IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1930 of 2010 IN (CWJC 8625 of 2001) ====================================================== Rajeev Kumar Son of Rajendra Prasad, resident of Khutauna Bazar, Madhubani, District- Madhubani. Appellant Versus 1. Abhay Kumar son of Sri Raj Nandan Jha, resident of village-Arer Dilli, Tola, P.O.Arerhat, P.S.Arer, Block Benipatti, District Madhubani Respondent-Ist set. 2. Union of India through the Secretary, Department of Ministry of Petroleum, Government of India, New Delhi, 3. The Dealer Selection Board, Patna-IV, Abhay Bhawan, 3rd Floor, Frazer Road, Patna, through its Chairman 4. The Chairman, Dealer Selection Board, Patna-IV, Abhay Bhawan, 3rd Floor, Frazer Road, Patna 5. Bharat Petroleum Corporation Ltd., Bharat Bhawan, 4 & 6, Currimbhoi Road, Ballard Estate, Post Box No.688, Mumbai-400 001, through its General Manager (LPG), 6. S.D.O. Benipatti, District- Madhubani, 7. B.D.O, Block Benipatti, District- Madhubani.--- -Respondent 2nd Set. ===================================================== Appearance : For the Appellant : Mr. Y.V. Giri, Senior Counsel, with Mr. Uday Chand Prasad Mr. Raju Giri, Advocates For the Respondent no.1 : Mr. Jitendra Singh, Senior Counsel with Mr. Mrigank Mauli Mr. Harsh Singh, Advocates For Respondent Nos.4 & 5 : Mr. Madhuresh Prasad, Advocate For Respondent Nos.6 & 7 : Mr. Sanat Kumar Mishra, AC to AAG-8 For the Union of India : Mr. P.L. Jaiswal, Advocate ===================================================== CORAM: HONOURABLE THE CHIEF JUSTICE AND HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE MR. JUSTICE JYOTI SARAN) 10. 21.06.2011. This appeal under Clause 10 of the Letters Patent of the High Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 2 Court of Judicature at Patna arises from a judgment and order dated 12.10.2010 passed in C.W.J.C.No.8625 of 2001 by a learned Single Judge of this Court allowing the writ petition filed on behalf of the respondent no.1 after quashing the orders impugned in the writ petition, reviving the Letter of Intent issued in favour of the writ petitioner and requiring the authorities of the Bharat Petroleum Corporation to act accordingly, as a consequence thereof. With the consent of the learned counsels appearing on behalf of the contesting parties, the matter has been taken up at the stage of admission itself with a view to its final disposal. For the sake of convenience, we shall be referring to the party position and annexure set up in the memo of appeal unless qualified by specific reference to the writ petition. The facts giving rise to the present proceedings, briefly stated, are that an advertisement was issued by the Bharat Petroleum Corporation Limited, (hereinafter referred to as “BPCL‟) on 6.9.2000 published in the local daily inviting applications for appointment of distributor for Liquid Petroleum Gas, (LPG for short) at different places in the State of Bihar including at Jhanjharpur in the district of Madhubani. The writ Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 3 petitioner–respondent no.1 herein as well as the appellant who was respondent no.7 in the writ petition applied for the distributorship of LPG for Jhanjharpur in the district of Madhubani pursuant to the said advertisement under the open category. One of the eligibility conditions stipulated in the advertisement required the applicant to be a resident of the district in which the Agency is located. A merit list was issued on 28.2.2001 by the Dealers Selection Board, (hereinafter referred to as the „DSB‟) placing the writ petitioner-respondent no.1 at serial no.1 and the appellant at serial no.2. A Letter of Intent was issued in favour of the writ petitioner-respondent no.1 on 25.4.2001 (Annexure-7 to the writ petition). The appellant filed an objection before the DSB contesting the placement of the respondent no.1 at serial no.1. On getting no response from the DSB, the appellant filed a writ petition before this Court giving rise to C.W.J.C.No.5778 of 2001, which was disposed of on 3.5.2001 requiring the DSB to pass reasoned order on the objection filed by the appellant in accordance with law. A reasoned order was passed by the DSB on 20.6.2001 placed at Annexure-26 of the memo of appeal. The DSB, upon examination of the rival contentions advanced on behalf of the Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 4 appellant and the respondent no.1 and also on the perusal of the papers/documents submitted in support thereof, was pleased to hold the respondent no.1 as not being the resident of village Arer falling in the district of Madhubani and as a consequence of the said finding, the DSB, held the selection of the respondent no.1 invalid and cancelled the same. As the appellant herein was placed at serial no.2 of the merit lists, hence, the Letter of Intent was issued in his favour for the LPG distributorship at Jhanjharpur in the district of Madhubani vide letter dated 5.4.2002 (Annexure-28) . The Letter of Intent dated 5.4.2002 was cancelled by a subsequent letter dated 13.8.2002 (Annexure-29) in the light of a policy decision of the Government of India, Ministry of Petroleum and Natural Gas contained in letter dated 9.8.2002 canceling all the recommendations of the DSB with effect from 1.1.2000 except the allotment made under the “Operation Vijay” Scheme. The said cancellation was challenged by the appellant herein along with large number of similarly placed persons and which batch of writ petitions was disposed of by a Division Bench of this Court vide order dated 27.2.2003 in terms of the judgment and order passed by the Supreme court in the case of Onkar Lal Bajaj reported in Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 5 (2003) 2 SCC 673. The chain of events led to issuance of a letter dated 30.1.2003 (Annexure-31) under the signature of the Branch Manager, BPCL by which the writ petitioner was informed that the letter dated 13.8.2002 withdrawing the Letter of Intent dated 5.4.2002 stood cancelled in view of the judgment and order passed by the Supreme Court in the case of Onkar Lal Bajaj. The Letter of Intent issued earlier was followed by the allotment of the distributorship vide letter dated 9.4.2003 (Annexure-32). The allotment of dealership to the appellant was challenged by the respondent no.1 by filing the writ petition in question bearing C.W.J.C.No.8625 of 2001 and which, after being admitted for hearing on 1.8.2001, was allowed by the judgment and order impugned. The order canceling the residential certificate of the writ petitioner as well as the reasoned order passed by the Chairman of the DSB as also the Letter of Intent issued in favour of the appellant, who was the respondent no.7 in the writ petition, were quashed and set aside. The Letter of Intent, initially, issued in favour of the writ petitioner was ordered to be revived and the authorities of the BPCL were directed to act accordingly. Being aggrieved by the judgment and order passed by the learned Single Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 6 Judge in the writ petition aforesaid, the respondent no.7 is in appeal before us. The facts of the case are not disputed. There is no dispute between the rival contenders as regarding the chain of events. It is an admitted position that upon scrutiny of the relevant documents submitted along with the Application Form for the dealership in question, the DSB had placed the writ petitioner-respondent no.1 at serial no.1 and the appellant herein at serial no.2. It is also an admitted position that whereas the appellant is a permanent resident of the district of Madhubani, the writ petitioner- respondent no.1, initially, was resident of Village Laheriasarai in the district of Darbhanga and had shifted his residence to Village Arer in the district of Madhubani. The only issue which required determination before the writ court and is put to test before this Court is, whether the writ petitioner-respondent no.1 has been able to establish that he fulfills the eligibility criteria of being a resident of the district of Madhubani, and whether the writ court was justified in up-setting the apple-cart of the appellant who succeeded in his challenge on the issue before the DSB. Mr. Y.V. Giri, learned Senior Counsel appearing on behalf Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 7 of the appellant, took us through the chain of events culminating in the order of DSB. It was contended that the DSB, acting on the directions of this Court, had gone deep in to the matter and upon examination of the statement and submissions made on behalf of the respondent no.1 and on perusal of the documents appended in support of his contentions of being a resident of Madhubani district, came to a conclusion that the residential certificate having been issued by the Incharge Block Development Officer, Madhubani on 23.9.2000 enclosed to the Application Form, did not satisfy the conditions stipulated in the advertisement having been issued by an authority not competent to issue the same. It was submitted that the subsequent removal of the lacuna, would not cure the defect appearing in the Application Form existing on the date of its filing. Learned counsel submits that as the residential certificate submitted by the respondent no.1 was not satisfying the legal requirements stipulated in the advertisement, hence, it could not be even looked into by the authorities as a document supporting the residential qualification of the writ petitioner and was rightly rejected by the DSB upon scrutiny. Learned counsel, with reference to Annexure-2 to the appeal, Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 8 submits that in terms of clause 7 of the Application Form, the residential certificate was to be obtained from a Revenue Officer not below the rank of Tahsildar or Deputy Tahsildar, or Police Commissioner or Deputy Police Commissioner and thus the certificate should either have been obtained from the Circle Officer or the Block Development Officer or the Sub Divisional Officer or the Police Commissioner or the Deputy Police Commissioner but not the Incharge Block Development Officer. Learned counsel, with reference to the letter dated 27.5.2001 of the Block Development Officer, Benipatti addressed to the Sub Divisional Officer, submits that the residential claim of the petitioner was enquired into by the Statistical Supervisor, Block Office, Benipatti and Panchayat Sewak, who submitted their respective reports to the effect that the writ petitioner Abhay Kumar along with his family was staying with his father-in-law Sri Sudhakar Mishra and that he did not have any separate house of his own. It was reported that the name of Sri Abhay Kumar did not find place in the Voter-List of the area. It was further reported that although the father-in-law had gifted 11 dhoors of land in favour of the writ petitioner on 8.3.2001, but the residential certificate was issued much prior thereto on 23.9.2000. The Block Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 9 Development Officer, upon consideration of the reports, has intimated the Sub Divisional Officer that the writ petitioner was not a permanent resident of Village Arer rather he was temporarily staying with his father-in-law and in which circumstances, the earlier residential certificate dated 23.9.2000 did not appear correct. It is contended that the Sub divisional Officer, in view of the report of the Block Development Officer placed at Annexure-24 vide order dated 29.5.2001 (Annexure-25), cancelled the residential certificate dated 23.9.2000 as well as the certificate issued by the Sub Divisional Officer‟s office dated 16.5.2001. He submits that a mere second possible view or even a better opinion in the given set of circumstances, was not sufficient to nullify the decision of the Chairman, DSB taken on determination of issues of facts requiring indulgence in exercise of discretionary powers under Article 226 of the Constitution of India. Learned counsel for the appellant submitted that the entire claim of the writ petitioner-respondent no.1 regarding shifting of his residence from Laheriasarai in district Darbhanga and settling down at Village Arer in the district of Madhubani is based upon a Panchnama executed between the father and son and which is Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 10 more in the nature of private document having no evidentiary value. He submits that there is no other material to support the claim of the writ petitioner that he was residing at Village Arer in the District of Madhubani. The Voter-list of the district of Darbhanga yet mentions the name of the writ petitioner during the relevant period and that it is only in the year 2003 that for the first time, the name of the writ petitioner entered in the Voter-list of Village Arer in the district of Madhubani. Learned counsel thus submitted that in absence of any defect having been pointed out by the learned Single Judge in the decision making process of the DSB, the writ court was not justified in negating the same in absence of any finding rendering decision of the DSB perverse or malafide. The appeal was contested by the writ petitioner-respondent no.1 herein. Mr. Jitendra Singh, learned Senior Counsel representing the respondent no.1, with reference to the statements made in paragraph nos.3 to 5 of his counter affidavit, submits that the issue of judicial pronouncement in the case of Onkar Lal Bajaj (supra), as set out in paragraphs 31 to 37 of the appeal, has been introduced by the appellant for the first time in the present proceedings, which was impermissible. He submits that the Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 11 appellant was precluded from introducing any new facts at the stage of appeal which was not the subject matter of consideration by the writ court. Learned counsel, with reference to paragraph nos.1, 10, 24, 26, 43 and 44 of the judgment passed in the case of Onkar Lal Bajaj (supra), submits that the cancellation of the allotment of dealership was pursuant to a policy decision taken at the level of the Prime Minister and the restoration was in the light of the judgment and order passed in the said case. Learned counsel submits that admittedly the respondent no.1 herein had been placed at serial no.1 of the panel and a Letter of Intent had also been issued in his favour on 25.4.2001 which is Annexure-7 to the writ petition. It is submitted that as the Bihar Administrative Service Association and its officers were on strike, hence, the residential certificate was issued by the Incharge Block Development Officer. It is stated that the certificate dated 23.9.2000 (Annexure-6) was followed by another certificate dated 23.2.2001 (Annexure-7), which was also issued under the signature of the Block Development Officer, Benipatti and which again was followed by grant of residential certificate by the Sub Divisional Officer, Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 12 Benipatti on 16.5.2001 (Annexure-8). Learned counsel submitted that the certificates aforesaid were sufficient proof of the petitioner being a resident of village Arer in Madhubani district. He submits that the entire factual matrix of the case is discussed in paragraph nos.4 and 5 of the impugned judgment passed by the learned Single Judge. Learned counsel, with reference to paragraph nos.34 to 38 of the impugned judgment, went on to submit that the learned Single Judge has, after carefully examining the intricacies of the matter, arrived at a conclusion that the order dated 29.5.2001 of the Sub Divisional Officer (Annexure-25) canceling the certificate dated 23.9.2000 issued by the Incharge Block Development Officer and the certificate dated 16.5.2001 issued by the Sub Divisional Officer himself was not only contrary to the legal principles but was also in the teeth of the principles of natural justice inasmuch as the writ petitioner-respondent no.1 herein never had the occasion to dispute the correctness or otherwise of the report submitted by the Statistical Supervisor and the Panchayat Sewak which was the basis for the formation of the opinion by the Block Development Officer expressed in the letter dated 27.5.2001 (Annexure-24) and culminating in the order dated 29.5.2001 Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 13 (Annexure-25). Learned counsel, adverting to the doctrine of „dependant orders‟, went on to submit that the moment, the foundation for rejection of the claim of the writ petitioner vanishes, the edifice constructed thereon by the appellant, automatically collapses. Learned counsel in support of his contentions relied upon the following judgments of the Supreme Court: (i) (1988) 2 SCC 142 (G. Ranegowda Vs. Special Land Acquisition Officer), paragraphs-9 and 10. (ii) (2009) 1 SCC 240 (Rikhabsao Nathusao Jain Vs. Corporation of the City of Nagpur) Paragraphs-32 and 33. It was contended that the conclusion arrived at by the learned Single Judge draws full support from a judgment of the Supreme court rendered in the case of Bhagwan Das and others Vs. Kamal Abrol reported in (2005) 11 SCC 66, on the issue of „residence‟. Learned counsel, with reference to the paragraph nos.5, 6 ,11 and 12 of the judgment, submits that the moment it becomes explicit that the writ petitioner had been living at village Arer in the district of Madhubani for a considerable period and was also running a shoe shop to eke out his living and his children Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 14 were studying in different schools of Village Arer, then whether or not, the petitioner owned a house was immaterial and he would be considered a de facto resident of Village Arer in the district of Madhubani. Learned counsel, in response to the issue of jurisdiction of the writ court in entering upon an issue of facts, raised by the appellant, has relied upon the following judgments of the Supreme Court: (i) (2004) 3 SCC 553 (A.B.L. International Limited Vs. Export Credit Guarantee Corporation), paragraph nos.16, 17, 19 and 27 to 32, and, (ii) (2009) 8 SCC 339 (National Thermal Power Corporation Vs. Mahesh Dutta) paragraphs-39 to 41. Learned counsel submitted that the Supreme Court, in no uncertain terms, has held that there was no absolute bar to the jurisdiction of the courts in exercise of powers under Article 226 of the Constitution of India, to enter into the disputed questions of facts, if the same could be determined upon examination of the documents Learned counsel, in response to the submissions of equity being drawn in favour of the appellant by reason of his operating Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 15 the dealership since the year 2003, referred to relevant extract from the book “Snell‟s Principles of Equity”. He submits that there are some broad maxims for applying the principles of equity and one of which is “qui prior est tempore potior est jure”, meaning he who is earlier in time is stronger in law. It was contended that as admittedly the writ petitioner was placed at serial no.1 in the merit list and had also been issued a Letter of Intent on 25.4.2001 which was subsequently illegally cancelled under the order dated 20.6.2001 (Annexure-26) of the Chairman of the DSB and as the allotment of dealership to the appellant was only a consequence of such arbitrary action and illegal order, the equity was much in his favour. Learned counsel, in this context, relied upon a judgment of the Supreme Court in the case of Raghunath Rai Pareja Vs. Punjab National Bank reported in (2007) 2 SCC 230- paragraphs-29 and 31 to 36. Learned counsel, concluding his argument, submitted that another important principle for equitable consideration is that he who comes into equity must come with clean hands. It is contended that although the impugned judgment was passed on 12.10.2010, giving three months‟ time to the writ petitioner to set up his infrastructure and during which period, the writ petitioner- Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 16 respondent no.1 had invested huge amounts, the appellant though filed his appeal earlier, but waited for the three month‟s time to expire thus allowing siphoning of the fund of the writ petitioner, before making a motion for early hearing of the present appeal and which sufficiently exposes his conduct. It was lastly contended that the judgment of the learned Single Judge, being a well reasoned and a considered judgment passed upon examination of the rival contentions, the documents on records and the law on the subject, did not warrant indulgence in this appeal which was fit to be dismissed. We have heard learned counsel appearing on behalf of the contesting parties at length as well as the learned counsel appearing on behalf of the Oil Company and have examined the materials available on the records of the proceedings. The appeal was filed on 19.11.2010 and was registered after removal of defects on 30.11.2010. It was thereafter taken up for consideration on 4.2.2011 and 14.2.2011. The Division Bench, while adjourning the matter on 10.3.2011, was pleased to direct that no coercive steps shall be taken against the appellant and which interim order was allowed to continue until further orders. Thus, by reason of the interim order passed in appeal, the appellant Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 17 has continued to operate the dealership in question. The learned Single Judge, while testing the correctness of the order dated 29.5.2001 passed by the Sub Divisional Officer, Benipatti and the order dated 20.6.2001 passed by the Chairman, DSB canceling the selection of the writ petitioner- respondent no.1 as dealer of LPG, has relied upon following documents namely, (i) the deed of family arrangement, i.e. the Panchnama notorised on 26.12.1995 in which the writ petitioner- respondent no.1 had expressed his willingness to live with his father-in-law, (ii) the deletion of the name of the writ petitioner-respondent no.1 from the family ration card of his father on 21.9.1999; (iii) the school fee receipts dated January, 2000; and (iv) the reports submitted by the Panchayat officials mentioning the fact that the writ petitioner-respondent no.1 was staying with his father–in-law at village Arer in the district of Madhubani since 1996. The learned Single Judge, considering the aforesaid evidence in the back-drop of the judgment passed by the Supreme Court in the case of Bhagwan Das (supra), was pleased to hold that Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 18 the conclusion drawn by the Sub Divisional Officer in his order dated 29.5.2001 was not correct and was also in the teeth of the principles of natural justice inasmuch as the writ petitioner- respondent no.1 was never afforded any opportunity to explain his case. The learned Single Judge, as consequence of the setting aside of the order dated 29.5.2001 which was the basis for passing of the order dated 20.6.2001 by the Chairman, DSB, was pleased to quash the said order also and which was followed by an order reviving the Letter of Intent issued in favour of the writ petitioner- respondent no.1 on 24.5.2001 and requiring the Oil Company to proceed accordingly. Even while there can not be any disagreement on the principles enunciated by the learned Single Judge on the issue of residence or on the import of the terms „defacto‟ or „de jure‟ residence or on the point that the permanent place of residence of any person, need not also necessarily be his place of birth but any such claim has to be tested on the anvil of the circumstances accompanying the claim and the evidence supporting the same. It is indisputable that whereas the appellant is indeed a local resident of the district Madhubani, the writ petitioner-respondent no.1 had migrated to the said district and thus, the onus was upon Patna High Court LPA No.1930 of 2010 (10) dt.21-06-2011 19 the writ petitioner-respondent no.1 to substantiate his claim of being a resident of district Madhubani with support of tangible and authentic documentary evidence. What this Court finds is that except for the Panchnama dated 26.12.1995 and the certificate dated 23.9.2000 issued by the „Incharge‟ Block Development Officer, Benipatti there was no other contemporaneous document of corroborative nature responding to the claim of the writ petitioner-respondent no.1. The other certificate dated 23.2.2001 issued by the Block Development Officer, the certificate dated 16.5.2001 issued by the Sub