Common law right can be enforced de hors the enactment of Tamil Nadu Prohibition Act.

1. Second defendant in O.S.No.141 of 1998 on the file of Principal District Munsif- cum-Judicial Magistrate Court, Eraniel is the revision petitioner herein. This revision is filed under Art.227 of Constitution of India.

2. Respondents 1 and 2 herein are plaintiffs in the suit and they filed the suit in representative capacity under O.1, Rule 8 of Code of Civil Procedure for a decree for permanent prohibitory injunction restraining petitioner and first defendant from starting or conducting liquor shop both Indian made foreign liquor and country made liquor in ‘B’ schedule property for proposed and anticipated reasons and apprehended injury and also to restrain other defendants from issuing licence for defendants 1 and 2 for starting liquor shop.

3. It is the case of plaintiffs that they are residents of thickly populated area and if any liquor shop is conducted in ‘B’ schedule property, that will cause private and public nuisance to the people nearby. Breach of peace also occur and there will also be law and order problem. Residents of area also moved representation before District Collector not to grant any licence to run liquor shop in that area and they apprehend second defendant would start liquor shop, which will affect peaceful residence.

4. Along with the suit, plaintiffs also moved for injunction. A rough plan was also produced to show that location and how far starting of liquor shop will affect the locality.

5. A detailed counter was filed by petitioners both on facts and law. On facts, it is contended that starting of liquor shop in B schedule property will create nuisance and on question of law it is argued that the suit is not maintainable before civil court. The argument was that the suit is barred under Sec.56 of Tamil Nadu Prohibition Act.

6. By the impugned order, lower court held that the suit is maintainable and there is no bar for instituting suit. It is further held that there is prima facie evidence that conduct of shop will be an actionable nuisance. Temporary injunction was granted till the disposal of suit.

7. The order of lower court is challenged in this revision under Art.227 of Constitution of India.

8. Even at the time of admission I asked learned counsel for petitioner why he should not exhaust statutory remedy of filing appeal before appellate court under O.43, Rule 1 of Code of Civil Procedure.

9. Learned counsel for petitioner submitted that only point he is going to argue is regarding jurisdiction of court and that can be considered by this Court. He also submitted that he does not want any leave for filing appeal.

10. In view of the said submission of petitioners counsel, only question that requires consideration is whether civil court has jurisdiction to entertain suit i.e., a suit for permanent prohibitory injunction restraining defendants from conducting any shop in the ‘B’ schedule property which will be cause of nuisance to the residents of locality.

11. Main argument of learned counsel for the petitioner was on the basis of Sec.56 of Tamil Nadu Prohibition Act, taken along with Rule 18 of Tamil Nadu Liquor Retail Vending Rules. Relevant provisions relied on by learned counsel read thus,

Sec.56: No action lies against the Central or State Government or against any Prohibition, Police or other Officer, for damages in any civil court for any act bona fide done or ordered to be done in pursuance of this Act.

Rule 18: 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 ‘Industrial’ by the Development of Town Planning Authorities;

Provided further that if any place of worship or educational institution comes into existence subsequent to the grant of licence, it shall not disentitle the licensee for continuance