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2010 DIGILAW 2615 (PAT)

Satendra Kumar Singh v. State Of Bihar

2010-12-10

V.N.SINHA

body2010
JUDGEMENT 1. Heard learned counsel for the petitioner, the State of Bihar, Indian Oil Corporation (hereinafter referred to as the IOC) and the counsel for private respondent no.6. 2. Petitioner was applicant for grant of dealership pursuant to advertisement dated 17.11.2006, Annexure-1 published by the IOC. His candidature for such grant has been cancelled by the IOC under order dated 28.6.2008, Annexure-5 on the ground that his residency certificate dated 7.12.2006 was cancelled by the Collector, Purnea under order dated 16.5.2008, which was communicated to the Marketing Terminal of the IOC by the Deputy Collector, Incharge, General Section, Purnea Collectorate under letter dated 17.5.2008, Annexure-4. 3. It is submitted on behalf of the petitioner that neither the copy of the order dated 16.5.2008 nor letter dated 17.5.2008 was served on him. It is also submitted that before issue of the order/letter dated 16/17.5.2008 petitioner was not given opportunity of being heard and as the candidature of the petitioner has been cancelled with reference to the order dated 16.5.2008, the cancellation order suffers from the vice of arbitrariness on account of failure to grant opportunity of being heard before cancellation of his residency certificate. In this connection, learned counsel for the petitioner further pointed out that when petitioner learnt about cancellation of his candidature by the IOC he enquired about the matter and learnt that IOC proceeded to cancel his candidature on the basis of the order dated 16.5.2008 cancelling his residency certificate, whereafter petitioner approached the Collector, Purnea under application dated 3.6.2008, Annexure-6 requesting the Collector to recall order dated 16.5.2008, whereunder his residency certificate dated 7.12.2006 was cancelled. The Collector, Purnea having received the request of the petitioner, Annxure-6 entrusted the matter to the Sub-Divisional Officer, Purnea for enquiry, who issued notice to both the petitioner and respondent no.6, at whose instance the residency certificate of the petitioner was cancelled. Having heard the parties as also the witnesses produced by them, including documentary evidence voter list etc., the Sub-Divisional Officer submitted report dated 9.7.2008, which is contained in Annexure-E to the counter affidavit filed on behalf of respondent no.6. Perusal of report dated 9.7.2008, Annexure-E indicates that both the petitioner and respondent no.6 were heard by the Sub-Divisional Officer on 2.7.2008 along with their witnesses. During the enquiry villagers, ward members and the Mukhiya of the Gram Panchayat was examined. Perusal of report dated 9.7.2008, Annexure-E indicates that both the petitioner and respondent no.6 were heard by the Sub-Divisional Officer on 2.7.2008 along with their witnesses. During the enquiry villagers, ward members and the Mukhiya of the Gram Panchayat was examined. From the statement of the witnesses examined during enquiry, it transpired that petitioner resided with his cousin in village Tira. Other witnesses, however, stated that petitioner is seen at the residence of his cousin. None of the witness examined during enquiry stated that petitioner has his residence in the village. The witnesses examined stated that petitioner is either residing with his cousin or is seen at hjs residence. It also appears from the report that petitioner purchased 21 decimals of land in village Tira on 1.12.2006 and raised a thatched hut with tin roof over the lands purchased by him. Having noticed the aforesaid aspect, the Sub-Divisional Officer submitted his report dated 9.7.2008 to the Collector on the basis of which the Collector maintained his earlier order dated 16.5.2008 cancelling the residency certificate of the petitioner. 4. Counsel for the petitioner with reference to the report of the Sub-Divisional Officer dated 9.7.2008, Annexure-E submitted that the earlier residency certificate dated 7.12.2006 should have been maintained as there is no difficulty in concluding from the statement of the witnesses recorded before the Sub-Divisional Officer that petitioner is residing in village Tira with his cousin. In support of such submission learned counsel also relied on the order of the another Single Judge of this Court dated 26.3.2009 passed in the case of Niraj Kumar V/s. The Indian Oil Corporation Ltd. and Ors. in C.W.J.C. No.7445 of 2008 in which Honble Judge observed that a person can have multiple residences and the place where a person resides is his residence. 5. Counsel for the State, IOC and private respondent no.S has opposed the submission. They submit that the earlier residency certificate was granted by the Block Development Officer on the basis of the assertions made by the petitioner before the Block Development Officer but when the same was challenged by respondent no.6 the matter was enquired into. During enquiry it transpired that petitioner is residing with his cousin and does not have any residence of his own. During enquiry it transpired that petitioner is residing with his cousin and does not have any residence of his own. The land which he purchased on 1.12.2006 and raised thatched hut with tin roof over the same cannot be taken into account for grant of residency certificate to the petitioner as the said land has been purchased by the petitioner after publication of the advertisement dated 17.11.2006 and cannot be taken into account to declare the petitioner resident of the area on the date of the advertisement. The applicant in terms of the advertisement is required to possess a residence in the district of Purnea on the date of advertisement and not to acquire residence after publication of the advertisement. In this ponnection, learned counsel for the respondents also referred to the statement of the petitioner in paragraph-28 of the writ petition, wherefrom it appears that petitioner is serving as Manager of M/s. National Audit Works, Retail Outlet, Girija Chowk, Purnea and submitted that petitioner does not have any residence in Purnea town and is residing in village Tira with his cousin. It is also submitted that in terms of the advertisement the applicant is required to have a residence of his own in the district of Purnea. The residence of the cousin cannot be taken as residence of the applicant. In appreciation of the aforesaid facts residency certificate granted by the Block Development Officer was cancelled by the Collector under orders dated 16.5.2008. 6. In rejoinder learned counsel for the petitioner submitted that from the advertisement it does not appear that applicant should have a residence in the district of Purnea from before publication of the advertisement. He also submitted that having purchased the land and raised a thatched hut with tin roof over the same he became eligible and his residency certificate should not have been cancelled. 7. Having heard counsel for the parties and having perused the advertisement, Annexure-1 it is evident that the applicant in terms of the advertisement is required to have a residence in the district for which he is an applicant for grant of dealership. The residency qualification must necessarily be fulfilled from before the issue of the advertisement, otherwise after publication of the advertisement anyone can purchase land and raise thatched hut and thereby become resident of the area and become eligible under the advertisement. The residency qualification must necessarily be fulfilled from before the issue of the advertisement, otherwise after publication of the advertisement anyone can purchase land and raise thatched hut and thereby become resident of the area and become eligible under the advertisement. From the evidence of the witnesses examined during enquiry by the Sub-Divisional Officer on 2.7.2008 it is quite evident that petitioner was residing with his cousin. From the statement of witnesses it does not appear that he was having his own residence in the area. By purchasing 21 decimals of land and raising a thatched hut with tin roof after publication of the advertisement he does not become the resident of the area on the date of advertisement. Residency qualification is acquired by an individual after he establishes his own residence as also by residing in the same for some reasonable period of time. 8. In view of my observations above, I am of the view that the Sub-Divisional Officer, Purnea has rightly appreciated the statement of the witnesses recorded by him on 2.7.2008 that petitioner is residing in village Tira with his cousin together with the contention of the petitioner that he purchased 21 decimals of land on 1.12.2006 and raised a thatched hut with tin roof over the same, by raising such hut, in the opinion of the Sub-Divisional Officer petitioner does not become a resident of the area on the date of the advertisement i.e. 17.11.2006. Accordingly, I do not find any error either in the report of the Sub-Divisional Officer dated 9.7.2008, Annexure-E as also in the order of the Collector, Purnea dated 16.5.2008, duly communicated to the authorities of the IOC by the Deputy Collector, Incharge, General Section under letter dated 17.5.2008, Annexure-4. The writ petition is, accordingly, dismissed.