An existing petroleum dealer challenged permission for another outlet on distance-guideline and land-filling grounds. The Court applied the precedent on a competitor's lack of standing, held that the Madras High Court's interim order was not binding, and dismissed the appeal, leaving the Single Judge's judgment undisturbed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942
W.A.No.706 OF 2020
AGAINST THE JUDGMENT IN WP(C) 32956/2019(T) OF HIGH COURT OF KERALA DATED 18.3.2020
APPELLANT/PETITIONER:
EHVEES, HINDUSTAN PETROLEUM CORPORATION LIMITED DEALER RAJEEV GANDHI BYE PASS ROAD, MANJERI, MALAPPUAM DISTRICT, REPRESENTED BY MUHAMMED GADHAFI.M, BY POWER OF ATTORNEY HOLDER-SHOUKATHALI, S/O.MUHAMMED AGED 58 YEARS, RESIDING AT MADASSERI HOUSE, KANDALAPATT, P.O, KARAKUNNU, PIN-676 123
BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SMT.PREETHI. P.V. SRI.M.V.BALAGOPAL
RESPONDENTS:
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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C.R.
JUDGMENT
Dated this the 8th day of June 2020
S.MANIKUMAR, C.J.
Instant writ appeal is filed challenging the judgment in W.P.(C)No.32956 of 2019 dated 18th March, 2020 by which a learned Single Judge disposed of the writ petition following the judgment in W.A.No.27 of 2020 and connected cases, holding that the No Objection Certificate issued in favour of 10th respondent and the commencement of the outlet will be subject to the direction contained in the judgment of the Division Bench.
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Ext.P4 objection filed by the petitioner before issuing a No Objection Certificate to the 10th respondent for commencement of a petroleum fuel station in Old Survey No.11/2 and 12/1, new Resurvey No.6/7, Block No.52 of Manjeri Village along the side of Kozhikode-Ooty State Highway at Rajeev Gandhi Bye Pass Road, Manjeri;
“5. It is submitted by the learned counsel on all sides that the Writ Appeal has been finally heard and disposed of in terms of the interim order. In the instant case, there was an interim order granted on 10.01.2020 on the basis of the directions contained in the judgment of the learned Single Judge.
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of the opinion that this Court would primarily be bound by the judgment of the Division Bench in the Writ Appeal.
In the above view of the matter, this writ petition is disposed of. The judgment of the Division Bench in W.A No.27 of 2020 and connected cases will govern this writ petition also. Appropriate steps shall be taken by the respondents to comply with the directions contained in the said judgment.”
“D. Learned Single Judge failed to consider the second ground on which the issuance of No Objection Certificate was challenged by the appellant. As can be seen from Ext.P3 proceedings of the 1st respondent a restriction was imposed against the grantee not to reclaim or fill up the land further. This is not considered by the 3rd respondent before issuing the N.O.C.”
He further contended that it is evident from Ext.P3 proceedings of the 1st respondent, a restriction was imposed against the grantee not to reclaim or fill up the land further. According to the appellant, this is not considered by the third respondent before issuing the NOC. Learned counsel for the appellant also submitted that the learned Single Judge has failed to notice that the decision of
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the Division Bench in the Writ Appeal was solely based on withdrawal of IRC guidelines. The notification No.28 came into effect from 1.12.2019. Material fact that the above notification has been stayed by the Hon'ble High Court of Madras in two writ petitions namely, W.P.(C)No.4976/2020 and W.P.M.P.No.5876/2020. Eventhough the interim order was placed before the learned Single Judge, there is no consideration to the effect of the interim order. Therefore, the appellant submits that the matter requires reconsideration, since the learned Single Judge did not go into the merits of the case.
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the writ petition that it is the respective State Government, which is responsible for issuing any guideline and granting access permission to the fuel station along the State Highways.
“48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a “person aggrieved” and has no locus standi to challenge the grant of the no-objection certificate.
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frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well-established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.”
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decisions -
“(i) In Empire Industries Vs. UOI AIR 1986 SC 662, the Hon'ble Supreme Court has made it clear that interim orders passed by the Courts are not precedent within the meaning of Article 141.
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(ii) In Vishnu Traders v.State of Haryana 1995 Suppl (1) SCC 461, the Supreme Court has observed as under:-
"In the matters of interlocutory orders, principle of binding precedent cannot be said to apply. However, the need for consistency approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that
there is an assurance of consistency, uniformity, predictability and certainty of judicial approach."
(iii) The Hon'ble Supreme Court in the case of State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha , (2009) 5 SCC 694. The Hon'ble Supreme Court held that
“interim directions based on tentative reasons, restricted to peculiar facts of the case involving extraordinary situation have no value of precedent and the interim order which does not finally and conclusively decide an issue cannot be a precedent. Apart from above, it is also settled law that the interim order and direction issued in a case binds the parties to that case only and that too, till the final decision of the matter by final judgment. Not only this but what is binding in the interim order is the ultimate direction and order which has been passed by the Court and any finding recorded in the interim order on any issue is not binding on even the parties in the same suit or
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litigation, what to say it be binding upon stranger to the litigation. Any decision on any issue in interim order is also not binding upon the same Court which has passed it. Because of this reason only the Court can decide and is required to decide the issues finally in final judgment uninfluenced by any prima facie finding given in interim order. Therefore, not only that, the interim order is not precedent for stranger to the litigation in which such order has been passed but also is not a precedent for the party to litigation in whose litigation such order has been passed. To that extent, there may be force in the submissions of the learned counsel for the petitioners and the counsels for the students who have been given admission by the petitioners but in the present facts of the case, it is no end of the controversy.”
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decision of another High Court, whether it is of the same strength or of a higher composition. No doubt, Judicial Precedents, across the country should maintain uniformity, and that there should be harmony in deciding a point of law, to be followed, but that does not mean that a High Court cannot decide a question of law, on its own, but have to simply follow the decision, decided by another High Court. In a given case, when a Central law is interpreted, every High Court is empowered to independently consider, the question of law, dehors the decisions of other High Court.”
(ii) In M. Subbarayudu v. State reported in AIR 1955 Andhra 87, a Hon'ble Full Bench of the Andhra Pradesh High Court held that,- the binding nature of the precedents of one Court on another depends
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upon the fact whether such Courts are Courts of co-ordinate jurisdiction or not and co-ordinate Jurisdiction does not connote the same idea as concurrent jurisdiction or simultaneous jurisdiction. The connotation of the word 'co-ordination' is not the same as that of the words 'concurrence or simultaneity'. Simultaneity or coexistence is not a necessary ingredient of coordination. Co-ordination is more comprehensive and takes in successive acts of the same status or level.
(iii) In Anand Municipality v. Union of India reported in AIR 1960 Guj. 40, a Hon'ble Full Bench of the Gujarat High Court applied the principles of binding effect, declared in M. Subbarayudu's case (cited supra).
(iv) A Full Bench of the Gujarat High Court in State of Gujarat v. Gordhandas Keshavji Gandhi reported in AIR 1962 Guj. 128, has considered the question as to binding nature of judicial precedents. K. T. Desai, CJ., in his judgment, observed:
“Judicial precedents are divisible into two classes, those which are authoritative and those which are persuasive. An authoritative precedents is one which judges must follow whether they approve of it or not. It is binding upon them. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a
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State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i. e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of coordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond's jurisprudence, 11th Edn. at page 199 to 217.
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A decision passed sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind.”
(v) In State of Orissa v. Sudhansu Sekar Misra, reported in AIR 1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, and held as follows:-
"A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem , reported in 901 AC 495.
"Now before discussing the case of Allen v. Flood , reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that 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 governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas
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every lawyer must acknowledge that the law is not always logical at all.
It is not profitable task to extract a sentence here and there from a judgment and to build upon it....."
(vi) In Eknath Shankarrao Mukhawar v. State of Maharashtra reported in AIR 1977 SC 1177, it was held that judicial discipline as well as decorum suggested only one course when a Bench wanted to differ from the decision of a co-ordinate court and that was to refer to a larger Bench.
(vii) In Ayyaswami Gounder v. Munuswamy Gounder reported in (1984) 4 SCC 376, it was held that a single Judge of a High Court not agreeing with earlier decision of single Judge of the same Court, should refer the matter to a Larger Bench and propriety and decorum do not warrant his taking a contrary view.
(viii) In Sonal Sihimappa v. State of Karnataka and Ors., reported in AIR 1987 SC 2359, it was observed, In a precedent-bound judicial system, binding authorities have got to be respected and the procedure for developing the law has to be one of evolution.
(ix) The Hon'ble Chief Justice Pathak, speaking for the Constitution Bench, in Union of India v. Raghubir Singh reported in AIR 1989 SC 1933, said:
“The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions,
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and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.”
(x) In Sundaradas Knyalal Bhathija v. The Collector, Thane reported in AIR 1991 SC 1893, the law is stated thus:
“17. It would be difficult for us to appreciate the judgment of the High Court. One must remember the pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is subversion of judicial process not to follow this procedure.”
(xi) In Philip Jeyasingh v. The Jt. Regr. of Co-op. Societies reported in 1992 (2) MLJ 309, a Full Bench of the Hon'ble Madras High Court, held as follows:
“49. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio decidendi which the
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judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges. This is because Judges, while deciding a case will give their own reasons but may not distinguish their remarks in a right way between what they thought to be the ratio decidendi and what were their obiter dicta, things said in passing having no binding force, though of some persuasive power. It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case". A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application.”
(xii) A Hon'ble Division Bench of Bombay High Court in CIT v. Thana Electricity Supply Ltd. , reported in (1994) 206 ITR 727 (Bombay), held as follows:
“(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein.
(b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.
(c) The position in regard to the binding nature of the decisions of a
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High Court on different Benches of the same court may be summed up as follows:
(i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India v. Yadav Engineer and Contractor AIR 1982 SC 1302).
(ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench.
(iii) Where there are conflicting decisions of courts of coordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions.
(d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best,
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have only persuasive effect.”
(xiii) In Union of India v. Dhanwanti Devi, reported in (1996) 6 SCC 44, the Hon'ble Supreme Court has explained, what constitutes a precedent, and held as follows:-
"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla reported in (1993) Suppl. 2 SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment
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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 is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle 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.
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
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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.”
(xiv) In Government of W.B v. Tarun Roy and others , reported in (2004) 1 SCC 347, as regards binding precedent of a judgment, the Hon'ble Supreme Court at paragraph 26, observed as follows:-
“26.......... If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.
(xv) In State of Punjab v. Devans Modern Breweries Ltd. , reported in (2004) 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes per incuriam . Paragraphs 334 to 336, 339 and 343 of the judgment are relevant and they are as follows:-
“334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure:
"A precedent influences future decisions. Every
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decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and 'malleable'... No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)"
".. It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 14647.)"
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these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes.
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be said to have been passed sub silentio or rendered per incuriam .”
(xvi) In Raman Gopi v. Kunju Raman Uthaman reported in 2011 (4) KLT 458, a Hon'ble Full Bench of the Kerala High Court held that,“when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co-equal judges or lesser number of judges of that court. Further, it is settled law that, if a decision has been rendered by the same High Court , then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value.”
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expressed by some High Courts and disapproved the contrary views expressed by other High Courts. On this proposition, we do not propose to burden the instant judgment with the decisions of the Hon'ble Supreme Court.
Pending interlocutory applications, if any, shall stand closed.
sd/- S.MANIKUMAR CHIEF JUSTICE
sd/-
SHAJI P. CHALY JUDGE
jes
3 issues framed by the court
Did the existing petroleum dealer have standing to challenge the no-objection certificate for another outlet?
Did the Madras High Court's interim order bind this Court in the challenge to the proposed petroleum outlet?
Was the writ court bound by its own High Court's Division Bench decision in W.A.No.27 of 2020?
Colour shows how this judgement treated each authority
W.A.No.27 of 2020Followed¶180
Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and othersApplied¶60
(1976) 1 SCC 671 · Who else cites this
W.P.No.4976 of 2020 and W.M.P.No.5876 of 2020 dated 27.2.2020Distinguished¶180
Kusum Ingots and Alloys Ltd v. Union of India and OrsExplained¶85
(2004) 6 SCC 254 · Who else cites this
Empire Industries Vs. UOIRelied on¶73
AIR 1986 SC 662 · Who else cites this
Vishnu Traders v.State of HaryanaRelied on¶77
1995 Suppl (1) SCC 461 · Who else cites this
State of Assam v. Barak Upatyaka D.U. Karmachari SansthaRelied on¶80
(2009) 5 SCC 694 · Who else cites this
M. Subbarayudu v. StateRelied on¶93
AIR 1955 Andhra 87 · Who else cites this
Anand Municipality v. Union of IndiaRelied on¶97
AIR 1960 Guj. 40 · Who else cites this
State of Gujarat v. Gordhandas Keshavji GandhiRelied on¶98
AIR 1962 Guj. 128 · Who else cites this
State of Orissa v. Sudhansu Sekar MisraRelied on¶111
AIR 1968 SC 647 · Who else cites this
Eknath Shankarrao Mukhawar v. State of MaharashtraRelied on¶118
AIR 1977 SC 1177 · Who else cites this
Ayyaswami Gounder v. Munuswamy GounderRelied on¶119
(1984) 4 SCC 376 · Who else cites this
Sonal Sihimappa v. State of Karnataka and Ors.Relied on¶120
AIR 1987 SC 2359 · Who else cites this
Union of India v. Raghubir SinghRelied on¶121
AIR 1989 SC 1933 · Who else cites this
Sundaradas Knyalal Bhathija v. The Collector, ThaneRelied on¶126
AIR 1991 SC 1893 · Who else cites this
Philip Jeyasingh v. The Jt. Regr. of Co-op. SocietiesRelied on¶128
1992 (2) MLJ 309
CIT v. Thana Electricity Supply Ltd.Relied on¶133
(1994) 206 ITR 727 (Bombay)
Union of India v. Dhanwanti DeviRelied on¶147
(1996) 6 SCC 44 · Who else cites this
Government of W.B v. Tarun Roy and othersRelied on¶156
(2004) 1 SCC 347 · Who else cites this
State of Punjab v. Devans Modern Breweries Ltd.Relied on¶158
(2004) 11 SCC 26 · Who else cites this
Raman Gopi v. Kunju Raman UthamanRelied on¶175
2011 (4) KLT 458
2 provisions across 1 enactments
EHVEES
THE DISTRICT COLLECTOR, MALAPPURAM
THE EXECUTIVE ENGINEER, PWD ROAD DIVISION, MANJERI
THE ADDITIONAL DISTRICT MAGISTRATE, MALAPPURAM
THE DISTRICT MEDICAL OFFICER, HEALTH, MALAPPURAM
THE DISTRICT SUPPLY OFFICER, MALAPPURAM
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
