at Guindy Round Tana, (location). The total length of this SH-2, highway is 25 Kms, it is a short stretch of road essentially providing connectivity within the Chennai Corporation. This highway does not connect one city with another city, since it originates and terminates within the Chennai Corporation. The location of this proposed shop No.421 is as per G.O. (Ms.) No.32 dated 21.05.2018 Para 17(b). Hence it is requested that necessary approval may be given.

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9. Perusal of the records also shows that Rule 8 of the Tamil Nadu Liquor Retail Vending (In Shops and Bars) Rules, 2003, is not violated. Giving due consideration to the statutory rules, order of the Hon'ble Supreme Court, and G.O.Ms.No.32 Home, Prohibition & Excise (VI) Department dated 21.05.2018, we hold that there is no legal impediment, in opening of TASMAC Shop No.421 and bar, at Senthil Nagar, Second Street, Arumbakkam, Chennai – 600 106. Learned counsel for the petitioner, stressed that opening of the shop would result, in causing nuisance to the people in the locality.

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10. We are bound to consider, as to whether there is any violation of the Hon'ble Supreme Court order, and Rule 8 of the Tamil Nadu Liquor Retail Vending (In Shops and Bars) Rules, 2003, mere apprehension of nuisance would not be a ground, for a writ Court, to interfere with the decision of TASMAC Ltd., under Article 226 of the Constitution of India, and pass directions, restraining opening of an IMFL shop. There is no merit in the writ petition. Hence, Writ Petition is dismissed. No Costs. Consequently, the connected writ miscellaneous petition is closed.

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Sd/Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar To 1. The Chief Secretary to Government, State of Tamil Nadu, Secretariat, Fort St.George, Chennai – 600 009.

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Principal Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai – 600 009.

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The Commissioner, Prohibition and Excise Department, Chepauk, Chennai – 600 005. 4. The Managing Director, TASMAC Ltd., 4^th Floor, CMDA Tower, Gandhi Irwin Bridge, Egmore, Chennai – 600 008. +1cc to Government Pleader sr.no.31300 +1cc to Mr.B.P.Vinoth, Advocate sr.no.31239 +1cc to Mr.K.Sathish Kumar, Advocate sr.no.30766

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W.P.No.8759 of 2019 and WMP No.9328 of 2019

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nr 12/04/2019

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

R.Inbasekaran v. The State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

R.Inbasekaran v. The State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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