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TMI Blog2019 (12) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1982, 30823, 32471, 29365, 29938, 33712, 33507, 33429, 32826, 32789, 32776, 33937, 33968, 31258, 31178, 33714, 28853, 27314, 27274, 29249, 34530, 34562 34654 of 2019 (I) W.P.(C) Nos.23887, 25180, 25367, 25937, 23644, 23849, 25403, 25990, 25992, 26157, 26164 23176 of 2019 (II) W.P.(C) Nos.14674, 17695, 24469, 21175, 16532, 17720, 22116, 24632, 24633, 24641, 24642, 24646, 25076, 26152 26195 of 2019 (III) W.P.(C) Nos.29807 of 2016 5528 of 2019 (IV) Mohan G., Gopakumar, Sheeja.E, Sabu B.S, Jith.B., Biju Sudhakaran, Suresh Kumar, Beena Madhavan Pillai, Neelima Arun, Shajida Shajahan, Jasmine Sirajudeen, Binazar, Shoba Joseph, Sumangala Devi, Shijokumar.T.M, Jaikrishnan, Jithin Babu.R.S., Ajeesh G., Vrinda Vijayan, Ragitha, Suneesh A K, Abdul Rasheed, Juby Jacob, K.M.Jacob, Shameer.V, Beena.P.N, Gokul Gopalakrishnan Nair, Siju Mon.P.M, K.S.Narayanan Nampoothiri, C.Dhaneesh, Elizabeth Joseph, Manoj Valamparampan, Binu.P.G, Ashokan.A., Ramesh.R, Vipin.K.V., Saji Joseph, Vijaya Manohar, Shanu George Cherian, Noufal Konhante Valappil, Aby George, Saju.S.N., Sakku Jays, Delvin Denny, Radhakrishna Pillai, Muhammed Ali, Nasira Mol, Ajay Samson, Shiril Abraham Kuruvila, Josep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cases similar to the first category in which the petitioners could secure interim orders from this court directing consideration of the applications for No-objection certificates without insisting compliance of IRC Guidelines and MORTH Norms, subject to the outcome of the writ petitions. The third category are cases similar to the second category in which the petitioners could secure No-objection certificates provisionally on the strength of interim orders passed by this Court. The fourth category are cases in which one of the Oil Marketing Companies is challenging the decisions of the District Authority under the Rules in declining No-objection certificate sought by them on the ground that the sites involved do not conform to IRC Guidelines and MORTH Norms . 3. It is necessary to refer to the facts of the two cases coming under the fourth category for a proper examination of the question involved. Among the said cases, the petitioner in W.P.(C) No.5528 of 2019 has decided to establish a retail petroleum outlet at Padiyoor in Kannur District and preferred application before the District Authority for No-objection certificate. The application was forwarded by the District Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the entry and exit portions. As regards the applicability of the MORTH Norms, a stand different from the stand taken in W.P. (C) No.5528 of 2019 is taken in this writ petition. It is stated in the counter affidavit that MORTH Norms apply to all roads in the State including National Highways. 8. Heard Shri P.Gopinath Menon, learned Senior Counsel, Shri Santhosh Mathew, Smt.A.Salini Lal and Shri R.Sunil Kumar for the petitioners as also the learned Government Pleader. 9. Shri P.Gopinath Menon, the learned Senior Counsel for the petitioners in W.P.(C).Nos.5528 of 2019 and 29807 of 2016 contended that the Indian Road Congress being only a society registered under the Societies Registration Act, the guidelines prescribed by them, viz, IRC Guidelines do not have the force of law. It was pointed out by the learned Senior Counsel that the said issue is covered in favour of the petitioner by the decision of this Court in Mary Ulahannan v. Union of India [2011 (3) KLT 570]. It was also pointed out by the learned Senior Counsel that it has been clarified by this Court in the said case that IRC Guidelines cannot be the basis for the decision of the District Authority under Rule 144 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out that Public Works Department of the State which is the limb of the Government responsible for the safety of road users is discharging its function in terms of the PWD Manual formulated by the State Government and IRC Guidelines which is part of the PWD Manual for all matters relating to road safety. It was also pointed out by the learned Government Pleader that in so far as IRC Guidelines are being followed by the State Government in all matters relating to road safety, the District Authority under the Rules cannot be found fault with for following the same in the matter of granting Noobjection certificate under the Rules for establishment of petroleum outlets in the State. The learned Government Pleader has placed reliance on the decision of the Apex Court in Indian Oil Corporation Limited and Others v. Arti Devi Dangi and another [(2016)15 SCC 480], in support of the said contention. Placing reliance on the provisions of the Kerala Highway Protection Act, 1999, the learned Government Pleader has also pointed out that the Executive Engineers concerned of the Public Works Department are functioning as Highway Authorities under the said statute and IRC Guidelines are being f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. They are the following: (a) possession of the site by the applicant is lawful and authorisation from land owner or lease holder for developing premises under these rules for storage of petroleum products; (b) interest of public, specially the facilities like schools, hospitals or proximity to places of public assembly and the mitigating measures, if any, is provided; (c) traffic density and impact on traffic; (d) conformity of proposal to the local or area development planning; (e) accessibility of the site to fire tenders in case of emergency and preparedness of fire services for combating the emergencies; (f) genuineness of purpose; (g) any other matter pertinent to public safety. It is evident from the extracted portion of sub rule (7) of Rule 144 that the District Authority is expected to consider in terms of the Rules, among others, the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he would certainly look for guidelines, if available. True, the IRC Guidelines do not have the force of law. But merely for the reason that IRC Guidelines do not have the force of law, the District Authority is not precluded from placing reliance on the same. Of course, in so far as the IRC Guidelines do not have the force of law, it may not be binding on the District Authorities. But in the absence of any guidelines from the Central Government, 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 they be precluded from placing reliance on IRC Guidelines or similar in the matter of discharging its functions under the said Rules, for otherwise, there would be no consistency in the decisions taken by the District Authorities functioning at different places leading to subjective decisions based on personal notions resulting in discrimination. It is all the more so since it is not disputed that they are guidelines formulated after a thorough research, field observations and deliberations with all the stakeholders and have been adopted by various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lines for the aforesaid reason as well. 17. It is seen that during 2010, the State Government has issued a circular prescribing the minimum distance to be maintained between two petroleum outlets and the minimum quantity of petroleum products to be sold by an existing dealer in order to make the unit viable. The main issue in Mary Ulahannan was as to whether the said circular can be the basis for a decision under Rule 144 of the Rules in the matter of granting/refusing No-objection certificate for establishment of new petroleum outlets. It is seen that arguments have been addressed in the said case placing reliance on IRC Guidelines as well and in the context of the said arguments, it was observed by the Court that the District Authority would be bound only by the norms, if any prescribed by the Central Government. It is trite that the ratio of a decision has to be understood regard being had to its context and factual exposition. If it is based on a particular fact situation, or the decision of the Court is guided by specific nature of the case, it will not amount to the ratio of the judgment. Lord Halsbury in Quinn v. Leathem(1901 AC 495 : (1900-03) ALL ER Rep 1 (HL) has ruled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. 10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the context of the aforesaid question. 20. 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. In the light of the finding aforesaid, it is unnecessary to consider the contention advanced by Shri Santhosh Mathew based on Rule 161 of the Rules as well. 21. Coming to the applicability of MORTH Norms, as noted, the case of the State is not consistent. In one counter affidavit, the stand taken is that it applies only to the fuel stations along the National Highways and in the other, the stand taken is that it applies to all roads in the State. When a specific questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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