IMPORTANT POINT
The court emphasized the importance of balancing educational rights with regulatory provisions concerning liquor shops.

ORDER :

(D. Krishnakumar, ACJ.) :

(Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Declaration, declaring the words in Rule 8(1) of Tamil Nadu Liquor Retail Vending (in shops and Bars) Rules, 2003 ie., “Municipal Corporations and Municipalities within a distance of 50 (fifty) metres and in other areas” and the words “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” as ultra vires to the Preamble, Articles 14, 15(1), 15(2), 19(1) (d), 21, 21-A, 30(1), 39(f), 45 and 47 of the Constitution of India and contrary to Sections 3, 8, 9 and 29 of the Right of Children to Free and Compulsory Education Act, 2009 and Rule 4 of the Tamil Nadu Right of Children to Free and Compulsory Education Rules, 2011.)

The prayer sought for in this Writ Petition is for a Writ of Declaration, declaring the words in Rule 8(1) of “Tamil Nadu Liquor Retail Vending (in shops and Bars) Rules, 2003” [in short “the Rules”] ie., “Municipal Corporations and Municipalities within a distance of 50 (fifty) metres and in other areas” and the words “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” as ultra vires to the Preamble, Articles 14, 15(1), 15(2), 19(1) (d), 21, 21-A, 30(1), 39(f), 45 and 47 of the Constitution of India and contrary to Sections 3, 8, 9 and 29 of the Right of Children to Free and Compulsory Education Act, 2009 and Rule 4 of the Tamil Nadu Right of Children to Free and Compulsory Education Rules, 2011.

2. The aforesaid proviso appending the Rule is under challenge before this Court.

3. The learned Counsel for the petitioner submitted before this Court that the said proviso to the Rule states that no school shall be established within 50 metres from the TASMAC shops which have been established by the TASMAC, by which the right of the establishment of the schools will be infringed under Articles 14, 15(1), 15(2), 19(1)(d), 21, 21-A, 30(1), 39(f), 45 and 47 of the Constitution of India and also under Sections 3, 8, 9 and 29 of the Right of Children to Free and Compulsory Education Act, 2009 and Rule 4 of the Tamil Nadu Right of Children to Free and Compulsory Education Rules, 2011. He further submitted that this aspect has not been considered by the respondents while framing the aforesaid proviso to the said Rules. In such circumstances, learned Counsel seeks indulgence of this Court by declaring the said proviso as null and void.

4. No counter affidavit has been filed in the present case. When a Rule has been challenged before this Court, the Government ought to have filed a counter affidavit. Even nearly after 7 years of filing the present writ petition and eventhough the matter has been taken up for consideration on several occasions, the Government has not chosen to file any counter affidavit. Hence, we have no hesitation to impose a cost of Rs.10,000/- to the second respondent. The second respondent is directed to pay a sum of Rs.10,000/- as cost to the Chief Justice Relief Fund (payable in Accounts Sections of the High Court Registry).

5. According to the petitioner, the aforesaid proviso to the Rule requires reconsideration at the hands of the Government.

6. In such circumstances, since counter affidavit has not been filed by the respondents and considering the fact that there is some force in the contention of the petitioner that if any educational institutions are established within the prescribed distance of 50 metres after the establishment of the shop, then that cannot be a ground for shifting the said shops running within the prohibited distance in the interest of the said institutions as well as in the interest of the student community, when such permission is granted by the Government for a minority or non-minority institution, the authori