Madras High Court
M.Suseela vs The Commissioner Of Prohibition ... on 13 October, 2022
W.P(MD)No.9831 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.10.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
29.08.2022 13.10.2022
W.P(MD)No.9831 of 2018
and
W.M.P(MD)Nos.9041 to 9043 of 2018
M.Suseela ... Petitioner
Vs.
1.The Commissioner of Prohibition and Excise,
Chepauk, Chennai – 600 005.
2.The District Collector,
Virudhunagar District,
Virudhunagar.
3.The Divisional Excise Officer,
Aruppukottai,
Aruppukottai Division,
Virudhunagar District.
Page No.1 of 23
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W.P(MD)No.9831 of 2018
4.The Secretary,
Raghaa Recreation Club,
Door NO.4/463, Puliyankulam Village,
Inam Rettiyapatti Road,
Soolakkaraimedu,
Virudhunagar District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings of the first respondent in
R.Dis.No.P&E2(2)/12139/2017 dated 13.04.2018 and quash the same as
illegal and consequently forbear the respondents from permitting the
operation of any recreation club or liquor vending sh op in Puliyankulam
Village of Inam Reddiyapatti Panchayat, Virudhunagar District.
For Petitioner : M/s.J.Irfana Fathima
for M/s.Ajmal Associates
For Respondents
R1 to R3 : Mr.Veera Kathiravan
Additional Advocate General
Assisted by Mr.S.Kameswaran
Government Advocate
R4 : Mr.K.Rajeswaran
Page No.2 of 23
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W.P(MD)No.9831 of 2018
ORDER
The petitioner, a resident of Puliyankulam Village, Inam Reddiyapatti
Panchayat, Virudhunagar District filed this writ petition to call for the
records and quash the proceedings of the first respondent in
R.Dis.No.P&E2(2)/12139/2017 dated 13.04.2018.
2.The grievance of the petitioner is that the petitioner and her
husband were engaged in the business of manufacture of Pencils and
Agarbathis in the name and style of Sri Bhoobhal Engineering Works
having their unit located in Door No.4/346 abutting the Inam Reddiyapatti
and Puliyankulam main road. The majority of their employees are women
and the area is also a residential area. The women working in their Unit
were working in both day shift and night shift. The 4th respondent attempted
to open a recreation club with bar facility in close proximity in Door No.
4/829 which resulted in grave nuisance to the villagers and the residents of
the area which is likely to cause hardship to women, spoil the serene
environment of the locality and would also result in breach of peace and
tranquility. The local police and the revenue officials recommended to the
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W.P(MD)No.9831 of 2018
first respondent that it would not be appropriate to permit the functioning of
a recreation club with FL2 licence. The second respondent/District
Collector by his communication dated 10.09.2016 opposed the location of
the recreation club in the area citing that more than 25 women are working
in the petitioner's unit and grant of permission would result in law and order
issue. In furtherance of the same, the first respondent in his proceedings
dated 24.02.2017 rejected the said application.
3.In the earlier rejection order, the first respondent recorded that
objections were received from the Inspector of Police, Soolakkarai Police
Station, Village Administrative Officer, general public and All India
Democratic Women Association. It is further stated that the proposed
location of the club is an accident prone area and lot of students, women and
social welfare organizations conducted Dharna opposing the same. It is
further apprehended that imminent law and order problem would arise.
Further, near the proposed location of the club Sri Vatsa Polytechnic Office
is located, lot of women workers employed in the nearby Textile shop, Tamil
Nadu Mercantile Bank is located, Training Centre and Evening Education
Institute are located. Apart from that, it is a residential area for many
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W.P(MD)No.9831 of 2018
Government employees, Policemen, Judicial Officers. Added to it, there is
an orphanage which is being run by the Government in name of Annai
Sathya Orphanage Home is located. Considering all these aspects, the
earlier application by the 4th respondent for grant of FL2 licence to locate
the club in Door No.4/829-B was rejected on 24.02.2017.
4.Immediately in quick succession, the 4th respondent submitted
another application for location of recreation club at Door No.4/463,
Puliyankulam village, Inam Reddiyapatti Panchayat, Virudhunagar District.
This property is situated right opposite to the petitioner's Manufacturing
Unit and other residential and educational centres. On receipt of the second
application, the Local Police and Revenue Officials conducted inspection.
The third respondent by his proceedings dated 12.02.2018 found that there
would be increase in accidents, breach of peace and tranquility. It was also
found that All India Democratic Women Association objected to the
proposed location of the club. The Village Administrative Officer given a
report that the location of the recreation club in the proposed site is not
feasible. This being so, strangely the second respondent recommended for
FL2 licence in favour of the 4th respondent when on an earlier occasion
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rejected the same though for a different location in the same area.
Thereafter, the first respondent granted FL2 licence for functioning of the
club in the proposed location which is vitiated by colourable exercise of
power and fraud on statutory entrustment of discretion. Thus, the impugned
order was passed on total non-application of mind, malice in law as the
authority took a decision contrary to the facts germane to the issue and on
extraneous consideration.
5.It is to be seen that this Court in the case of the Tamil Nadu State
Marketing Corporation Ltd., vs. R.M.Shah and others reported in 2010 (2)
CWC 337 and in the case of G.Vetrivel vs. Golden Enclave Owners'
Association and others reported in 2012 (6) CTC 661, held that the
satisfaction of criteria under the Rules only reflects eligibility and does not
give license automatically to cause nuisance to the residents. This decision
was affirmed by the Apex Court. Further referred to the decision of the
Division Bench of this Court in the case of M.A.Sudhagar vs. The
Government of Tamil Nadu, rep. by its Principal Secretary and others
reported in 2014 (4) CTC 721, wherein this Court elaborately dealt the
issuance of FL2 license and it was held that on receipt of application for
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grant of FL2 licence, the Licensing Authority should satisfy in general, after
due enquiry, find three preliminary conditions are satisfied, namely (i) that
the local needs justify the grant of Licence; (ii) that public interest shall not
suffer by the grant of licence applied for and (iii) that the privilege is not
likely to be misused. Further, this Court referred to Rule 8 of The Liquor
Retail Vending [In Shops and Bars] Rules, 2003 and held that the
discrimination sought to be maintained between TASMAC Shops and
Clubs, by prescribing distance for TASMAC shops alone from Educational
Institutions and places of worship but not for Clubs from the very same
Educational Institutions and places of worship, is discriminatory and is
founded upon on elitist presumption. Further in the case of R.M.Shah
[cited supra], this Court held that any person who is deprived of peaceful
life on account of the nuisance created by a liquor shop would challenge the
action in locating the shop in a residential or semi-residential locality as
offending the right of life guaranteed under Article 21 of the Constitution of
India notwithstanding the fact that the liquor shop satisfies the distance
criteria. Further, in the case of G.Vetrivel [cited supra] the Division Bench
of this Court held that whether it is a residential building or a commercial
building, it should meet out the public safety and security.
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W.P(MD)No.9831 of 2018
6.In the present case, the learned counsel for the petitioner produced a
typed set of papers containing various representations of from Sri Boobhal
Engineering Works, Residents of Puliyankulam Village, All India
Democratic Mahila Sangam and hand bill for holding public protest.
Recently, the Government issued G.O.Ms.No.17 Home, Prohibition and
Excise [VI] Department dated 13.02.2022, following the directions of the
Full Bench of this Court stressing the point that no TASMAC shop to be
approved by the Collector unless the representations and objections
received are considered and orders passed thereon. In this case, the
petitioner, the residents and social welfare organizations sent
representations but the same was not considered. Further, the learned
counsel for the petitioner produced photographs to show the presence of the
Club within the vicinity of Kurinji Ladies Hostel, a Church, small temple
and Government Hearing Impaired Higher Secondary School. Hence, he
prayed for quashing the impugned order passed by the first respondent in
favour of the 4th respondent.
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7.Added to it, the learned counsel for the petitioner produced a copy
of FIR in Crime No.39 of 2022 dated 09.03.2022 to buttress the fact that all
is not well. He would submit that the place is used as a den where there are
lot of fighting, finally a murder took place in the club premises, thereby
creating a fear phobia in the minds of the residents and others. He further
submitted that no women is coming forward to work in the petitioner's
Manufacturing Unit and the women work force considerably reduced.
8.The learned Additional Advocate General appearing for the
respondents 1 to 3 submitted that the second respondent/District Collector
filed his counter which was adopted by the respondents 1 and 3. It is
submitted that the averments made by the petitioner regarding earlier refusal
to grant permission to the 4th respondent on the recommendation of the
second respondent is denied. The Secretary of Sri Raghaa Recreation Club
applied for FL2 licence for location of the club at Door No.4/829-B in
Soolakkarai Village, Aruppukottai Taluk, the first respondent vide order
dated 24.02.2017 rejected the claim for FL2 licence on the ground of public
objection and non-adherence to the specified distance from National
Highway as per the Apex Court order dated 31.03.2017 in Civil Appeal Nos.
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12164-12166 of 2016. The 4th respondent now shifted the place of
functioning of the club to Door No.4/463, Puliyankulam Village, Inam
Reddiyapatti Panchayat, Virudhunagar Taluk. The third respondent in his
report dated 12.02.2018 submitted that there would be breach of peace and
nuisance would be caused. Since the same was mentioned under
presumption, the second respondent issued NOC, based on the report from
the Superintendent of Police.
9.The third respondent in his recommendation dated 09.04.2018
referred to the survey sketch prepared by the Head Surveyor and counter
signed by the Tahsildar, Virudhunagar Taluk showing that the School for
Differently abled persons is situated 680 meters away from the club, Annai
Sathya Orphanage is situated 680 meters away, Pillayar temple is situated
280 meters away, VAO office is situated 360 meters away, Kurinji Ladies
Hostel is situated 650 meters away and a Church is situated 855 meters
away from the club. It is further submitted that there is no dwellings within
300 meters radius of the club. Further, there is no violation in the norms
fixed by the Tamil Nadu Liquor [Licence and Permit] Rules, 1981 and
recommended for grant of FL2 licence to the said club.
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10.It is submitted that earlier proposed location of the club and the
present location are different places. Earlier location was at Door No.4/829-
B, Soolakkarai Village of Aruppukottai Talk and the application for FL2
licence was rejected on the ground of public objections and non-adherence
to the specified distance from National Highway. The present location of
the club is at Door NO.4/463, Puliyankulam Village, Inam Reddiyapatti
Panchayat, Virudhungar Taluk and the reason for grant of FL2 licence is that
there is no dwellings within 300 meters radius of the club, there is no
educational institutions or place of worship within 100 meter radius as
mandated by the Tamil Nadu Liquor [Licence and Permit] Rules, 1981.
Further, in the same locality already a recreation club bearing FL2 licence
NO.13/2014-15 is functioning till date for the past 16 years and the
challenged club bearing FL2 licence No.1/2018-2019 is functioning till date
for the past 3 years and no untoward incident recorded. It is also submitted
that the functioning of the 4th respondent Club is monitored regularly,
surprise inspections are conducted by the Assistant Commissioner of
Excise, Virudhunagar at regular intervals. The Club is adhering to all the
terms and conditions of the licence in compliance with the provisions of the
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Tamil Nadu Prohibition Act, 1931 and the Tamil Nadu Liquor [Licence and
Permit] Rules, 1981 from April 2018 onwards. Further, the learned
Additional Advocate General submitted that the first respondent
Commissioner of Prohibition and Excise granted FL2 licence based on the
report submitted by the second respondent and the third respondent that the
4th respondent satisfied all the conditions and after receipt of the privilege
and licence fees, FL2 licence was granted.
11.The learned counsel for the 4th respondent Club filed his counter
and submitted that originally the agriculturist and villagers of the Alagapuri
Village, Virudhunagar District joined together and formed a society in the
name and style of “Alagapuri Neer Vadipaguthi Sangam” . The Sangam
vide resolution dated 26.08.2014 changed the name of the Society to “Sri
Raghaa Recreation Club”. The competent authorities were informed about
the same and the certificate of registration was issued. From the date of
inception, the Club is strictly following the rules and regulations. It is
submitted that the contention of the petitioner that opening of the club at
Door No.4/463 Inam Reddiyapatti Panchayat, Virudhunagar Taluk would
result in nuisance to the villagers and residents and would endanger the
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safety of women folk in the area and employer in the petitioner's
Manufacturing Unit are false. Earlier the Club made an application for FL2
licence for the premises at Door No.4/829-B which was rejected by the first
respondent for the reason that the premises was situated within a distance of
15.7 meters from the National Highway. Hence, the present location was
identified, construction was put up, all the amenities and space for the Club
were made ready. Thereafter, the 4th respondent applied for grant of FL2
licence for Door No.4/463, Puliyankulam Village, Inam Reddiyapatti
Panchayat, Virudhunagar District which was examined by the 3rd respondent
and the Superintendent of Police, Virudhunagar, who gave a report to the
second respondent. The Superintendent of Police, Virudhunagar issued
NOC for issuance of FL2 licence to the 4th respondent. The second
respondent after consideration of the report of the 3rd respondent and the
Superintendent of Police, Virudhunagar recommended grant the FL2 licence
to the 4th respondent. The first respondent on scrutiny of the application and
the report, granted licence to the 4th respondent.
12.The club is situated 650 meters away from Ladies Hostel, 280
meters away from temple, 680 meters away from Annai Sathya Orphanage
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and 855 meters away from church, finding the club premises is not situated
within any prohibited area and finding that there is no deviation of rules and
regulations, the club was granted FL2 licence. The petitioner with a hidden
agenda filed the present writ petition with false and vexatious allegations.
The whole case of the petitioner is only based on assumption and
presumptions which cannot be basis for maintaining a writ and the same
cannot be entertained. The presence of the petitioner Manufacturing Unit is
not a ground for rejection or revocation of FL2 licence which is not a
condition precedent for grant of FL2 licence. The FL2 licence cannot be
granted or rejected on the whims and fancies of an individual but only in
strict adherence to the Tamil Nadu Liquor [Licence and Permit] Rules, 1981
and the Liquor Retail Vending [In Shops and Bars] Rules, 2003. The liquor
is served exclusively to the members of the Club and in a closed area,
hence, there cannot be any objections from the petitioner. It is further
submitted that for the past three years the Club is functioning without any
untoward incident except for a stray isolated incident between individuals.
13.Further, Public Interest Litigation was instituted by one
Perumalsamy in W.P.(MD).No.12684 of 2018 with similar allegations and
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prayed for cancellation of FL2 licence granted to the respondent. The said
writ petition was dismissed by this Court vide order dated 05.07.2018. The
judgments referred by the petitioner are entirely different from the issues
raised by her and the same are not applicable to the facts of the case. It is
further submitted that the Club is situated in a remote area without any
hamlet o f 300 meters, there is no educational institution or place of worship
within 100 meters, the Club is 910 meters away from National Highways as
per the distance norms prescribed by the Apex Court, there is no TASMAC
outlet functioning 5 kms radius and the club is situated at a distance of 1.5
kms in Soolakkarai Village. The FL2 licence was granted finding 4th
respondent functioning with strict conformity to the rules and regulations,
without any violation or deviation, of any of the Tamil Nadu Liquor
[Licence and Permit] Rules, 1981 and the Liquor Retail Vending [In Shops
and Bars] Rules, 2003.
14.Considering the submissions and on perusal of the materials
placed before this Court, it is seen that initially the 4th respondent Club
sought for FL2 licence at Door No.4/829-B, Soolakkarai Village, at that
time, the application for FL2 licence was rejected by the first respondent
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vide order dated 24.02.2017 for the reason that the proposed location of the
club was an accident prone area, All India Women Association and Social
Welfare Organizations held Dharna and protest including road roko, there
was a Polytechnic College Office, Textile shop, Bank, Training Centres, it
is a residential area for many Government employees, Policemen, Judicial
Officers and also abutting the National Highways. On the same breath,
another application was made on 01.12.2017, this time location of the club
was at Door No.4/463, Puliyankulam Village, Inam Reddiyapatti Panchayat,
Virudhunagar Taluk. The commencing of the Club was objected not only by
the petitioner but several others. The location of the present premises is
1 km from the National Highways, further opposite to the present location
there is a Pencil Company wherein 20 women workers are employed, in the
adjoining residential area, lot of women including elders make their regular
walking during morning and evening. The residents of the area made a
protest objecting for location of any liquor shop, the Women Association
objected to the same and held Dharna. They have sent representation to the
Collector, the Superintendent of Police apprehending that if the Club is
allowed to function in the said location, possibility of road accident is also
there. The report of the Inspector of Police, Soolakkarai Police Station
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dated 16.01.2018 confirm the same. The Divisional Excise Officer sent his
report to the Assistant Commissioner of Excise in Na.Ka.Ka.//135/2017
dated 12.02.2018 by a detailed report. From the report, it is found that a
factory by name Sir Boobhal Engineering Works situated right opposite to
the proposed place, Pencil and Agarbathi Industry functioning with 30
women workers, confirming the objections of the petitioner. Added to it,
one Mrs.S.Sumathi, Secretary, All India Democratic Women Association
made objections and her statement recorded. It is also found that there was
a working women hostel where 150 women are staying, elders and ladies
used the place for morning and evening walk proximate to the location of
the club. The residents given representation to the Collector on the Public
Grievance Day on 08.01.2018. Finding serious and sustained objections
from majority of the people, residents therein and the report of the Inspector
of Police, Soolakkarai Police Station, the Divisional Excise Officer's report,
the Village Administrative Officer's report, all recommended for rejection of
issuance of FL2 licence to the 4th respondent finding the objections real,
sustainable and there is every possibility of law and order issue, disturbance
of peace and tranquility of the area.
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15.This being the fact, for the reasons best known, the second
respondent/District Collector gave No Objection for issuance of FL2 licence
to the 4th respondent. Further, the second respondent not considered,
adverted, gave any reason as to why the report of the third respondent, VAO,
Inspector of Police, Soolakkarai Police Station and the general public were
not considered. On the other hand, the second respondent conveniently
states that on the basis of the report given by the Superintendent of Police,
Virudhunagar, recommended for issuance of FL2 licence to the first
respondent. The first respondent relies on the report and recommendation
of the second respondent and FL2 licence was given to the 4th respondent.
The issuance of FL2 hinges on the report of the second respondent. The
second respondent without considering the objections from the Public,
social welfare organizations, VAO, Inspector of Police, Soolakkarai Police
Station. The persons who had been to the place, conducted enquiry and
given the field report. On the contrary, the second respondent given a report
in favour of the 4th respondent without any justification which is not proper
and cast serious doubt, the manner in which No Objection Certificate given.
The second respondent over looking the objections brushed aside the
tangible materials against issuance of FL2 licence to the 4th respondent.
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16.The Division Bench of this Court held three conditions to be
satisfied before issuance of FL2 licence, namely, (i) that the local needs
justify the grant of Licence; (ii) that public interest shall not suffer by the
grant of licence applied for and (iii) that the privilege is not likely to be
misused. In this case, it is admitted by the 4th respondent that the Club was
formed as a Society in the name and style of “Alagapuri Neer Vadipaguthi
Sangam” with registration No.201/02 by one Govindaraj. His son Arun
Karthikeyan, an Engineering Graduate took over the Association and
changed the name as Sri Raghaa Recreation Club from 24.02.2015,
functioning from Door No.4/829-B, Soolakkari, Aruppukottai Taluk.
Further, the report of the Inspector of Police, Soolakkarai confirms, there is
no such club functioning in the said address. Though it was projected as
membership club, it is functioning otherwise with profit motive. The
Division Bench of this Court held, for issuance of FL2 licence, the
conditions both in Tamil Nadu Liquor [Licence and Permit] Rules, 1981
and the Liquor Retail Vending [In Shops and Bars] Rules, 2003 are to be
followed in strict sense.
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17.It is to be seen that the approach of State is to eliminate liquor
vending in any manner which is the object of the Tamil Nadu Prohibition
Act and the interest of Public and their welfare to be the primary concern.
This approach is consistent, the Division Bench of tis Court issued
directions in this regard in W.p.(MD).No.11806 of 2017 batch. Following
the same, recently the Government issued G.O.Ms.No.17 Home, Prohibition
and Excise [VI] Department dated 13.02.2022, wherein the Collectors were
directed to consider the representation and objections received in the
location of the liquor shops. The objections and conditions for the liquor
shops would be equally applicable to the FL2 licence [Club licence]. It is
also to be seen that the earlier objections and presence of Hearing Impaired
School, Working Womens Hostel, Temple, Church and the objections of the
general public still exists except for a change in location to overcome the
distance criteria. The apprehension of public nuisance and threat for public
movement and serene atmosphere still exists.
18.The District Collector in his counter admitted that in the same
locality already a recreation club bearing FL2 Licence No.13/2014-2015 is
functioning. If that is so, the first condition i.e. local needs justify the grant
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of licence does not arise. Further, it is not disputed that murder took place
within the 4th respondent's club premises on 09.03.2022, one Ramar of Inam
Reddiyapatti Panchayat was murdered inside the club and a case in Crime
No.39 of 2022 for the offence under Section 302 IPC registered against one
Rajeshwaran [Singam] and Karuppasamy of Inaam Reddiyapatti. Thus,
sufferance of public interest is found. Further, on perusal of the order
passed in W.P.(MD).No.12684 of 2018 dated 05.07.2018, it is seen that the
writ petition was dismissed for non-disclosure of certain facts and this Court
had not gone into the aspect of violation of Rules.
19.In the present case, it is clear that there have been clear violation
of Rules by the second respondent in recommending for issuance of FL2
licence in favour of the 4th respondent. The first respondent primarily gone
by the recommendation of the 2nd respondent report and issued FL2 licence
in favour of the 4th respondent. In view of the same, this Court finds that
issuance of impugned order by the first respondent is not proper. Hence, the
impugned order passed by the first respondent in
R.Dis.No.P&E2(2)/12139/2017 dated 13.04.2018 is hereby set aside.
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20.Accordingly, the writ petition stands allowed. Consequently, the
connected Miscellaneous Petitions are closed. No costs.
21.This Court places its appreciations to M/s.J.Irfana Fathima, young
upcoming Counsel for her thorough preparation and effective arguments
made in this case against the veterans.
13.10.2022
Speaking Order / Non-Speaking Order
Internet : Yes / No
Index : Yes / No
cse
To
1.The Commissioner of Prohibition and Excise,
Chepauk, Chennai – 600 005.
2.The District Collector,
Virudhunagar District,
Virudhunagar.
3.The Divisional Excise Officer,
Aruppukottai,
Aruppukottai Division,
Virudhunagar District.
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W.P(MD)No.9831 of 2018
M.NIRMAL KUMAR, J.
cse
Pre-delivery order made in
W.P(MD)No.9831 of 2018
13.10.2022
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