9911796707
TMI Blog2022 (1) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... period. HELD THAT:- Section 4A was amended so as to make, the person found in a state of intoxication in any public place, and a person other than those who are permitted to consume any liquor or intoxicating drug, is found in a state of intoxication in any private place is punishable with simple imprisonment which may extend to 3 months ( 6 months prior to amendment vide Tamil Nadu Act 2 of 1989) or fine which may extend to Rs.1000/-, on both - the amendment was intended to implement the policy of the Government under the Tamil Nadu Prohibition Act, 1937. It was in consonance with the total prohibition which existed then from 1976 and Article 47 of the Constitution of India. The Bar Licence issued under Tamil Nadu Liquor (Retail Vending in Bar) Rules, 1992 was deemed to have been renewed and privilege was granted for the period from 1 st June, 1993 to 30th June, 1993. Where any licensee had paid an amount in excess of the privilege amount specified in Rule 4, such amount was to be refunded by the licensing authority to the licensee, after deducting the Government used if any, under the rescinded Rules. This was at the time when license and privileges were given to private persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1937 - Till the law is amended, and proper rules are framed which are in tune and consistent with the provisions of the Tamil Nadu Prohibition Act, 1937, the respondents TASMAC shall refrain from granting licences/permits to the petitioners and others to do the support service or the business in the sale of short eats or collecting used bottles. Petition dismissed. - W.P. Nos. 27621, 27625, 27703, 27711, 27719, 27723, 27726, 27728 to 27731, 27745, 27751, 27758, 27761, 27765, 27766, 27769, 27774, 27783, 27785, 27789, 27795, 27731.01.202299, 27805, 27810, 27811, 27813, 27817, 27816, 27820, 27822, 27826/2021, 28117, 27528, 27361, 27513, 27516, 27517, 27519, 27520, 27521, 27522, 27523, 27524, 27525, 27527, 27529, 27530, 27531, 27532, 27702, 27704, 27705, 27706, 27707, 27708, 27709, 27710, 27712, 27713, 27714, 27715, 27716, 27717, 27718, 27720, 27721, 27725, 27851, 27853, 27857, 27858, 27859, 27868, 27873, 27874, 27880, 27883, 28123, 28125, 28126, 28130, 28135, 28139, 27533, 27535, 27536, 27698, 27889, 27896, 27357, 27845, 27848, 27727, 27839, 27722, 27724, 27888, 27632, 27693, 27733, 27735 to 27737, 27739 to 27742, 27746 to 27750, 27752, 27753, 27755 to 27757, 27841, 27842, 27844, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. KATHIRESAN, M. VAIRAVAN, M. VEER-AMANIGANDAN, K . ILANGO, K. SIVAPRAKASAM, S . SELLAPPAN, S. SHANMUGA SUNDARAM, P . UDHAYAKUMAR, R. KALEE SWARAN, S . SATHYAMOORTHY, S . RAMESH, C . PANDIYAN, S . KRISHNAMOORTHY, M. GOPINATH, R. D . VEERASAMY, S . KARUPPAYYA, M. GOPINATH, R. KUMAR, S . MANIK_ANDAN, M. THONDIRAJ, K. TAMILALAGAN, N . SARAVANAN, M. KANNAN, P . SELVARAJ, S. SAKTHIVEL, R. JAYAPRAKASH, S. SAKTHIVEL, K. TAMILALAGAN, S . S . PARTHIBAN, K. TAMILALAGAN, A. L. NOWSATH ALI, S . CHANDRAK_ALA, M. PRABHU, G. SURESH, VEERAMANI, S . RAMANATHAN, S . DHARMARAJ, M. AROKIASAMY, P . DURAISINGAM, A. SURESH, N . DHAYALAN, PREMKUMAR JOSEPH, ANBALAGAN, G. SURESH KUMAR, N . ANBALAGAN,R. R. MOORTHY And other Versus The Managing Director, Tamil Nadu State Marketing Corporation Limited and Ors. Hon'ble Judges C. Saravanan, J. For Petitioners in W.P.Nos.27936, 27702, 27704, 27705, 27706, 27707, 27708, 27709, 27710, 27712, 27713, 27714, 27715, 27716, 27717, 27718, 27720, 27721, 27725, 277851, 27853, 27857, 27858, 27859, 27868, 27873, 27874, 27880, 27883, 27698, 27889, 27896, 27845, 27848, 27727, 27839, 27722, 27724, 27880, 27883, 27698, 27889, 27896, 27845, 27848, 27727, 27839, 27722, 27724 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7530, 27531, 27532, 27702, 27704, 27705, 27706, 27707, 27708, 27709, 27710, 27712, 27713, 27714, 27715, 27716, 27717, 27718, 27720, 27721, 27725, 27851, 27853, 27857, 27858, 27859, 27868, 27873, 27874, 27880, 27883, 28123, 28125, 28126, 28130, 28135, 28139, 27533, 27535, 27536, 27698, 27889, 27896, 27357, 27845, 27848, 27727, 27839, 27722, 27724, 27888/2021 Writ of Certiorarified Mandamus to call for the records relating to the tender notification dated 14.12.2021 and quash the same and consequently to direct the respondents to extend the right to collect empty bottles and sell eatables in the Bar attached to shops. 2 27632, 27693, 27733, 27735 to 27737, 27739 to 27742, 27746 to 27750, 27752, 27753, 27755 to 27757/2021, 27841, 27842, 27844 27846, 27847, 27849/2021 Writ of Certiorari to call for the records in Na.Ka.A3.No.1001/2021 dated 14.12.2021 issued by the 3 rd respondent and quash the same. 3 27850, 27852, 27854, 27855, 27856/2021, 27861, 27862, 27866, 27869, 27871, 27875, 27878, 27882, 27885, 27890, 27894, 27895, 27865, 27864, 27886, 27872, 27877, 27881, 27876, 27884, 27887, 27891, 27893, 27898, 27901, 27897, 27902, 27903, 27904, 27908, 27909, 27911, 27940, 27944, 27946, 279 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese petitioners were thus unable to operate their previous licence which was in operation for a period of two years due to outbreak of covid-19 pandemic in March 2020. 8. It is submitted that due to lockdown imposed due outbreak of Covid 19 pandemic during March, 2020, the petitioners had no business for about 15 months period and their licence to collect bottle and vend short eats in the Bar premises leased out by them and had remained inoperable due to lock down and stringent Covid protocol. 9. It is submitted that the respondents TASMAC ought to have allowed the petitioner to operate the license for another 15 months period by considering the hardship caused by them. 10. It is submitted that petitioners have suffered huge financial loss and therefore they should be allowed to continue. It is submitted that even though the petitioner were not required to pay the license fee to the respondents TASMAC during these months, they still suffered loss as they were forced to not only pay the lease rentals for the premises to the owners of the premises where the bar attached to the TASMAC shops are in operation. It is submitted that these petitioners were also forced to pay salary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing reference Na.Ka.No.A3/1001/2021 was vitiated. 20. It was also submitted that the Tender Forms were not readily available for being downloaded from the WEBSITE of the Respondents TASMAC. It was submitted that the physical copies of the Tender Forms were also not available on cost to the petitioners. 21. It is therefore submitted that the provisions of the Tamil Nadu Transparency In Tenders Act, 1998 (Tamil Nadu Act 43 of 1998) and the Rules made thereunder were floated forcing the petitioners to rush to the Court. 22. It is further submitted that pursuant to the orders of this Court dated 22/23.12.2021, the respondents TASMAC did issue Tender forms to the petitioners, but did not permit the petitioners to submit their tender applications as no drop box was kept in many of the auction centres. It is further submitted that submits that Tender in the following areas have not been finalized to accommodate few closer to the ruling establishment:- S.No. Name of the District 1 Chennai (Central) 2 Chennai (North) 3 Chennai (South) 4 Kanchipuram (North) 5 Kanchipuram (South) 6 Thiruvallur (East) 7 Krishnagiri 8 Arakkonam 23. It is further submitted that the License Fee payable is in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tender is for collection of empty bottles and for selling eatables therein, the applicant must necessarily have the permission of the land owner to locate the shop therein to sell eatables or at least, the appellant should come forward with the plea that they are entitled to permit the applicant to do business in eatables. With no definite stand taken by the appellant either way, we fail to understand the contention of the appellant on reading a condition as regards the furnishing of No Objection Certificate as amounting to introducing a new condition in the tender notification. Thus with TASMAC as the lessee to run the shop with the bar, it is not the case of the appellant that collection of the empty bottles in the bar is not their concern or that they have the right to license the running of the eatery shop therein. In the absence of any specific stand taken, leaving the choice to the appellant to choose according to their desire - a fact which is evident from paragraph 3 of the affidavit filed by the appellants dated 12.03.2012 before this Court, would only result in an arbitrary exercise of the power of selecting the successful bidder. We do not think, such a course could be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have an impact on the lease given to TASMAC to run the shop attached with the bar. Hence, out of sheer business necessity, the notification issued for collecting empty bottles and selling eatables in the bar has to go along with the lease conditions given to TASMAC and not de hors the licence granted. In the circumstances, the contention of the appellant that the order of the learned Single Judge had gone beyond the terms of the notification is totally devoid of merits and self-destructive. 28. The learned Senior Counsel for the petitioners has also placed reliance on the decision of a Single Judge of this Court rendered in the following cases which has followed the above decision of the Division Bench of this Court:- (i) S.Ramanathan Vs. The Managing Director Tamil Nadu State Marketing Corporation Limited, in W.P.Nos.19073 to 19080, 19469 to 19473 and 19755 to 19757 of 2014, vide order dated 28.10.2014 reported in 2014 SCC OnLine Mad 9439. (ii) P.Poomalai Vs. The Sub Collector / District Manager, TASMAC Limited, in W.P.No.11581 of 2016 reported in 2016 SCC OnLine Mad 19216. (iii) State of Punjab and another vs. Devans Modern Breweries Ltd. and another, (2004) 11 SCC 26 . 29. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners were not allowed to submit their Tender application on 30th December, 2021. 35. It is submitted that no drop box was there in the TASMAC premises. Thus, some of the petitioners were not allowed to participate in the Tenders. It is therefore submitted that a senior officers from the State Government may be nominated by the Court to oversee a proper completion of the Tender process so that there is no irregularity. 36. Appearing on behalf of the petitioners, the learned counsel for the petitioner Mr.P.Satheesh Kumar in W.P.Nos.27864, 27886, 27872, 27877, 27881, 27876, 27884, 27887, 27891, 27893, 27898 27901 of 2021 submits that the auction under the Impugned Tender Notifications is illegal and ultra-vires the Provisions of the Tamil Nadu Prohibition Act, 1937 and the aforesaid Rules. 37. It is submitted that there is no restriction against consumption of liquor in public place and that the very concept of licensing of premises as Bar premises is not contemplated under the Rules and therefore submits that the Tender process is liable to be quashed and declared as ultravires Act. 38. The learned counsel for the petitioners Mr.M.Manimaran in W.P.Nos.27632, 27733, 27735, 27736 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finalized under the above Rules. 45. It is submitted that there are about 3436 retail Shops within the jurisdiction of this Court and that in about 1197 such retail shops in various Districts bars were in operation. 46. It is further submitted that as compared to the previous Tender, a total of 7420 applications were received for 1197 shops indicating that there was a total transparency in the Tender process. It is submitted that pursuant to the order of this Court, the petitioners were also given Tender Forms even though a wrong statement was made by them across the bar to make it seem as if Tender Forms were neither available for being downloaded from the website of the Respondents TASMAC nor physical were supplied to the prospective bidders before filing the writ petitions. 47. It is submitted that the petitioners who appear to have a lease agreement with the owners or the premises adjacent to leased premises where TASMAC Shops are situated cannot be allowed to jeopardize the Tender process by insisting that license/permission should tuned to suit their requirement to have a prior No Objection Certificate (NOC). 48. It is further submitted that under the business model, a succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises termed as bar attached to the shop. At best, it could be termed as a facility offered by TASMAC by having a premises adjacent to the retail vending shop, where the consumers who purchase liquor from the retail vending shop would be permitted to consume the liquor, so purchased, in the said premises. By way of addition facility, licences are issued for selling eatables and collecting the empty bottles. Therefore, there should be reasonable nexus between the turnover in the retail vending shop and the licence fee to be fixed by TASMAC for granting the licence to sell eatables and collect empty bottles. It is not for this Court to examine as to whether fixation of 3% or 2.5% or 1.5% or 1% of the turnover of the shop for computing the quantum of Security Deposit/licence fee. 13. The fixation of a different percentage for Nilgiris District cannot be a sole reason to strike down the impugned notification, as the respondent seeks to justify their action by stating that such was the basis ever since 2003 onwards and considering the ground realities prevailing to that District 2006 onwards, a different percentage was fixed. Above all none has a fundamental right to trade in liquor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present writ petitions. 55. The Learned Advocate General further submitted that the last date for the Tender expired on 30.12.2021 and that pursuant to the order of this Court dated 23.12.2021, Tender Applications were given to the petitioners and pursuant these petitioners were given an opportunity to participate in the tender by filing their Tender Documents. It is submitted that those who failed to file the Tender Documents on 30.12.2021 are not entitled but spokes now in the completion of the tender process. 56. It is further submitted that these writ petitions have become infructuous and if the petitioners are so aggrieved it is for the respective petitioners to work out their remedy under the Provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and the Rules made thereunder against the decision awarding license to the successful bidders. 57. It is submitted that since the Tender process for 1503 shops are completed in respect of Thiruvallur ( West), Chennai Region, Coimbatore Region, Salem Region only in the following regions the tender has been postponed. 58. The Learned Advocate General has also filed a copy of the report submitted on behalf of TASMAC, content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready exist in 2019 and all the petitioners have accepted those conditions and licenses were issued in their favour. Now, they cannot be questioning the tender conditions. It is further submitted out of 38 Districts, due to administrative reasons, (due to very less number of application forms was sold and due to heavy rain in Chennai), the process of the tender has been postponed in the following 8 Districts. Chennai (N) Chennai (C) Chennai (S) Kancheepuram (N) Kancheepuram (S) Thiruvallur (E) Arakkonam; and in Krishnagiri. Except for the above 8 districts, in all other 30 districts, the tender was finalized. It is further submitted that the applications were issued physically and also through online. The applicant can download the application forms through online and they can also obtain them physically from the District Manager Office of respective Districts. It is further submitted that as on 31.12.2021, 13073 applications were sold and 19146 have been viewed through online (as on 29.12.2021). Whereas, in 2019 Tender, only 6482 applications were sold. Therefore, the claim of restriction in supply of application form is false. Further, when compared to the previous tender (2019) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tender that was on 31.12.2021. Tender process bar attached to about shops located in the following regions have been postponed:- S.No. Name of the District 1 Chennai (Central) 2 Chennai (North) 3 Chennai (South) 4 Kanchipuram (North) 5 Kanchipuram (South) 6 Thiruvallur (East) 7 Krishnagiri 8 Arakkonam 66. The tender process has been purportedly postponed on account of the inclement weather and on account of the following reasons: i. Lack of enough adequate number of applications. ii. Administrative reasons iii.For the betterment of the Revenue of the respondent . 67. While issuing the previous Tender, the Commissioner of Prohibition Excise had clarified in his proceedings dated 27.09.2019 as follows:- ORDER In the GO 1st read above, the Government have issued amendment order by inserting Rule 9A in Tamil Nadu Liquor Retail Vending (In Shops and Bars) Rules, 2003 after rule 9, as follows: 9A. Grant of privilege to run the bar: - The privilege of running bars may be granted to private parties by tender. The Board of the Corporation may decide the upset price and other terms and conditions of tender, from time to time, with the prior approval of the Commissioner of Prohibition and Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be multiplied by 30 to arrive at the average monthly sales . ii)In case of retail vending shops which have been opened after the financial year 2018-19 (i.e. On or after 1 st April 2019) the average sales should be calculated by totaling the cumulative sales value and divided by the number of working days which the shop was run and this average sales per day should be multiplied by 30 to arrive at the average monthly sales. iii)In case of retail vending shops which are functioning less than one month or new shops which would be opened in future, the average sales should be calculated by totaling the sales value for the total number of days during which the shop is working (this should be minimum of fifteen days) and divided by the number of days shop was run and multiply with 30 days ( to convert it for one month average sales). f) The tender period is for a period of two years. (upto 30.09.2021) g) The monthly bar license fee will remain constant during the tender period of 24 months (i.e. Upto 30.08.2021) h) The above changes have been incoprorated in the bar terms and conditions and other existing terms and conditions already approved by the Board of TASMAC may be approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a mixed history. In the Ancient time, consumption of intoxicating drinks was an accepted norm. However, over a period of time, taboo has been associated with it. Owing to ills and social menace and deleterious impact on the society, Madras Prohibition Act, 1937 was enacted. 76. After independence when the Constitution was made and come into force, an embargo has been laid under Article 47Constitution. There is a negative sanction. Article 47 of the Constitution of India states that the State shall raise the level of nutrition and the standard of living and to improve public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of intoxicating drinks and drugs which are injurious to health. Article 47 of the Constitution of India reads as under:- Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as to how the respondent TASMAC could be seen permitting consumption of liquor either near the TASMAC shops or in the Bars as defined in Rule 2(d) of the aforesaid Rules, in the light of prohibition under Sections 4 and 4A preamble to the Tamil Nadu Prohibition Act, 1937. Both the sides, were caught unaware, as this was neither expected nor within the scope of the dispute in these Writ Petitions. Staid silence to this pointed question only shows that either of the parties want this continue. 83. The petitioners on the one hand want to continue to remain relevant and want to continue to do the business. On the other hand, respondents TASMAC wants to make it seem that business was perfectly legal and licence were given to the highest bidder in a fair and transparent manner and the petitioners who were licencee s during the previous period cannot dictate terms to them. It will therefore be useful to refer to the underlying statutory provisions and the evolution of law on prohibition in Tamil Nadu. 84. In Tamil Nadu, law on Prohibition was enacted in 1937 with the enactement of the Madras Prohibition Act, 1937. It imposed a total prohibition. Late Shri C. Rajagopalachari (Rajaji), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 of the Constitution of India which enjoins State to endeavour to take steps to bring about a prohibition of intoxicating drinks and drugs which are injurious to health. 92. In 1971-72, prohibition was briefly lifted for the 1 st time. The sale of liquor and toddy through shops were thrown open to the public with the enactment of Tamil Nadu Prohibition (Suspension of Operation) Act, 1971. 93. The operation of the provisions of the Tamil Nadu Prohibition Act, 1937 was suspended with the enactment of Tamil Nadu Prohibition (Suspension of Operation) Act, 1971. The prohibition imposed was however short lived. 94. Within three years, the Tamil Nadu Prohibition Act, 1937 was revived with the enactment of Tamil Nadu Prohibition (Revival of Operation and Amendment) Act, 1974 with effect from 20.08.1974. 95. In 1976, prohibition was once again briefly introduced. In 1981, Prohibition was again lifted and thus the public was once again allowed to purchase liquor from wine shops. 96. However, successive Governments appears to have reserved the power to grant exemption from the Act by permitting the manufacture, sale and consumption of liquor in order to generate and augment its finance. Nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or regulating the issue of licence and the privilege of retail vending of liquor in the Bar. The Rules came into force on 1 st June, 1992. 105. Under rule 4(a) of the aforesaid Rules, a person holding a licence granted under Rules 13 of Retail Vending Rules, 1989 was allowed to file an application for grant of privilege and licence for retail vending of liquor in the Bar. These bars are different from the bars attached to the hotels to whom licences are issued under the provisions of the Tamil Nadu Liquor (License Permit) Rules,1981. 106. In 1993, G.O.Ms.No.44, Prohibition and Excise Department, dated 03.03.1993 was issued. The then Government decided to dis-continue the grant/renewal of licences for bars attached to the Indian Made Liquor Retail Vending Shops under the Tamil Nadu Liquor (Retail Vending in Bar) Rules, 1992 with effect from the excise year commencing from the 1 st June, 1993. 107. Thus, Tamil Nadu Liquor (Retail Vending in Bar) Rules, 1992 came to be rescinded with effect from 1 st June, 1993. This was challenged both before the Madras High Court and the Hon'ble Supreme Court. 108. As per Rule 3 of the Tamil Nadu Liquor (Retail Vending) Rules, 1989, the privileg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or keeps or has in his possession any materials which have undergone any process towards the manufacture or liquor or any intoxicating drug or from which any liquor or intoxicating drug has been manufactured; or (h) bottles any liquor for purposes of sale; or (i) sells liquor or any intoxicating drug; or (j) consumes or buys i. any liquor other than such liquor as may be specified by the State Government, by notification, in their behalf; or ii. any intoxicating drug; or (jj) knowingly expends or applies any money in direct furtherance or support of the commission of any of the acts specified in clauses (a) to (j) (k) allows any of the acts aforesaid upon premises to his immediate possession, shall be punished. (a) in the case of offences falling under clauses (aaa), (b), (f) and (h) with rigorous imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees; (b) In the case of offence falling under clause (aa), with imprisonment for a term which may extend to six months in with fine which may extend to two thousand rupees; and (c) In the case of of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of liquor or any intoxicating drug or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug or any materials which have undergone any process towards the manufacture of liquor or any intoxicating drug or from which may liquor or intoxicating drug has been manufactured. 113. As per Section 4 (1)(j) of the Tamil Nadu Prohibition Act, 1937, whoever consumes or buys :- (i) any liquor, other than such liquor as may be specified by the State Government, by notification, in their behalf; or (ii) any intoxicating drug; or shall be punished, with imprisonment for a term which may extend to 3 months or 5 which may extend to ? 1000 114. Consumption of specified liquor alone is thus permitted under the Act. Thus, a consumer can purchase liquor from the Retail Outlet of the respondents TASMAC consume alcohol in confines of house. 115. As per Section 4-A of the Tamil Nadu Prohibition Act, 1937, (which was substituted by Tamil Nadu Act 9 of 1979), a person is punishable with imprisonment for a term which may extend to 3 months or with fine which may extend to Rs.1000/- who is found:- i. in a state of intoxication in a public plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishable with simple imprisonment which may extend to 3 months ( 6 months prior to amendment vide Tamil Nadu Act 2 of 1989) or fine which may extend to Rs.1000/-, on both. 123. The amendment was intended to implement the policy of the Government under the Tamil Nadu Prohibition Act, 1937. It was in consonance with the total prohibition which existed then from 1976 and Article 47 of the Constitution of India. 124. As mentioned above, it is only in the year, 1992, the concept of, consumption of liquor in bars was, introduced with the enactment of Rules, 1992. Though not consistent with the provisions of the Act, the rules were framed to allow a privilege to obtain permission to operate a bars along with the private retail vending shops. This was, however, later withdrawn. 125. The Government later framed the Tamil Nadu Liquor (Retail Vending in Bar, Renewal of Licence, Fixation of Privilege Amount and Refund) Rules, 1994 vide G.O.Ms.No.155 Prohibition and Excise (VI), dated 30.9.1994. 126. Under the aforesaid Rules, Bar Licence issued under Tamil Nadu Liquor (Retail Vending in Bar) Rules, 1992 was deemed to have been renewed and privilege was granted for the period from 1 st June, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (1-A) and Section 17-C (1-B) of the Tamil Nadu Prohibition Act, 1937 which were inserted in the Act, merely allows TASMAC to do wholesale and retail business , does not permit respondents TASMAC a right to confer privilege to a 3 rd parties to render allied business of selling short eats and/ or support service to collect used bottle from premises used as a bar. If the Act does not permit a person to be in a state of intoxiation in public place, TASMAC cannot be seen permitting consumption by consumers of liquor in pubic place. Even if bar is not a public place, person after consuming liquor in the so called bar will have to necessarily pass through pubic place to return home. Therefore, what TASMAC cannot do directly, it cannot do indirectly. 134. It is to be further underlined, that a person choosing to consume the liquor purchased from TASMAC shop in the Bar goes only to get intoxicated. 135. Rule 2(d) of the Tamil Nadu Liquor Retail Vending (In Shops and Bars), Rule 2003 which loosely defines the expression Bar to mean a place located within the shop or adjoining to the shop used for consumption therein of liquor cannot be allowed under the Scheme of the Act allow consum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uyers. This activity falls within the four corners of law under the provisions of the Tamil Nadu Prohibition Act, 1937. 140. The respondents TASMAC has not entered into any separate lease agreements with the owners of premises for the balance area which arebeing used as Bar for the consumers to consume the liquor/alcohol purchased from the TASMAC Shops. 141. Instead, the respondents TASMAC has over a period of time encouraged the owners of the leased premises (which some times happens to be the Local and Municipal Authority) to develop the area adjacent to the leased retail shop as a Bar for being leased to the licencee's facilitate the buyers of liquor to consume the liquor/Alcoholpurchased from the TASMAC Shops. 142. The purported exercise of auctioning rights under the impugned Tender Notifications as explained as having been issued under Rule 9A of the Tamil Nadu Liquor Retail Vending (In Shops and Bars), Rule 2003 cannot be countenanced under Rule 9A. 143. Rule 9A which was inserted to the Rules only in the year 2013 vide G.O.Ms.No.20, Home P E dated 29.3.2013 reads as under: Rule 9-A.Grant of Privilege to run the bar:The privilege of running bars may be granted to private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1937 by encouraging consumers to violate Section 4A of the Act. 149. At the same time, the petitioners also cannot arm twist the respondents TASMAC to give them business to them merely because they have a prior lease arrangement with the owners of the bar premises and that they may suffer loss. Even otherwise, the Tender conditions indicate that petitioners cannot complain. Relevant portion of the Tender Condition reads as under:- (i) If the circumstances required to close the liquor shop or changed to another place due to administrative reason, new tender will be floated cancelling the tender. If the liquor shop/ bar is closed, the tenderer cannot claim any compensation. (ii) If any change is made in the Government policy, this tender itself will be closed. The Government need not give any reason to intimate the tenderer. If the tender was ended, there is no need to pre-notice. If closed the liquor shop/bar, the tenderer cannot claim any compensation. 150. The attempt of the petitioners to strangulate and muzzle out the auction proceedings by the respondents TASMAC cannot be countenanced. Further, sale of liquor is a res extra commercium in the State of Tamil Nadu. It is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the prohibition of the Tamil Nadu Prohibition Act, 1937 and the Rules made thereunder stands is permissible only in private space and/or in the recess of one s home. 158. If respondents TASMAC has to continue to encourage consumption of liquor in the so-called bar, the substantive law under the Tamil Nadu Prohibition Act, 1937 has to be amended taking note of the changes and in the light of the decision of the Hon'ble Supreme Court in State of Punjab Vs. Devans Modern Breweries, (2004) 11 SCC 26. 159. Since the practice of running a bar is in vogue since 2003 which not strictly in accordance with the provisions of the Tamil Naidu Prohibition Act, 1937 and Article 47 of the Constitution of India, the legislature may bring in suitable legislation to amend the Act. 160. The provision as it stands today does not permit a person to be in public in an intoxicated state. Therefore, the respondents TASMAC as a State Monopoly can only confine itself with wholesale and retail sale of alcohol/liquor and cannot be allowed to be seen actively encouraging a person to consume alcohol in public space and violate the sanctions under the law. 161. The practice of respondents TASMAC to allow mu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
