IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28/11/2002 CORAM THE HON'BLE MR.JUSTICE E.PADMANABHAN Writ Petition No. 117 OF 1997 and W.M.P.NO. 176 of 1997 Sri Santhakula Sowmynarayana Kavaraya Podu Nithi, Palani through its Trustee R.Rajaraman No.138, Gandhi Road, Palani. ..Petitioner -Vs- 1. The Collector, Trichy Disrict, Trichirappalli 2. The Assistant Commissioner Excise Department Collector Office Compound, Trichy. 3. The Deputy Tahsildar (Excise) Taluk Office, Town Hall Road, Trichy 4. R.Panjavarnam Pillai 5. Top Star Wines ..Respondents Writ Petition preferred under Article 226 of The Constitution Of India praying for a writ of mandamus as stated therein. For petitioner :: Mr.K.Srinivasan For respondents :: Ms.V.Velumani. AGP for RR 1-3 Mr.P.Raghunathan for RR4 and 5 :O R D E R
The petitioner prays for the issue of a writ of mandamus directing the respondents 1 to 3 to cancel the licence issued to the respondents 4 and 5 to locate IMFL shop at Door No.1-B, Gandhi Road, Srirangam.
2. On 7.1.1997 rule nisi was issued. The respondents have been served. On behalf of the respondents 1 to 3, the second respondent has filed a counter. On behalf of the respondents 4 a separate counter has been filed. Other respondents have not filed a counter. With the consent of counsel appearing for either side, the writ petition itself was taken up for final disposal.
3. Heard Mr.K.Srinivasan, learned counsel appearing for the petitioner and Ms.Velumani, Additional Government Pleader appearing for respondents 1 to 3 and Mr.P.Raghunanathan, learned counsel appearing for respondents 4 and 5.
4. According to the petitioner, the petitioner is a trust governed by the Scheme framed in O.A.No.336 of 1939 in the year 1941 by the then Hindu Religious and Charitable Endowment Board. The Scheme was also reaffirmed in O.A.No,43 of 1994 by the Deputy Commissioner of HR & CE Department. The endowment is attached to Sri Arulmighu Dhandayuthapanisamy and Sri Lakshminarayana Perumal temple at Palani and Sri Ranganatha Swamy temple at Srirangam. The object of the endowment are for the performance of Vazhinadai Upayam at Srirangam and Chithiraikar Kainkaryam. Various Kattalaies are being performed with the income from the trust property bearing Door No.1-B Gandhi Road, Srirangam owned by the trust.
5. Door No.1/B, Gandhi Road, Srirangam was leased out to the 4th respondent under a lease deed dated 13.2.1960 on a monthly rent of Rs.3 8.50 and the lease is for a period of 5 years. The 4th respondent after the expiry of the lease also continued. Without consent, the 4th respondent has subleased the premises to various third parties. The petitioner has already terminated the tenancy and instituted the suit O.S.No.1049 of 1987 on the file of the District Munsif Corut, Trihcy for ejectment. The said suit is pending which is being contested by the 4th respondent.
6. The 4th respondent attempted to induct the third parties like the 5th respondent to use a portion of the property for the purpose of establishing a wine shop. Hence the petitioner moved the District Munsif Court, Trichirrappali seeking for injunction which application was dismissed without reference to the provisions of Tamil Nadu Indian Made Foreign Liquor (Retail Vending) Rules, 1989 framed under the Prohibition Act, 1937.
7. The grant of licence or renewal for retail Vending of IMFL has to be in terms of the Rules. Such retail shop shall not be located within 100 metres from places of worship or educational institutions and ;the Rule is mandatory. The 4h respondent joined with the 5th respondent and obtained a licence No.67/95-96 for retail vending of IMFL at Door No.1-B, Gandhi Road, Srirangam. The petitioner objected to the grant of such licence as after the termination of the lease, the respondents have no right and they cannot validly acquire a licence besides contending that the shop which is located within the prohibited distance from Sriranganatha Swamy Temple, Srirangam, besides pointing out various violations. No action has been taken by the respondent despite their attention being drawn by written representations. The petitioner also moved the Revisional Authority as well as the Appellate authority. But no action has been taken. It is contended that the licence granted to the respondents 4 and 5 to locate IMFL retail vending shop is illegal and therefore a writ of mandamus should be issued directing the respondents 1 and 2 to cancel IMFL licence granted in favour of the respondents 4 and 5. It is contended that despite objections the respondents 1 and 2 have not taken any action, nor they have disposed of the objections submitted by the petitioner and hence the present writ petition.
8. The second respondent filed a counter contending that IMFL licence bearing No.117/TRI/92-93 was granted to one Dhanaraj for retail vending of IMFL liquor in Door No.1B, Gandhi Road, Srirengam. The said Dhanaraj is a partner of the 5th respondent M/s.Top Sar Wines, Srirangam. Dispute arose between the petitioner trust and the licensee and the civil dispute is pending in O.S.no.1049 of 1987 for recovery of possession of the suit property. The injunction application filed by trustee also has been dismissed as there was no prohibition to run IMFL shop. It is contended that all the provisions of the Tamil Nadu Liquor Retail Vending Rules 1989 has been satisfied and strictly followed and that on facts no case has been made out for issue of mandamus.
9. The 4th respondent Panchavarnam Pillai has filed a separate counter affidavit setting out the details of the suit instituted by the writ petitioner against him and four others. The writ petitioner has instituted the suit seeking for permanent injunction forbearing them from running IMFL shop in the suit premises. The injunction application was dismissed and the same was confirmed by the lower appellate court. Without awaiting the final judgement of the civil court, the petitioner has rushed to this court. The petitioner cannot invoke the writ jurisdiction of this court. The petitioner is interested in evicting the 4th respondent. The 4th respondent claims that he has been running the Top Star Wine Shop along with several partners since 1992 and they have been granted a valid licence. Valid licence has been granted after following the procedure prescribed. The shop is not located within the prohibited distance from the place of worship and there are other IMFL shops in the same street within the inner periphery of Rajagopuram. No case has been made out for issue of mandamus as prayed for and the 4th respondent prays for dismissal of the writ petition.
10. The following points arise for consideration in this writ petition.
(i) Whether the petitioner has made out a case for issue of a mandamus directing the respondents 1 and 2 to cancel the licence granted in favour of the respondents 4 and 5?
(ii) Whether the licence granted is in violation of The Tamil Nadu Indian Made Foreign Liquor (Retail Vending) Rules, 1989?
(iii)To what relief, if any? All the points could be considered together.
11. The petitioner is the owner of the property bearing Door No.1-B, Gandhi Road, Srirengam and the 4th respondent Panchavarnam was the tenant. The lease period has already come to an end and the tenancy has been terminated by a valid notice. The suit for ejectment is pending against the said 4th respondent and others since 1987. In the suit for ejectment the petitioner has also sought for damages for use and occupation and for other reliefs. The suit is being resisted by the 4th respondent and it is pending. It is true pending the suit there, an application for injunction was moved by the petitioner herein and the same has been rejected. But such rejection is not a bar to the present writ petition since the Munsif Court is not competent to decide as to the action taken under the Prohibition Act or Rules framed thereunder. The statutory provision in the Prohibition Act and the rules framed thereunder bars the suit with respect to the licence granted or action taken under the statutory rule.
12. It is contended that the shop is located within the prohibited distance from the temple and that the grant of licence is in violation of the Rule 13(7) of the Rules. This is one of the ground on which mandamus has been sought for. It may not be necessary to examine as to whether the shop in question has been located within the prohibited distance. It is admitted that the shop is located close to the Rajagopuram of Ranganathaswamy Temple, but the shop is located beyond the prohibited distance. In view of the second ground, it may not be necessary to pursue this contention any further.
13. The counsel for the petitioner drew the attention of the court to Rule 13(7) of the Rules and contended that no licence at all could be granted either in favour of the 4th respondent or the 5th respondent as they are not lawful tenants in possession, their possession is not valid or legal and they are not holder of a valid lease in respect of the premises and therefore no licence could be granted at all. In this respect, the learned counsel for the petitioner relied upon Sub rule (7) of Rule 13. Rule 13(7) reads thus:-
"(7) Where the selected applicant is intimated about is selection and after payment of privilege amount and licence fee under sub-rule (4), he shall select a suitable building conforming to rule 18, within the notified area, for locating the shop an shall apply in form VIA to the licensing authority, within seven days from the date of receipt of such intimation. An affidavit sworn in before a Notary Public shall be filed by him to the effect that he is the owner of the building or holder of lease of the building and that the validity of lease is co-terminus with the period of licence applied for. If, on a later date, it is found ha the affidavit is false, the privilege and licence granted shall be cancelled and the licensee will also be liable for other legal action and the shop shall be renotified for grant of privilege."
14. The counsel for the petitioner contends that the lease period has admittedly come to an end. The petitioner has already terminated the lease by issue of notice and has also filed a suit for ejectment against the 4th respondent and others. Therefore it is clear that the contesting respondents 4 and 5 are not holder of lease of the building, which alone would enable them to get a licence. In this respect, the learned counsel for the writ petitioner relied upon the pronouncement of S.Subramani,J., in Mrs.Gandhimathi and others Vs. Collector of Chennai Dist., others reported in 1999 Writ L.R.
32. With reference to Rule 13 of the Tamil Nadu Liquor (Retail Vending) Rules 1989, it has been held that the licensee has to prove that he is the owner, or he is in possession on the basis of the lease at least not less than for a period of one year and if the statutory conditions are not satisfied licence cannot be granted.
15. In Ganesan Vs. Assistant Commissioner, Excise, reported in 2000 (I) CTC 193 (D.B)., JAYASIMHA BABU,J., speaking for the Division Bench held that in terms of Rule 13(1) of the Tamil Nadu Liquor (Retail Vending) Rules 1989, a licensee who is not the owner of the building must either produce a lease agreement or he must be the owner of the building in which he intends to carry on business and the status of a contractual tenant cannot be equated to a statutory tenant. The Division Bench also held that Rule 13(1) implies subsistence of contractual tenancy i.e., lawful possession of premises, juridical position will not satisfy the requirement of law. The Division Bench held that a tenant who has not secured permission to carry on IMFL cannot claim right to get licence under Rule 13(1) and such a consent is required not only at the time of grant of licence, but also at the time of renewal. If the tenant fails to secure consent, the authority is not entitled to licenship even if he continues in occupation and the landlord has right to question the grant of licence for IMFL to tenant in cases where landlord has not given consent in the lease deed to carry on such trade. The Division Bench after analysing the entire case law held thus:-
"31. The requirement that there should be a lease agreement in favour of persons, who wish to carry on retail vend as retail licensee in a premises of which they are not the owners is requirement, which is made known to every intending bidder, even before he takes part in an auction. Condition 5(c) in Form No.I makes that amply clear. After his bid is accepted before he can receive the licence, he must produce the lease agreement, that is the requirement of rule 13(1). If after becoming a licensee, he wishes to shift the location of the shop, then again, he must produce the lease agreement regarding the premises to which he intends to shift. That is the requirement under Rule 17. For renewal of the licence after the initial period of one year, the licensee must apply for renewal under Rule 14 and satisfy the conditions set out in Form No.VIII, more particularly condition No.8, which required that the licensee continues to be in possession of the premises for a further period of one year. The specification of the period is a requirement which can be complied with only if the licensee is a contractual tenant, and not otherwise, as the statutory tenant cannot claim to be a tenant for any specific period. If may well be possible that a statutory tenant remains in the same premises for decades together. It is also possible that a statutory tenant suffers ejectment within a short period after becoming a statutory tenant. As to whether he is ejected or not depends inter alia, upon the landlord, the requirement of the landlord, the eligibility of the landlord to seek eviction in terms of the provisions of the Rent Control Act, the willingness of the landlord to resort to eviction proceedings under the Act and his prosecuting the same diligently till such time as he obtains possession of the premises from the statutory tenant.
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33. The consent of the owner for running the specific business in the premises is only an incident of the requirement that the tenant be a contractual tenant. A person cannot be a contractual tenant without the consent of the landlord. The consent of the landlord has to be there, either expressly, or impliedly for the business which the tenant proposes to carry on in the premies. In cases where the landlord has refused permission, or has opposed the grant of any licence to the tenant for running a liquor shop there, or the landlord is unwilling to consent to the user of his premises for such purpose, then notwithstanding the existence of a lease agreement, which merely permits the user of the premises for a purpose other than the running of a liquor shop, such a tenant cannot claim the right to receive a licence under Rule 13(1) of the Tamil Nadu Liquor (Retail Vending) Rules.
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36. The result of the foregoing discussion is that Rule 13(1) of the Tamil Nadu Liquor (Retail Vending) Rules, 1989 framed by the State in exerise of powers conferred on it by Sections 17-C, 17-D, 17-E, 18-B, 18-C 20,21 and 54 of the Tamil Nadu Prohibition Act, 1937 is perfectly valid. The rule mandates that the person who wishes to obtain a licence for exercising the privilege of retail vend of Indian Made Foreign Liquor should be the owner of the premises in which that business is to be carried on or should be a contractual tenant thereof for the duration of the period of the licence. The requirement that he be a contractual tenant would also apply to the place, which he may wish to shift after having obtained the licence. The requirement that he be a contractual tenant would also apply to the period for which he may seek renewal as a licence. The rule framed by the Sate is in the realm of policy which the State is entitled to frame with regard to the conditions subject to which persons would be allowed to enjoy the privileges of carrying on business in liquor a commodity which is recognised as being inherently pernicious, and whose consumption is required to be reduced and not to be increased. The policy framed by the State is in no way arbitrary, nor is it mala fide. The fact that the State could have framed a policy in a different way so as to permit statutory tenants also to enjoy the privileges does not render the policy already framed in any way defective. The choice in this matter is entirely for the state to make, and it is not for the court to mandate that the statutory tenants be given the right to carry on the business of retail vend in foreign liquor. The consent of the owner of the premises for carrying on such a business is essential. Absent such consent, the authority is not entitled to grant a license to the tenant, even if he be a contractual tenant. The landlords, therefore have the right to question, the grant of licenses for the privileges of retail vend of Indian Made Foreign Liquor to their tenants in case where the landlords have not given their consent in the lease deeds, and they are unwilling to grant such consent for the carrying on of such business in their premises. A tenant does not have a fundamental right to carry on any business of his choice in the premises belonging to another."
16. In the present case, the respondents 4 and 5 are not even statutory tenants as the building is not governed by the provisions of the Tamil Nadu Buildings (Lease and Rent) control Act and therefore they cannot claim any right at all nor they could claim that they are in legal possession, nor they could claim that they are in undisturbed possession of the premises. However, it is clear that they are in illegal possession.
17. It is also pointed out that the premises in question belongs to the charitable trust and therefore the provisions of the Tamil Nadu Buildings (Lease and Rent) Control Act will have no application as the building itself is exempt from the provisions of the said Act. That is the reason why the suit has been instituted for recovery of possession. The respondents 4 and 5 not being a licensee under a valid lease for the currency of the licence period should not have been granted the licence on mere assertions by them that they are in possession of the suit property. As already pointed out the lease period has already come to an end and the lease has been terminated and the suit for recovery of possession is pending since 1987. Therefore respondents 4 and 5 shall satisfy sub rule (7) of rule 13. As a consequence, it follows that the grant of licence in favour of the respondents 4 and 5 is not in accordance with the said statutory rule, namely 13(7) and the grant of IMFL retail vending licence granted in favour of the respondents 4 and 5 is per se illegal. The respondents 1,2 and 3 have not chosen to consider the objections raised by the petitioner in this respect and they have merely proceeded on the premise that injunction application has been dismissed and therefore the respondents 4 and 5 are entitled to secure IMFL licence for retail vending. Such an approach is a misconception and contrary to law and it is a clear case of bypassing the statutory rule, namely Rule 13. It follows that the respondents 4 and 5 not being holder of a lease of a premise belonging to the petitioner, they have no valid lease, which stands terminated, therefore, the respondents ought not to have granted the IMFL licence for retail vending in favour of the respondents 4 and 5. On this short ground, the writ petition has to be allowed.
18. The counsel for the respondents 4 and 5 contended that they have been running the IMFL shop for quite some time and there is no justification to issue a mandamus. The learned counsel also pointed out that the prayer reads as if the relief has been sought for in respect of the first grant of licence and therefore the writ petition has become infructuous. This objection advanced by Mr.Raghunanthan, learned counsel for the respondents 4 and 5 is a misconception. A perusal of the relief prayed or would show that the petitioner has prayed for issue of mandamus to cancel the licence on two counts, namely (i) not locating the shop within the prohibited distance (ii) the grant of licence is in contravention of rule 13(7) in favour of a person who is not a holder of a valid lease.
19. It is true that the writ petition is pending since 1997. But on that score this court will not be justified in allowing the respondents 4 and 5 to carry on the illegal IMFL business in the tenancy premises, which belong to a charitable trust.
20. The contention advanced by the counsel for the petitioner deserves to be sustained. While following the Division Bench judgement cited supra, this court directs that the respondents 1 and 2 shall forthwith cancel the licence granted in favour of the respondents 4 and 5 to locate Indian Made Foreign Liquor Shop at Door No.1-B, Gandhi Road, Srirangam belonging to the petitioner trust and forthwith direct the said respondents to re-locate the shop in any other premises.
21. The writ petition is allowed in the above terms. Consequently, connected WMP is closed. No costs.
Index:Yes Internet:Yes gkv.
1. The Collector, Trichy Disrict, Trichirappalli
2. The Assistant Commissioner Excise Department Collector Office Compound, Trichy.
3. The Deputy Tahsildar (Excise) Taluk Office, Town Hall Road, Trichy