1 wp4562-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4562 OF 2011 Smt.Darshana Dattatraya Ghule .. Petitioner versus District Collector, Pune & Ors .. Respondents Mr.U.B.Nighot for the petitioner. Ms.P.S.Cardozo, A.G.P for respondent No.1. Mr.Sunil Gangan with Mr.Jayesh Mestry i/by RMG Law Associates for respondent No.3. CORAM : S.C.DHARMADHIKARI, J. 12th August 2011. P.C.: . This writ petition under Articles 226 and 227 of the Constitution of India, challenges an order of the District Collector, Pune delivered on 3rd February 2011. Very few facts are necessary to appreciate the challenge to this order. 2 The Indian Oil Corporation had called for applications for grant of distribution licence/authorisation. That distribution was of L.P.G cylinders under the scheme named as Rajiv Gandhi Gramin 2 wp4562-11.doc LPG Vitarak Yojana. 3 For various regions, the advertisement dated 31st March 2010 came to be inserted. The petitioner claimed that she is entitled for grant of such authoristation/licence for Wada region. Reliance was placed on clause 3(b) stating that the applicant should be resident of village Wada, Taluka Khed, District Pune. In pursuance of this advertisement, the petitioner and three others applied for the licence/authorisation. To support her case that she is a resident of Wada village, the petitioner relied upon the certificate issued by Tahsildar, Khed. That certificate was issued and ultimately, a draw was held in which petitioner was selected. The appointment/authorisation letter was issued to the petitioner. 4 A copy of the residence certificate issued, is annexed to the writ petition. 5 Subsequently, respondent Nos.4,5 and 6 to this writ petition made a complaint, that the petitioner has misrepresented and misled the authorities and obtained false residence certificate. They 3 wp4562-11.doc had filed writ petition in this Court, which came up before Division Bench of this Court and in terms of the directions therein, the Collector of Pune District held an enquiry. In the enquiry, all parties were heard and necessary records were summoned. The Tahsildar who issued the certificate was also summoned and he gave a statement that the residence was shown as village Wada in the certificate and it came to be issued based on the information provided, but, now it turns out to be false. Relying upon this statement and other materials, the Collector has proceeded to cancel the residence certificate. It is on this count that the petitioner is constrained to approach this Court in writ jurisdiction. 6 It is contended by Mr.Nighot appearing on behalf of the petitioner that the requirement in the advertisement is of residence in the concerned village/region. It is not as if the petitioner is required to permanently reside in the village or produce any document evidencing such a fact. This is not a case where the authorities were deliberately misled inasmuch as the petitioner never disputed that she is a married lady. Upon her marriage, she went to reside with her husband in a distant village. However, her 4 wp4562-11.doc maternal uncle Shankar Ganaji Hundare is resident of village Wada. He has agricultural land and a permanent establishment. The petitioner came to village Wada and started residing with said Shankar Hundare and that is how in ration card her name has appeared. Further, said Shankar Hundare has alloted to her, a portion of the agricultural land as well. It is not as if there is any prohibition in law for shifting of residence. Further, the Petroleum Corporation does not insist upon a permanent residence in the village but what the authorisation and the terms and conditions demand, is continued supervision of the allottee like the petitioner, post allotment. Therefore, at the LPG Distribution Centre, the presence of the petitioner is mandatory, according to the terms and conditions. This has been wrongfully equated with the residence requirement and, therefore, disgruntled applicants who have not succeeded in obtaining allotment are now pressing for cancellation by these means. This Court, therefore, should not permit the authorisation to be cancelled on this ground and by upholding the order of the Collector. 7 On the other hand, the learned A.G.P appearing for 5 wp4562-11.doc respondent Nos.2 and 4 states that the affidavit that has been filed, clarifies the position. The order of the Division Bench is clear. In terms of the said order, inquiry was directed to be held. It was accordingly held. In that inquiry, it was found that the certificate has been obtained by misinformation and misleading the village authorities. It is only with a view to secure an allotment of the authorisation/licence, that the petitioner-applicant stated that she is resident of village Wada. Now, it is found that each of the particulars that were furnished are incorrect and false. Even the Tahsildar has not accepted the said position and he has clarified it later on. In these circumstances, the certificate has been rightly cancelled and even criminal prosecution and departmental action has been ordered. In these circumstances, this Court should not interfere in writ jurisdiction. 8 This is also the stand taken by the respondent Nos.5 and 6 and they supported the order passed by the Collector. 9 It is clear from perusal of the petition and the annexures thereto, that the 3rd respondent had proposed a LPG outlet in the 6 wp4562-11.doc open category at village Wada, District Pune. The advertisement in that behalf was published. A writ petition was filed in this Court being Civil Writ Petition No.715 of 2011 wherein respondent Nos.5 and 6 alleged that the certificate of residence based upon which the LPG gas distributorship has been secured, was obtained by furnishing incorrect and misleading information. On 18th January 2011, this Court recorded a statement of the Collector, Pune that he will look into the grievance and, therefore, the writ petition was disposed off with a direction to both sides to appear before the Collector. The Collector accordingly decided the matter on 3rd February 2011. 10 From a perusal of the order passed by the Collector, and in pursuance of the Division Bench direction, I am of the view that any larger controversy and wider question need not be decided in the peculiar facts of this case. It was highlighted before me that the requirement of submitting a residence certificate is only to ensure that a person residing within the region or vicinity of the outlet is given licence or authorisation so as to have proper and complete supervision. The argument is that, in terms of the constitutional 7 wp4562-11.doc provisions, it is not the law that a person cannot shift his residence or that even if he has based himself at one village or one place, he cannot be held to be ineligible for such grant or authorisation of licence in another area. It was pointed out that there are several cases where people migrate after the birth of a child because of want of education and medical facilities. Therefore, the place of birth, place where education and higher education is taken and the place where a person settles down, may be distinct, but, within the same region. On this ground alone, it cannot be said that a person is disqualified or that incorrect or misleading information has been supplied. Reliance was placed on the constitutional guarantee and in terms of Article 19(1)(d) and (e) of the Constitution of India. It was submitted that this is a not a case of domicile certificate being sought. It was a merely a residence certificate and if it was pointed out to the authorities at village level that persons like the petitioner have shifted to the village, may be with intent to start a business or commercial venture and merely because they have shifted recently, would not disentitle them from seeking a residence certificate. It is based on this, that the certificate has been issued. It was argued that there was never any intent to mislead or misguide the 8 wp4562-11.doc authorities. The petitioner being a married lady, had settled with her husband elsewhere, later on in life decided to do something on her own with the consent of her family members and, therefore, came to village Wada, where her uncle (maternal uncle) is residing and has property. She, therefore, decided to stay with him initially and that is how her name was entered in the ration card and subsequently the maternal uncle showed his inclination to gift property to her. Therefore, this is not a case where the certificate was obtained without stating these facts or suppressing the true facts. It is not as if, after noticing the advertisement that the petitioner approached the local authority/village authority and either by collusion or connivance with somebody at that level obtained the certificate. It is not as if there is no connection with the village or that there was no intent to settle down in the same. In such circumstances, the Collector’s order proceeds on a misreading of this Court’s direction and it cannot be sustained. 11 As already held above, it is not necessary to go into the wider challenge. It may be permissible, as the constitutional guarantee is clear, for a person to settle down anywhere in this country and in 9 wp4562-11.doc any region or territory within the State. However, this is a case where an advertisement appeared for grant of distributorship for providing a essential commodity like LPG to the persons residing in village Khed. The scheme which was propounded by the Public Sector Corporation was with an intent to encourage people to resort to non conventional methods so as to protect the environment. It was with a view to further this policy, that the Public Sector Corporation was permitted to start at village level, certain outlets to distribute LPG cylinders. The advertisement, therefore, was inserted in newspapers, region-wise. The petitioner and all concerned understood that the requirement is of residence in the village for which the distributorship is to be awarded. That is also clear from the documents produced including the authorisation letter. Therefore, with a view to apply for such dealership that the petitioner moved the concerned authorities. The Collector, therefore, was right that it is in the terms of the requirement in the advertisement that the application for issuance of residence certificate was made and the matter must be scrutinised in the backdrop of the same. If the residence requirement is to be fulfilled and to prove the said fact a certificate is obtained from the village 10 wp4562-11.doc authorities, then, it is but obvious that the application should contain the relevant and material particulars enabling the authority to scrutinise it and grant the certificate. In the instant case, the applicant-petitioner stated that she resides at mauje Wada, Taluka Khed permanently. She stated that she wants to obtain a residence certificate from Gram Panchayat Wada. She also produced the extract of the ration card and other documents. On 5th April 2010 the certificate was given certifying that the petitioner is residing at village Wada. However, when the complaint was made that this certificate has been obtained by giving false information that the Collector called for the explanation and the Upa-Sarpanch thereafter clarified that the petitioner is not a permanent resident of village Wada. Her name has been entered in the ration card on 10th March 2010. She has produced documents in relation to land bearing Gat No.46/2, but, that shows that her name is mutated in records on 18th August 2010 and the entry has been certified on 8th September 2010. At the same time, when she produced the voters identity card it showed that she is residing at mauje Bursewadi Bibi. It is stated that the Lease Agreement is dated 14th April 2010. It has, therefore, been pointed out that the petitioner was not a permanent 11 wp4562-11.doc resident of the said village Wada. She has been residing throughout at village Bursewadi Bibi. She has clearly and with the intent to obtain the licence/authorisation shown her place of residence as village Wada. That the documents show close proximity with the date on which the advertisement appeared was enough for the Collector to seek clarifications and thereafter the clarification is given and it is clarified that on 27th December 2010, one Shankar Hundare made an application for cancelling the name of the petitioner from the ration card. Thus, her name was temporarily entered in the ration card. It is clear that even the Lease Agreement was signed with a view to obtain the Gas Agency. It is thus clear that the Tahsildar proceeded on the basis that the petitioner is residing for considerable length of time in the said village but on scrutinising the documents the Collector found that it is only to show that she is eligible for grant of that authorisation, that she obtained the residence certificate. This was not a case of her continued residence in the said village. It may be that her maternal uncle is residing there, but, mere visit to the maternal uncle or temporary stay would not be enough to conclude that the petitioner is residing in the said village. 12 wp4562-11.doc 12 To my mind, in the background in which enquiry was ordered and its limited scope, these facts cannot be ignored. Therefore, the Collector was not deciding any wider question, but, acting upon the complaint made by the respondent Nos.5 and 6. Ultimately, the Collector is in-charge of the district and if the Revenue Officials or other concerned with village administration issue certificates which are based on false information, then, complaint of the nature made by the persons like respondent Nos.5 and 6 have to be scrutinised and appropriate action taken thereon. Since that action was not taken, that the writ petition was filed and a direction of the Division Bench came to be issued. In these circumstances, the Collector was well within his powers to take cognizance of the complaint and cancel the certificate. It is not as if no opportunity was given to the petitioner. It is not as if that this Court can scrutinise the materials as if it is exercising the appellate powers. Once it is found that the Collector had scrutinised each and every document and concluded that the same was not enough for issuance of the residence certificate, but to obtain certain benefits and advantages from the public sector corporation, that the certificate came to be issued and 13 wp4562-11.doc when it was based on documents which are termed as suspicious, then, the said certificate has been rightly cancelled. Any largess, benefit, concession or advantage from a public body cannot be obtained on the basis of the false and misleading information. Public Interest demands that a public body and the State must ensure that persons like the petitioner do not grab or obtain dealership or licence to distribute essential commodity on the basis of the suspicious documents or misleading information in relation to their residence. The requirement of residence in the village is not formal or technical. The word “Resides” or “Residence” has been consistently understood in law to mean a permanent dwelling as well as temporary living in a place. In any case, it is something more than a temporary stay and not a casual stay or a flying visit to any place. In these circumstances, the order of the Collector requires no interference in writ jurisdiction and the writ petition is accordingly dismissed. No costs. 13 At this stage, Mr.Nighot prays that the Corporation which is respondent No.3 before this Court, who has issued a letter of intent may be directed not to take any steps to cancel it or initiate a fresh 14 wp4562-11.doc process for appointment of agents/licence holders. It is stated that even if the letter of intent is cancelled, the Corporation will have to initiate a process afresh. 14 To my mind, the letter of intent had been issued on the basis of the documents issued in favour of the petitioner. As is the clear position in law, once the advertisement in pursuance of which the applications were invited and duly scrutinised, later on a decision is taken to award dealership, but it is cancelled when the proposed dealer is found to be ineligible, it is but natural that a fresh process will have to be initiated by inserting an advertisement and that is bound to take sometime. In these circumstances, I do not see as to how any prejudice will be caused to the petitioner even if the petitioner desires to go to the higher Court to challenge this order. The request in that behalf is, therefore, rejected. (S.C.DHARMADHIKARI, J)