Madras High Court
S.M.Balasubramaniyan vs The District Collector on 25 November, 2021
WP(MD) No.20998 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.11.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD)No.20998 of 2021
S.M.Balasubramaniyan ... Petitioner
Vs.
1.The District Collector,
Virudhunagar,
Virudhunagar District.
2.The District Manager,
TASMAC,
Virudhunagar.
3.The Thasildar,
Arrupukottai,
Virudhunagar District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Mandamus, directing the 2 nd respondent to proceed
further based on the inspection report and recommendations of the third
respondent's proceedings in Na.Ka.Aa2/190/2020 dated 04.03.2021 for
establishing a retail outlet in petitioner's premises.
1/8
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WP(MD) No.20998 of 2021
For Petitioner : Mr.A.Srinivasan
For Respondents : Mr.T.Amjadkhan,
Govt. Advocate for R1 & R3
Mr.K.K.Udhayakumar for
Mr.H.Arumugam,
Standing Counsel for TASMAC
ORDER
In the captioned writ petition, the prayer is to mandamus the second
respondent to proceed further based on the inspection report of the third
respondent being inspection report bearing reference Na.Ka.Aa2/190/2020,
dated 03.03.2021 [wrongly shown as 04.03.2021].
2. Short facts are that the writ petitioner is the owner of property at
'door No.1/1-1 in Survey No.101/9 in Kallurani Village, Aruppukottai
Taluk, Virudhunagar District' (hereinafter 'said property' for the sake of
convenience and clarity); that the second respondent intended to set up a
TASMAC retail outlet in the said property; that the second respondent for
this purpose requested the third respondent to send a report about
suitability; that the third respondent pursuant to said request sent
aforementioned report dated 03.03.2021 inter alia saying said property may
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WP(MD) No.20998 of 2021
not be a objectionable location for opening a TASMAC retail outlet; to be
noted, 'TASMAC' stands for 'Tamil Nadu State Marketing Corporation
Limited', which is the wholesale and retail State owned vending company
for liquor in the State; that the petitioner has come to this Court with the
captioned writ petition to mandamus the second respondent to carry the
proposal to its logical end i.e., set up a TASMAC retail outlet in the said
property.
3. Mr.K.Udhayakumar, learned counsel representing the Standing
counsel for TASMAC accepted notice on behalf of the second respondent
and Mr.T.Amjadkhan, learned Government Advocate accepted notice on
behalf of respondents 1 and 3.
4. Owing to the short point involved with the consent of the
aforementioned learned counsel main writ petition was taken up and heard
out.
5. I am not inclined to accede to the prayer. In other words, the
answer to the prayer in the captioned writ petition is in the negative and the
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WP(MD) No.20998 of 2021
reasons are as follows:
a] writ petitioner has no legal right. To be noted it is
imperative that the petitioner should have a legal right to
seek a mandamus and this principle was laid down in the oft
quoted judgment of Hon'ble Supreme Court in Praga Tools
Corporation Vs. Shri C.A.Imanul and others reported in
(1969) 1 SCC 585.
b] As a sequitur to the previous point, in the case on
hand though it may not be liquor vending per se but it
pertains to opening of a shop for retail vending of liquor and
therefore, the concept of res extra commercium would
operate. This doctrine of res extra commercium has been
elaborately considered by the Hon'ble Supreme Court in a
series of case laws and some of the case laws are Har
Shankar and other Vs. Dy. Excise and Taxation Commr.
and others reported in (1975) 1 SCC 737, Assistant Excise
Commissioner and other Vs. Issac Peter and other reported
in (1994) 4 SCC 104, and Khoday Distilleries Ltd., and
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WP(MD) No.20998 of 2021
others Vs. State of karnataka and others reported in (1995)
1 SCC 574. The res extra commercium principle in simple
terms is liquor vending is not a right and it is a concession
given by the State. Therefore, there is absolutely no
possibility of the writ petitioner establishing even a
semblance of a legal right in the case on hand.
c] Be that as it may, on a demurer, the writ petition
proceeds on the basis that the second respondent approached
the writ petitioner and requested for taking said property on
rent but there is no such request, only a communication from
the second respondent dated 08.02.2021 and further
communication of the second respondent to the third
respondent, have been placed before me and these
communications only demonstrate that the second
respondent had contemplated the possibility of opening a
retail TASMAC in the said property and therefore this does
not mean any right either legal or contractual.
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WP(MD) No.20998 of 2021
d] Prayer in effect tantamounts to the Court writing a
contract, which is clearly impermissible and this Court would
not write a contract much less in the writ jurisdiction.
e) There is an averment in the writ affidavit [paragraph
4] that the writ petitioner had renewed the superstructure in
the said building based on assurance said to have been given
by the second respondent but no piece of document has been
annexed to the typed set of papers. To be noted, even if it
had been annexed, it would make no difference as res extra
commercium principle operates and there is nothing to show
that there is even a contract much less a concluded
enforceable contract. Therefore, it may not be necessary to
delve any further into these aspects of the matter.
f] On instructions, learned Standing Counsel for
TASMAC submits that for the present i.e., at the moment, the
second respondent does not intend to open a retail outlet in
the said land. This also puts and end to the campaign of writ
petitioner.
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WP(MD) No.20998 of 2021
7. The sequitur is captioned main writ petition is dismissed. There
shall be no order as to costs.
vsm 25.11.2021
Index : Yes/No
Internet : Yes /No
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order that
is presented is the correct copy, shall be the responsibility of
the advocate / litigant concerned.
To
1.The District Collector,
Virudhunagar,
Virudhunagar District.
2.The District Manager,
TASMAC,
Virudhunagar.
3.The Thasildar,
Arrupukottai,
Virudhunagar District.
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WP(MD) No.20998 of 2021
M.SUNDAR, J.
vsm
W.P(MD)No.20998 of 2021
25.11.2021
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