2017 (8) TMI 804 - HC - Indian Laws

Grant of licence - establishment of A4 shops/2-B bars - licence denied on the ground that the premises selected by the petitioners falls within 500 meters to the National Highway No.16 - G.O.Ms.No.391, Revenue (Excise-II), Department, dated 18.06.2012 known as Andhra Pradesh Excise (Grant of Licence of Selling by Shops and Conditions of Licence) Rules, 2012 and same are amended vide G.O.Ms.No.112, dated 22.03.2017 - Held that - A perusal of the impugned proceedings goes to show that the Projector Director, NHAI, issued letter dated 16.05.2017 stating that earlier notification was not de-notified, deleting the Visakhapatnam from the NH-16, as such, the applications of the petitioners were rejected. Section 2(3) of the Act of 1956 provides that Central Government may, by like notification, omit any highway from the Schedule and on the publication of such notification, the highway so omitted shall cease to be a national highway. Admittedly, the Government of India, Ministry of Road Transport & Highways by notification dated 01.05.2015, substituted S.No.49 of Schedule to the Act pertaining to National Highway-16 and Vishakhapatnam does not find place in the Schedule - When once Schedule to the Act as amended by notification dated 01.05.2015 does not contain Vishakhapatnam, question of denotification or omitting as per Section 2(3) of the Act does not arise. Even as per clarification given by Central Government referred to above, de-notification under sub-section 3 of Section 2 of the Act is not required and the particular stretch in S.No.49 pertaining NH -16 omitted in notification S.O.1150 (E), dated 01.05.2015 cannot be treated as National Highway. Since the rejection of applications of the petitioners for grant of A4 shop licences and Form 2-B Bar licences is on the ground that the proposed shops are within 500 meters of National High Ways only, but not State Highways, as such, this court has not expressed any opinion on that aspect. It is for the licencing authority to consider that aspect while reconsidering the applications. It is also brought to the notice of this Court that some of the petitioners carried on business in the same premises and notices were issued for shifting the premises basing on the judgment of the Hon ble Supreme Court referred to supra, several writ petitions were filed, wherein this Court granted interim orders. When once Visakhpatnam is not found in Schedule to the Act of 1956, as part of National Highway No.16, rejection of applications of the petitioners on the ground mentioned in the impugned order is erroneous and without any application of mind. Petition allowed - decided in favor of petitioner.

Summary

Issues Involved:
1. Rejection of applications for establishment of A4 shops/2-B bars within 500 meters of National Highway No.16.
2. Interpretation and application of relevant excise rules and Supreme Court judgment.
3. Clarification on the status of National Highway No.16 passing through Visakhapatnam.

Detailed Analysis:

Rejection of Applications for Establishment of A4 Shops/2-B Bars:
The petitioners challenged the rejection of their applications by the Prohibition & Excise Superintendents in Gajuwaka, Sheelanagar, Anakapalli, and Visakhapatnam. The rejection was based on the ground that the premises selected by the petitioners fell within 500 meters of National Highway No.16, which allegedly contravened the Supreme Court judgment in Civil Appeal No.12164 to 12166 dated 15.12.2016 and relevant excise rules.

Interpretation and Application of Relevant Excise Rules and Supreme Court Judgment:
The petitioners sought licenses or renewal of licenses for establishing A4 shops/2-B bars pursuant to a notification inviting applications for the grant of licenses through a draw of lots. They argued that the rejection was erroneous, as the premises were not within the prohibited distance from a national highway. The relevant rules, as amended, stipulated that no shop for the sale of liquor shall be visible, directly accessible, or situated within 500 meters of the outer edge of a national or state highway.

Clarification on the Status of National Highway No.16 Passing Through Visakhapatnam:
The petitioners contended that the Government of India’s Gazette Notification No. S.O.689 (E), dated 04.04.2011, and subsequent notification dated 01.05.2015, did not include Visakhapatnam in the description of National Highway No.16. They provided evidence, including a clarification obtained under the Right to Information Act, 2005, stating that the stretch passing through Visakhapatnam was not assigned any new NH number and was not specified in the schedule of the National Highways Act, 1956. The court noted that the Project Director, NHAI, had erroneously stated that the stretch passing through Visakhapatnam was part of NH-16, leading to the rejection of the applications.

Court’s Conclusion:
The court concluded that the notification dated 01.05.2015, which substituted the schedule to the National Highways Act, 1956, did not include Visakhapatnam as part of NH-16. Therefore, the rejection of the applications based on the premise that the proposed shops were within 500 meters of a national highway was erroneous. The court held that the licensing authority should have issued a notice before rejecting the applications and clarified the status of the highway.

Final Judgment:
The court set aside the impugned orders rejecting the applications and directed the respondents to reconsider the applications, taking into account the schedule to the Act as substituted by Notification No.S.O.1150(E), dated 01.01.2015. The applications were to be considered in accordance with the rules in force. All writ petitions were allowed, with no order as to costs, and any pending miscellaneous petitions were disposed of accordingly.