Royal Club, v. The Commissioner Of

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.08.2018

CORAM:

THE HONOURABLE MR.JUSTICE M.S.RAMESH W.P.(MD) Nos.17291 & 17292 of 2018 and W.M.P.(MD) Nos.15230 & 15231 of 2018 Royal Club rep.by its President Annaikuttam Sivakasi Taluk Virudhunagar District ... Petitioner in W.P.(MD) No.17291 of 2018 Ranjith Recreation Club rep.by its Secretary 2/788/18 Lakshmi Nagar Deverkulam Panchayath Sivakasi Taluk Virudhunagar District ... Petitioner in W.P.(MD) No.17292 of 2018 vs.

1.The Commissioner of Prohibition and Excise Prohibition and Excise Department Ezhilagam, Chepauk Chennai-600 005 2.The District Collector Virudhunagar District Virudhunagar 3.The Assistant Commissioner (Excise) Prohibition and Excise Department Virudhunagar District, Virudhunagar ... Respondents in both W.Ps.

PRAYER (in W.P.(MD) No.17291 of 2018): Writ Petition filed under Article 226 of the Constitution of India for issuance of writ of certiorarified mandamus calling for records relating to the impugned order made by the second respondent in his proceedings No.Na.Ka.Ka2/11244/2016 dated 04.12.2017 and quash the same as illegal and consequently direct the second respondent to consider the petitioner's application and issue FL2 license to operate his Recreation Club at Marnari Village within a stipulated time. PRAYER (in W.P.(MD) No.17292 of 2018): Writ Petition filed under Article 226 of the Constitution of India for issuance of writ of certiorarified mandamus calling for records relating to the impugned order made by the second respondent in his proceedings No.Na.Ka.Ka2/11244/2016 dated 04.12.2017 and quash the same as

illegal and consequently direct the second respondent to consider the petitioner's application and issue FL2 license to operate his Recreation Club at Devarkulam Village within a stipulated time. For Petitioner :

Mr.E.Marees Kumar (in both W.Ps.) For Respondents :

Mr.J.Gunaseelan Muthiah (in both W.Ps.) Additional Government Pleader C O M M O N O R D E R Since the issue involved in both the writ petitions is one and the same, they have been clubbed together, heard together and are being disposed of by this common order.

2. Mr.J.Gunaseelan Muthiah, learned Additional Government Pleader, takes notice for the respondents.

3. By consent of both parties, these writ petitions are taken up for final disposal at the stage of admission itself.

4. In connection with the same impugned orders, this Court, by order dated 23.07.2018 in W.P.(MD) No.1224 of 2018, had quashed the proceedings for issuance of FL2 Licence to operate the Recreation Club, whose name also finds place in the impugned order therein. The said order reads as follows:

"Citing the prohibition on the location of the shop within the proximity of a State High Way, the present impugned order dated 04.12.2017 came to be passed. While the writ petition was pending, certain clarifications came to be issued byway of an order of the Hon'ble Apex Court, insofar as it relates to local self governing bodies vide order dated 23.02.2018 in Civil Appeal Nos. 12164 and 12166 of 2016. The relevant portion of the said order which reads as follows: "Having regard to these directions, we are of the view that the state governments would not be precluded from determining whether the principle which has been laid down by this Court in the order dated 11 July 2017 in Arrive Safe Society (supra) should also apply to areas covered by local self -governing bodies and statutory development authorities.

We are inclined to allow the state governments to make this determination since it is a question of fact as to whether an area covered by a local self-governing body is proximate to a municipal agglomeration or is sufficiently developed as to warrant the application of the same principle.

down in the order dated 11 July 2017 should be extended to a local self-governing body (or statutory development authority) the state governments would take recourse to all relevant circumstances including the nature and extent of development in the are and the object underlying the direction prohibiting the sale liquor on national and the state highways. The use of the expression 'municipal areas' in the order dated 11 July 2017 does not prevent the state governments from making that determination and from taking appropriate decisions consistent with the object of the orders passed by this Court. We leave it open to individual licensees to submit their representations to the competent authorities in the state governments if they are so advised upon which appropriate decisions may be taken by the state governments. We have issued this general direction to obviate both litigation before the High courts and repeated recourse to applications to this Court."

2. As per the above observations of the Hon'ble Apex Court, it would be appropriate to permit the petitioner to approach the respondents herein and also in view of the categorical observation therein giving liberty to individual licensees to submit the representation to the Hon'ble authorities of the State Government.

3. In the light of the order of the Hon'ble Apex Court passed, the impugned order dated 04.12.2017 is set aside and the matter is remitted back to the second respondent for fresh consideration, in the light of the Hon'ble Apex Court observation, which has been extracted above. The petitioner is also granted liberty to submit a fresh representation to the second respondent for the purpose of re-consideration. Such an exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order.

4. With the above observation this writ petition stands allowed. No Costs. Consequently, connected miscellaneous petitions are closed."

5. Since the orders impugned in the present writ petitions are similar with that of the order impugned in W.P.(MD) No.1224 of 2018, it would be appropriate to quash the present impugned orders also, insofar as it relate to the license of the petitioners herein.

6. Accordingly, the writ petitions are allowed and the impugned orders, dated 04.12.2017, passed by the second respondent, are quashed insofar as it relate to the license of the petitioners herein. The matter is remitted back to the second respondent for fresh consideration, in the light of the Honourable Apex Court's observations, which have been extracted above. The petitioners are also granted liberty to submit a fresh representation to the second respondent for the purpose of re-consideration. Such an exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar(CS-IV) To:

1.The Commissioner of Prohibition and Excise, Prohibition and Excise Department, Ezhilagam, Chepauk, Chennai-600 005.

2.The District Collector, Virudhunagar District, Virudhunagar.

3.The Assistant Commissioner (Excise), Prohibition and Excise Department, Virudhunagar District, Virudhunagar.

+2cc to M/S.E.Marees Kumar, Advocate SR.No. 76695 +1cc to Special Government Pleader, SR.No. 77020 W.P.(MD) Nos.17291 & 17292 of 2018 and W.M.P.(MD) Nos.15230 & 15231 of 2018 02.08.2018 krk JM/SKN RSK/SAR 4/10.08.2018/4P/7C