Madras High Court
Kanagachettikulam Makkal ... vs Union Of India Represented By on 4 January, 2022
W.P.No.26624 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.26624 of 2021
and WMP No.28071 of 2021
Kanagachettikulam Makkal Podhunala
Eyakkam, (Reg No.45/2015),
Rep by its Secretary, Mr.N.Soundararajan,
No.28, East Coast Road,
Ganapathichettikulam, Puducherry – 605 014. .... Petitioner
vs
1.Union of India Represented by
The Chief Secretary to Government,
Government of Puducherry,
Chief Secretariat, Puducherry – 605 001.
2. The Secretary-cum-Commissioner (Excise),
Government of Puducherry,
Chief Secretariat, Puducherry.
3. The Deputy Commissioner,
Government of Puducherry,
Excise Department,
Thattacnchavadi (Near Govt.Press)
Puducherry.
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W.P.No.26624 of 2021
4.M/s Premier Enterprises (IMFL-1 Licence No.30)
Rep. by its Licence Holder Mr.C.Subramanian. ....
Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus directing the respondent Nos.1 to 3
to consider the representations dated 21.10.2021 and 08.11.2021
submitted by the petitioner and thereby direct them revoke the
shifting order issued in favour of the 4th respondent for shifting liquor
shop namely M/s Premier Enterprises (IMFL – 1 Licence No.30) from
No.207, Kamaraj Salai, Pillai Thottam, Puducherry to R.S.No.162/3,
ECR Main Road, Ganapathichettikulam, Puducherry and to relocate
the Liquor Shop to its original place or any other place other than
Ganapathichettikulam, Kalapet Revenue Village in interest of general
public and respecting their sentiments as well as taking into account
of locations of very many educational institutions in the area.
For the Petitioner : Mr.Prakash Adiapadam
For the Respondents : Ms.N.Mala
Govt. Pleader (Pondicherry)
*****
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
The writ petition has been filed to seek a direction on the
respondent nos.1 to 3 to consider the representations submitted by
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W.P.No.26624 of 2021
the petitioner not to shift the liquor shop in the name of M/s.Premier
Enterprises to an area which is adjacent to a school and a temple
and a mosque.
2. A reference to the earlier judgment of this court in reference
to the same controversy has been given which was decided by the
order dated 21.06.2017 in W.P.No.8558 of 2017. It is submitted
that taking into consideration the sentiment of the public, the shop
should not have been relocated at the place when it is close to the
temple and mosque apart from an educational institution. A
distance from it is less than 50 meters and the same is not
permissible under the Rules. The learned counsel has given
reference to the earlier judgment of this Court dated 21.06.2017
where the recommendations made by the former Chief Ministers of
the Union Territory of Puducherry were referred. The direction given
by this court in the earlier litigation was to take a decision in
reference to the recommendations made by the former Chief
Ministers of the Union Territory of Puducherry. The location of the
liquor shop should not have been allowed contrary to the order in
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W.P.No.26624 of 2021
the earlier writ petition.
3. The learned counsel further submits that without an
opportunity of hearing, the relocation has been allowed and now, in
the counter-affidavit, the distance of the liquor shop has been
shown to be around 150 meters from the educational institution so
as the temple and mosque. The distance determined by the
respondents is without calling the petitioner and it is not acceptable.
In view of the above, the prayer is to direct the respondents not to
relocate the liquor shop to the place close to the temple/mosque and
the educational institution.
4. The learned counsel for the respondents has referred to the
counter-affidavit and the documents submitted along with it to
indicate that the area in question falls under the municipality and as
per the Puducherry Excise Rules of 1970, the liquor shop can be
located at the distance of more than 50 meters from the school and
the temple/mosque. The distance of the relocated liquor shop would
be more than 150 meters from the temple/mosque and educational
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W.P.No.26624 of 2021
institution. In view of the above, the action of the respondents is
not in violation of Rules of 1970. The learned counsel further
submits that an opportunity of hearing was given to the petitioner
by sending notice on 11.09.2021 and the distance has been
measured recently pursuant to the direction of this Court. The
respondents are not governed by any of the statement or
recommendation of the former Chief Ministers of the Union Territory
of Puducherry, but by the Rules of 1970. The prayer is accordingly
to dismiss the writ petition.
5. We have considered the rival submissions of the parties and
perused the records.
6. The writ petition has been filed to challenge shifting of the
liquor shop mainly on the ground that it would not only affect the
sentiment of the people but is close to the temple/mosque and the
educational institution. The reference of the earlier judgment of this
court dated 21.06.2017 has been given to show the
recommendation of the former Chief Ministers of the Union Territory
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W.P.No.26624 of 2021
of Puducherry. We have considered the submission aforesaid and
find that what is going to govern the issue is the Puducherry Excise
Rules of 1970. As per the Rules of 1970, the liquor shop cannot be
located within the distance of 50 meters from an educational
institution and also temple/mosque. The counter-affidavit submitted
by the respondents shows the distance of the liquor shop to be 150
meters from the school and the temple/mosque. In view of the
statement aforesaid, the Rules of 1970 have not been violated in re-
locating the liquor shop.
7. The question now comes to the sentiment of the people.
The reference of the earlier judgment of this Court dated
21.06.2017 has been given therein. The perusal of the judgment
shows the reference of the recommendation of the three former
Chief Ministers of the Union Territory of Puducherry regarding
relocation of the liquor shop. The judgment aforesaid does not
make a reference of the Rules of 1970 which otherwise govern the
subject matter. If any judgment has been given by the Court
without referring to Rules and otherwise going against the Rules,
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W.P.No.26624 of 2021
then it has to be rendered per incuriam. The Court is required to
govern itself by the relevant Act and the Rules and not by the
recommendation of the former Chief Ministers. When the Rule
permits location of the liquor shop beyond 50 meters to an
educational institution and even temple or the mosque, we cannot
issue direction contrary to the provision unless it is struck down.
The constitutional validity of the Rules is not under challenge. In
view of the above and keeping in mind the counter-affidavit filed by
the respondents showing the distance of the liquor shop as 150
meters from the temple/mosque as well as the educational
institution, we do not find a case in favour of the petitioner. The
counter-affidavit was filed with a copy to the counsel for the
petitioner who sought time to study it and no rejoinder has been
filed to dispute the distance between the liquor shop and the
educational institution and also the temple/mosque. In view of the
above, we do not find any reason to discard the counter when the
respondents have even furnished the sketch map to indicate the
location of the shop vis-a-vis the temple and the educational
institution.
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W.P.No.26624 of 2021
In the light of the aforesaid, we do not find a case in favour of
the petitioner for grant of the prayer and accordingly, the writ
petition is dismissed. No costs. Consequently, W.M.P.No.28071 of
2021 is closed.
(M.N.B., ACJ.) (P.D.A., J.)
04.01.2022
Index : Yes/No
sra
To:
1.The Chief Secretary to Government,
Union of India,
Government of Puducherry,
Chief Secretariat,
Puducherry – 605 001.
2. The Secretary-cum-Commissioner (Excise),
Government of Puducherry,
Chief Secretariat,
Puducherry.
3. The Deputy Commissioner,
Government of Puducherry,
Excise Department,
Thattacnchavadi (Near Govt.Press)
Puducherry.
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W.P.No.26624 of 2021
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W.P.No.26624 of 2021
M.N.BHANDARI, ACJ.
AND
P.D.AUDIKESAVALU, J.
(sra)
W.P.No.26624 of 2021
04.01.2022
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