THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO.31414 OF 2010 DATED:10.11.2011 Between: Sri Raja Rajeswari Wines Rep. by Satti Satish Reddy S/o. Gangi Reddy R/o. Anaparthy East Godavari District … Petitioner And The Govt. of India, Rep. by its Secretary Ministry of Road Transport and Highways New Delhi and another … Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO.31414 OF 2010 ORDER: Heard the learned counsel for the petitioner and the learned Standing Counsel for National Highway Authority of India, representing the respondents, and at the stage of hearing vacate petition of the respondents, with the consent of both the learned counsel, it is found appropriate to dispose of the writ petition itself. The petitioner is a lessee of premises bearing D. No.5-90 in Sy. No.249/1A situated at Tallur Village, Gandepalli Mandal, East Godavari District. The petitioner has obtained the said premises from his lessor and owner Kondra Sekhar Rao, President of aforesaid Tallur Village, and established the liquor shop in pursuance of licence granted to him by the Deputy Commissioner of Prohibition and Excise, Kakinada Division, through proceedings Rc. No.B1/2003/2010, dt.18.11.2010. The respondents – National Highway authorities alleged that there is an encroachment by the petitioner on the part of National Highway No.5 passing in front of the said licensed premises. Since the National Highway authorities objected to running of the said licensed shop, they intimated of the said encroachment to the Superintendent, Department of Prohibition and Excise, Kakinada, who in turn required the petitioner to shift the shop accordingly. Aforesaid notice issued by the Superintendent was subject matter of W.P. No.24526 of 2010 before this Court wherein, after hearing, this Court by order dt.1.10.2010 directed the Deputy Commissioner of Prohibition to inspect the premises and submit a detailed report. Accordingly, a report dt.18.11.2010 was submitted by the Deputy Commissioner of Prohibition and Excise, finding that the petitioner’s shop encroaches to the extent of 1½ cents on the National Highway. A rough sketch plan was also appended to the said report. Based on the said report, National Highway authorities issued the impugned proceedings dt.31.8.2010 to the petitioner to remove the unauthorized occupation. The said order was again questioned by the petitioner in the present writ petition and while admitting the writ petition on 14.12.2010, this court passed an interim order granting stay of further proceedings in pursuance of the impugned proceedings dt.31.8.2010 of National Highway authorities. A detailed counter affidavit is filed by the Project Director of the National Highway Authority contending that the District Road Safety Committee Meeting chaired by the District Collector directed the notice impugned to issue in view of inspection and report of Deputy Commissioner of Prohibition and Excise referred to above. The respondents are therefore justified that the unauthorized occupation by the petitioner must be removed as it encroaches on the National Highway No.5. After hearing both the learned counsel, it is evident that petitioner is only lessee of the shop and owner of the shop is not party to this writ petition. Whether the encroachment is by the owner or the lessee is not a matter which is germane at the moment and it is imperative that encroachment, if any, on the National Highway must be removed in accordance with law. While the report of the Deputy Commissioner, which is annexed to the material papers along with this writ petition shows that at the time of inspection the petitioner, who is a tenant, and the said Kondra Sekar Rao, who is the landlord were both notified and were present. In the absence of said owner being a party to this writ petition, the impugned order of removal of encroachment cannot be given effect to, at this stage. The National High Way authorities have not issued any such notice to the said owner and the proceedings for removal of encroachment are sought to be taken only against the petitioner – tenant. The report of the Deputy Commissioner prima facie establishes that there is an encroachment to the extent of 1½ cents but the said inspection by the excise authorities is for the purpose of justifying the stand of the excise authorities requiring the petitioner to shift his existing shop. In the circumstances, and to avoid any further loss of time, I deem it appropriate to dispose of the writ petition with the following directions. The respondents - National Highway authorities shall conduct a survey after notice to petitioner as well as the owner/lessor of petitioner (Kondra Sekhar Rao) of the shop referred to above as well as to the Deputy Commissioner of Prohibition and Excise and earmark the area encroached. On such survey report, the National Highway authorities shall give appropriate notice for removal of encroachment, if any, to the petitioner, and his lessor as well as to the Deputy Commissioner of Prohibition and Excise, and within the time prescribed in the said notice, the encroachment, if any, found on the National Highway shall be removed by the petitioner failing which the National Highway authorities shall be free to proceed departmentally and remove the encroachment. The writ petition is accordingly disposed of. No costs. ______________________ VILAS V. AFZULPURKAR, J 10.11.2011 bnr