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2019 (12) TMI 1308 - HC - Indian LawsIssuance of No-objection certificate of the District Authority for obtaining licence for establishing petroleum retail outlets - whether No-objection certificate for the said purpose could be denied on the ground that the site proposed for the outlet is not one conforming to the Guidelines for Access, Location and Layout of Roadside Fuel Stations and Service Stations prescribed by Indian Roads Congress (IRC Guidelines) and the Norms for the Access for Fuel Stations, Service Stations and Rest Areas along National Highways prescribed by the Ministry of Road Transport and Highways, Government of India (MORTH Norms)? HELD THAT - It is seen that the Rules are framed by the Central Government in exercise of the powers conferred, among others, under sub-section (1) of Section 29 of the Act. Sub-section (1) of Section 29 deals with the power of the Central Government to make provisions for protecting the public from danger arising from import, transport, storage, production, refining or blending of petroleum products. It is also seen that No-objection certificate under Rule 144 of the Rules is issued so as to enable the applicant to obtain licence under the Rules for storage of petroleum products. The proforma in which the No-objection certificate is to be issued, as contained in sub-rule (7) of Rule 144, indicates the matters to be considered by the District Authority while granting/refusing No-objection certificate. The duty of care is the legal responsibility of a person to avoid any behavior or omissions that could reasonably be foreseen to cause harm to others. The duty of care to be exercised by a statutory authority would depend upon various factors such as relevant statutes, rules, regulations, general standard of care etc. If specific duties are written into law, there may not be any difficulty for the competent authority to discharge its functions. However, if specific duties are not written into law, the authorities must act with the same degree of care that an ordinary person would have acted in the same situation. Reverting to the facts, the Rules have prescribed only the matters to be considered while granting/refusing No-objection certificate. Since specific duties to be performed have not been prescribed, as noted, the District Authority under the Rules is expected to act with the same degree of care that an ordinary prudent person would have acted in the same situation - The contention of the petitioners that IRC Guidelines do not have the force of law and therefore the same should never be the basis of the decision by a statutory authority is unsustainable also for the reason that a similar contention that IRC Guidelines which do not have the force of law shall not be insisted by oil marketing companies for the purpose of establishing petroleum outlets, has been repelled by the Apex Court in Arti Devi Dangi, taking the view that the same being norms framed in the interest of public safety, the instrumentalities of the States cannot be found fault with for having insisted compliance of the said Guidelines. As it is found that the District Authority exercising power under Rule 144 of the Rules cannot be found fault with for having placed reliance on IRC Guidelines in the matter of discharging its functions nor can the District Authorities be precluded from placing reliance on IRC Guidelines or similar in the matter of discharging its functions under the Rules, it is unnecessary to consider the contention advanced by the learned counsel for the petitioners that the PWD Manual has been amended only in terms of an executive order issued on 22.10.2019 and the same does not, therefore, apply to the applications for No-objection certificates preferred prior to 22.10.2019. Applicability of MORTH Norms - HELD THAT - MORTH Norms were not intended to apply to fuel stations along roads other than National Highways. If that be so, rejection of applications for No-objection certificates in respect of petroleum outlets other than those proposed to be established along the National Highways based on the said guidelines which are not intended to be applied for the same, would be arbitrary. Petition dismissed.
Issues Involved:
1. Whether the No-objection certificate (NOC) for establishing petroleum retail outlets can be denied based on non-conformity to IRC Guidelines and MORTH Norms. 2. The applicability and legal force of IRC Guidelines and MORTH Norms in the context of Rule 144 of the Petroleum Rules, 2002. 3. The fundamental right to establish petroleum outlets under Article 19(1)(g) of the Constitution. 4. The relevance of the PWD Manual and the Kerala Highway Protection Act in the context of granting NOCs. Detailed Analysis: Issue 1: Denial of NOC Based on IRC Guidelines and MORTH Norms The core question addressed is whether the NOC for establishing petroleum retail outlets can be denied if the proposed site does not conform to the IRC Guidelines and MORTH Norms. The court analyzed various categories of cases, including those where dealers sought NOCs without adhering to these guidelines, those who secured interim orders for consideration of NOCs, and cases where NOCs were provisionally granted based on interim orders. The court also examined cases where oil marketing companies challenged the denial of NOCs due to non-conformity with these guidelines. Issue 2: Applicability and Legal Force of IRC Guidelines and MORTH Norms The court noted that IRC Guidelines do not have the force of law since they are formulated by a society registered under the Societies Registration Act. However, the court emphasized that the District Authority is not precluded from relying on these guidelines in the absence of any specific guidelines from the Central Government. The court highlighted that IRC Guidelines are formulated after thorough research and are adopted by various State Governments, thus ensuring consistency in decisions related to public safety. Regarding MORTH Norms, the court found inconsistencies in the State's stance. While one affidavit claimed that MORTH Norms apply to all roads, another limited their applicability to National Highways. The court concluded that MORTH Norms are intended only for National Highways, as indicated by the Ministry of Road Transport and Highways, Government of India. Issue 3: Fundamental Right Under Article 19(1)(g) The petitioners argued that their fundamental right to establish petroleum outlets under Article 19(1)(g) was being unjustly restricted by the application of IRC Guidelines, which do not have the force of law. The court countered that while the petitioners have a fundamental right to run petroleum outlets, this right can be restricted by law. The requirement to obtain an NOC under Rule 144 is one such restriction aimed at ensuring public safety. The court held that the District Authority could rely on IRC Guidelines in the absence of Central Government guidelines, and this reliance does not violate the petitioners' fundamental rights. Issue 4: Relevance of PWD Manual and Kerala Highway Protection Act The court observed that the Public Works Department (PWD) follows the IRC Guidelines for road safety, and these guidelines are part of the PWD Manual. It was noted that the Executive Engineers of the PWD, functioning as Highway Authorities under the Kerala Highway Protection Act, also follow these guidelines. The court reasoned that ignoring IRC Guidelines by District Authorities would lead to inconsistencies in the functions of the PWD and Highway Authorities, thereby affecting road safety. Conclusion: The court dismissed the writ petitions, stating that the District Authorities cannot be faulted for relying on IRC Guidelines in the absence of specific guidelines from the Central Government. It also held that MORTH Norms apply only to National Highways and not to other roads in the State. The court emphasized that the reliance on IRC Guidelines ensures consistency and public safety, aligning with the high duty of care expected from authorities under public safety legislation.
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