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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, SATYEN VAIDYA, JJ.
M/s Aditya H.P. Centre Through Its Sole Proprietor, Smt. Aman Parmar – Appellant
Versus
Union Of India – Respondent
Civil Writ Petition No. 4239, 3338, 2703 of 2020
Decided on : 17-08-2021
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Order 39 Rule 1 and 2 - Section 151 - Specific Relief Act - Section 38 - Injunction - Joint Possession - Plaintiff filed a civil suit for permanent prohibitory and perpetual injunction to restrain defendants from causing any interference, damage, cutting and changing nature of suit land - Case as set up in the plaint was that plaintiff, defendants and others are co-owners in possession of the suit land - Further averred that by raising construction, defendants were trying to possess more land on spot than their share. Alongwith civil suit, an application under Order 39 Rule 1 and 2 read with Section 151 CPC for grant of temporary injunction was also moved.
Finding of the court:
Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with properties exclusively, ordinarily would not be entitled to an order of injunction. Court will not interfere only because property is a very valuable one. Grant or refusal of injunction has serious consequence depending upon nature thereof - When a co-sharer himself raises a construction over joint land, when a co-sharer does not object to raising of construction over joint land by some other co-owners, then, he cannot seek to restrain one specific co-owner from raising construction over part of suit land, more so, when construction being raised by that particular co-owner is over a portion, which, as per revenue record, is in his possession alongwith others and when plaintiff has not been shown in possession of this specific portion of land - A person in joint possession of immovable property cannot change nature of suit property unless property is partitioned or other persons in joint possession consent to such change in the nature of property - Impugned orders passed by learned Civil Judge and learned Additional District Judge-II set aside.
Result: Petition is allowed
ORDER :
All these writ petitions have been filed with prayer to quash allotments, of following retail sale outlets for petroleum products (for short “outlet”), made by respondents No. 2 and 3 (for short “IOC”):
(ii) In favour of Shri. Satwant Singh (Respondent No. 4) in CWP 2703 of 2020 in Mohal Thara, Sub Tehsil Dulehar, District Una, Himachal Pradesh
2. Petitioners in CWP No.4239 of 2020 and CWP. 2703 of 2020 themselves are retail outlet dealers of Hindustan Petroleum Corporation Limited (HPCL), whereas petitioner in CWP No.3338 of 2020 has filed the petition as pro bono publico.
3. Since common questions of facts and law are involved in all the petitions, therefore, these were heard together and are being disposed of by a common judgment.
4. The common case of the petitioners in all the petitions is that the allotment of outlets by IOC in favour of Agro Industries and Shri Satwant Singh are in violation of the guidelines framed by Indian Roads Congress (IRC) and Ministry of Road Transport and Highways (MoRTH).
5. It is not in dispute that the outlet, in CWP No. 3338 of 2020 and CWP No. 4239 of 2020, is being established on a plot of land adjacent to road leading from Jawalamukhi to Dehra in District Kangra and outlet in CWP No.2703 of 2020 is being established adjacent to Ajoli Mod to Pohlian via Tahliwal road in District Una. Both these roads are Major District Roads (MDRs) declared by Government of Himachal Pradesh.
6. Petitioners contend that IRC has framed guidelines for access, location and layout of road side fuel stations and service stations (third revision) 2009. Similarly, MoRTH has also formulated and issued guidelines for grant of permissions for construction of access to fuel stations, way side amenities, private properties, rest area complexes, connecting roads and such other facilitates/establishments. The latest of such guidelines have been circulated on 26th June, 2020 and prior thereto were the guidelines framed in 2013, which were almost the same in material particulars. Petitioners have maintained that IOC while making allotment in question has not adhered to the requirements of these guidelines and in absence thereof the allotment is vitiated.
7. In CWP No.3338 of 2020, petitioner has taken exception to allotment of outlet in favour of Agro Industries on the grounds:
(ii) The requisite distances from the intersections of National Highway and also from a Village Road have not been considered and applied.
(iii) The allotment has been made without issuing advertisement of proposed allotment,
(iv) In addition, the petitioners in CWP No.4239 of 2020 and CWP No. 2703 of 2020 have raised the contention that the requisite distance between the two retail sale outlets i.e., one of the petitioners and the others allotted by IOC to Agro Industries and Shri Satwant Singh has not been maintained.
8. In replies submitted by IOC in all the petitions, the allegations with respect to non-maintenance of requisite distances from intersections, National Highways, other approach roads and also between two retail sale outlets have not been specifically denied. Thus, the averments with respect to violation of IRC and MoRTH guidelines remain unrebutted in pleadings.
9. IOC, however, has taken a specific stand that IRC guidelines are non-statutory hence, these are neither applicable nor enforceable and the MoRTH guidelines are applicable only to the National Highways. In this manner respondents have denied relevance of said guidelines in the facts of the case and have sought the dismissal of the petitions.
10. Respondents hav
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