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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.05.2017 CORAM: The Hon'ble Mr.Justice K. KALYANASUNDRAM and The Hon'ble Mr.Justice S.M.SUBRAMANIAM W.P.Nos.12294, 11572, 12370,12394, 11770,11791,11804,11977, 12188, 11980, 12152, 12443, 11981, 11653, 11654 and 12435 of 2017 and its respective M.Ps. W.P.No.12294 of 2017 :S.Sellasamy

...Petitioner Vs.

1. The District Collector, Office of the District Collector, Thiruvallur District. 2. The Managing Director, TASMAC Limited, Thalamuthu Natarajan Building, 4th Floor, 2nd block, Egmore, Chennai-8. 3. The Southern Regional Manager, TASMAC Ltd., Devaneyapavaneyar Building, Anna Salai, Chennai-2. 4. The District Manager, TASMAC Ltd., Thiruvallur District.

... Respondents

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Prayer: Writ petition is filed under 226 of Constitution of India to issue a Writ of Mandamus to direct the respondents not to relocate the TASMAC Shop to the proposed place at No.34, Astalakshmi Nagar in the 2nd Main Road and Alapakkam Main Road Junction based on the petitioner's representation dated 28.04.2017. For Petitioner in W.P.No.12294/2017 For Petitioner in W.P.No.11572/17 For Petitioner in W.P.Nos.12370 &12152/17 For Petitioner in W.P.No.12394/17 For Petitioner in W.P.Nos.11770 &11980/17 For Petitioner in W.P.No.11791 & 11981/17 For Petitioner in W.P.No.11804/17 For Petitioner in W.P.No.11977/2017 For Petitioner in W.P.No.12188/17 For Petitioner in W.P.Nos.11653 & 11654/17

: : : : : : : : : :

For Petitioner in W.P.No.12435/17 For Petitioner in W.P.No.12443/17

: :

For Respondent-TASMAC in all W.Ps.

: Mr.K.Venkata Ramani Addl. Advocate General assisted by Mr.John Kennedy, and Mr.B.Nedunchezian

For Respondent Official Respondents in W.P.Nos.11572, 11770, 11791, 11804, 11977, 12188, 11980, 12152, 11981, 11655, 11653, 11654 of 2017

Mr.M.Rajendiran Mr.C.Prakasam Mrs.R.Hemalatha Mr.A.Rajesh Kanna Mr.M.Purushothaman Mr.M.R.Jothimanian Mr.M.Shreedhar Mr.S.Selvakumar Mr.R.Jayaprakash M/s.Sarvabhauman Associates Mr.C.Samivel Mr.R.Gokulakrishnan

: Mr.R.Vijaykumar Addl. Govt.Pleader

For Respondent Official Respondents in W.P.Nos.12294, 12370, 12443, 12394 & 12435 of 2017 : Mr.R.Govindasamy, Special Government Pleader

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COMMONORDER (Order of the Court was delivered by S.M.Subramaniam, J.,) This batch of Writ petitions have been filed by the citizens, by way of pro bono publico (Public Interest Litigation), questioning the relocation/establishment of the Tamil Nadu State Marketing Corporation Limited', (for short, 'TASMAC Shop') in various localities.

2.

Since the issue involved in all these Writ Petitions are one

and the same and the relief sought for, are interconnected, they were heard together, and disposed of, vide this common judgment/order.

3.

Heard the learned counsels appearing on behalf of the

petitioners, Mr.K.Venkata Ramani, learned Additional Advocate General, assisted by Mr.R.Nedunchezian and Mr.John Kennedy, learned counsels for respondent/TASMAC, and Mr.R.Govindasamy, the learned Special Government Pleader and Mr.R.Vijaykumar, the learned Additional Government Pleader for the official respondents, and perused the materials placed on record.

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4.

Before going into the issue, we deem it appropriate to refer to

the constitutional philosophy enunciated in the preamble portion of the Constitution of India, which would run thus:-

“ We, the People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens. Justice, Social, economic and political; ....”

5.

Though the above said principle remains as a philosophy of

the Constitution, the Articles constituted thereunder, provides separate clauses under Part IV, which enumerates certain Directive Principles of the State Policy. Apropos, it would be apposite to refer to 37, 38 (1) and 47, which are extracted herein below:-

"37) Application of the principles contained in this Part The provisions contained in this part shall not be enforceable by any Court, but the Principles therein laid down are nevertheless fundamental in the governance of the Country and it shall be the duty of the States to apply these principles in making laws.

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38)

State to secure a social order for the

promotion of welfare of the people - (1) (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. and 47) Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

6.

Though as per Article 37, the Directive Principles of the

State Policy enumerated in Part IV cannot be enforceable by any Court, Article 47 stipulates that the State shall endeavour to bring about prohibition of the consumption of intoxicating drinks and of drugs, since it involves the standard of living of the people and improvement of public health of our citizens.

In this context, it would be beneficial to

refer to the judgments rendered by the Hon'ble Supreme Court, which are

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mentioned infra:-

a)

In (P. N. Kaushal Etc vs. Union Of India) reported in (1978)

3 S.C.C. 558, the Hon'ble Supreme Court described the duty of the State, as to how it should regulate the sale of liquor, and to decide as to where the liquor shop has to be located, and the impact of the intake of the liquor, and held in Para No.49 as follows:“...The liquor trade is instinct with injury to individual and community and has serious side effects recognised everywhere in every age. Not to control alcohol business is to abdicate the right to rule for the good of the people. Not to canalize the age and sex of the consumers and servers, the hours of sale and cash-and-carry basis, the punctuation and pause in days, to produce partially the 'dry' habit it to fail functionally as a welfare state. The whole scheme of the statute proclaims its purpose of control in time and space and otherwise. Section 58 vests in government the

power

for

more

serious

restrictions and laying down of principles. Details and lesser constraints have been left to the rulemaking power of the Financial Commissioner. The complex

of

provisions

is

purpose-oriented,

considerably reinforced by Article 47.”

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b)

In (N.Nagendra Rao and Co. Vs. State of Andhra

Pradesh) reported in (1994) 6 S.C.C. 205, the Hon'ble Supreme Court held as follows:“ .... No civilized system can permit an executive to play with the people of its Country and claim that it is entitled to act in any manner as it is sovereign. Needs of the State, duty of its Officials and right of the citizens are required to be reconciled so that the Rule of law in a Welfare State is not taken ”

c) reported in

In (Vincent Panikurlangara vs Union Of India & Ors) AIR

(1987) S.C.C. 990), in para No.16, it is held as

follows;'' ''A healthy body is the very foundation for all human

activities.

That

is

why

the

adage

"Sariramadyam Khaludharma Sadhanara". In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. This Court in Bandhua Mukti Morcha v. Union of India, [1984] 3 SCC 161 aptly observed:“It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case-[1981] 1 SCC 608--to live with human dignity, free from exploitation. This right to live with human

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dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just as humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity, and no State neither the Central Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials".

While endorsing what has been said above, we would refer to Article 47 in Part IV of the Constitution. That Article provides:-"The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."

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This Article has laid stress on improvement of public health and prohibition of drugs injurious to health as one of the primary duties of the State. In Akhil Bharatiya Soshit Karmachari Sangh v. Union of India, [1981] 1 SCC 246 this Court has pointed out that, "the

Fundamental

Rights

are

intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts. So they are made justifiable. However, it is also evident that notwithstanding their great

importance,

the

Directive

Principles cannot in the very nature of things be enforced in a Court of Law, but it does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the State." In a series of pronouncements during the recent years this Court has culled out from the provisions of Part IV of the Constitution these several obligations of the State and called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality.

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As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority perhaps the one at the top.” ”

7.

Let us now look into the provisions contained in Article 21 of

Constitution, which reads as follows:“Protection of life and personal liberty No person shall be deprived of his life or

personal liberty, except, in accord with the procedures established by law.”

8.

The Hon'ble Supreme Court, in umpteen number of

judgements has re-emphasized the importance of public health and the duty of the State to provide the medical facilities to the poor, downtrodden, and needy people of our Country. In fact, the right to public health is an integral part of Article 21 of our Constitution. In this connection, it would be relevant to quote the relevant portion from the judgment rendered by the Hon'ble Supreme Court, in the case of

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(Research Foundation for Science Technology National Resource Policy Vs. Union of India and another) reported in (2005) 10 S.C.C. 510, which reads as follows:“The legal position has already been noticed. Clearly, the right to information and community participation necessary for protection of environment and human health is an inalienable part of Article 21 and is governed by the accepted environment principles. The Government and the authorities have to motivate the public participation by formulating the necessary programmes.”

9.

In yet another judgment rendered by the Hon'ble Supreme

Court, in the case of (People's Union for Civil Liberties V. Union of Inda), reported in (1997) 3 S.C.C. 433, it is held as follows;“The basel convention, it cannot be doubted, effectuates the fundamental rights guaranteed under Article 21. The right to information and community participation for protection of environment and human health is also a right, which flows from Article 21. The Government and Authorities have, thus, to motivate the public participation.

These well-

enshrined principles have been kept in view by us, while examining and determining various aspects and facets of the problems in issue and the permissible remedies”

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10.

With this background, we proceed to deal with the issue

raised in this batch of cases.

11.

The learned counsels appearing for the petitioners have

pyramid their arguments by stating that the State has the primary duty to protect/safeguard the health of the public, but, with an intent to generate revenue to the Government Exchequer, cared pittance over the public health, and proposed to establish the TASMAC shops in the places appurtenant to the Residential Areas, Schools, Colleges, Temple, etc., which would cause harm, not only to the drunkards, but would also cause nuisance and other problems to the passers-by of that locality. 12.

The learned counsels further submitted that the main areas

are chosen by the State, for establishing the TASMAC Shops so as to attract the persons in large numbers. The learned counsels also brought to our notice the impact of establishing the TASMAC retail vending shops nearby the Factory areas, for, the workers in the Factory would get attracted to consume alcohol during working hours, and it would pose high risk to the safety of the workers and other commuters, and there is every possibility that the workers, in an inebriated mood would misbehave with the women employees in the Factory. Added further, it

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would also create traffic congestion, leading to accidents, and would also create a conducive atmosphere to the unwanted elements to assemble frequently to carry on their illegal activities, and this part, empty liquor bottles, which would be strewn on the streets would result in accumulation of garbage wastes, which would cause hygienic problems to the persons in the residential areas. Therefore, the learned counsels for the petitioners pleaded that the State should be restrained from establishing the TASMAC Shop in the localities attached to the Residential areas, Schools, Colleges, Temples, Factories, and other important areas, where, there would be surging crowd of people normally. 13.

Refuting the contentions/allegations putforth/raised by the

learned counsel for the petitioners, the learned Additional Advocate General submitted that the respondent/State is having much concern with regard to the health of the public, and they are not violating the rules and regulations framed under the Tamil Nadu Prohibition Act 1937, as alleged by the petitioners, and in this regard, he pointed out that, there has been a proposal for relocation of 3000 shops in the State, and since objections are being raised by the public and agitations are mooted out by political organisations, people movements, Associations, etc., the

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State has dropped the proposal to relocate the TASMAC shops, where, objections were raised, which would per se prove that the State does not have any intention to develop a kind of atmosphere, which is not conducive to the welfare of the public. It is his further submission that, whichever place is much prone to problems, and wherever, objections are raised by the public, steps are being taken forthwith to redress their grievances by removing the TASMAC shops. Therefore, he prays for dismissal of the Writ Petitions.

14.

Considering the rival submissions and on perusal of the

materials placed on record, we are of the opinion that it would be beneficial to refer to the provisions envisaged in Tamil Nadu Prohibition Act, 1937, (henceforth, referred to as the 'TNP Act,), an Act introduced for prohibition of the manufacture, sale and consumption of intoxicating liquors and drugs in the State of Tamil Nadu, which reads as follows:-

“ WHEREAS it is expedient as early as possible to bring about the prohibition, except for medicinal scientific, industrial or such like purposes, of the production, manufacture, possession, export, import, transport,

purchase,

sale

and

consumption

of

intoxicating liquors and drugs in the State of Tamil

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Nadu. AND WHEREAS it is desirable to give effect to the above mentioned policy by introducing it in certain selected areas in the said State and utilizing the experience gained therein for extending it to the other areas thereof;”

15.

Section 4 of Chapter II of the said Act provides prohibition

of the manufacture of, traffic in, consumption of liquor and intoxicating drugs, and on a reading of the provisions and objects set out in the said Act, (as referred to supra) it is unambiguous that noble idea of prohibition was fixed as an object. Various punishments are prescribed under Section 4, for violation of the conditions stipulated therein, of course, with certain exemptions.

16.

Now, let us look into the provisions contemplated under

Section 16 (1) and 17-C (1) of Chapter III (Exemption and Licences) of the said Act, which reads as follows:-

“ “ 16. Power to notify exemptions,

The

State Government may, by notification and subject to such condition as they think fit, exempt any specified

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liquor or intoxicating drug or article containing such liquor or drug from the observance of all or any of the provisions of this Act on the ground that such liquor, drug or article is required for a medicinal, scientific, industrial, or such like purpose.”

and 17-C Exclusive Privileges of manufacture, etc. may be granted. (1) It shall be lawful for the State Government to grant to any person or persons on such conditions and for such period as they may deem fit the exclusive or other privilege“(a) of manufacturing country liquor (the Words Country liquor or” was omitted by Tamil Nadu Act 14 of 1993), (Indian- Made Foreign spirits and foreign liquor) or (b) of selling by retail (the Words Country liquor or” was omitted by Tamil Nadu Act 14 of 1993)(Indian-made foregin spirits and foreign liquor, within any local area (1-A) (a) Notwithstanding anything contained in this Act, the Tamil Nadu State Marketing Corporation Limited, which is a Corporation wholly owned and

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controlled by the State Government, shall have the exclusive privilege of supplying, by wholesale (Indian- Made Foreign spirits and foreign liquor) 9Indian-made foreign spirits and foreign liquor0, for the whole of the State of Tamil Nadu and no other person shall be entitled to any privilege of supplying , by wholesale, (Indian- Made Foreign spirits and foreign liquor), (Indian-made foreign spirits and foreign liquor) for the whole or any part of the State. (b)

Notwithstanding

anything

contained in this Act, the Tamil Nadu State Marketing Corporation Limited shall be

granted

the

licence

by

the

Commissioner for the exercise of the exclusive privilege referred to in clause (a) and such licence shall be subject to the rules made by the State Government in this behalf and to such conditions and restrictions as the Commissioner may, from time to time, specify. and (c) The Tamil Nadu State Marketing Corporation Limited shall, as soon as may be, after the grant of the licence under

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clause (b) for the exercise of the exclusive privilege referred to in clause (a) open its branches in the State in such places and subject

to

such

conditions

as

the

Commissioner may specify; Provided that the said Corporation shall open not less than one branch in each district.””

17.

On reading of the provisions contemplated under Section 17-

C, it is clear that the State Government is permitted to grant licence for manufacturing of Indian made Foreign spirits and Foreign liquor and for selling the same by retail price. Such an licence is now provided to the whole State owned Tamil Nadu State Marketing Corporation.

18.

We are of the opinion that that the Government issued

licence for retail vending of the liquors to the State owned TASMAC Shops, and under these circumstances, the learned counsel appearing for the petitioners raised allegations that the State is not initiating any legal (stringent) action against the owners of the TASMAC shops for violation of the Act and Rules framed under TNP Act.

19.

As per Tamil Nadu Liquor Retail Vending (in Shops and

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Bares) Rules, 2003, issued by the Government of Tamil Nadu, let us see the terms “Licence” “Place of Worship”, "Retail Vending of Liquor" "Shop" and “Grant of licence" defined thereunder. i) Rule 2 (n), deals with the “Licence” granted under Sub-section (1-B) of Section 17-C of the Act to the Tamil Nadu State Marketing Corporation Limited; ii) Rule 2 (p) deals with “Place of Worship”, which means a temple, mosque, church or gurudwara, where organized and ritualistic prayers are offered regularly, or atleast, once in a week; iii) The retail vending of liquor is defined under Section 2 (q); iv) Section 2(r) deals with shop, which means the building in which the liquor is stocked and sold; and v) Rule 4 deals with “Grant of licence”. The Rules 8, 9 and 10 of the aforesaid Rules, 2003, are relevant for the purpose of resolving the issue raised in this batch case, which are extracted hereunder:-

“8. Location of Shop – (1) No shop shall be established in Municipal Corporations and Municipalities within a distance of 50 (fifty) metres and in other areas 100 (hundred) metres from any place of worship or educational institutions. Provided that the distance restriction shall not apply in areas designated as “Commercial” or

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“Industrial” by the Development or Town Planning Authorities: Provided further that no shop shall be established within the premises of any hotel: Provided also that if any place of worship, educational institution comes into existence subsequent to the establishment of the shop, the provisions of this rule shall not apply: Provided also that no liquor shops shall be established in any tribal areas covered under Integrated Tribal Development Project and Hill Area Development Project in the Hill area of Vellore, Salem, Namakkal, Dindigul, Tirunelveli and Kanniyakumari districts. (2) Every shop shall be housed in a pucka building and no part of the shops shall be thatched either on the sides or on the roof. and (3) The shop shall be in the location approved by the Collector before commencing the business in the shops. 9. Shifting of shop- There shall be no change in the location of shops except with the previous permission of the Collector. and 10. Location of Bar- (1) The bar shall lie within the shop or adjoining the shop.”

20.

What is important to be noted herein is that, the grievances

expressed by the petitioners is not their individual grievances, but, expressed in the interest of the public at large. They are representing in

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words, the anguish and anxieties of the people at large. They pointed out that State are permitting the liquor shops to be established/relocated, particularly, near the Schools or Colleges or at the place of workship, (Church, Temple and Mosque). They further pointed out that, as per the Tamil Nadu Liquor Retail Vending (in Shops and Bares) Rules, 2003, the business of the TASMAC shops has to be carried out only in a constructed building, and violating the said Rule, now the State is running the TASMAC shops in the thatched sheds in some places. Further, they informed us that the State is acting akin to a commercial trader, without adhering to the principles enunciated in the Constitution of India and by neglecting public health and other welfare activities of the State. In this regard, our attention has been drawn to the proviso of Section 133 of the Criminal Procedure Code, which stipulates to initiate action against the nuisance caused to the public.

21.

Though it is the contention of the learned Additional

Advocate General that that the State is having much concern with regard to the health of the public, and they are not violating the rules and regulations framed under the Tamil Nadu Prohibition Act 1937, and steps are taken forthwith to redress the grievance of the public when

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expressed, we cannot shut our eyes and remain as a mute spectators to the grievances expressed by the public, as we are aware of the fact that every day, the road rokos are being conducted by the people in many localities, especially, in the National High Ways, resulting in law and order, and such agitations are creating more troubles, to the innocent public, who are in no way connected/concerned, and it causes much inconvenience to the School going children, students, Office goers, and also to the drivers of the vehicles, transporters, etc.,

22.

Thus,

bearing

in

mind

all

the

aforementioned

grievances/difficulties/troubles faced by the public, we are of the firm view that the State has to revisit the entire policy regarding the establishment/relocation of TASMAC shops, near the Residential areas, Schools, Colleges, Temples, Factories.

At this juncture, it would be

worthwhile to refer to the decision rendered by the Hon'ble Supreme Court of India, in re (The State of Tamil Nadu Versus K.Balu and another in Civil Appeal Nos. 12164 to 12166 of 2016, dated 15.12.2016, wherein, the Hon'ble Supreme Court dealt with the provisions of the National High Ways Regulations and concluded the issue, by issuing a comprehensive directions to all the States, which are

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extracted hereinbelow:

“24. We accordingly hereby direct and order as follows : (i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways; (ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority; (iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but no later than 1 April 2017; (iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways; (v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service

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lane along the highway; (vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken. and (vii) These directions issue under Article 142 of the Constitution. 25. We dispose of the appeals and transfer petitions in the above terms. There shall be no order as to costs.”

23.

The directions issued by the Hon'ble Supreme Court of

India under Article 142 of the Constitution of India, (as quoted supra) are binding on the Courts and it will become the law of the land. Such directions were issued, not only to render complete justice in the matter, but also to safeguard the interest of the citizens.

Thereafter, when

Interlocutory Applications were filed by the States seeking for

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clarification, in I.A.Nos. 4-6, 7-9, etc., in Civil Appeal Nos.12164 to 12166 of 2016, the Hon'ble Supreme Court disposed of the Applications, by order, dated 31.03.2017, and the operative portion of the orders is extracted hereunder:-

“27. Finally, we clarify that we are not inclined to issue a direction in terms as sought by Shri Aryama Sundaram, learned senior counsel and other counsel that the judgment of this Court should be clarified so as to apply only to shops involving sale of liquor. Since the object of the direction is to prevent drunken driving, no such relaxation can be made which would defeat the object which is sought to be achieved. Consequently, the directions issued by this Court cannot be read down, as suggested. The directions shall be read, as they stand. 28. We accordingly dispose of this batch of Interlocutory Applications in terms of the above. The Civil Appeal shall stand disposed of in terms of the judgment, dated 15 December 2016 and the order passed today.”

24.

When similar issues came up for consideration before the

Hon'ble First Bench of this Court, by way of Public Interest Litigation, in W.P.No.9066 of 2017, and W.P.No.8902 of 2017, the Hon'ble First

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Bench, disposed of those Writ Petitions, by order, dated 12.04.2017, and 13.04.2017, respectively, in the light of the directions issued by the Hon'ble Supreme Court, and the operative portions of the orders passed in the said two Writ Petitions, viz. in W.P.No.9066 of 2017, and W.P.No.8902 of 2017, respectively are extracted herein below, under the heading as 'A' and 'B ':'A' " 6.

In view of the cancellation of the relocation of liquor shop and action initiated against the errant police officer and in view of our order directing that the two injured persons named above be provided with treatment in any Government hospital of their choice at the expense of the State, this writ petition need not be kept pending. This writ petition is disposed of accordingly. Needless to mention that liquor shops will be relocated in accordance with law keeping in view judgments of the Supreme Court of this Court in that regard. No costs. Consequently, connected miscellaneous petitions are closed.”

'B' “4. Needless to mention that the liquor shop shall only be relocated in accordance with law and in particular the Tamil Nadu Liquor Retail Vending (In shops and Bars) Rules, 2003 framed under the Tamil Nadu Prohibition Act, 1937, taking into consideration the judgments of the Supreme Court of India and of

this Court in this regard.”

25.

The Hon'ble Chief Justice, while passing the orders in

W.P.No.9066 of 2017 and W.P.No.8902 of 2017, (referred above) made

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it very clear that the directions issued thereunder, have to be followed by the State scrupulously, and in letter and spirit.

At this juncture, the

learned Additional Advocate General has brought to our notice one more aspect that, the Division Bench of this Court, while entertaining this batch of cases, (excluding W.P.Nos. 12294, 12370,12394, 11654 and 12435 of 2017) dated 06.05.2017, passed an interim order, and by virtue of the said interim order, the State is finding difficult to establish/relocate the TASMAC shop any where in the State, for the Division Bench issued a direction, restraining the respondents from establishing/relocating the TASMAC Shops at any residential areas, villages, towns, or any local body, which totally curtails the liberty of the State so as to decide as to where the TASMAS Shops could be established/relocated. He further submitted that, to vacate the aforesaid interim order, dated 06.05.2017, one Mr.R.Kirlosh Kumar, the Managing Director, TASMAC Limited, Chennai, has filed a Vacate Stay Petition, viz., W.M.P.No.13370 of 2017, in W.P.No.12152 of 2017, wherein, it is stated that, no shop was relocated against the rules and norms enumerated in Rule 8 (1) of TASMAC Retail Vending (in Shops and Bars) Rules, 2003, and, if there is any violation, it shall be brought to the knowledge of the authorities concerned, so that it can be examined and relocated accordingly, and at

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present, many TASMAC shops are functioning smoothly within the residential areas, without any objection by the public, and that, the relocation process are done by a team of officers under the supervision of the District Collectors, and the team of officers are however, advised to avoid selection of places for location of shops in thickly populated areas, and wherever, reasonable objection are raised by the public, the District Collectors drop the proposals for locating shops, and so far, the District Collectors have cancelled 41 such kind of proposals and have passed orders to relocate those shops to some other unobjectionable places. The learned Additional Advocate General, therefore, submitted that the undertaking given by Mr.Kirlosh Kumar, Managing Director, TASMAC, in connection with Vacate Stay Petition in W.P.Nod.12152 of 2017, may be taken note of by this Bench, and appropriate directions may be issued, permitting the State to establish/relocating the TASMAC shops.

26.

We are impressed by the sworn affidavit filed by the

Managing Director of the TASMAC, Chennai, to some extent. However, since objections have been raised by some of the learned counsels appearing for the petitioners, by stating that, undertakings given by the Authorities are not strictly followed and often there are violation, we are

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of the considered opinion that the State has to be directed to follow the undertakings given in para No.13 of the affidavit filed by Mr.Kirlosh Kumar, Managing Director, TASMAC, in connection with Vacate Stay Petition in W.P.No.12152 of 2017, scrupulously, and Para No.13 of the said affidavit is extracted hereunder:-

“13. It is submitted that no TASMAC shop was

relocated

against

the

rules

and

norms

enumerated in Rule 8 (1) of TASMAC Retail Vending (in Shops and Bars) Rules, 2003 by this petitioner. If at all any violation, it should have been brought to the knowledge of the authorities concerned, so that it can be examined and relocated accordingly. It is submitted that at present, many TASMAC shops are functioning smoothly within the residential areas without any objection by the public. The relocation process are done by a team of officers under the supervision of the District Collectors. The team of officers are however advised to avoid selecting of places for location of shops in thickly populated areas. Wherever reasonable objections are raised by the public, the District Collectors drop the proposals for locating shops.

So far the District

Collectors have cancelled 41 such kind of proposals and have passed orders to further relocate those shops. "

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27. The State has bounden duty to safeguard the interest of the public. The word 'State' derived its meaning from the word 'Democracy'. Democracy is all about 'Will of the people'. It is 'for the people' 'by the people' and 'of the people'. Democracy is the strength of our mother nation. The concept behind the words ' ideal democracy', is not clearly defined any where, and the end point of the democracy is unknown to anybody. It is needless to state that the State has to respect the Will of the larger sector of the people, and the firm opinion expressed by them in clear terms is to be certainly honoured by the State, and such an attitude of the State alone will pave a way for good governance. It is a known fact that, our Nation is rapidly marching upwards on democratic principles. While dreaming for an ideal democracy, the State has to slowly adopt a procedure, minimising the inconsistencies in formulating the policies.

28. We are unable to digest with the inconsistencies and incongruities contained in the public policies.

In the Constitutional

perspective, the makers of the Constitution formulated Directive Principles of the State Policy, in Part IV of Article 37 of the Constitution,

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in order to achieve good governance. Further, the principles laid down therein are nevertheless, the fundamental principles in making the laws. It shall be the duty of the State to implement these principles, but not through the Courts. For instance, the fundamental duties of the citizens are enunciated under Article 51-A of the Constitution. Accordingly, the fundamental duties of the citizens are enumerated in part IV of Article 37 of the Constitution. Though the provisions are corresponding, both the citizens as well as the State are duty bound to follow and implement the duties enshrined in the Constitution. When the State itself is not in a position to fulfill the fundamental duties, emphasized in Part IV of the Constitution, the citizens cannot be expected to perform their duties. The corresponding duties and responsibilities are to be read harmoniously and to be followed by all concerned. In such view of the matter, the constitutional obligations cast upon the State to develop public health by imposing prohibition is need of the hour. Contrarily, the State is entering into the commercial venture for generating revenue for the Government exchequer, by allowing the State owned Company to run larger number of liquors shops in various localities. Maximising the number of liquor shops in the State will not only cause damage to the health of the persons at large, but, it would also ruin the progress of our

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nation, as it would also create disorderliness in the family belonging to the poor/middle class/socially weaker section of the Society.

29.

Thus, we would like to examine the inconsistency in the

case on hand.

Let us examine the scenario that the State claims

championship in public health, and though it claims that it has introduced number of schemes for the welfare of the public, and they are in force, but, simultaneously, it has also permitted number of State owned TASMAC shops to be operated. The message to the citizens is that, yes, consume alcohol in Government owned shops and the State is equipped with Ambulance '108' to provide best treatment in the Government General Hospital.

The attitude of the State is to be construed as

'pinching the child and swinging the hammock'. The State cannot adopt such a policy and the State functioning for the welfare of the public, has to adopt a pragmatic approach in implementing directive principles of the state policy, enshrined in the Constitution of India.

30.

It is seen that the Hon'ble Division Bench of this Court,

while entertaining the Writ Petitions on 06.05.2017, granted an interim order with the following directions;-

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" The respondents are restrained from relocating or opening of TASMAC shops in residential areas; Wherever there is a Grama Sabha Resolution that there should not be opening or relocating of TASMAC shops in villages or town or any local body or in its vicinity, TASMAC shops shall not be relocated or opened. If there is any agitation, with regard to the opening or relocating of TASMAC shops, the respondents shall not arrest or take action against the agitators

provided

they

demonstrate

peacefully,

without causing inconvenience to the public"

31. The concrete idea behind this interim order is traced out in Article 243-G., which deals with the power/authority/responsibilities of Panchayats, and the same reads as follows:“ Subject to the provisions of the Constitution, the legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein with respect to a) The preparation of plants for economic development and social justice,

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b)

The implementation of schemes for

economic development and social justice as may be entrusted to them, including those in relating to the matters listed in the eleventh schedule. "

32. So

also,

the

powers/authority/responsibility

of

the

Municipalities are carved out under Article 243-W of the Constitution. The implementation of the Schemes for economic development and social justice, as may be entrusted to the Panchayats are listed under eleventh schedule of the Constitution. Clause 23 of the eleventh schedule speaks about the Health and Sanitation, including Hospitals, primary health centres and dispensaries; Clause 24 of the eleventh schedule speaks about Family welfare;

Clause 25 about Women and Child

Development; Clause 26 about Social Welfare, including Welfare of the Handicapped and Mentally Retarded, and that of Clause 27, Welfare of the Weaker Section, in particular, of the Scheduled Castes/Scheduled Tribes.

33.

On a cogent reading of the spirit of the Constitution, and its

philosophy and the intent of the makers of the Constitution, we are of the undoubted view that all provides for harmonious, healthy Society, at all

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levels, and the Panchayats and the Local Municipalities are fundamental requirement contemplated under the Constitution. Therefore, if resolution or a decision is taken by the Panchayats Committee at Village levels and if such a resolution is placed before the Government, expressing the Will of the majority of the people of that locality, undoubtedly, the Government is duty bound to respect and respond such resolutions. Therefore, the interim order granted by the Division Bench, as referred to supra, is part and parcel of the constitutional goals, as traced out under the provisions of the Constitution of India. Though prohibition for sale of liquor throughout the State is wanted decision by a large sector of people, especially women, we are not in a position to issue such a direction, however, we are of the considered view that the State has to, to some extent, show generosity over the public. It is the duty of the State to revisit the entire policy, in a phased manner, and to the extent possible, take into consideration the Will of the people of that locality and intend to reduce the agony and inconvenience that would be caused to the public on account of the establishment/relocation of the TASMAC shops, which is detrimental to the public.

34.

In view of the discussions made above, we deem it fit that

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the following directions would suffice to meet the ends of justice :-

(i) The directions issued by the Hon'ble Supreme Court of India in the Judgments, rendered in Civil Appeal Nos. 12164 to 12166 of 2016, dated 15.12.2016, and in I.A.Nos. 4-6, 7-9 etc. of 2017, in Civil Appeal Nos. 12164 to 12166 of 2016, dated 31.03.2017, (as mentions above in para Nos.22 and 23) shall be scrupulously followed in letter and spirit with regard to the relocation of the TASMAC shops. (ii) The conditions enunciated under Section 8 of the The Tamil Nadu Liquor Retail Vending (In shops and Bars) Rules, 2003 shall be strictly adhered to by the State, while relocating the TASMAC shops. (iii) The State Government is directed to consider the objections of the local people of that area in respect of establishment/relocation of TASMAC shops, if any, and decision shall be taken in that regard without delay. (iv) The undertaking given in paragraph 13 of the affidavit filed by Mr.Kirlosh Kumar, Managing Director, TASMAC, in support of the Vacate Stay Petition in connection with W.P.No.12152 of 2017, (as mentioned above in para No.26) are to be followed in letter and spirit by the State, while establishing/relocating the TASMAC shops.

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(v) This Bench fervently hope that the State Government will revisit the entire policy in the matter of prohibition of considering the 'Will' and 'Wish' of the larger sector of the Society of each area and accordingly take a decision with regard to the establishment or relocation of the TASMAC shops, in accord to the constitutional directives. These Writ Petitions are disposed of with the above directions. No costs. Consequently connected Miscellaneous Petitions are closed.

[M.K.K.S.J.,] [S.M.S.J.,] 11.05.2017 Speaking (or) Non Speaking Index : Yes (or) No arr/sd

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To 1. The District Collector, Office of the District Collector, Thiruvallur District. 2. The Managing Director, TASMAC Limited, Thalamuthu Natarajan Building, 4th Floor, 2nd block, Egmore, Chennai-8. 3. The Southern Regional Manager, TASMAC Ltd., Devaneyapavaneyar Building, Anna Salai, Chennai-2. 4. The District Manager, TASMAC Ltd., Thiruvallur District

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K. KALYANASUNDRAM, J., and S.M.SUBRAMANIAM,J. Arr/sd

W.P.Nos.12294, 11572, 12370,12394, 11770,11791,11804,11977, 12188, 11980, 12152, 12443, 11981, 11653, 11654, & 12435 of 2017

11.05.2017