JIVABHAI BHIMABHAI KESHWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present petition under Article 226 of the Constitution of India is filed by the petitioner- plaintiff for the purpose of seeking following reliefs:-

(2.) The case of the petitioner is that petitioner is a dealer of M/s. Indian oil Company Ltd., having his fuel station at Jetpur-Somath National Highway on the land bearing Survey No.20/4 (New Survey No.51) of Village Kanza, Taluka Vanthali, District Junagadh in the name and style of M/s. Jai Vachchraj Petroleum. The petitioner is said to have obtained all necessary permissions as required from the authorities, including the National Highway Authority of India and Ministry of Road, Transport and Highways. The petitioner has put up the construction at deceleration lane, 60 meters ahead of the fuel station on the National Highway, while coming from Somath and had also constructed culvert and has thereafter constructed another hundred meter road which is also 5.5 meter broad, so that vehicles which pass through this road can have better speed and thereafter get connected to National Highway after a distance of 100 meter from the fuel station. Even after 100 meter, the petitioner had to construct a drainage line which is 37 meter in length and 1 meter in height so that rain water can easily pass through the drainage line and for this exercise, the petitioner is stated to have incurred an expenditure of Rs.57 lac around and after all this exercise, final permission was granted by the respondent No.1, that is the original defender No.1, on 9.1.2017 to the petitioner. It is the say of the petitioner that the defendant No.5 also started construction of his fuel station, which is at a distance of only 74 meter on a land bearing Revenue Survey No.23/3, in the same village. As a result of this, originally, it was informed that he is going to start a hotel on the said land but, thereafter on the basis of the system of the construction, it was noticed that the respondent No.5- is probably going to construct a fuel station and therefore on 10.7.2017, the petitioner gave objection application to the National Highway Authority, i.e. the defendant No.3, against the ongoing construction of another retail outlet of a different company, named as Essar Oil. On the said objection, the defender No.3 wrote a communication to its agency, named M/s. M.S.V. International INC. on 18.7.2017 and directed to do the needful as per the provisions contained under MORTH Rule and submit a report to the National Highway Authority within a period of seven days.

(3.) It is a further case of the petitioner that after completion of the inspection by the said agency, i.e. M/s. M.S.V. International, independent Engineer submitted his report whereby it was pointed out that in view of the circular dated 24.7.2017, particularly clause 4.6.1, minimum distance between two fuel outlets along the National Highway on divided carriageway should be 1000 meter. But here is a case in which the distance between two fuel stations, one of IOCL with the petitioner and another of Essar Oil with the respondent No.5, is only 74 meter and with this background, checklist as well as the letter was submitted to Essar Oil Ltd. On 23.5.2016. Since nothing fruitful came out from the said protest, yet another objection was sent on 7.10.2017, again protesting before the National Highway Authority and in turn, the National Highway Authority wrote a letter on 12.10.2017 to the Executive Engineer, Government of India. On 15.11.2017, the National Highway Authority made communication to M/s. M.S.V. International INC to again prepare and submit a report on the basis of the actual facts and deviations at the site as per MORTH Rule within seven days. But then the construction was going on. The petitioner filed Regular Civil Suit No.87 of 2017 on 5.12.2017 praying for declaration and permanent injunction that provisional permission which has been granted by the defendant No.1 and NOC granted by the defendant No.2 and any other requisite permission, if granted, the same be declared as void and also prayed for permanent injunction against the defendant Nos.4 and 5 by not granting them final permission to commence the fuel station on the land which is situated just besides the petitioner's petrol pump. The said injunction application at Exh.5 was submitted along with the suit with another application on 5.12.2017 for carrying out local inspection so that exact position of construction can be placed on record before the Court. The said application was registered at Exh.7 for local inspection. It is the further case of the petitioner that on 14.12.2017, all the defendants appeared, prayed for adjournment and the defendant No.3 gave an application for status quo and the said application was registered at Exh.17 and adjournment application filed by the defendant No.5 is the application Exh.15. Despite the objection, adjournment application Exh. 15 was granted and thereafter written statements were filed by the defendant No.2 as well as the defendant No.5 and also by defendant No.3 against the injunction application. Ultimately, bi-parte hearing took place on 4.1.2018 and thereafter on 16.1.2018, a request was made to hear the suit as well as the injunction application be decided. Simultaneously, the defendant No.4 filed written statement on 16.1.2018. Ultimately, in substance, hearing took place of injunction application and on 14.2.2018, the Trial Court rejected the injunction application filed by the petitioner-plaintiff.