THE MADRAS HIGH COURT.
DATED: 19 - 7 - 2010
THE HONBLE MR.JUSTICE ELIPE DHARMA RAO
THE HONBLE MR. JUSTICE K.K.SASIDHARAN
W.A.No. 1353 of 2010
The Tamil Nadu State Marketing Corporation Ltd.,
Rep.by its Managing Director
CMDA Tower II, Chennai. .. Appellant.
1. R.M. Shah
2. J. Sandeep
3. Commander O.A. Nair (Retd.)
BO, 13-B Orms Road
4. Praful.C. Pargel
5. The Deputy Commissioner of Excise
& District Revenue Officer
6. The Collector of Chennai
Rajaji Salai, Chennai. .. Respondents For Appellant : Mr.J. Ravindran
For RR 5 & 6 : Mr. G. Desingu, Spl. GP
Writ Appeal is preferred under Clause 15 of the Letters Patent against the order of the learned single judge in W.P.No. 38494 of 2005 dated 08.6.2010. ORDER
( made by ELIPE DHARMA RAO, J. )
The appellant challenges the order dated 08.6.2010 in W.P. No. 38494 of 2005 whereby and whereunder the learned Judge directed the closure of the liquor shop-cum-Bar run by the Tamil Nadu State Marketing Corporation Ltd., (for short,TASMAC) at Door No. 12/4 Ormes Road, Kilpauk.
2. The residents of Ormes Road preferred the Writ Petition in W.P.No.38494/05 for shifting the liquor shop- cum Bar at Door No.12/4 at Ormes Road, Kilpauk. The main grievance of the respondents 1 to 4 before the learned single Judge was that the location of the shop was highly objectionable as it was situated in a residential area, very near to a Girls School and a temple. The customers coming to the shop, after consuming liquor, used to threw the bottles indiscriminately all over the road and very often misbehaved with the local residents thereby creating lot of nuisance to the public. Though several representations were sent, there was no followup action, which made them to file the writ petition.
3. The TASMAC filed a counter affidavit contending that there was a private wine shop in the very same premises earlier for which there was no objection and that the area is not a pure residential area in view of the presence of commercial establishments in the street. It was further stated that the complaint sent by the writ petitioners were duly answered by the Corporation.
4. The learned single Judge, after hearing the learned counsel for the parties and the materials placed for consideration including the report of the Joint Commissioner of Police and the Topo sketch showing the location of the shop vis-`-vis the school and the temple, allowed the writ petition, and directed closure of the liquor shop within a period of four weeks from the date of receipt of the order. Challenging the same, the writ appeal has been filed by the TASMAC.
5. Heard the learned counsel for the appellant.
6. Learned Standing Counsel for the Appellant would submit that the TASMAC shop is not located within the prohibitory distance as contemplated in the Rules. According to him previously a private wine shop was located in the very same place, which is a commercial area, and nobody objected to the functioning of the liquor shop. It was only when TASMAC opened the Bar, the so-called residents have raised their objections. The learned counsel would further submit that the business of TASMAC would be reduced considerably in case of such shifting. Therefore he seeks to set aside the order passed by the learned Judge.
7. It is a matter of record that pursuant to the direction of the learned single Judge, the Joint Commissioner of Police filed a report which shows that there has been several nuisance cases filed against various persons by the G.3 Kilpauk Police Station (L & O) and between 2005 and 2006, 10 cases have been registered under Section 75(1)(b) of the Madras City Police Act. It is also clear from the report that the accused in the said cases have been fined by the respective Magistrates. The learned Judge, taking note of the safety of the school going children, ordered the closure of the liquor shop.
8. The principal contention of the learned Counsel for the appellant pertains to the distance rule. According to the learned Standing Counsel the liquor shop was located beyond the prohibited zone prescribed under the Tamil Nadu Liquor (Retail Vending) Rules and therefore the learned single Judge was not justified in directing the appellant to shift the shop on the alleged ground of Public nuisance.
9. It is true that the retail vending rules provide that no shops shall be established within a distance of 50 metres in Municipal Corporations and Municipalities and 100 metres in other areas, from any place of worship or educational institutions. However, that does not mean that the liquor shops so established would get a licence automatically to cause nuisance to the local people. The prescription of distance for opening the Bar is a matter between the state and the excise licensees. Merely because the shop is situated beyond the distance stipulated in the rules it cannot be said that there would be no nuisance to the people of the area. The distance rule takes care of only the place of worship or educational institutions. It does not say that the liquor shops should be away from residential houses. The nuisance created by the drunkards would extend even beyond the safety area prescribed under the rules. Therefore it all depends upon the facts and circumstances of each case. The factum of location of the shop beyond the prohibited distance would not come to the rescue of the licensee of liquor shops in the event of there being perennial nuisance to the residents of the area.
10. The appellant is right in their contention that there is nothing in the statute which prohibits conduct of liquor bar in residential zone. But such absence of restriction would not stand in the way of challenging the location of liquor bars which causes nuisance to the residents of the area.
11. It is a fact that some of the liquor shops are functioning from early morning till midnight without adhering to the time schedule. Therefore the fact that the liquor shop has been functioning in the area for a considerable period cannot be put against the public when they approach the authorities with complaints of nuisance accompanied by a request to shift the liquor outlet. It is not as if the liquor shop would earn business only if it is located in a commercial or residential area.
12. However, there is a word caution. The attempt of the public should not be to shift the liquor shop in a selective manner. There should be public interest behind any such move. The request for such closure should not be with a hidden agenda and the allegations of nuisance should not be at the instance of rival traders in liquor.
13. There is nothing on record to suspect the bonafides of the respondents 1 to 4 in their request to shift the liquor Bar. 14 Therefore we reject the contention of the appellant that no direction could be issued to shift the liquor shop in case the shop is located beyond the prohibited distance.
15. The right to life guaranteed under Art. 21 would include every aspect of life so as to make the life real and meaningful. The right to lead a peaceful life without any kind of nuisance has to be considered as one among the many facets of Article 21. India is a welfare state. The state is expected to promote the well being of its people. It is true that the State have to generate funds for undertaking welfare measures. The trade in liquor otherwise known as Res-extra-commercium is a major source of revenue to the state. But the generation of revenue should not be at the expense of the peaceful life of the people.
16. The Code of Criminal Procedure 1973 contains provisions for abatement of nuisance. Section 133 of the Code of Criminal Procedure 1973 reads thus:
133. Conditional order for removal of nuisance.(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c ) ..
Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance , tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order (i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such
manner as may be directed, such trade or occupation, or to
remove such goods or merchandise, or to regulate the
keeping thereof in such manner as may be directed; or
16. Therefore in the event of there being a public nuisance in a particular area the people are not without a remedy. The nuisance caused to the public on account of the functioning of liquor shops would give a cause of action to the affected people to approach the Magistrate under Sec.133 of Cr.P.C. or to take other legal measures to abate such nuisance.
17. The Supreme Court had an occasion to consider the scope of section 133 of Cr.P.C. in Ratlam Municipal Council case (1980(4) SCC 162). The Supreme Court held that Section 133 is categoric, although reads discretionary; and judicial discretion when facts for its exercise are present, has a mandatory import. It was also held that discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise. The Supreme Court further observed thus: 9. So the guns of Section 133 go into action wherever there is
Public nuisance. The public power of the magistrate under the
Code is public duty to the members of the public who are victims
of the nuisance, and so he shall exercise it when the jurisdictional
facts are present as here.
18. The learned Judge was armed with a report of the Joint Commissioner of Police which contains the details of nuisance cases registered in the locality. Therefore it cannot be said that the direction to shift the liquor shop was issued without basic materials.
19. There is no static measure of nuisance which can be applied to all situations alike. It is for the court to decide on the basis of materials as to whether the extent of nuisance was sufficient to direct the closure of liquor shop located in a particular area.
20. Therefore we are of the considered view that any person who is deprived of peaceful life on account of the nuisance created by a liquor shop could challenge the action in locating the shop in a residential or semi-residential locality as offending the right to life guaranteed under Article 21 of the Constitution of India notwithstanding the fact that the liquor shop satisfies the distance criteria.
21. In case the statutory authorities consider these local issues with a sense of responsibility there would be no occasion for the common man to approach the courts with Public Interest Litigation adding numbers to the Himalayan arrears in courts. The authorities should be sensitive to such issues of public importance. They should also realize that the people of this great nation are the political custodian of power and the Government is accountable to the people.
22. The Supreme Court in Ratlam Municipal Council case cited supra observed thus:
The pressure of the judicial process,expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties.
23. When we have expressed our view that the respondents 1 to 4 clearly made out a case for shifting the liquor shop from the subject location on account of nuisance, the learned standing counsel for the appellant took time to file an affidavit agreeing to shift the shop. Subsequently the Chief General Manager of TASMAC as per his affidavit dt. 19th July,2010 agreed to shift the Liquor Shop No. 717 functioning at Door No.12/4 Ormes Road, Kilpauk, Chennai-10 to another place and made a request for granting reasonable time for such shifting. In view of the said submission we grant six weeks time to the appellant to comply with the order passed by the learned single judge.
24. The Writ Appeal is dismissed with the above observation. No costs.