JUDGMENT [ENTITY], J.
1. This writ petition has been preferred with the prayer to cancel the selection of respondent No. 7 (Smt. [ENTITY]) as dealer of [ENTITY] Liquified Petroleum Gas ('dealership in short), of the [ENTITY] (respondent No. 2), at [ENTITY], district Bhojpur, and for the further direction to respondent No. 2 to appoint the petitioner in her place.
2. The writ petition was originally preferred with the prayer to complete the procedure for award of the dealership in question in accordance with the result published on the notice board of the Dealers Selection Board on 27-3-1999, wherein the petitioner figured at serial No. 1 amongst the list of candidates selected for award of the dealership and to award the same accordingly to the petitioner. It appears that during the pendency of the present writ petition, the petitioner filed an interlocutory application bearing [CASE NUMBER], in substance seeking to challenge the selection process on the ground that respondent No. 7 was selected in violation of one of the conditions of the advertisement, namely, that she is not a resident of village [ENTITY], and for the further direction to respondent No. 2 to appoint him in her place because he figured at serial No. 2 of the merit list (Annexure 7). This amendment application was allowed by order dated 14-2-2000, and permission was granted to amend the writ petition. By the same order, Smt. [ENTITY] was directed to be impleaded as respondent No. 7. The net result is that the petitioner now assails the selection of respondent No. 7 on the ground that she is not a resident of village [ENTITY], which is one of the conditions of the advertisement. It appears from the records that [ENTITY] and [ENTITY] have been used inter changeably.
3. Respondent No. 2 had published an advertisement which had appeared in the local dallies on 2-6-1998 (Annexure 1) inviting applications, inter alia, for the dealership for village [ENTITY], district Bhojpur, one of the conditions of which was that izR;sd LFkku ds lkeus fn;s x;s ftys dk fuoklh gksuk pkfg;sA vide paragraph 2 (gha) of the advertisement 2-6-1998 was the last date for submission of application, which was extended on two occasions and ultimately 28-8-1998 was declared to be the last date for submission of applications. The petitioner, respondent No. 7, and others submitted their applications. The final merit list of three persons was published on 27-3-1999 (Annexure 7), wherein respondent No. 7 figures at serial No. 1, and the petitioner figures at serial No. 2. The petitioner submitted representation dated 17-4-1999 (Annexure 6), alleging therein that respondent No. 7 is not a resident of [ENTITY]. paragraphs 4. 5 and 8 of which are set out hereinbelow lor the facility of quick reference :
"(4) The day of interview in LPG Dealer Selection Board Officer, Mrs. [ENTITY] was given V.I.P. treatment, and entertained by the office staff in a separate room, where as other candidates were waiting for Interview in a common hall.
(5) [ENTITY] along with her husband is residing at Patliputra Colony at Patna for last 20 years and owns a house. She rarely goes to [ENTITY] where she has declared her residence.
xx xx xx xx xx xx xx xx xx xx
(8) A high ranking officer in Bharat Petroleum residing at Patiputra near [ENTITY]'s house and other two M.Ps. who are far related, to her, have influenced this allotment ."
The same Was addressed to the Chairman of the I.O.C. with copies to the Ministry of Petroleum and Natural Gas; General Manager, [ENTITY]: Vigilance Departments of the [ENTITY] Ltd. at Mumbai and Calcutta. It appears that no enquiry was at all done into the allegations made in this complaint and it has been decided to give the dealership to respondent No. 7 as per the final selection list dated 27-3-1999 (Annexure 7). Hence the present writ petition.
4. Learned counsel for the petitioner submits that in view of the petitioner's complaint dated 17-4-1999 (Annexure 6), it was incumbent on the appropriate authorities to examine the grievance raised therein. Learned counsel for respondent Nos. 3 and 4 (Dealers Selection Board), submits that it is manifest from the original records which have been produced before me that respondent No. 7 had submitted along with her application the certificate dated 12-2-1998, issued by the Circle Officer, Koilwar (Bhojpur), certifying that respondent No. 7 is a permanent resident of [ENTITY]. district Bhojpur. He is, therefore, right in his submission that there was no occasion for respondent Nos. 3 and 4 to probe any further in the matter. The certificate was on the face of it up to the mark. In so far as the petitioner's complaint dated 17-4-1999 (Annexure 6) is concerned, he submits that the same never reached the Dealers Selection Board and, therefore, could not be examined. As stated hereinabove, the same was addressed to the Chairman, [ENTITY] Ltd., Mumbai, with copies thereof to the Ministry of Petroleum and Natural Gas, New Delhi, General Manager, [ENTITY], Calcutta, and the Vigilance departments of the [ENTITY] at Mumbai and Calcutta. I am unable to accede to this contention for the reason that it is manifest from a plain reading of para 4.1 of the Manual for Selection of Dealers/Distributors that If the complaints are received by the Ministry of Petroleum and Natural Gas, the Oil Company, or the Dealers Selection Board, the same shall be referred to the concerned Chairman of the Dealers Selection Board. Paragraphs 4.9 and 5.12 of the Manual are set out hereinbelow for the facility of quick reference :
"4.9 GRIEVANCE REDRESSAL SYSTEM : All the complaints against selection of dealerships/distributorship received by MOP&ng/Oil Company/DSB will be referred to the concerned Chairman of the DSB. The Co-ordinator will place all such complaints / grievances before the Chairman of the Board for his direction/decision. The decision of the Chairman will be conveyed by the Coordinator to the concerned Oil Company for further enquiry/compliance.
In the event of an enquiry to be conducted against the empanelled candidate(s), an officer not below the rank of General Manager of the concerned Oil Company will nominate two officers, for enquiry, who will submit their report within 30 days from the date of constitution of such enquiry. The Oil Company, thereafter, will forward the enquiry report to the DSB. The Chairman, in consultation with Members of DSB at any particular time, will convey his directions/order for compliance by the Oil Company.
xx xx xx xx xx 5.12 COMPLAINTS:
1. Place the complaints received by the Board before the Chairman of the Board for his directions/instructions.
2. Convey the directions/Instructions of the Chairman to the concerned Oil Co for Investigation and report.
3. Place the report received from the Oil Co. before the Chairman and convey Chairman's decision to the concerned Oil Co."
I have, therefore, no hesitation in rejecting the contention advanced on behalf of respondents Nos. 3 and 4, as well as respondent Nos. 2, 5 and 6 ([ENTITY]), that the complaint was not examined because it was not addressed to the Dealers Selection Board. It is manifest from the Manual that it was incumbent on the Ministry of Petroleum and Natural Gas (respondent No. 1); the [ENTITY] (respondent No. 2) as well as the other persons to whom the complaint was addressed to forward the same to the Chairman of the Board (respondent No. 3), for appropriate orders in accordance with the Manual. This situation, therefore, leads to the conclusion that respondents Nos. 3 and 4 as well as respondent Nos. 2, 5 and 6 are guilty of abdication of essential duties and functions as well as complete in action. This assumes greater importance in view of paragraphs 4 and 8 of the e complaint set out hereinabove.
5. While assailing the impugned selection, learned counsel for the petitioner submits that respondent No. 7 is not a resident of village [ENTITY]. He submits that her husband and her husband's father hall from village [ENTITY]. but they have abandoned their residence at [ENTITY] and have now shifted to Patna for many years. In order to establish this position, learned counsel for the petitioner has brought on record the telephone bill dated 18-1-2000 (Annexure 8), which is in the name of [ENTITY], the husband of respondent No. 7, at their residence at Nehru Nagar, PO Patliputra, Patna. He has also brought on record the voters list of village [ENTITY] (Annexure 9), which has been updated till 1998, and respondent No. 7 does not figure therein. He also invites my attention to paragraph 15B of his amendment application which is to the following effect :
That Smt. [ENTITY] is the wife of one Sri [ENTITY]. She permanently resides with her husband in Nehru Nagar, in the town of Patna for over the last 10-15 years in the house of one [ENTITY] son of Sri [ENTITY]. The petitioner craves leave to place on record the latest telephone bill dated 18-1-2000 issued in the name of her husband with his address at Nehru Nagar which prima facie demonstrates that she is a permanent resident of Patna District. The contents of the bill are also evidence of the nature of permanent residence at Patna with her family being engaged in a permanent vocation here'. The petitioner further states that he has learnt that there is an eviction suit going on against her for over the last 10 years filed by the said [ENTITY]. The said [ENTITY] is a contractor in the Patna Medical College Hospital for washing linen and clothes. It is for this reason that her name or her husbands name does not find place in the voters list of village [ENTITY] in the District of Bhojpur, (corrected up to 1998) of which she has represented herself to be a resident and obtained the dealership."
He also invites my attention to the averments made in paragraph 11 of the Rajoinder of respondent No. 7 to the petitioners amendment application which is set out herein below for the facility of quick reference :
"11. That, so far the statement made in paragraph No. 15B of the amendment petition is concerned, it is partly accepted and partly denied. It is stated that the husband of the Answering Respondent resides at Gosain Tola, Harijan colony, Nehru Nagar, P.S. Patliputra, Patna, for few years for the purposes of better education of their children but so far the Answering Respondent is concerned she permanently resides at the paternal house of her husband at [ENTITY], P.S. Kowar, District Bhojpur along with the other family members of her husband like brother and other family members and the she often used to visit her residence at Gosain Tola, to look after her children."
The petitioner, therefore, submits in substance that respondent No. 7 with her family is living in Nehru Nagar, Patna, for 20 years and are tenants in the house of one [ENTITY], and she is not a resident of village [ENTITY].
5.1 On the other hand, learned counsel for respondent No. 7 has submitted that the evidence produced by respondent No. 7 before this Court is inadequate to establish the position that she is not a resident of village [ENTITY], she has brought on record Annexure R3, the rent receipt in the name of late [ENTITY], father of the husband of respondent No. 7, in an effort to establish that the family has landed property at [ENTITY]. Annexure R4 is the family's ration card dated 10-1-1999 at [ENTITY] which includes the name of respondent No. 7, her husband, and others. Annexure R5 is the petitioner's certificate dated 16-6-1999, issued by the Circle Officer, Koilwar, certifying that respondent No. 7 is a resident of village [ENTITY] which appears to be adjoining village [ENTITY]. Annexure R6 is the affidavit sworn by [ENTITY] in whose house the family of respondent No. 7 is lying in Patna, which is to the effect that respondent No. 7 mostly lives at her Sasural at [ENTITY] and often visits Patna at intervals, and that [ENTITY] is residing at Patna along with two children for the purpose of their education. It also states that he has not filed an eviction suit against [ENTITY]. This affidavit was sworn on 14-2-2000. Annexure R7 is the voters list of village [ENTITY] which has been updated till 2000, and includes the name of respondent No. 7. In view of these materials, respondent No. 7 submils that her husband has landed property at [ENTITY] Rajpura, and that her husband has been living in Patna for the sake of education of their children.
5.2 The scrutiny of the aforesaid materials leads me to the conclusion that the husband and father-in-law of respondent No. 7 hailed from [ENTITY], but now seem to be permanently living in Patna. It is manifest from the telephone bill as well as the averments made in paragraph 11 of the Rejoinder that the family is permanently living in Patna. The aforesaid statement to the effect that the husband of respondent No. 7 is living in Patna for few years for the purpose of better education of the children illumines the position in two years, firstly, they are living in Patna for the sake of education of the children, but the second part of the statement that respondent No. 7 is living at [ENTITY] is obviously in the estimate of the Court an incorrect statement for the reason that it ' does not normally obtain in a middle class family that mother would be away from school going children. In so far as the evidence brought on record by respondent No. 7 is concerned, the same does not inspire confidence. The ration card of respondent No. 7 for village [ENTITY] is dated 10-1-1999 (Annexure R4), is of a much later date than the last date for submission of the application, which is obviously a got up document for the purpose of this case and is not worthy of reliance. The Affidavit of [ENTITY] (Annexure R6), in whose house the family of respondent No. 7 is living in Patna. is wholly unworthy of reliance being of a much later date and has obviously been sworn to help respondent No. 7. Learned counsel for the petitioner has, therefore, rightly relied on a Division .Bench judgment of this Court reported in [PRECEDENT], which is also related to allotment of a retail outlet of petrol pump and the petitioner therein had produced certificates which were of dates much after the date of submission of the application The Division Bench had, therefore, rejected the certificate of residence as unworthy of reliance, being a got up document. The Division Bench had also taken into account the allegation against the petitioner that he being a political leader of a party, had obtained the document collusively, A similar allegation has been levelled against respondent No 7 in the present case. The voters list (Annexure R7), produced by respondent No, 7 is of the year 2000. which is obviously of a much later date. It is obvious that after the present problem started, respondent No. 7 made efforts and got her name included in the voters list of village [ENTITY] and, therefore, it is not worthy of reliance. On the other hand, the voters list of village [ENTITY]. produced by the petitioner, is updated till 1998 (marked Annexure 9), does not include the name of respondent No. 9. In that view of the matter, 1 have no hesitation in reaching the conclusion that respondent No. 7 is a permanent resident of Patna and has a tenuous connection with village [ENTITY] because her husband or her father in law has some landed property there which, according to respondent No. 7, is evidenced by the revenue receipt marked Annexure R3.
6. This takes me on to another important aspect of the matter, namely, the value to be attached to the factual position that the family owns certain landed property at village [ENTITY] particularly in view of the conclusion arrived at hereinabove that the family does not live there and has permanently shifted to Patna. Learned counsel for the petitioner as well as respondent No. 7 have relied on the judgment of the Supreme Court reported in [PRECEDENT] ([PRECEDENT] On a perusal of the judgment, it appears to me that the judgment really supports the contention advanced on behalf of the petitioner that landed property is not a factor to determine the residence of a person. Paragraphs 18, 19 and 29 of the judgment are relevant in the present context and are set out hereinbelow for the facility of quick reference (at pages 531-532 of AIR) :
" 18. Considering the facts of this case in the light of the statutory provisions contained in [SECTION] of the [ACT] as also the provisions contained in paragraph 5 of the "Instructions", since the parents of the respondent were. admittedly, residing in District. However, for more than 30 years, they would be treated to be "ordinarily residing" in that District and the mere fact that they held some property in a village in District Siwan in the State of Bihar would not affect their status.
19. Learned counsel for the appellants then attempted to import the concept of 'domicile' as understood in Private International law in his arguments and. contended that before a person can be said to be "ordinarily residing" at a particular place, he must satisfy all the requirements which go to constitute 'domicile'. He further contended that since the respondent was born in a village in the State of Bihar, he shall be treated to have his domicile of nativity in that State. We are not prepared to accept this contention.
XX XX XX XX XX
29. We have already explained the meanings of the words "ordinarily resident" and have found that notwithstanding that the parents of the respondent lived at one time in a village in District Siwan in the State of Bihar and that they owned some property also there, they had shifted to the State of West Bengal long ago and had been living there since then. For all intents and purposes, therefore, they shall be treated to be "ordinarily residing" in the State of West Bengal. For the State of West Bengal, the President, in exercise of his powers under [SECTION] read with [SECTION] had already declared "Nuniya" Caste as a Scheduled Caste and. therefore, the respondent was rightly treated to be a Schedule Caste candidate and was rightly appointed against a Reserved vacancy, after being declared successful al the examination held by the UPSC for the Indian Administrative and Allied Services tn 1966."
6.1 Learned counsel for the petitioner has also relied on the judgment of the Supreme Court reported in [PRECEDENT], which related to the place of residence of the parties to determine the jurisdiction of the matrimonial Court. The Supreme Court interpreted the word "residence" occurring in [SECTION] and [SECTION] of the [ACT]. The Supreme Court observed that in the context of [SECTION], the word "residence" must mean the actual place of residence and not a legal and constructive residence. It certainly does not connote the place of origin. The word "residence" is flexible one and has many shades of meaning but it must take its colour and content from the context in which it appears and cannot be read in isolation. While dealing with the facts of the case, the Supreme Court observed that the parties to the marriage originally belonged to a village within the territorial jurisdiction of the District Judge, Almora, got married in New Delhi, and the wife resided with her uncle in Delhi ever since marriage, and the husband was also a resident of Delhi being employed there, the petition for dissolution of marriage under [SECTION] filed by the husband in the Court of the District Judge, Almora, on the ground that the parties were residents of a village within the territorial jurisdiction of that Court would not be maintainable as the District Judge would have no jurisdiction to try the petition.
6.2 Learned counsel for the petitioner has rightly relied on the judgment of the Calcutta High Court reported in [PRECEDENT]. Following portion of the judgment illumines the position (at page 671) :
" According to [ENTITY]'s statement on affidavit the house and all the other properties are let out to tenants. This was confirmed by his own evidence in Court and that of another witness who said that when [ENTITY] visited Wazirabad he used to stay with the witness. [ENTITY] has described himself, in certain deeds registered al Wazirabad and in plaints, as resident there and his name is on the electoral roll. In spite of his statement that he had given up Wazirabad as a place of residence and had no intention of returning.
the Judge found that he still had the animus revertendi and a lively interest in it, that he had not severed his connection with his kith and kin or sold his ancestral property, that under [SECTION]. Civil P.C., a man may have both a permanent and a temporary residence and therefore the Court had jurisdiction. With respect to the Judge, residence is not identical with ownership, it means where a person eats, drinks and sleeps, or where his family or his servants eat, drink and sleep, 38 Cal 394, of which there was no evidence contradicting that of [ENTITY] and his witnesses. The animus revertendi is not sufficient."
6.3 Learned counsel for the petitioner is equally right in placing reliance on the judgment of the Kutch Court, reported in [PRECEDENT] which is also to the effect that the fact that the defendant had land and houses in Kutch which would not mean that they were actually and voluntarily residing in Kutch. Following portion of the judgment is relevant in the present context (at page 19) :
'The mere fact that the defendants had lands and houses in Kutch could not mean that they were actually and voluntarily residing in Kutch. A person may be originally belonging to a particular place and may hold landed property there. He may be making enquiries about the properties and he may be deriving income therefrom. This, however, does not mean that he is actually and voluntarily residing there. Residence is not identical with ownership but it means where a person eats, drinks and sleeps or where his family or his servants eat, drink and sleep. The fact that the defendants have houses in Kutch and they come to Kutch on occasions like marriages and deaths cannot be taken to mean that they were at the time of the commencement of the suit, actually and voluntarily residing in Kutch. Such visits may be rare. [PRECEDENT] and [PRECEDENT].
6.4 it may be stated that the aforesaid judgments of the Calcutta High Court and the Kutch Court related to [SECTION] of the [ACT], and a similar question of jurisdiction of the Court was involved in the aforesaid judgment of the Supreme Court in the case of [PRECEDENT].
6.5. it is thus manifest from the line of cases discussed hereinabove that continuous living at a particular place is the most important factor to determine the residence of a person. Occasional visits to look after properties, occasional visits to the place of origin, to attend to social functions or for treatment are not relevant factors to determine the residence of a person. In that view of the matter, this Court has no hesitation in concluding that respondent No. 7 is permanently living in Patna with her family for various reasons including the education of children. It is further clear that the husband and the father-in-law of respondent No. 7 hailed from [ENTITY] where they have ancestral property, but there is no evidence on record to 'show that they live there at all. In that view of the matter, this Court is of the view that the selection of respondent No. 7 for the dealership in question is in violation of one of the conditions of the advertisement and is hereby set aside.
7. This takes me on to the question of relief to be granted to the petitioner. Learned counsel for respondents Nos. 3 and 4 as well as 2, 5 and 6 have submitted that the com plaint has not been examined by the re spondent authorities and, therefore, it would be in the fitness of things to remit the matter to examine the complaint. I do not find it possible to accede to the contention for the reason that on account of inaction and abdication of functions attributable to the official respondents, this Court examined materials on record so that the matter is finally concluded. The Supreme Court has held in its judgment reported in [PRECEDENT]. that the High Court is not deprived of its jurisdiction to entertain a petition under [SECTION] merely because in considering the petitioner's right of relief, questions of facts may fall to be determined.
In a petition under [SECTION], the High Court has the jurisdiction to try Issues both of fact and law. When the petitioner raises complex questions of facts, which may for their determination require evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in writ petition, the High Court may decline to try a petition. It is equally open to the High Court on consideration of the nature of the controversy, the High Court may in exercise of its discretion go into a disputed question of fact.
7.1. In the instant case, this Court could decide the Issue of fact, namely, residence of respondent No. 7, on the basis of the affidavit evidence and the documents produced before it, without the necessity of oral evidence. Further more in order to do effective justice in writ jurisdiction and for proper application of law, facts have got to be sorted out. Therefore, there is now no justification in the present case to refer the matter back to the authorities to examine the complaint. In any case, this suggestion was made after the order was pronounced allowing this writ petition. Had the counsel for respondent Nos. 3 and 4, or the counsel for respondent Nos. 2, 5 and 6, conceded the position at an early stage of the proceeding before me that the complaint deserved to be examined at their level, then this Court may not have embarked upon the scrutiny of the materials placed before it. On the contrary, both of them strenuously supported the impugned action. The relevant portion of Para 4.10 of the aforesaid Manual reads as follows :
"4.10 Verification of empanelled candidates:
After receipt of merit panel, the concerned Oil Company will carry out Field Investigation Report (FIR). The procedure will be as under :
xx xx xx xx xx
(f) If No. 1 candidate is found ineligible as a result of the FIR, the matter will be referred by ED/GM of the concerned Oil Company to the Chairman of the DSB, who will take a decision regarding issuance of LOI to the second empanelled candidate. In such cases, the FIR will be conducted for the second empanelled candidate and if he is found eligible, LOI willbe issued to him. If, he is also found ineligible, the same process will be repeated."
The relevant portion of para 7 of the Manual reads as follows :
7. Finalisation of panel :
xx xx xx xx xx
(d) in case, after the FIR the first empanelled candidate is not found suitable for any specific reason, concerned Oil Co. will refer the matter to the Chairman who will take a decision for issue of LOI to the next empanelled candidate. If none of the empanelled candidates are found fit as a result of the FIR or found unwilling for any reason, the location may be re-advertised for a fresh selection."
Learned counsel for the petitioner has rightly relied on the judgment of the Supreme Court reported in [PRECEDENT], wherein the Supreme Court disapproved of a fresh selection process. Following portions of the Judgment occurring in paragraphs 11. 16 and 17 are relevant in the present context and are set out hereinbelow for the facility of quick reference (at pages 208-209) :
" 11 It is not therefore open to the Government to ignore the panel which was already approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same. It is not the case of the Government at any stage that the appellant is not fit to occupy the post. No attempt was made before the Tribunal or before this Court to place any valid reason for ignoring the appellant and launching a fresh process of selection.
xx xx xx xx xx
16. In the circumstances we have no hesitation in allowing the appeal and directing the respondents to appoint the appellant as Member, Sales Tax Appellate Tribunal as he is the only other person in the panel of names selected by the Select Committee and nothing has been brought out against him by the Government.
17. On the facts, we find that all the conditions set out in the office memorandum issued by the Central Government dated 14-5-1987 are fulfilled in the present case and the rejection of the appellant's name without any reason therefor is arbitrary and unconstitutional. The intention of fresh process of selection is not valid and it is hereby quashed. The appeal is allowed accordingly. No costs."
8. In the present case, it is admitted at all hands that respondent No. 7 and the petitioner figured at serial Nos. 1 and 2 of the merit list. It is manifest from the relevant provision of Manual set out hereinabove, that after the merit list is prepared and No. 1 candidate does not survive the Field Inspection Report, then the choice automatically passes on to No. 2 candidate on the panel and so on, which obviously obviates the possibility of a new panel till such time the existing panel is exhausted. Since the selection of respondent No. 7 has been declared to be invalid, it follows that the petitioner should be given the dealership of [ENTITY] in question subject to completion of verification and other formalities in accordance with the prescribed procedure. From the pattern of litigations relating to the oil Companies and the Dealers Selection Board before this Court, it is quite clear that much is wanting with them and they should tone up their administration. I have decided a number of cases relating to them, creating the impression that no attention is given to investigation of complaints for reasons best known to them. I am reminded of my judgment dated 13-3-2000 passed in [CASE NUMBER] (reported in [PRECEDENT]), and the analogous writ petitions wherein this Court held that the petitioner's complaint was not properly examined by the Bharat Petroleum Corporation Limited, notwithstanding which this Court could not grant relief to the petitioner for the detailed reasons stated therein.
9. In the result, this writ petition is allowed. The selection of respondent No. 7 as a dealer of [ENTITY] Liquified Petroleum Gas, [ENTITY] (Bhojpur) is hereby set aside and respondent Nos. 3 and 4 as well as respondent Nos. 2, 5 and 6 should appoint the petitioner as such, subject of course to the completion of verification and other formalities in accordance with the prescribed procedure.