CIVIL WRIT JURISDICTION CASE No.8625 OF 2001 In the matter of an application under Article 226 of the Constitution of India. --------- ABHAY KUMAR, son of Sri Raj Nandan Jha, aged about 30 years, resident of Village Arer Dilli Tola, P.O. Arerhat, P.S. Arer, Block Benipatti, in the District of Madhubani ……………..Petitioner Versus 1. UNION OF INDIA through Secretary, Department/Ministry of Petroleum, Government of India, New Delhi 2. The Dealer Selection Board, Patna-IV, Abhay Bhawan, 3rd Floor, Frazer Road, Patna through its Chairman 3. The Chairman, Dealer Selection Board, Patna-IV, Abhay Bhawan, 3rd Floor, Frazer Road, Patna 4. Bharat Petroleum Corporation Ltd., Bharat Bhawan, 4 & 6 Currimbhoi Road, Ballard Estate, Post Box No. 588, Mumbai-400 001, through its General Manager (LPG) 5. S.D.O., Benipatti, District- Madhubani 6. B.D.O., Block Benipatti, District Madhubani 7. Rajeev Kumar, son of Rajendra Prasad, resident of Khutauna Bazar, Madhubani, District- Madhubani --------Respondents --------- For the Petitioner : M/s. Mrigank Mauli, Vinay Mistry and Pawan Choudhary, Advocates For the UNI : Mr. P.L. Jaiswal, Advocate For the I.O.C. : Mr. Madhuresh Prasad, Advocate For Resp.No.7 : M/s. Ramesh Kumar Agarwal & Vikas Kumar Singh, Advocates For the State : Mr. Kumar Bhanu Pratap Singh, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA R.K.Datta,J. Heard learned counsels for the parties. 2 2. The petitioner seeks quashing of the order dated 20.6.2001 (Annexure-14) passed by the Chairman, Dealer Selection Board, Patna holding that the selection of the petitioner for the distributorship of LPG for Jhanjharpur is invalid and cancelling the same, as also the order dated 29.5.2001 (Annexure-10) passed by S.D.O., Benipatti, District- Madhubani cancelling the Residence Certificate dated 23.9.2000 as also the subsequent Resident Certificate dated 16.5.2001issued by the S.D.O., Benipatti. 3. The petitioner, private respondent no. 7 Rajeev Kumar and others applied for distributorship of LPG Bharat Gas for location Jhanjharpur in the district of Madhubani pursuant to advertisement published in September, 2000 issued by the respondent-Bharat Petroleum Corporation Limited with respect to various districts of Bihar under open category. The said advertisement also included distributorship of Jalle in the District of Darbhanga. One of the conditions for the appointment of distributor was that the candidate must be a resident of the district in which the agency is located. 4. The petitioner was admittedly born in the 3 town of Darbhanga where his ancestral house was located and his name was also appearing in the voters‟ list of 1995 of Darbhanga. He claims that after his marriage in 1994 with the daughter of one Shri Sudhakar Mishra, resident of village Arer, Dilli Tola, District- Madhubani, he setup a small business of shoes and chappals by taking on lease a shop at Sakri in the District of Madhubani and subsequently he left his father‟s house at Darbhanga and started living along with his wife in his father-in-law‟s house at village Arer, Dilli Tola, District Madhubani from January, 1996 onwards. A Panchnama was also executed on 21.12.1995 between the petitioner and his father settling the issues with respect to the family income, property, etc., in which his desire and intention to live with his father-in-law was noted which was also notarised on 26.12.1995. It is the stand of the petitioner that subsequently he got his name deleted on 29.1.1999 from the family Ration Card of his father at Darbhanga and a certificate to that effect was issued by the Marketing Officer, Darbhanga. It is also claimed by the petitioner that his three children were born at village Arer in Madhubani District between August, 1996 and 4 April, 2001 and the eldest one being his daughter was admitted in Vidya Niketan English School at village Arer in January, 2000. 5. In view of the aforesaid facts when the advertisement was issued the petitioner applied for distributorship for Jhanjharpur in Madhubani District where he was residing and having shop instead of Jalle, in the district of Darbhanga. He also applied and received residence certificate from the In-charge Block Development Officer, Benipatti on 23.9.2000 as the Block Development Officer was on strike as a member of the Bihar Administrative Service Association (BASA). Another residence certificate was also obtained by the petitioner on 23.2.2001 which was granted by the Block Development Officer, Benipatti and the same was produced at the time of interview before the Dealer Selection Board (DSB). In the panel that was prepared the petitioner‟s name was at Sl. No. 1 while that of respondent no. 7 was at Sl. No. 2. Thereafter spot investigation was made and ultimately the Letter of Intent dated 25.4.2001 was issued in favour of the petitioner. The petitioner claims to have invested a 5 substantial amount of Rs. 7 lakhs towards infrastructure including acquisition of land, construction of godown and showroom, in support of which he has annexed copies of photographs of the same. 6. It appears that a complaint was filed by respondent no. 7 before the respondent oil company alleging that the petitioner was not a resident of district Madhubani but of Darbhanga and with respect to which CWJC No. 5778/2001 was also filed by respondent no. 7 which was disposed of on 3.5.2001 at the very inception without issuing notices with a direction to the DSB to dispose of the complaint of respondent no. 7 in accordance with law. The petitioner thereafter applied and obtained another residence certificate from the Sub- Divisional Officer, Benipatti dated 16.5.2001. In the meantime the SDO, Benipatti on a petition of respondent no. 7 directed the BDO, Benipatti to submit his report regarding the issuance of residence certificate in favour of the petitioner and the BDO directed the Statistical Supervisor, Block Office, Benipatti and the Panchayat Sewak, Arer to enquire and report. In their separate enquiry reports to the BDO, they reported that the 6 petitioner who was a resident of Darbhanga was married at Arer in 1994 and from 1996 he was staying with his father-in-law along with his wife and children but has not constructed any separate residential house there. They also reported that the petitioner was having a business of Shoes and Chappals of Bata at Sakri and he used to stay at village Arer. It is also reported that his name does not find place in the voters‟ list of 1995 since he is living with his in-laws since 1996. It was further reported that the villagers have supported the said fact and the certificate regarding surrender of Ration Card in 1999 at Darbhanga was also referred. They also reported that his father-in-law has given him land in the village for constructing his own house for which a gift deed was executed. The BDO Benipatti in his report to the SDO, Benipatti mentioned the aforesaid facts as reported in the enquiry reports by the Statistical Supervisor and the Panchayat Sewak but came to the conclusion that from the enquiry reports it is not clear whether the petitioner is resident of village Arer since his name is not mentioned in the voters‟ list whereas his name finds place in the voters‟ list of Darbhanga of 1995 and came to the 7 conclusion that the petitioner is not a permanent resident of Baijalpur (Arer, Dilli Tola) and temporarily residing there with his father-in-law. For the said reasons, the residence certificate issued in his favour is not correct and on wrong application and misleading the office he had got the residence certificate issued. He also referred to the fact that during the time the residence certificate was issued he was on strike on the call of the Bihar Administrative Service Association. 7. Upon consideration of the aforesaid report of the BDO, the SDO, Benipatti after accepting the conclusion of the BDO, Benipatti cancelled the residence certificate dated 23.9.2000 issued by the BDO and also the residence certificate issued by his office on 16.5.2001. The said order was forwarded to the Chairman, DSB also. The Chairman, DSB after considering the said order held that the residence certificate filed by the petitioner along with his application has been fabricated since on the date the certificate appears to have been issued, the members of the BASA were on strike and the petitioner somehow or the other managed to get the certificate from the BDO 8 office and as the SDO cancelled the certificate filed along with his application since the same were found to be fabricated and none of the papers of the petitioner shows that during the relevant time he was residing in village Arer. He also noted that although he has been residing in village Arer since about 6 years, but he surrendered the Ration Card certificate as late as on 29.1.1999 and thus he cannot be allowed to contend that he had left Darbhanga much before and thus came to the conclusion that it can be safely held that residence certificate filed by the petitioner is a fabricated document and that the other documents filed by the applicant with his application are of dates subsequent to the filing of the application and they do not inspire confidence since they appear to have been created by persons interested in the petitioner and besides they do not prove the factum of actual residence of the petitioner in Arer and thus came to the conclusion that he did not reside at least when the advertisement was made in village Arer in the district of Madhubani and for the said reason he held the selection of the petitioner for the purpose of Distributorship of LPG for Jhanjharpur as invalid and cancelled the same. 9 8. Learned counsel for the petitioner has referred to the various documents in his favour including the Panchnama dated 21.12.1995 relating to family partition which was notarized on 26.12.1995 as also the certificate of surrender of ration card dated 29.1.1999. He also refers to school fee receipts of his daughter from the school at village Arer starting from 6.1.2000 and the certificate of the principal to show that all these were much prior to the advertisement on 6.9.2000. It is thus urged by learned counsel for the petitioner that all these documents show that the petitioner has been residing with his father-in-law at village Arer from the year 1996 itself and also carrying on his business in the district of Madhubani at Sakri which is evident from the lease deed dated 11.4.1995. 9. Learned counsel also submits that the fact of his residing at village Arer has also been on enquiry found to be correct by the Panchayat Sewak, Arer and the Block Statistical Officer, Benipatti in their reports dated 24.5.2001 and 25.5.2001 and the BDO, Benipatti in his letter dated 27.5.2001. It is urged by learned counsel that from the said facts it was evident that the facts stated by the petitioner were correct that he was residing at village Arer since 1996 10 with his father-in-law and it was not open to the BDO to have reported that he was only a temporary resident of that area and that the earlier report was in no way obtained through any manipulation or fabrication. Learned counsel also submits that the Sub-Divisional Officer did not apply his mind to the fact which was reported to him for reasons best known to him and chose to cancel the residence certificate granted in favour of the petitioner. 10. It is also urged by learned counsel that the order of the Sub-Divisional Officer cancelling the residence certificate issued earlier is violative of the principles of natural justice as no opportunity was afforded to the petitioner before such order had been passed which affected the valuable rights of the petitioner. 11. Learned counsel also assails the impugned order dated 29.12.2001 of the Sub-Divisional Officer stating that it shows that no reference has been made to the facts reported to him by the BDO as contained in the enquiry reports of the Block Statistical Officer, Benipatti and the Panchayat Sewak, Arer and for the said reasons, the order is fit to be set aside. 12. It is also submitted by learned counsel that the 11 Chairman, DSB has not applied his mind to the facts placed before him and has completely misdirected himself in coming to the conclusion that the certificates filed by the petitioner along with his application were fabricated documents whereas no such allegation is to be found at any stage. Only statement that had come was that since the BDO was on strike, the certificate had been issued by the in- charge BDO which fact has not been denied at any stage by any authority and it is not a case that forged and fabricated document had been produced by the petitioner. 13. Learned counsel further submits that the Chairman has not followed the procedure laid down in the Grievance Redressal System as contained in the guidelines of the Government dated 9.10.2000 and under Clause 3.15 thereof the Chairman cannot take any decision in his individual capacity but must pass order in consultation with other members of the DSB after due enquiry by officers appointed by the General Manager of the Oil Company but no such thing has been done. In this regard he submits that it is well settled proposition that power must be exercised in the manner laid down, for which he refers to a decision of the Supreme Court in the case of Ramchandra Murarilal 12 Bhattad & Ors. Vs. State of Maharashtra & ors. : (2007) 2 SCC 588 in which the proposition was laid down that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily not permitted. 14. Learned counsel also refers to various decisions of the Supreme Court on the question of interpretation of the word „Residence‟. However, he strongly relies upon a decision of the Apex Court in the case of Bhagwan Das & anr. Vs Kamal Abrol and others: (2005) 11 SCC 66 in which most of the other cited decisions have been considered and the principles laid down particularly in relation to criterion of residence for allotment of LPG Distributership. Paras 11, 12 and 13 of the said decision are quoted below. “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 13 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 Black‟s Law Dictionary, 8th Edn. It is given that the word residence means bodily presence as 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. 12. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. The advertisement inviting the applications has not defined the same and hence it would be necessary to see the intention of the framers of the eligibility criteria to understand the true meaning or the sense 14 for which the word “resident” is used or as to why the criterion of resident is put as an eligibility criterion for allotment of LPG dealership/distributorship. In the present case the intention of the framers appears to be to provide employment or source of earning for the residents of Kangra district in the form of LPG dealership/distributorship. The eligibility criterion requires the person to be a resident of Kangra district only in the actual sense and not in any other sense. What is required to fulfil the eligibility criterion of residence is that the person should be a de facto resident and not have a mere connection with the place on account of her husband having some personal and ancestral property in Kangra. There is no finding recorded by the Court that the husband of Respondent no. 1 is permanently residing at Kangra or has permanent abode in Kangra. From the finding arrived at by the High Court it can be said that her husband having ancestral property in Kangra is a visitor to that place and occasionally resides there for a few days. Respondent no. 1 prima facie appears to be a permanent resident of 15 Mandi, since her name appears in the voters‟ list of Mandi and that she has been drawing her ration from Mandi as per the case set up by the appellants. It is further clear that the intention of providing employment and source of earning to the residents of the place would be fulfilled only if the person is actually living in Kangra and not by his/her remote connection to the place. It may also be seen that another eligibility criterion is that the person should not be a partner or having any dealership or distributorship agency in any petroleum company and, therefore, the dealership/distributorship has to be allotted to the person who does not hold any other dealership/distributorship agency of any other petroleum company. This term indicates that the Corporation wants that the dealership at a particular place has to be handled by that person, which would necessarily require the personal presence of that person at the place of business. The notice of intent issued to Respondent 1 on 3.3.1988 further clarifies this requirement when it says that the dealer is to be a full-time working dealer which necessitates the 16 permanent residence at a place for which the dealership licence is given. When the agency requires full-time working dealer it would be only possible if the person actually resides in Kangra district and not working through agent or servants engaged for the said purpose. This further indicates that the dealer is required to be a de facto resident of the place from where the dealership licence is to be issued and it is not permissible to have casual connection or temporary residence at that place. 13. For the aforesaid reasons we are of the view that the High Court has committed an error in construing the term “resident of Kangra district” as not requiring a person to be a permanent resident of that place and his casual connection to the district would fulfil the necessary mandatory criteria provided in the advertisement notice. As the approach of the High Court in deciding the second appeal against the appellant was based on its interpretation of the criterion of residence and as we have taken a different view of the matter, we set aside the judgment and decree passed 17 by the High Court and remand the matter back to the Court for fresh consideration of the appeals in the light of interpretation given by us to the term “resident of Kangra”. The appeals are disposed of accordingly with no order as to costs.” 15. It is also submitted by learned counsel that mere non-existence of the name of the petitioner in the voters‟ list of Arer is of no consequence as the voters‟ list itself was of the year 1995 and the petitioner on account of his involvement in business activities had not taken steps to get the same updated. It is stated by learned counsel that subsequently in the year 2003 the petitioner got himself registered as a voter of village Arer although he admits that the same could not be of any value so far as the present matter is concerned but is only to show that the petitioner, as a matter of fact, was and is continuing to reside at Arer with all intention to continue as a resident of the said place from the year 1996. It is the contention of learned counsel that in any case the existence of name in the voters‟ list is not conclusive of the fact as to whether a person is ordinary resident of the said area as has also been laid down under Section 20(7) of the Representation of the Peoples Act, 18 1950. 16. Learned counsel for the respondent no. 7, on the other hand, assails the various documents filed by the petitioner specially the pre-advertisement documents. It is submitted by learned counsel that the lease deed of the shop dated 11.4.1995 does not in any way help the petitioner as the place where the shop is located, namely, Sakri although in the district of Madhubani is closer to Darbhanga than the village Arer. He also submits that the Panchnama dated 26.12.1995 was between the petitioner and his father and thus could have been easily manufactured. He also assails the deletion of the petitioner‟s name from the ration card at Darbhanga on 29.1.1999 stating that there is nothing to show that the petitioner‟s name was included in any ration card at Arer. It is also his stand that the school fees receipts of the school at Arer with respect to his daughter although pertain to prior date to the date of advertisement but it could not be held to mean that the petitioner himself resides at village Arer as it is not uncommon for children to pursue studies from their maternal grand father‟s house. 17. Learned counsel also refers to the registration certificate dated 9.4.1999 issued by the Commercial Taxes 19 Officer with respect to the Shoe shop of the petitioner at Sakri in which the petitioner has been shown as a resident of Darbhanga and not of village Arer. 18. Learned counsel also refers to various certificates of the Officer Incharge of Arer Police Station, District Superintendent of Police, Madhubani, Mukhiya of the concerned Gram Panchayat which go to show that the petitioner is not resident of village Arer. 19. It is strongly contended by learned counsel that the petitioner has been unable to produce a single document like ration card, driving licence, telephone bill, Mobile Bill, Pan Card, Electricity Bill, etc. to show that he was actually living and residing at village Arer. It is urged by learned counsel that it can not be said that there is any positive evidence in favour of the petitioner residing at village Arer and actually consider him to be a permanent resident of the said area. 20. Learned counsel also refers to remarks made in the reports of the BDO, Benipatti to submit that the residence certificate had been obtained after misleading the office of the Block Development Officer. 21. It is also submitted by learned counsel that in 20 view of the so many disputed questions of fact involved no writ petition should be entertained, in support of which he has cited several decisions. 22. It is lastly submitted by learned counsel for respondent no. 7 that the respondent was issued the Letter of Intent in March, 2002 and running his LPG Distribution for last 7 years for which he had invested more than Rs. 17 lacs earlier and recently another Rs. 20 lacs. For the said reasons it is urged by learned counsel that it would be inequitable to allow the writ petition and dislodge the respondent no. 7 from the dealership. In support of the same learned counsel relies upon a decision of the Apex Court in the case of Ramana Dayaram Shetty Vs. The International Airport Authority of India and others: AIR 1979 1628, in the relevant part of para 35 of which it has been held as