IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 13, 14 and 103 of 1997 Judgment reserved on 9.5.2007 Date of decision 17.5.2007 (1) Kamal Abrol versus Bhagwan Dass & others (2) Kamal Abrol versus Bhagwan Dass & others (3) Hindustan Petrolium Corpn. & another versus Bhagwan Dass and others. Coram The Hon’ble Mr. Justice : Surjit Singh, Judge. Whether approved for reporting?1 For the appellants: (see overleaf) For the respondents : ( see overleaf) Surjit Singh, Judge These three appeals arise out of the same judgment and decree, i.e. judgment and decree dated 27.12.1996, of the learned District Judge and so they are being disposed of by a common judgment. 2. Appeals No. 13 and 14 of 1997 have been filed by Smt. Kamal Abrol, who was impleaded as defendant No. 4 in the main suit. She shall hereinafter be referred to as defendant No. 4. Appeal No. 103 of 1997 has been filed by Hindustan Petroleum Corporation Ltd., which was impleaded as defendant No. 3 in the suit. So the appellant in this appeal shall be referred to as defendant No. 3. Respondents No. 1 and 2 in all the 1 Whether reporters of the local papers may be allowed to see the judgment? …2… three appeals had filed the suit and, therefore, they shall be referred to as the plaintiffs. Union of India, The Oil Selection Board and Abhey Singh, respondents in all the three appeals, were impleaded as defendants No. 1, 2 and 5, respectively, in the suit, therefore, they shall be referred to as such in the judgment. 3. First the relevant facts may be noticed. Defendant No. 3 Hindustan Petroleum Corporation invited applications through a public notice for appointment of distributor / dealer for Liquefied Petroleum Gas (LPG) with place of business at Kangra. As per notice, unemployed Graduates, who were residents of Kangra District and having family income of not more than Rs.24,000/- per annum, were eligible. There were a couple of more eligibility conditions, which are not relevant for deciding the appeals and so the same need not be stated. The plaintiffs (who had constituted a partnership concern) and defendants No. 4 and 5 were found eligible along-with some other persons. They were called for interview. Finally a panel of three candidates, including the plaintiffs (together as one candidate on account of their being a partnership concern), defendants No. 4 and 5, was prepared by the Selection Board, i.e. defendant No. 2, and submitted to defendant No. 3 for appointment of one of them as dealer / distributor. Name of defendant No. 4 was at serial number one in the selection list. She was appointed as dealer / distributor by defendant No. 3. The plaintiffs challenged her appointment, inter alia, on the grounds that she was not a resident of Kangra District and her family income was also more than Rs.24,000/- per annum. 4. Before the suit was filed, the plaintiffs and defendant No. 5, whose names also figured in the selection list, filed two separate writ …3… petitions in the High Court of Punjab & Haryana. Those writ petitions were dismissed with the finding that disputed questions of fact were involved and, therefore, the appropriate remedy was to approach the Civil Court. The plaintiffs then filed the suit out of which these appeals have arisen. Prayer was made for canceling the appointment of defendant No. 4 as distributor / dealer. Issuance of mandatory injunction directing defendants No. 2 and 3 to appoint the plaintiffs as distributor / dealer, after cancellation of the distributorship / dealership of defendant No. 4, was also sought. 5. Suit was contested by defendant No. 2, i.e. the Selection Board, defendant No. 3, i.e. Hindustan Petroleum Corporation, and defendant No. 4 Kamal Abrol. Separate written statements were filed by these three defendants. Defendants No. 2 and 3 pleaded that since the writ petitions were filed in the High Court of Punjab & Haryana at Chandigarh and those were dismissed on the ground that disputed questions of facts were involved, the Civil Court at Chandigarh alone had the territorial jurisdiction to decide the suit. Defendant No. 4 pleaded that the Civil Court in Kangra District, where the suit had been filed, did not have the territorial jurisdiction as no part of cause of action had arisen within the jurisdiction of that Court. 6. Other preliminary objections, raised by the defendants, were that the plaint did not disclose any cause of action, plaintiffs were not entitled to the relief of permanent prohibitory injunction as also the mandatory injunction as asked for, the suit was bad for mis-joinder of Union of India and also non-service of statutory notice on the Selection Board, the plaintiffs were estopped to file the suit, the plaintiffs had no cause of action and the Civil Court could not sit over the decision of the Oil Selection Board. …4… 7. On merits defendant No. 2 pleaded that as per certificate of residency, produced by defendant No. 4, she was resident of Kangra District and her family income was also below Rs.24,000/- per annum and, therefore, she had been found eligible. Defendant No. 3 pleaded that the appointment of defendant No. 4 was made on the basis of selection done by defendant No. 2 and also after scrutinizing the entire record, including the certificates of residence and income and there was nothing wrong with her appointment. 8. Defendant No. 4 denied that she was not resident of Kangra or her family income was more than Rs.24,000/- per annum. She stated that she was resident of village Bir, Tehsil Baijnath, District Kangra and certificate to this effect had been issued in her favour on 9.9.1985 by the Executive Magistrate. It was stated that defendant No. 4 was a member and share-holder of Jaisantoshi Mahila Carpets Manufacturers & Traders Society Bir in Kangra District since December, 1979. It was also stated that the husband of defendant No. 4 was also a member of Bir Cooperative Agricultural Service Society since 30.6.1981. Father-in-law of this defendant was stated to be member and share-holder of Bir Cooperative Tea Factory since 19.8.1961. Mother-in-law of this defendant was stated to be member of village Bir Mahila Mandal. It was also stated that the defendant was possessed of a number of certificates issued by several authorities indicating that she was resident of village Bir. 9. Trial Court framed a number of issues arising out of the pleadings and tried the suit. On the conclusion of trial, it was held that defendant No. 4 was not resident of Kangra District. Her income was, however, held to be less than Rs.24,000/- per annum. It was further held …5… that defendant No. 5 was also not eligible for selection as his income was more than Rs.24,000/- per annum. On account of the finding that defendant No. 4 was not resident of Kangra, it was held that her appointment as dealer was illegal and null and void. Civil Court was held to have had the jurisdiction to try the suit. The plaintiffs were held to have had the cause of action as also locus standi to file the suit. Plea of mis- joinder of Union of India as defendant, as raised by the defendants, was also dismissed. 10. With the aforesaid findings the trial Court passed a declaratory decree that the selection of defendants No. 4 and 5 by defendant No. 2 was illegal and null and void as these two defendants did not fulfil the eligibility criteria. However, the prayer of the plaintiffs for issuance of mandatory injunction directing defendants No. 1 to 3 to appoint them as distributors / dealers, was dismissed and it was held that it was for the defendants No. 1 to 3 to take decision whether the plaintiffs could be appointed as distributors / dealers on the basis of the selection already made or fresh process was required to be initiated for appointment of distributor / dealer. 11. Two appeals were filed against the aforesaid decree of the trial Court; one by the plaintiffs, who were aggrieved by the dismissal of their prayer, for issuance of mandatory injunction directing defendants No. 1 to 3 to appoint them (plaintiffs) as distributors / dealers on the basis of the selection already made and the second by defendant No. 4 challenging the declaration that her appointment as distributor / dealer was illegal and null & void. The learned District Judge dismissed the appeal filed by defendant No. 4 and affirmed the findings returned by the trial Court. However, the …6… appeal filed by the plaintiffs was accepted and the decree of t he trial Court was modified and in addition to the relief of declaration granted by the trial Court in favour of the plaintiffs, further relief in the form of direction to defendants No. 1 to 3 to act on the basis of the selection already made and merit-list prepared on the basis of such selection, was granted in favour of the plaintiffs. 12. Aggrieved by the decree of the learned District Judge, three appeals were filed in this Court, two by defendant No. 4 - one challenging the order of dismissal of her appeal and the other challenging the order of acceptance of the appeal filed by the plaintiffs and the third by defendant No. 3 challenging the decree directing it to act in accordance with the selection already made. These appeals were admitted on the following substantial questions of law:- “1. Whether both the learned courts below were right in holding that courts at Dharamsala had jurisdiction to try the suit contrary to the provisions of Section 20 of the Code of Civil Procedure when admittedly the Oil Selection Board, Hindustan Petroleum Corporation Limited did not have their place of business or work in Kangra? 2. Whether both the learned courts below were right in holding that the order passed in Civil Revision No. 232/90 by the Hon’ble High Court amounted to conferring of jurisdiction on the learned courts below when the question of territorial jurisdiction was neither raised nor decided in the proceedings which were limited only to the refusal of injunction to the respondent – plaintiff? …7… 3. Whether the judgment and decree of both the learned courts below is sustainable in view of the fact that grant of licence / dealership for distribution of liquefied petroleum gas is at best a privilege and not enforceable right and whether in view of this settled legal proposition, the suit in question was maintainable? 4. Whether the judgment and decree of the learned courts below can be sustained in the admitted position that there were no allegations of mala fide or arbitrary against the oil selection board which had approved the grant of licence for distribution for the appellant / defendants. 5. Whether the judgment and decree of both the learned courts below can be sustained when on an ex facie reading of the evidence of the plaintiff / respondent itself showed that Ex. PW 9/A had been obtained by the plaintiff / respondent in collusion with the revenue officer? 6. Whether the judgment and decree of the learned courts below can be sustained when it has been admitted by PW. 9 that the order Ex. PW 9/A had been passed in gross and flagrant violation of the provisions of natural justice, without any enquiry, without any notice and on the same day, on the basis of some information furnished by the respondent / plaintiff and without any independent enquiry? 7. Whether the judgment and decree of the learned courts below can be sustained on the basis of condition of residency was a mandatory condition when it had not been established that it was so? 8. Whether the learned court below was right in allowing only a part of the application under Order 41 rule 27 of the Code of Civil procedure completely ignoring the other documents and whose authenticity could not be doubted? …8… 9. Whether the learned Appellate Court was right in granting injunction directing original defendants No. 1 to 3 to make the allotment only in favour of the plaintiff / respondent?” 13. Appeals were heard and decided by this Court vide judgment dated 21.8.2002. This Court while dealing with questions No. 1 and 2, reproduced above, held that the Civil Court in Kangra District had the territorial jurisdiction. With regard to questions No. 3 and 9, this Court gave the finding that the suit for mandatory injunction was not competent and the Appellate Court erred in issuing the mandatory injunction. Question No. 4 was answered in favour of the plaintiffs. As regards questions No. 5 and 6, it was held that the term ‘residence’ includes both permanent residence and temporary residence and since the husband of the plaintiff was permanent resident of village Bir and he had his landed property and ancestral house in village Bir and there was nothing on the record showing that defendant No. 4 had separated from her husband, she too was a permanent resident of village Bir and hence eligible for appointment as distributor / dealer. As regards question No. 7, it was held that the condition regarding residency of Kangra was mandatory. Question No. 8 was answered against defendant No. 4 with the observation that she did not press the same during the course of the hearing of the appeals. 14. Plaintiffs went in appeal to the Hon’ble Supreme Court. The Hon’ble Supreme Court held that the term ‘resident of Kangra District’ used in the eligibility criteria meant actual / de facto resident and not just de jure resident and, therefore, the finding of this Court that defendant No. 4 was permanent resident of Kangra and hence eligible for appointment as distributor / dealer, was not sustainable and that in fact what was required …9… to be determined was whether defendant No. 4 was actual resident of Kangra. With this finding the Hon’ble Supreme Court set aside the judgment and decree passed by this Court and remanded the matter for fresh consideration of the appeals in the light of the interpretation given by it (the Hon’ble Supreme Court) to the term ‘ resident of Kangra’. 15. Judgment dated 21.8.2002 of this Court having been set aside in its entirety by the Hon’ble Supreme Court, all the substantial questions of law, on which the appeals were admitted, are required to be determined afresh. In addition to the questions already formulated, one more substantial question of law arises in the light of the interpretation of term ‘resident of Kangra’ given by the Hon’ble Supreme Court. Defendant No. 4, who argued her matter in person and the counsel representing the plaintiffs and defendants No. 2 and 3 were informed that in the light of the interpretation of the term ‘resident of Kangra’ given by the Hon’ble Supreme Court, one more substantial question of law was required to be formulated and that question was whether defendant No. 4 was the actual resident of Kangra District, when she sought appointment as distributor / dealer pursuant to the notice inviting applications, got published by defendants No. 2 and 3. The question is formally formulated as follows:- Whether defendant No. 4 was actual resident of Kangra District, when she applied for appointment as distributor / dealer? 16. Parties have been heard at length. Record has also been perused. 17. First I will take up the additional substantial question of law formulated in the light of the interpretation given by the Hon’ble Supreme Court to the term ‘resident of Kangra’. Defendant No. 4 submitted that in …10… view of the interpretation given by the Hon’ble Supreme Court to the term ‘resident of Kangra’, she wanted to lead additional evidence to prove that she was actual / de facto resident of Kangra District. She stated that she had made two applications in the Court of learned District Judge also for leading additional evidence by way of certain documents, but the learned District Judge partly allowed her prayer permitting her to prove pedigree table and one more document, but her prayer for proving the certificate that she was member of a Cooperative Society known as Jaisantoshi Mahila Carpets Manufacturers & Traders Society Ltd. Baijnath, District Kangra and also the affidavit regarding her marriage with Yashpal Abrol, who owns landed property and a house in village Bir of Tehsil Baijnath of District Kangra were not allowed to be proved by the learned district Judge. She stated that she has filed an application in this Court under Order 41 Rule 27 of the Code of Civil procedure, i.e. C,.M.A. No. 239 of 2007, for proving the affidavit of her marriage, the certificate of her being a member of the aforesaid Cooperative Society and also one Will, executed by her father-in- law, in respect of his house situate in Mandi, which as per contents of the Will, has been bequeathed exclusively to her mother-in-law. 18. The documents sought to be proved by way of additional evidence, are not relevant for determining the question whether defendant No. 4 is actual resident of village Bir of District Kangra. The affidavit of marriage, sworn in the year 1977 is available on the record of the trial Court at pages 775 to 779. Though in this affidavit the address of the husband of defendant No. 4 is shown to be of village Bir, the affidavit itself was sworn at Mandi. It may be stated here that the case of the plaintiffs was that defendant No. 4 was actual resident of Mandi town where her father-in-law …11… had a house and that she was registered as a voter at Mandi and was also employed at that place as a teacher in D.A.V. Public School. Since the affidavit in no way indicates that defendant No. 4 or her husband was actual resident of village Bir in District Kangra, the same may not be said to be relevant. 19. Similarly the certificate that defendant No. 4 is member of a Cooperative Society with its headquarter at Bir, will not prove that she actually resides in that village. The certificate would simply show that she is a member of the Cooperative Society. The proof of this fact would not directly or even presumptively show that she actually resides in village Bir. 20. Will executed by the father-in-law of defendant No. 4 with respect to his house in Mandi town is also not relevant for proving that she is actual resident of village Bir. The Will will prove only this much that the father-in-law of defendant No. 4 had a house in Mandi town, which by virtue of the Will executed by him has devolved upon his wife to the exclusion of defendant No. 4 and her husband. But that would not mean that defendant No. 4 or her husband stand ousted from that house. Earlier when the father of the husband of defendant No. 4 was alive, he was its owner and after his death the mother-in-law of defendant No. 4 is the owner. If defendant No. 4 was staying in the house earlier, when her father-in-law was alive, it can legitimately be presumed that there might not have been any change in the situation after the death of her father-in-law and the devolvement of the ownership of the house on her mother-in-law under the will. This is especially so when there is no mention in the application to this effect nor evidence to this effect is sought to be led. …12… 21. In view of the above stated position, it is held that allowing the application for additional evidence will not serve any purpose of defendant No. 4, but will only prolong the litigation, which has been going on since 1990. 22. A perusal of the evidence adduced by the parties in the trial Court suggests that they knew that what was required to be proved was whether defendant No. 4 was actual resident of village Bir in Kangra District or only a de jure resident on account of her husband having his ancestral landed property and a house in that village. The plaintiffs adduced in evidence voter lists of village Bir in Kangra District as also of Mandi town to show that she and her husband were not registered as voters in village Bir, but were registered as such in Mandi town. They also led evidence to show that defendant No. 4, her husband and their children were included in the members of the family of her father-in-law in the ration card, which her father-in-law obtained for drawing ration from a Depot at Mandi. They also tried to show that defendant No. 4 herself was employed at Mandi as a teacher in D.A.V. Public School and her children were also studying in schools at Mandi. 23. Defendant No. 4 despite having been afforded several opportunities for a period of over one year, did not lead any evidence to show that she was actually residing in village Bir. She did not examine any resident of village Bir except DW-3 Krishan Kumar, who stated that defendant No. 4 earlier lived in Mandi when her father-in-law was employed there and that thereafter she started visiting Bir and staying there for a day or two. He made this statement in the year 1992. He did not say as to when did defendant No. 4 started visiting village Bir and staying there for a …13… day or two in a week. Thus, the statement is too vague to prove that defendant No. 4 was resident of village Bir at the time when she applied for appointment as dealer / distributor. May be that she started visiting the village and staying there for a day or two in a week only after her appointment as distributor / dealer of L.P.G. at Kangra. Otherwise also visits, even though regular and stay for a day or two in a week, could not mean that defendant No. 4 is actual resident of village Bir. 24. Defendant No. 4 in her own statement as DW-1 admitted that she served for two to two-and-a-half years in D.A.V. Public School as a teacher from 1987 onwards. She also admitted that her children were born at Mandi. She also admitted that she and her husband are registered as voters at Mandi. She did not deny that her name was included in the ration card issued in the name of her father-in-law authorizing him to draw ration at Mandi. She did not deny that she and her husband were not registered as voters in village Bir of Kangra District. 25. The plaintiffs led positive evidence indicating that defendant No. 4 was not actual resident of village Bir in Kangra District. PW-2 Om Parkash, a Clerk from the office of Municipal Committee, Mandi proved voter list pertaining to the period from 1982 to 1984 in which defendant No. 4 and her husband Yash Pal are registered as voters. Photostat copy of the voter list is Ext. PW-2/B. 26. PW-3 Dharam Lal, Tehsildar Election Mandi, proved the voter lists for the years 1981, 1982, 1983, 1984, 1986 and 1987 and testified that in these voter lists defendant No. 4 and her husband are registered as voters being residents of Mandi town. …14… 27. PW-4 Ram Parkash proved the voter lists from 1983 to 1987 pertaining to village Bir in which names of defendant No. 4 and her husband Yash Pal do not figure. 28. PW-7 Makholi Ram, Secretary, Gram Panchayat Bir, appeared with the ‘Parivar’ register and stated that names of defendant No. 4 or her husband or her father-in-law do not figure in the said register. 29. PW-10 Piare Lal testified that he had been President of village Bir since 1982 and that defendant No. 4 was not resident of village Bir. In the cross-examination he stated that he had seen the husband of defendant No. 4 for the first time in the Court. 30. PW-11 Kali Dass, an employee from the Food & Supplies Office,