TMI Blog2017 (8) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises within the limits of GVMC, by paying required licence fee through challan within time stipulated along with bank guarantee for the equal amount towards the second year licence fee from the Nationalized Bank, before the 4th respondent-Prohibition and Excise Superintendent, who in turn received and acknowledged the same. But quite surprisingly, petitioners received impugned orders from the 4th respondent-Prohibition Excise Superintendent, rejecting their applications on the ground that the premises in which the petitioners are proposed to establish A4 shops/2-B bars, falls within 500 meters to National Highway which is in contravention of the judgment of the Hon ble Supreme Court made in Civil Appeal No.12164 to 12166 dated 15.12.2016 and also Rule 25(1)(i)(b) of A.P. Excise (Grant of License of selling shop and conditions of License) Rules, 2012 Rule 11 (iii) of the A.P. Excise (Grant of License of Selling by Bar and Conditions of Licence) Rules, 2017. It is also stated in the impugned order that the Project Director, National Highway Authority of India (NHAI), PIU, Visakhapatnam has stated that the stretch passing through Visakhapatnam city is NH-16, since no de-notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate notification under sub-section 3 of Section 2 of the Act of 1956, if any substitution is made to the entries in the schedule of the said Act as seen in the case of Gazette Notification No.S.O.1150 (E), dated 01.05.2015, the said aspect was clarified by concerned authority under the Government of India, Ministry of Road Transport Highways, dated 24.05.2017 in negative. He also submits that in similar circumstances counter affidavit is filed by the 4th respondent in W.P.No.19074 of 2017 and that this Court, after considering the averments in the said writ petition granted interim orders, suspending the rejection of the application of the petitioners therein. Hence, sought for setting aside the impugned orders in the writ petitions. 6. Learned Government Pleader for Prohibition Excise submits that the premises selected by the petitioners falls within 500 meters of National Highways as per the letter submitted by the Project Director, NHAI, as such, the Prohibition Excise Superintendent rightly rejected the applications of the petitioners, as licenses cannot be granted in such premises in view of Judgment of Hon ble Supreme Court in Civil Appeal No.12164, dated 15.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. Rule 11 of the said Rules, 2017 provides for restrictions on the grant of licence. Rule 11 (1) A licence in Form-2B or 2B(P) shall not be granted. (i) Unless the premises has:- (a) . (b) . (c ) (d) . (e) . (ii) . (iii) . ( iv) Within a distance of 500 Mts. of the outer edge of the national or state highway or of a service lane along the highway and the premises shall not be either visible or directly accessible from a national or state highway. Provided that in case of areas comprised in local bodies with a population of 20,000 or less, the distance shall be 220 Mts. Section 2 of the National Highways Act, 1956 reads as follows: 2. Declaration of certain highways to be national highways ( 1) Each of the highways specified in the Schedule is hereby declared to be a national highway ( 2) The Central Government may, by notification in the Official Gazette, declare any other highway to be a national highway and on the publication of such notification such highway shall be deemed to be specified in the Schedule. ( 3) The Central Government may, by like notification, omit any highway from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th April, 2011, namely:- In the Schedule, for serial number 49 and entries relating thereto, the following shall be substituted, namely:- ( 1) ( 2) ( 3) 49 16 The highway starting from its junction with NH-19 near Kolkata connecting Kharagpur in the State of West Bengal, Baleshwar and Bhubaneshwar in the State of Orissa, Anandapuram, Pendurthi, Anakapalli, Vijayawada, Nellore in the State of Andhra Pradesh and terminating at its junction with NH-48 near Chennai in the State of Tamilnadu . In the aforesaid notification dated 01.05.2015, Visakhapatnam stood deleted/omitted. When a clarification is sought under Right to Information Act, on 22.05.2017 with regard to assignment of any National Highway Number, after Gazette Notification No.S.O.1150 (E), dated 01.05.2015 issued by the Government of India, Ministry of Road Transport Highways and also whether the Ministry of Road Transport and Highways is required to issue a separate notification under sub-section 3 of Section 2 of the Act of 1956, if any substitution is made to the entries in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015, the MORTH re-aligned a portion of new NH No.16 in the State of Andhra Pradesh. The stretch of the said NH which falls under the old route (portion before realignment) is not assigned any new NH number and is not specified in the SCHEDULE of the National Highways Act, 1956. Can this particular stretch of the Highway still be treated as a National Highway despite it not being specified in the SCHEDULE of the National Highways Act, 1956 No 3. The Appellate Authority is Mrs. Maya Prakash, Director (P B), Ministry Road Transport Highways, Room No.237, Transport Bhawan, 1- Parliament Street, New Delhi-110001 and his official telephone number is 011-23710454. Yours faithfully Sd/- ( Manish Kumar Singh) Under Secretary to the Government of India de-facto IPO Tel.No.23714001 In view of above clarification issued by the concerned authority, it can be concluded that Visakhapatnam was deleted/omitted from the earlier notification issued by the Government of India, Ministry of Road Transport Highways dated 04.04.2011. As such, it cannot be said that National Highway No.16 is passing through Visakhapatnam . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Ways. 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. 13. 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. In view of above facts and circumstances, the impugned orders in all the writ petitions are set aside and the respondents are directed to consider the applications of the petitioners, by taking into account the schedule to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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