IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11145 of 2008 SANTOSH KUMAR JHA, son of late Gunanand Jha, resident of village Andhara Thari, P.O.Thari P.S.Andhara Thari,Dist. Madhubani—petitioner Versus 1.THE STATE OF BIHAR 2.Sub Divisional Officer, Jhanjharpur, Dist. Madhubani 3.Prakhand Vikas Padhadikari, Andhara Thari, Dist. Madhubani 4.The District Magistrate, Madhubani-respondents ----------- For the petitioner: Mr.Raghunath Kumar,Advocate For the State : Mr.Vishwambhar Prasad,A.C. to G.P.4. ----- 8. 5.3.2009 Heard learned counsels for the parties. The petitioner seeks direction upon the respondents to issue residential certificate in favour of the petitioner. The petitioner‟s daughter Akankchha Jha had appeared at the Bihar Combined Competitive Entrance Examination, 2008 and was declared successful for PCB group, popularly known as Medical Education. Thereafter a letter dated 21.6.2008 was issued to the daughter of the petitioner directing her to appear for counseling/interview on 9.7.2008 at 2 P.M. She was required to produce certain documents for which documents list was annexed at the foot of the letter. Serial no.6(a) of the documents list, 2 which is relevant in the present matter, is in the following terms : “Residential Certificate clearly mentioning (i) letter number, (ii) date of issue, (iii)names of the candidate and his/her father/mother along with the full details of the residence and his/her status as permanent resident/domicile of Bihar. The Residential Certificate must be issued by the DM of the district of candidate‟s permanent residence. In case, this is issued by SDO (Civil)/ADM authorized by DM, the same must be countersigned by the DM concerned” The requirement therefore is that the residential certificate is to be that of the permanent resident/domicile of Bihar which is to be issued by the DM of the District of candidate‟s permanent residence and in case the same is issued by SDO(Civil)/ADM authorized by DM it must be countersigned by the DM concerned. In view of the aforesaid requirement the petitioner applied for residential certificate before the authorities along with all the papers including photo copies of ration card, provisional khatian, rent receipt and affidavit. The petitioner claims that the Ward Member of the Panchayat and Up Mukhiya made recommendation in his favour but subsequently it appears that the Mukhiya has made an adverse report that the 3 petitioner is residing out of the State for a long period of time and, thus, is not entitled to residential certificate. The grounds mentioned in the report of the Mukhiya and Panchayat Secretary are that none of his family members are named in the voters list or in the BPL list and for so many years the petitioner is staying at Varanasi with his family members and, accordingly, recommendation for residential certificate was not made. The case of the petitioner is that the petitioner‟s father held and acquired moveable and immoveable property in village Andhara Thari in the district of Madhubani which devolved upon the petitioner and his brother on the death of the father; the names of the petitioner and his brother have also been mutated by the Anchal Adhikari in the Land Register II and the State is receiving land revenue from them under rent receipts issued by the competent authority in which petitioner‟s name appears. It is stated that the petitioner‟s father was in service in Jhumaritelaya in the undivided State of Bihar, but which now falls in the State of Jharkhand, and had constructed a residential house there and 4 the petitioner and his brother after the death of their father hold and possess the said house along with the landed property in the native village. Learned counsel for the petitioner submits that it is evident from the khatian of the residential house as also of the agricultural and orchard land and the rent receipts that the petitioner is a permanent resident of the village in question within the State of Bihar and for the said reason the authorities should not have denied permanent residential certificate to him. It is submitted that his cousin with whom he has joint possession over the ancestral house and land has also sworn affidavit in this regard and the said cousin‟s name is also entered in the voters list and he has filed affidavit to that effect. The said affidavit is also supported by further affidavits of member of Panchayat Samiti and Ward Member of Andhara Thari Gram Panchayat, both of whom have supported the fact that the permanent residential house bearing no.24 of the petitioner along with his cousin exists in the said village. 5 Learned counsel for the petitioner further submits that there is no denial of the above statement in the counter affidavit filed on behalf of the State respondents and this proves those facts in favour of the petitioner which, according to him, would be sufficient for grant of permanent residential certificate. It is contended that mere residence in another State on account of being in service there, namely, at Varanasi in U.P., cannot have the effect of changing the permanent residential status of the petitioner or his domicile of origin in the State of Bihar. So far as the non-existence of the name in the voters list is concerned, it is urged by learned counsel for the petitioner that for the purpose of his service he is residing in Varanasi and there is thus no occasion for him to be enumerated in the voters list in his permanent residential area. It is further contended that the petitioner is not a person living below the poverty line and hence his name cannot find place in such list. Moreover it is submitted that existence of name in the voters list can only be evidence of taking up of residence as an ordinary 6 resident in a particular area for the time being and it does not lead to the conclusion of being a permanent resident of that area. Learned counsel for the State, on the other hand, states on the basis of the certificate of the Mukhiya and Member of Panchayat Samiti that the petitioner being a resident outside the State for the last 25-30 years is not entitled to residential certificate. In support of the same, learned counsel relies upon a decision of the Supreme Court in the case of Union of India & ors. Vs. Dudh Nath Prasad : (2000)2 SCC 20, particularly upon paragraphs 14 and 16 of the said decision which are as follows: “14. The word “reside” has been defined in Oxford Dictionary as “dwell permanently or for a considerable time; to have one‟s settled or usual abode; to live in or at a particular place”. The meaning, therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a “considerable time”.” “16. If the two meanings referred to above are to be read along with the word “ordinarily”, it becomes clear that a person, before he can be said to be “ordinarily residing” at a particular place, has to have an intention to stay at that place for a considerably long time. It would not include a flying visit or 7 a short or casual presence at that place.” Learned counsel also relies upon another decision of the Supreme Court in the case of Bhagwan Dass & anr. Vs. Kamal Abrol & ors.: 2005(3) PLJR 122(SC), paragraphs 6 and 11 of which are quoted below : “6. The word „resident‟ is in common usage and many definitions were attributed to it in different decisions. Nevertheless, it is difficult to give an exact definition for the term is flexible, elastic and somewhat ambiguous. The meaning of the word „resident‟ in itself creates certain doubts. It does not have any technical meaning and no fixed meaning, would be applicable in all the facts and circumstances. It is used in various senses and has received various interpretations by the Courts. Generally, the construction of the term is governed by the connection in which it is used and it is dependent on the context of the subject matter, and the object, the purpose or result designed to be accompanied by its use, and the meaning has to be adduced from the facts and circumstances taken together in each particular case. The word „resident‟ as defined in Oxford Dictionary is “to dwell permanently or for considerable time, to have one‟s stay or usual abode, to live in or at a particular place.” Similarly, the Webster‟s Dictionary has defined it as “to dwell permanently and for any length of time” and words like dwelling place or abode are held to the synonymous. From the above it can be seen that the term „residence‟ makes 8 it clear that the word „residents‟ includes two types which are : (1) a permanent residence and (2) a temporary residence. First type of residence from all the permanent dwelling which means that the person has settled down at a particular place permanently and regularly for some purpose. The second type refers to a situation that the person is not residing at place forever but residing at a place for a temporary period or not for a considerable length of time. This is also referred to a temporary living in a place. Hence, in one place the word „residence‟ is interpreted in the strict sense to include only permanent living at a place which may be referred to a domicile and in the second place the word is interpreted flexible sense to show a temporary or tentative residence.” “11. From the aforesaid analysis it is apparent that the word „residence‟ is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of „residence‟. There are two classifications of the meaning of the word „residence‟. First is in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. The de facto concept of residence can also be understood clearly by the meaning of the word „residence‟ as given in the Black Law Dictionary, 8th Edition. It is given that the word residence means bodily presence as 9 an inhabitant in a given place. Thus de facto residence is also to be understood as the place where one regularly resides as different to the places where he is connected to by mere ancestral connections or political connections or connection by marriage.” On a consideration of the materials on the record as also the decisions cited by learned counsel for the State, this Court does not find any force in the contention of learned counsel for the State. It is evident from the materials on the record that the petitioner has succeeded in establishing the fact that his ancestral house is still in existence in his village home of which he is in joint ownership and possession with his cousin and further agricultural and orchard lands are jointly owned by him in the area. In support of the same the revisional survey khatian and the rent receipts have been produced. The same have not at all been denied by the respondent-State in its counter affidavit. Moreover, it is clear from the decisions cited that the question of residence is a mixed question of law and fact and has to be decided keeping in mind the facts and circumstances of each case and upon the context and the purpose for which the residential requirement is sought. 10 In Dudh Nath Prasad‟s case the Supreme Court has considered the fact that domicile of origin differs from domicile of choice on account of the fact that its character is more enduring, its hold stronger and less easily shaken off. It has further been pointed out in the said decision that residence and domicile carry the same meaning, inasmuch as both refer to the permanent home. It is evident from the letter dated 21.6.2008 issued to the petitioner‟s daughter that what was sought by the said letter was the residential certificate along with full details of the residence and status as permanent residence/domicile of Bihar. Nothing has been brought on the record by the State authorities to show that the permanent resident/domicile of Bihar in relation to the petitioner has been shaken off by mere fact that he is in service in the State of U.P. It is evident that the petitioner still continues to retain his ancestral home in his village as also his ancestral lands. The said facts have not been denied in the counter affidavit. In the above circumstances, this Court is of the view that the petitioner was entitled to 11 the issuance of a permanent residential certificate in his favour by the respondent authorities. The writ application is, accordingly, allowed and the competent authority as required by Annexure-1, namely,the District Magistrate, Madhubani is directed to issue the residential certificate in favour of the petitioner within a period of two weeks from the date of receipt/production of a copy of this order. (Ramesh Kumar Datta,J.) spal/