T MARIAPPAN Vs. COMMISSIONER PROHIBITION AND EXCISE MADRAS

JUDGEMENT

(1.) In this writ petition, the petitioner has prayed for the issue of a writ of mandamus directing the respondents 1 and 2 herein to initiate proceedings under rule 7(2) of the Tamil Nadu Arrack (Retail Shop) Rules, 1981 (hereinafter referred to as 'the Rules') to direct the third respondent to shift Arrack Shop No.3 from its present location at No.6, South Car Street, Srivilliputhur, to some other unobjectionable place. The third respondent was the highest bidder for a licence to vend arrack from Arrack shop No.3 in Srivilliputhur town and he selected door No.6, South Car Street, for locating his arrack shop. Certain objections were raised by the residents to the location of the arrack shop by the third respondent in the premises chosen by him on the ground that it is located in a thickly populated residential area and is within 100 metres from the municipal elementary school and further it adjoins a hotel and is also situate opposite to the Court buildings. The existence of two Kalyana Mandapams in front of the place selected by the third respondent was also brought to the notice of the concerned authorities and a request was made for the shifting of the location of Arrack shop No.3 to some other site. Despite the objections so raised, according to the case of the petitioner, the arrack shop had been located by the third respondent contrary to the Rules and, therefore, the shop should be shifted from its present location to some other unobjectionable place. The principal complaint of the petitioner is that the third respondent had violated rule 6(i) and (ii) of the rules in that the municipal elementary school is situated at a distance of less than 150 metres from the arrack shop and that a hotel by name Thilakam Cafe immediately adjoins the arrack shop in question and, therefore, it should be shifted to some other place after directing the respondents 1 and 2 to initiate proceedings in that regard.

(2.) In W.M.P.No.14360 of 1984, the petitioner had prayed for the appointment of an Advocate-Commissioner to make a local inspection and to ascertain the distance between the arrack shop and the school and the nature of the business carried in Thilakam Cafe and also the existence of a lane, if any, in between the arrack shop, the Thilakam Cafe as well as its nature. By an order dated 6.9.1984, an Advocate of Srivilliputhur was appointed as Commissioner and he submitted a report on 24.9.1984. In the course of that report, the Commissioner found that the distance between the municipal elementary school and the arrack shop in question is 139.20 metres as per measurements and that the distance is 112.85 metres as the crow flies. It was also further found by the Commissioner that Thilakam Cafe situate east of the arrack shop in question in door No.5, South Car Street, was a hotel and that there was no lane between Thilakam Cafe and arrack shop in question. The existence of certain other buildings was also noticed by the Commissioner in his plan.

(3.) Thereafter, in W.M.P.No.12813 of 1984, the petitioner prayed for an order of interim injunction restraining the third respondent herein from running his arrack shop No.3 at door No.6, South Car Street, Srivilliputhur, pending disposal of the writ petition and on 8.11.1984, this Court, after accepting the report submitted by the Commissioner, directed the third respondent to comply with the Rules relating to distance and the location of the hotel and in the event of the third respondent not complying with the same, the Excise authorities were directed to take suitable action against the third respondent. Pursuant to this order, the third respondent had made certain alterations with a view to comply with the directions given by this Court in W.M.P.No.12813 of 1984 and thereafter the Assistant Commissioner (Prohibition and Excise)-II, Ramanathapuram at Madurai, inspected the arrack shop in question on 22.2.1985 and submitted a report to the effect that the counter from which arrack is sold in the shop of the third respondent was situated beyond 150 metres from the school in question and further that the hotel in door No.5, South Car Street, is separated from the arrack shop by a small lane and that the arrack shop did not immediately adjoin the hotel and, therefore, the Rules were complied with by the third respondent. The stand taken by the respondents 1 and 2 in their counter-affidavit is also to the effect that the location of the arrack shop of the third respondent is in accordance with the Rules, particularly rule 6.