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TMI Blog2022 (1) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 27846, 27847, 27849/2021, 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, 27947, 27948, 27949, 27941, 27942, 27943, 27951, 27952/2021, AND W.M.P. Nos. 29500, 29503, 29121, 29122, 29127, 29128, 29133, 29135, 29142, 29143, 29145, 29146, 29151, 29152, 29153, 29154, 29159, 29160, 29165, 29167, 29244, 29269, 29270, 29282, 29284, 29290, 29292, 29297, 29301, 29303, 29304, 29305, 29306, 29307, 29308, 29309, 29254, 29257, 29299, 29319, 29320, 29322, 29323, 29324, 29325, 29327, 29328, 29329, 29332, 39317, 29318, 29334, 29343, 29344, 29351, 29352, 29353, 29354, 29356, 29357, 29359, 29365, 29370, 29371, 29373, 29375, 29378, 29379, 29380, 29382, 29387, 29388, 29361, 29364, 29385, 29386, 29391, 29393, 29394, 29395, 29397, 29398, 29043, 29065, 28863, 28864, 28865, 28867, 28870, 28871, 29040 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, 27888 of 2021: Mr. Suresh Kumar for Mr.K.M.Vijayan Associates For Petitioner in W.P.Nos.27602, 27605, 27609, 27613, 27167, 27619, 27621, 27703, 27711, 27719, 27723, 27726, 27728, 27729, 27731, 27730, 27745, 27761, 27751, 27758, 27765, 27766, 27769, 27774, 27789, 27795, 27799, 27805, 27810, 27811, 27813, 27817, 27783, 27785, 27816, 27820, 27822, 27862, 27361, 27352, 27357, of 2021 : Mr.A.R.L.Sundaresan, Senior Counsel for M/s.A.L.Gandhimathi For petitioners in W.P.Nos.27632,: 27733, 2735, 27736, 27737, 27738, 27739, 27740, 27741, 27742, 27746, 27747, 27750, 27752, 27753, 27755, 27756, 27757, 27748, 27749, 27841, 27856, 27842, 27844, 27852, 27854, 27855, 27846, 27847, 27849, 27850, 27861, 27869, 27871, 27862, 27865, 27866, 278875, 27878, 27882, 27885, 27890, 27894, 27895, 27897, 27902, 27903, 27904, 27908, 27909, 27911, 27940, 27944, 27946, 27947, 27948, 27949, 27941, 27942, 27943, 27951, 27952 of 2021 : Mr.M.Manimaran For Petitioner in W.P.No.27693/2021 : Mr.L.Chandrakuma Mr.Lumarndrak umar For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7875, 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, 27947, 27948, 27949, 27941, 27942, 27943, 27951, 27952/2021 Writ of Mandamus to direct the respondents to issue and accept the tender forms in respect of the tender notification dated 14.12.2021 to the bar attached to the shops. 3. The impugned Tender Notification has been purportedly issued by the second respondent Tamil Nadu State Marketing Corporation (TASMAC) under the powers conferred with it under the provisions of the Tamil Nadu Prohibition Act, 1937 and the provisions of the Tamil Nadu Liquor Retail Vending (In Shops and Bars) Rules, 2003 consequent to the amendment to the Act. 4. By the impugned Tender, the second respondent Tamil Nadu State Marketing Corporation(TASMAC) has called for a competitive bid from bidders to award contracts to the highest bidders to collect empty liquor bottles in the Bars and for sale of short eats/starters/snacks/side dish water etc. in these Bars situatated next to the TASMAC shops. 5. The so-called Bars situated next to the TA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 retinue of workers all through the lockdown period when it was in force. 11. It is therefore submitted that the petitioners should be allowed to continue for at least another 15 months period as they have lost money on account of fixed expenditure incurred towards the rentals and the salaries to workers. 12. It was further submitted that the petitioners have heavily invested in developing the infrastructure in the rented premises (for running the Bars) and therefore they deserve longer period to recoup the expenses incurred by them towards the rented premises. 13. That apart, it is submitted that in the impugned Tenders, the requirement of obtaining "No Objection" from the owners of the premises was done away with a view to oust the petitioners and include persons closer to the ruling dispensation. 14. It is submitted that the petitioners who have leased the premises will be ousted by the owner of the premises if a higher bid is offered by another bidder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment:- 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 proportion with the sale and therefore the petitioners who have invested heavily should not be made to suffer. 24. The learned Senior Counsel further submitted that the terms of Tender specifically did not include " No Objection Certificate" (NOC) for the highest bidder and that in certain places where Tenders were opened but results were not declared while in certain other places where the Tenders are opened but results were declared to few favourable persons. 25. It is submitted that terms and conditions of Circular dated 22.07.2014 bearing reference Circular No.A3/19/2014 which was there in the tender floated till 2019 required a successful bidder to get a "No Objection Certificate" from the owners of the bar premises which is conspicuously absent in the impugned Tender Documents though such condition has been incorporated post facto in few place while giving Licence to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 permitted. In the circumstances, while agreeing with the view of the learned Single Judge in W.P.No.9510 of 2011, we have no hesitation in affirming the view of the learned Single Judge in the order under appeal and thereby dismissing the writ appeals. It may also be noted that on an earlier occasion, a challenge was made to the tender notification pertaining to Sivaganga District containing a clause requiring the applicants to enclose No Objection Certificate from the owner of the building. The said tender notification related to collecting empty bottles and selling eatables in the Shop-cum-bar run by TASMAC. In considering the said question, in W.P.(MD) No.5844 of 2010, by order dated 05.07.2010, learned Single Judge referred to the decision W.P.No.9952 of 2007 dated 28.11.2007 and held that the condition imposed by TASMAC to obtain No Objection Certificate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The learned Senior Counsel for the petitioners further submits that the order of the Division Bench of this Court in The Deputy Collector / District Manager Tamil Nadu State Marketing Corporation Tiruchirapalli Vs. R.Ramkumar in W.A.No.(MD)No.1492 and 1493 of 2011 vide order dated 14.03.2012 reported in 2010 SCC OnLine Mad 6234 led to the issue of Circular No.A3/19/2014 dated 22.07.2014 referred to supra. It is therefore submitted " No Objection Certificate" is a pre-condition from the owners cannot be dispensed with. 30. The learned Senior Counsel for the petitioners further submits that it has become a regular feature for the respondents TASMAC while floating Tender inviting applications/bids for operating in the premises (bars) for selling short-eats and for collecting empty bottles to delete the requirements of Circular dated 22.07.2014 bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estriction 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, 27737, 27738, 27739, 27740, 27741, 27742, 27746, 27747, 27750, 27752, 27753, 27755, 27756, 27757, 27748, 27749, 27841, 27856, 27842, 27844, 27852, 27854, 27855, 27846, 27847, 27849, 27850, 27861, 27869, 27871, 27862, 27865, 27866, 27875, 27878, 27882, 27885, 27890, 27894, 27895, 27897, 27902, 27903, 27904, 27908, 27909, 27911, 27940, 27944, 27946, 27947, 27948, 27949, 27941, 27942, 27943, 27951, 27952 of 2021 submits that the petitioners are from Chennai, Thiruvallur and Kanchipuram regions and that the Tender process has been postponed. 39. The learned Counsel for the petitioners therefore also reiterates the submission of the learned counsel Mr.K.Selvaraj, Senior Officers from the State Government may be nominated by the Court to oversee a proper Tender process is adopted and there is no irregularity. 40. Appearing on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 successful bidder should enter into a lease with the owner of the property and in case the owner does not offer the lease, the shop will not have a bar adjacent to it. 49. It is further submitted that the decision of the Learned Single Judge of this Court in W.P.No.28101 of 2021 dated 56 https://hcservices.ecourts.gov.in/hcservices/ 29.12.2021 cannot be said to have laid down the law. It is further submitted that there was only a passing reference was made regarding "No Objection Certificate" from the owners. 50. The learned Advocate General also referred to paragraph Nos. 6, 7 & 8 from the decision of a Learned Single Judge of this Court in W.P.Nos.29727 to 29746 of 2017, 29779 to 29808 of 2017, 29853 to 29856 of 2017, 29863, 29864 of 2017, 29869 to 29889, 29893 to 29913, 29954 to 29962, 29979 to 29987, 30004 to 30011, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation 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. The licence, which is proposed to be offered pursuant to the impugned tender is an adjunct to the right to trade liquor, as it is intended as a facility to the consumers who consume liquor purchased from the retail vending shop adjacent to the premises. Therefore, it has to be observed that the petitioner cannot equate the licence, which will be granted to them as any other licence issued by the Government or Government Corporations. But for the permission granted by TASMAC to create a facility for permitting customers to consume liquor in a 20 designated area, no independent right flows in favour of the petitioners. There are specific prohibition under the Rules, which prohibit establishment of shops near places of worship, educational institution etc. 14. The learned counsels appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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 of which reproduced below: * It is submitted that the TASMAC has the exclusive privilege license to run the liquor shops and bars, issued by the Commissioner of Prohibition and Excise, as per Rule 4 of the Tamil Nadu Liquor Retail Vending (Shops and Bars) Rules 2003. The said Form -1 license (Rule 4), the Commissioner of Prohibition and Excise has granted the license for a period of one year, from 29.11.2003 to 28.11.2004. From 2004 onwards the license was renewed periodically till date, as per Rule 7 of the above said Rules 2003. * It is submitted that 5382 TASMAC Retail Vending Shops are functioning as on 31.12.2021. * It is submitted that the TASMAC has invited the Tender for permission to sell eatables and to collect empty bottles in the bar attached to the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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) more than 100% of applications were sold during this present tender. * Further as on 31.12.2021, except for the 8 districts, in all other districts, the TASMAC has received the 10019 completed applications out of which 2530 was finalized". 59. I have considered the arguments advanced by the learned Senior Counsel for the petitioners and the respective learned counsels for the petitioners. I have also considered the arguments advanced by the learned Advocate General on behalf of the respondents duly assisted by Standing Counsel for TASMAC. I have also perused the provisions of the law and the case laws cited. 60. The facts are not in dispute. The respondents had earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibition & 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 Excise. The Corporation, as agency shall collect the tender amount from the successful tenderers and remit the same to the Government on or before the 25th of the following month and the Corporation may retain 1% of the amount so collected as agency commission. " 2) The Board of TASMAC has approved the formula for upset price and other terms and conditions of tender, as follows: The Board of TASMAC vide Circular Resolution No.40 / 2019 dated: 13.09.2019 resolved to approve the following proposals of TASMAC to call tender under new formula with effect from 01.10.2019 as follows: All the District Managers may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 the Commissioner of Prohibition and Excise for granting permission for sale of eatables and collections of empty bottles in the bars that may be continued. 3) The Managing Director, TASMAC in his reference 4 th cited has requested the Commissioner of Prohibition and Excise to approve the above New formula fixed by the board of TASMAC conditions, enclosing the copy of Board resolution as approved by the Board. 4) In the circumstances stated above, the proposal of the Managing Director TASMAC, has been carefully examined with reference to G.O.(Ms) No.20, Home Prohibitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution 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 medicinal purposes of intoxicating drinks and of drugs which are injurious to health." 77. Ironically, today there is no prohibition against consumption. On the other hand, there is regulation of manufacture, sale and consumption of alcoholic liquor and intoxicating drinks in the State. There is a total prohibition on sale and consumption of toddy and illicit arrack alone. There is no clarity whether other forms of indginous liqour drinks existed. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), the then Chief Minister of Madras Presidency had introduced a total prohibition in the Salem District in the year 1937 under the Madras Prohibition Act of 1937. The name of Act was later renamed as The Tamil Nadu Prohibition Act, 1937 after reoranisation of the State in 1956. 85. As mentioned above, The Tamil Nadu Prohibition Act, 1937 predates the Indian Constitution. It provides for complete prohibition. The Preamble to The Tamil Nadu Proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Number of bottling units and distiliaries which have sprouted in the last two decades shows a demand and steady increase in the number of consumers and a business opportunity. 97. The Government is not only seen actively promoting the sale of liquor and intoxicating drinks but is actively encouraging the consuming public to consume the same in the confines of the so called "Bar" for which the impugned Notifications have been issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 privilege or selling liquor in licence shops was available only to a person by auction. The privilege amount was determined in that auction. Rule 4(1) enabled to fix the maximum number of shops to be established in the State. 109. Under Section 17-B of the Act, a licence for manufacture, etc., of potable liquor for human consumption was introduced. Under Section 17-C, exclusive privileges for manufacture and sale of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 offences falling under other clauses, with imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees. Provided that nothing contained in this subsection shall apply- (i) to any act done under, and in accordance with the provisions of this Act or the terms of any rule, notification, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 place; and/or ii. whoever, not having been permitted to consume any liquor or intoxicating drugs in pursuance of the Act, is found in a state of intoxication in any, private place." 116. Section 4-A of the Tamil Nadu Prohibition Act, 1937 reads as under:- "4-A. Punishment for being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 consumption as such bars are "public place." They are not private place. In fact, TASMAC has no legal control over such place. A person desiring to consume alcohol purchased from the TASMAC shop visit them out of choice. By allowing person to cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Probation and Excise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 activity outside the scope of commerce. Consumption of alcohol/liquor is injurious to health and interferes with the safety welfare and health of society even though ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mushrooming of "Bar" within the meaning of Tamil Nadu Liquor Retail Vending (In Shops and Bars) Rules, 2003 is contrary to the provisions of the Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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