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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 ..... 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, Joseph, Mathew James, K. I. Ashraf, Anandu Krishna.S, Sheeba S., Prasanna Kumari, Sanil Kumar P.V., Bindu Lakshmanan, Abdul Majeed, Vishnu.L.J, Subhash Kumar.D.S, Varsha Prabhakaran, Naseef M.P, Muhammed Basid.P.K., Haridas.V.P, Jobel Babu, Sherin Nowshad, Unnikrishnan.K.Kallamparampil, Ambili Dileep, Rejina Dannish, Prakash K., Hindustan Petroleum Corporation Ltd. Versus Indian Oil Corporation Limited, Additional District Magistrate, District Collector, Kerala Public Works Department, Chief Engineer, Executive Engineer, State Of Kerala, P.B.Suresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging 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 Authority for the remarks of the various Government Departments including the Public Works Department which is responsible, among others, for the road safety in the State. Ext.P6 is the report forwarded by the concerned Executive Engineer of the Public Works Department to the District Authority in this regard. As per the said report, the District Authority was informed that the site proposed does not conform to the IRC Guidelines. In the light of Ext.P6 report, the District Authority declined the No-objection certificate sought by the petitioner in terms of Ext.P7 order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Rules. It was also pointed out by the learned Senior Counsel that the said proposition has been reiterated by this court in W.P.(C)No.2186 of 2015 also. It was also pointed out by the learned Senior Counsel that in an identical case, in Mukesh Yadav v. State of U.P. (2018(3) ADJ 611), the Allahabad High Court has also held that IRC Guidelines shall not be the basis for the decision under Rule 144 of the Rules. The essence of the arguments of the learned Senior Counsel was, therefore, that the rejection of the applications for No-objection certificates on the ground that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 followed by the Highway Authorities under the said statute also in matters relating to road safety and also for prevention of ribbon development along highways and control of access, in exercise of the powers under Chapter V of the said statute. The contention of the learned Government Pleader based on the provisions of the Kerala Highway Protection Act was, therefore, that IRC Guidelines is relevant in the matter of permitting establishment of petroleum outlets on the side of State Highways, hill highways, major district roads and other category of roads, in order to prevent ribbon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 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 interest of the public, specially the facilities like schools, hospitals or proximity to places like public assembly and the mitigating measures if any provided, the traffic density, impact on traffic, accessibility of the site to the fire tenders in the case of emergency and preparedness of fire services for combating emergencies and other matters pertinent to public safety. It is thus clear that the Rules is a public safety legislation. Right to life guaranteed under Article 21 of the Constitution is one of the most sacred rights preserved and protected by our Constitution. It is trite that Article 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 State Governments as evident from the decision of the Apex Court in Arti Devi Dangi, and none of the petitioners has a case that any of the guidelines of Indian Road Congress is unreasonable. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 :- "... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found." In Union of India and others v. Dhanwanti Devi and others ((1996) 6 SCC 44), while adverting to the concept of precedent under Article 141 of the Constitution, the Apex Court has opined thus:- "9. Before adverting to and considering whether solatium and interest wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents." In the light of the aforesaid principles, I do not think that the decision of this court in Mary Ulahannan would be of any help to the petitioners, especially since the scope of the power conferred on the District Authority under Rule 144 in the context of public safety was never an issue in Mary Ulahannan and the said decision was one rendered in the context of the commercial aspects relating to the establishment of petroleu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 question was put in this regard, the learned Government Pleader was unable to give a satisfactory answer as regards the said inconsistency. The learned Government Pleader was also unable to give a satisfactory answer as regards the doubt expressed by the court as to the applicability of the guidelines issued by the Ministry of Road Transport and Highways, Government of India for the roads in the State other than National Highways, over which the said Ministry has no control. The learned Government Pleader was also unable to explain why the MORTH Norms were not made part of the PWD Manual while the IRC Guidelines have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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