HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.17784 of 2010 Date: November 23, 2010 Between: Shaik Khasim, S/o.Kalesha, aged about 38 years, R/o.Venkatachalam, A-4 Shop lease-holder of M/s.Sindura Wines, H.No.12/1A, Bujabuja Nellore village, Nellore Rural Mandal, Nellore District … Petitioner And The Government of Andhra Pradesh, Represented by its Commissioner, Prohibition & Excise, Nampally, Hyderabad, and others … Respondents Order: In this writ petition, the petitioner, holder of A-4 licence under the provisions of Andhra Pradesh Excise (Lease of Right of Selling by Shop and Conditions of Licence) Rules, 2005 (for short, ‘the Rules’) framed under the Andhra Pradesh Excise Act, 1968 (for short, ‘the Act’) has questioned the action of the respondents in granting licence in favour of the fourth respondent herein, in the premises bearing Sy.No.540/A3, 54081/B, 540/E1/B, peripheral area of Chemudugunta village, Venkatachalam Mandal, Nellore District. The District Collector, Nellore, the auctioning authority, issued notification dated 27-05-2010 inviting tenders towards consideration for grant of lease to sell Indian-made Foreign Liquor/Foreign Liquor by shop in the list appended thereto for the lease period 01-07-2010 to 30-06-2012. In the said list, the shop proposed at Chemudugunta village, is notified at Sl.No65. The fourth respondent herein was the highest bidder for the said shop; as such, the same was accepted, approved and he was granted licence to set up a shop in the premises bearing Sy.No.540/A3, 54081/B, 540/E1/B of Chemudugunta village, Venkatachalam Mandal, Nellore District. It is the case of the petitioner that the premises referred above is outside Chemdugunta village; as such grant of licence to the fourth respondent to run the shop in the said premises is illegal and arbitrary. It is stated that the said shop is within the prohibited distance of 50 metres from the national highway; as such grant of licence in favour of the fourth respondent is also contrary to Rule 27 of the Rules. The third respondent-Prohibition and Excise Superintendent, Nellore and the fourth respondent have filed separate counter-affidavits. In the counter-affidavits, it is stated that the premises bearing Sy.No.540/A3, 54081/B, 540/E1/B, is within the Gram Panchayat limits of Chemudugunta Village and National Highway No.5 passes through Chemdugunta Panchayat area. It is stated therein that as much as the highway is passing through Chemudugunta Panchayat area, the distance norm of 50 metres has no application in the present case. Heard Sri A. Ravinder, learned counsel for the petitioner, learned Government Pleader for Excise for respondents 1 to 3 and also Sri T. Niranjan Reddy for the fourth respondent. It is submitted by the learned counsel for the petitioner that the subject premises is 2 ½ kms. away from the village site; as such it cannot be said that the fourth respondent has set up shop within the limits of Chemudugunta Village. He would submit that as much as the shop is within the prohibited distance of 50 metres from the national highway, grant of licence in favour of the fourth respondent to run the shop in the said premises is contrary to Rule 27 of the Rules. On the other hand, it is submitted by the learned counsel for the fourth respondent that as per the notification, Chemudugunta Village is notified for locating the shop and as much as the subject premises is within Chemudugunta Village and Gram Panchayat, it cannot be said that the shop set up by the fourth respondent in the said premises is outside Chemudugunta Village. He would submit that as much as national highway is passing through Chemudugunta Gram Panchayat, the distance norm of 50 metres has no application. Although it is the case of the petitioner that the shop set up by the fourth respondent is 2 ½ kms. away from the village site, it is to be noticed that as per the notification, the highest bidder is eligible to set up the shop in the village limits of Chemudugunta. When the premises bearing Sy.No.540/A3, 54081/B, 540/E1/B, is located within the Gram Panchayat limits of Chemudugunta Village and Gram Panchayat, such location is in conformity with the area notified in the notification issued by the District Collector. Further, the objection of the petitioner, viz. the shop is set up by the fourth respondent in contravention of Rule 27 of the Rules, has been answered by the respondents in the counter-affidavit filed by respondents 1 to 3 stating that the national highway passes through the Panchayat area of Chemdugunta and in view of explanation (c) to Rule 27(1) of the Rules, it cannot be construed as a highway for the purpose of distance limits. At this juncture, it is apposite to refer to explanation (c) to Rule 27(1) of the Rules, which reads as under: “High Way” means National High Way or State High Way and shall not include the part of the National High Way or State High Way which passes within the limits of Municipal Corporation, Municipality or the Gouthan in any Village or Panchayat area.” It is to be noted that though there is a prohibition for establishment of a shop within the distance of 50 metres from the national highway, in view of the explanation (c) to Rule 27(1) of the Rules, as relied on by the respondents, the distance limits cannot be applied to the present case. For the foregoing reasons, it cannot be said that the action of the respondents in granting licence to the fourth respondent is either illegal or arbitrary. The writ petition is accordingly dismissed, however, in the circumstances, without costs. ____________________ (R. SUBHASH REDDY, J) November 23, 2010 MRR