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2012 Supreme(Mad) 4234
High Court of Judicature at Madras
ELIPE DHARMA RAO, M. VENUGOPAL, JJ.
G. Vetrivel & Another
Versus
Golden Enclave Owners' Association, Rep by its President, V.P. Nahim Ur Rahman & Others
Writ Appeals No.277 & 389 of 2012; M.P.No.1 of 2012 in W.A.No.277 of 2012 & M.P.No.1 of 2012 in W.A.No.389 of 2012
Decided On : 15-10-2012
For the Appellants :AR.L. Sundaresan, Sr. Counsel for M/s. AL. Gandhimathi, S. Muthuraj, Advocates.
For the Respondents:R1, V. Prakash, Sr. counsel for M.A. Gowthaman, R3 and R5 to R7, Mrs. A. Srijayanthy, Spl.G.P., R4, V. Bharathidasan, Advocates.
Ratio
When a particular activity cause nuisance to many, any of the affected persons could maintain writ petition to abate the nuisance and the filing of PIL is not necessary for this purpose.
Headnote:(A)Constitution of India-Art.226-Liquor shop-Nuisance-Removal-Writ-Maintainability-Occupants of a commercial premise had complained of nuisance arising out of running a liquor shop in a part of that building and sought for its closure-When the single judge had directed its closure by holding that it caused nuisance even to the students of the nearby schools, the liquor shop owner and the owner of the complex had preferred appeal-While the appellants contended that as the premise was a commercial one, any type of business could be run in it, to remove a public nuisance only PIL could be filed and the writ petition was not maintainable and the nuisance complained was a false one, respondents resisted it-Held, when a particular activity caused nuisance to many, any of the affected persons could maintain writ petition to abate the nuisance and the filing of PIL was not necessary-As the materials available on record including the reports of the advocate commissioners disclosed the extensive nuisance to others including the writ petitioner, order of the single judge was confirmed-Appeal was dismissed.
(B)Constitution of India-Art.226-Liquor shop-Nuisance-Removal-Writ-Maintainability- Public interest litigation-When a particular activity cause nuisance to many, any of the affected persons could maintain writ petition to abate the nuisance and the filing of PIL is not necessary for this purpose.
We are not able to appreciate the arguments advanced on the part of the appellants that the bar possesses necessary licence to run and that if at all there is any nuisance, public interest litigation should have been filed. The writ proceedings are initiated by none else than the direct sufferers/the other occupants of the building and they cannot be required to wait for someone to arrive from heaven to champion their cause. Para 12
ELIPE DHARMA RAO, J.
The first respondent in both the writ appeals is a Welfare Association of occupants of the Flats, situated on Poonamallee High Road, Chennai-10. They have initiated the present writ proceedings, before the learned single Judge, praying to close the liquor shop with bar attached functioning in the basement of their flats. Their contention is that their complex is a office cum commercial complex where various offices are situated and many ladies are working. It is also their case that the complex in which the liquor shop cum bar is situated at the Taylors Road junction of Poonamallee High Road and exactly outside the complex, there is a bus stop and in and around the complex, there are several schools, hospitals and temples.
2. According to them, because of the liquor shop, the situation becomes more worst after 8 pm, when almost all the offices are closed and taking advantage of the closed offices, many people purchase liquor and other items from liquor shop and go to various places in the complex, consume liquor and are throwing the bottles and other garbage in the complex, as a result of which, many of the occupants are finding it difficult in the morning to open their offices and due to the existence of liquor shop cum bar and the restaurant in the basement, throughout the day, in the entire complex, there is unpleasant smell due to the smoke from the restaurant and also because of smoking of the liquor consumers.
3. The claim of the writ petitioner was stiffly opposed by the owner of the flat and TASMAC by filing separate and vivid counters, denying all the allegations of the writ petitioner and further stating that the liquor shop was opened by obtaining necessary licences and at no point of time, there is any nuisance or disturbance in the locality, which is evident from the fact that no police complaint of that sort has ever been lodged. They have also maintained that the building is a commercial one, with different entry points for bar and the other occupants and therefore, the contentions raised on the part of the Association are baseless.
4. Since the contentions of the rival claimants are at variance and to find out the truth, the learned single Judge, in the writ petition, by order dated 21.1.2011, has appointed an Advocate-Commissioner. Accordingly, an Advocate-Commissioner visited the complex on 31.1.2011 and filed his report on 8.2.2011, describing the physical features of the complex.
5. Again, since, in the opinion of the learned single Judge, the said Advocate-Commissioner has failed to report as to how beer bar causes nuisance to the general public, warranting its closure, by the order dated 9.2.2011, another Advocate-Commissioner was appointed with a direction to go and inspect the beer bar and to report as to whether location of beer bar at the place is nuisance to the public at large. The second Advocate-Commissioner was also directed to record the statement of the persons of nearby locality, in this regard and submit his report. Accordingly, the second Advocate-Commissioner filed his report before the learned single Judge. Along with the report, the Advocate-Commissioner had enclosed the objections raised by the occupants of the Complex, with reference to the location of the shop as well as the letters received from three Principals of neighbouring Schools.
6. Considering all the facts and circumstances and following the judgment of a Division Bench of this Court in The Tamil Nadu State Marketing Corporation Ltd. vs. R.M.Shah and others [2010 (2) CWC 337 = 2011 Writ L.R. 267], authored by one of us (Elipe Dharma Rao, J.), the learned single Judge has allowed the writ petition, further directing to file the compliance report before the Court by 20.2.2012.
7. Against this order of the learned single Judge, while the owner of the flat leased out to TASMAC has come forward to prefer W.A.No.277 of 2012, the Managing Director of the Tamil Nadu State Marketing Corporation Limite
