1. Heard Sri Challa Dhanamjaya, the learned Counsel representing the writ petitioner, the learned Assistant Government Pleader for Civil Supplies representing respondents 1 and 2, Sri S.Nageswar Reddy, the Standing Counsel for 3rd respondent and Sri P.V. Sanjay Kumar, the learned Counsel representing the 5th respondent.

2. The learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and the objections raised and would maintain that the preliminary objection raised by Sri P.V. Sanjay Kumar, the learned Counsel representing the 5th respondent that the Writ Petition is not maintainable at the instance of a rival trader cannot be sustained. The learned Counsel also in detail had explained how there is some subsequent change of Law by relying upon certain decisions in this regard. The Counsel also further had pointed out that when other serious objections are there, to throw out a Writ Petition on the ground of such an objection relating to the maintainability, definitely would be unjust. The learned Counsel pointed out to the relevant paras of the affidavit filed in support of the Writ Petition in this regard.

3. Sri Nageswar Reddy, the learned Standing Counsel representing the Municipal Corporation would submit that the Bye-Laws referred to in the affidavit filed in support of the Writ Petition no doubt are applicable even to the Kakinada Municipal Corporation. However, the said Bye-Laws may not be of much help to the writ petitioner.

4. Sri P.V. Sanjay Kumar, the learned Counsel representing the 5th respondent had taken this Court through the contents of the counter affidavit filed by the 5th respondent and would maintain that the Writ Petition is not maintainable at the instance of a rival trader like the writ petitioner and even otherwise in the light of the averments in detail made in the counter affidavit filed by the 5th respondent, the Writ Petition is liable to be dismissed. The Counsel also placed strong reliance on several decisions and would conclude that in the light of the decisions of the larger Benches of the Apex Court, it may have to be taken that the decisions of the smaller Benches to be treated as per incurium.

5. Heard the Counsel.

6. This Court ordered Notice before admission on 18-5-2007 and also made the following order :

"Learned Counsel for the petitioner is permitted to take out notices to the respondents by registered post with acknowledgement due and file proof thereof. In the interregnum, the fourth and fifth respondents are refrained from establishing or operating any petrol pump, till 18-06-2007." On 18-6-2007, this Court made the following order :

"Counter affidavit has been filed by the 5th respondent.

I have heard the learned Counsel for both the parties.

Having regard to the facts and circumstances, the interim order dated 18- 5-2007 shall stand modified, staying the commissioning of the retail outlet by the respondent Nos.4 & 5, till 25-06-2007. In the meanwhile, it is open to them to complete the construction work if any, in the premises in question."

7. The Counsel for petitioner filed W.P.M.P.No.16443/2007 praying for amendment of the prayer in the Writ Petition and the said application was ordered on 3-9-2007. In W.P.M.P.No.16963/2007 no orders need be passed since it is an application to implead the Director of Town and Country Planning, Government of A.P., 640, A.C. Guards, Hyderabad, as 6th respondent and hence the said application is hereby closed. 8. The relief prayed for in the Writ Petition, as amended by W.P.P.M.P.No.16443/2007, which had been ordered as specified supra, is as hereunder:

"It is therefore prayed that this Hon'ble Court may be pleased to issue a writ of Mandamus, or any other appropriate writ, order or direction, declaring the proposed action of the respondents 1 to 3 in permitting the respondents 4 and 5 to start a new retail out