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Pon Ayyavoo Vs. the Taluk Excise Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Reported in(1984)2MLJ147
AppellantPon Ayyavoo
RespondentThe Taluk Excise Officer and ors.
Cases Referred(A. Thangaraj v. The R.L.O.
Excerpt:
- - but he failed to do so and thereby contravened rule 5 of the tamil nadu arrack (retail shops) rules, 1981 hereinafter referred to as the retail shops rules. (i) within a distance of half-a-kilometre from any market place, bathing ghat, school, college, hostel, hospital, place of worship, sacred place, factory, industrial undertaking, railway station, bus stand, cinema theatre, residential area and in particular any area inhabited by labourers and poor peoples; provided that the collector may, in exceptional cases and if there is no valid objection, relax the above distance limits to the extent necessary, but in no case shall a shop be permitted to be located within a distance of 150 metres of schools, colleges, hostels, hospitals, places of worship and sacred places......areas. mr.govind swaminathan, invited our attention to the proviso to rule 22-a of the retail shop rules, which prescribes the minimum distance between a branch shop and a shop or branch shop serving in a neighbouring area. unfortunately, for the appellant, the rule does not prescribe the minimum distance to be maintained between the main shop of a licensee of one area and the main shop of another licensee of another area, but only refers to the distance between a branch shop vis-a-vis, the main shop or a branch shop in another area. hence, the proviso to rule 22-a, cannot come to the aid of the appellant in any manner.6. the second contention of mr. govind swaminathan was that even if there is no provision in the rules regarding the minimum distance to be maintained between two.....
Judgment:

S. Natarajan, J.

1. The writ appeal has been preferred against the dismissal of W.P. NO. 9082 of 1983 in limine by Ramaswami, J., by order dated September 29, 1983. When the appeal was taken up for hearing, it was represented to us that W.P. No. 7740 of 1983 filed by the 4th respondent herein is a connected matter and hence, the writ appeal and the writ petition may be heard together and disposed of. Consequently, we directed W.P. No. 7740 of 1983 also to be posted before us. But on a scrutiny of the matter, we find that the writ appeal is capable of disposal without a concurrent disposal of the writ petition. Hence, we confine our judgment to the writ appeal alone and we direct the writ petition to be posted back for disposal by a single Judge.

2. The appellant is the successful bidder for arrack shop No. 11 at Ananthapuram, Gingee Taluk. The appellant has to pay Rs. 11,510/- as kist every month for the excise-year 1983-84 (15th July 1983 to 14th July, 1984). The 4th Respondent is the successful bidder of arrack shop No. 3, Panamalai Village, Villupuram Taluk and the excise payable by him every month is Rs. 7,420/-. The 4th Respondent wanted to locate his shop in R.S. No. 7 of Panamalai Village and at the time of inspection, he had show R.S. Nos. 8/2,14/l-B, 14/2-A and 18/1-B of the same village as alternate sites. The excise authorities rejected all the sites on the ground that all of them were three k.ms., away from the habitation of Panamalai Village and were in close proximity to Ananthapuram Town Panchayat in Gingee Taluk, where the appellant's shop is already functioning. The authorities took the view that the main object of the 4th Respondent in selecting the site closely to Ananthapuram Town Panchayat was to attract the villagers of that town panchayat to his arrack shop so that the business of the appellant in his shop, viz., arrack shop No. 11 may be affected. The 4th Respondent was called upon to select a site near the habitation of Palanakao Village. But he failed to do so and thereby contravened Rule 5 of the Tamil Nadu Arrack (Retail Shops) Rules, 1981 hereinafter referred to as the Retail Shops Rules. In addition to the contravention of the said rule, the 4th Respondent is also reported to have engaged himself in selling arrack at two unauthorised places and thereby rendered himself liable for disqualification under Rule 12(3) of the Tamil Nadu Toddy and Arrack Shops (Disposal in Auction) Rules, 1981 (hereinafter, referred to as Disposal in Auction Rules) and consequently, two cases were registered against him by the Prohibition and Enforcement wing of the Police. Eventually, the authorities passed orders for sale of the arrack shop, which was originally auctioned to the 4th Respondent. Thereupon, the 4th Respondent filed W.P. No. 7740 of 1983 and obtained orders from Ramaswami, J., in W.M.P. No. 11848 of 1983 permitting him to locate his arrack shop No. 3 at S. No. 7, Panamalai Village. Pursuant to that order, the 4th Respondent is running his shop at the said place.

3. Aggrieved by the 4th Respondent running his arrack shop at the site in question, viz., R.S. No. 7 of Panamalai Village, the appellant preferred W.P. No. 9082 of 1983. The appellant prayed for a writ of mandamus to direct the 2nd Respondent not to accord sanction to the 4th Respondent to locate his shop at the place mentioned above. The plea put forward was that by reason of the proximity of the arrack shop of the 4th Respondent, the sales of the appellant were affected. Ramaswami, J., dismissed the writ petition in limine holding that since the site where the 4th Respondent's arrack shop is within the notified area and since the site does not contravene Rule 6 of the Retail Shops Rules, the appellant has no right under law to seek the removal of the arrack shop of the 4th Respondent from its present location. It is to challenge the correctness of the view taken by Ramaswami, J., the appellant has preferred this writ appeal.

4. The Respondents, who were not called upon to file their counter in the writ petition, on account of the dismissal of the same at the admission stage itself, have now filed two counters. The first is, by Respondents 1 to 3 and the second is by the 4th Respondent. While the 4th Respondent opposes the writ appeal, respondents 1 to 3 support the case of the appellant and state that the site chosen by the 4th Respondent for his arrack shop is unsustainable and further more, the 4th Respondent is not entitled to run the arrack shop because the licence issued to him has been cancelled and a re-auction has been ordered.

5. Before we refer to the arguments advanced in the case, we may refer to the notified area for the arrack shop in question. The notified area for arrack shop No. 3 is the village of Panamalai. It is not disputed that the present location of arrack shop No. 3 is within the notified area of that shop. Even so, Mr.Govind Swaminathan, would contend that the 4th Respondent should not be granted licence to run the shop in the present location on account of two factors. The first was that the kist payable for the 4th Respondent's shop is lesser than the amount payable by the appellant for his shop and on account of this advantage, the 4th respondent is in a position to sell arrack at a cheaper rate and thereby attract the arrack consuming public of that area to his shop instead of going to the appellant's shop opened for their benefit. In so far as this contention is concerned, even if the appellant's charge against the 4th Respondent is true, we cannot give any relief to the appellant, because the rules do not provide for any minimum distance being maintained, between two arrack shops taken in auction by two persons in two separate notified areas. Mr.Govind Swaminathan, invited our attention to the proviso to Rule 22-A of the Retail Shop Rules, which prescribes the minimum distance between a branch shop and a shop or branch shop serving in a neighbouring area. Unfortunately, for the appellant, the rule does not prescribe the minimum distance to be maintained between the main shop of a licensee of one area and the main shop of another licensee of another area, but only refers to the distance between a branch shop vis-a-vis, the main shop or a branch shop in another area. Hence, the proviso to Rule 22-A, cannot come to the aid of the appellant in any manner.

6. The second contention of Mr. Govind Swaminathan was that even if there is no provision in the rules regarding the minimum distance to be maintained between two main shops in two different areas, still on grounds of public policy, the 4th Respondent can be refused licence to run his arrack shop in the site in question. To put forward such an argument, Mr.Govind Swaminathan placed reliance on the following averments contained in the counter-affidavit of Respondents 1 to 3.

There is a hill poramboke in R.S. No. 394 of Panamalai Village which is centrally situated to all the 3 villagers, viz., Panamalai, Velliampattu and C.M. Palayam comprised in the serving area. In the previous years arrack shop was functioning in this place. The major population is also there... As per condition 27(a) a notice was issued by the 2nd Respondent to the 4th Respondent auction purchaser of A.S. No. 3/83 to select a suitable site since the site selected by him will not serve the needs of the serving area attached to Panamalai Arrack Shop.

The submission made was that arrack shop No. 3 was mainly intended to cater to the needs of the residents of Panamalai, Vellayampattu and C.N. Palayam; but the 4th Respondent, instead of locating his shop at a place convenient to those persons, was running a shop at a far off place and this is against public interest, because the residents of the three villages mentioned above are deprived of the facility of an arrack shop situate nearby. Even this contention is not a tenable one, because the Retail Shop Rules do not contain any direction that an arrack shop intended to serve a particular area, should be situated, in a central place. On the other hand, the rules permit the opening of an arrack shop anywhere in the notified area. Moreover, it has to be borne in mind that the serving area for an arrack shop is more extensive than the notified area. Therefore, it follows that the people, who live in areas which are within the serving area, but outside the notified area, have to necessarily trek some distance to purchase arrack from the licensed arrack shop relating to that area. Hence, we have to conclude that there is no scope for an argument that the distant location of an arrack shop from the habitation of a village, which it is intended to serve, will be a just ground for the excise authorities refusing to grant licence to an arrack shop dealer to locate his shop at a far-off place though within the notified area.

7. In this connection, we may refer with approval to the order of Padmanabhan, J., in W.P. No. 7217 of 1982 (A. Thangaraj v. The R.L.O., Salem and Ors. (1983) T.L.N.J. 43, where the learned Judge repelled a contention against the shifting of an arrack shop.

8. Yet another argument put forward was that the 4th Respondent has rendered himself unfit to hold a licence under Rule 12(3) of the Disposal in Auction Rules, since the authorities have found him to be 'a person who will not abide by the provisions of the Act and the Rules. We are not inclined to examine this contention, because it is a matter for consideration in the writ petition filed by the 4th Respondent and since the writ is being sent back for disposal by a learned single Judge, the validity of this contention has to be gone into by the learned single Judge. For the aforesaid reasons, we are not able to agree with any of the contentions of Mr.Govind Swaminathan for differing from the view taken by the learned single Judge.

9. For another reason, the learned Government Pleader assailed the dismissal of the writ petition. According to him, by reason of Rule 5 of the Retail Shops Rules, a licensee must necessarily open an arrack shop in a site which is in the possession or control of the State Government, wherever such sites exist, and it is only in those villages, where such sites do not exist, the licensee can be permitted to run the arrack shop in a private property. Rule 5 reads as follows:

Site and building of the shops;- Except where- definite sites are in the possession or control of the State Government, the licensee shall make his own arrnagement for securing the proper site or building for the shop. He shall be at liberty subject to approval by the competent authority to choose any site within the local limits notified in this behalf. The limits of the site selected and approved shall be entered in the licence.

The Government Pleader placed emphasis on the words 'except where definite sites are in the possession or control of the State Government' and argued that in Panamalai, there is a poramboke site belonging to the Government, which is centrally situated and therefore, the 4th Respondent has to necessarily run his shop at that place only and not on any other site. We cannot continuance this argument for more than one reason. In the first place, the words in the Rule do not afford scope for construction in the manner put forward by the Government Pleader. All that the Rule states is that if no Government site is available, a licensee must necessarily choose a site and building of his own, but if a Government site is available, it is open to the licensee to either agree to open the arrack shop in the Government site itself or to choose another site and get the approval of the authorities and then open the arrack shop in that place. The words 'except where definite sites are in the possession and control of the State Government' have to be read in conjunction with the words 'the licensee shall make his own arrangement'. So read, it would mean that in such of those places where Government sites are not available, the licensee has to necessarily make his own arrangement. That would not however mean that in such of those places, where the Government sites are available, the licensee is bound to open his arrack shop at that very place and nowhere else.

10. That apart, Rule 6 is the relevant Rule, which lays down the restrictive conditions prohibiting the opening of arrack shops near certain specified places. The relevant portion of Rule 6 reads as follows:

6. Shops not to be established near Schools, etc.

(i) within a distance of half-a-kilometre from any market place, bathing ghat, school, college, hostel, hospital, place of worship, sacred place, factory, industrial undertaking, railway station, bus stand, cinema theatre, residential area and in particular any area inhabited by labourers and poor peoples;

(ii) within a distance of 150 metres from any main thoroughfare;

(iii) within the premises of any hotel or other eating place or immediately adjoining such hotel or eating place;

Provided that the Collector may, in exceptional cases and if there is no valid objection, relax the above distance limits to the extent necessary, but in no case shall a shop be permitted to be located within a distance of 150 metres of schools, colleges, hostels, hospitals, places of worship and sacred places. (explanation omitted)

On a reading of Rule 6, it may be seen that the Government have prohibited the establishment of arrack shops within a distance of half-a-kilometre from places of public resort, educational institutions, hospitals, temples, factories and companies, Railway Station, bus stand, cinema theatre, residential area, etc. If Rule 5 is to be construed as containing a mandate, it may lead to anomalies. Take for example a village, where a Government site is available; but the said site is within a distance of half a kilometre from a market place, bathing ghat, college etc., mentioned in Rule 6. It goes without saying that a licence cannot be issued for an arrack shop being run in the site belonging to the Government. The resultant position would be that a licensee would be left in the lurch because if under Rule 5, he has to necessarily accept the site belonging to Government, he will be refused a licence under Rule 6 because the site is within the prohibited distance to one or more of the institutions mentioned in the said rule. It is therefore necessary that Rules 5 and 6 are read in a harmonious manner. So read, it would mean that Rule 5 casts an obligation on a licensee to make his own arrangements for securing a site wherever a Government site is not available; but where a Government site is available, it is optional for the licensee to either avail of that site or select another site of his own and seek approval of the same. We are therefore unable to accept the argument of the learned Government Pleader either to assail the grant of licence to the 4th Respondent for running his arrack shop in the disputed site.

11.In the result, the writ appeal has to fall and will accordingly stand dismissed- No costs.

12. For the reasons given above W.P. No. 7740 of 1983 will stand posted back to the learned single Judge for disposal.


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