Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 287 (PAT)

Anuja Choudhary v. State of Bihar

2012-02-17

SHEEMA ALI KHAN

body2012
ORDER Heard Counsel for the petitioners, the private respondents, the Indian Oil Corporation and the State. 2. The petitioners have challenged the order dated 05.09.2011 (Annexure-3) by which the ‘residence certificate’ issued in favour of the petitioners had been cancelled. Subsequent to that, the Sub Divisional Officer stayed the cancellation of the residential certificate and remanded the matter back to the Circle Officer to hear the parties afresh and pass an appropriate order. Accordingly, the Circle Officer, after taking the opinion of the Government Pleader, came to the conclusion that he has no power to order for restoration of the order of cancellation of residence certificate granted by him vide order dated 26.011.2011. The petitioners have challenged the order dated 26.11.2011 vide I. A. No. 8370 of 2011 by filing an amendment petition. The said residence certificate was required apart from other reasons, for the reason that the petitioners had applied to the Indian Oil Corporation for opening a petrol pump outlet in village Nawada, Police Station Dalsingsarai in the district of Samastipur. 3. The dispute in this case arises out of the fact that the Indian Oil Corporation had advertised for opening up a petrol pump outlet in village Nawada, Darsingsarai. The petitioners applied for residential certificates and they were issued a certificate vide Certificate Nos. SMR/DAL/2010/RES/6858 and SMR/DAL/2010/RES/6859 respectively, on 12.08.2010 by the Block Development Officer, Dalsinghsarai, Samastipur. The private respondents 5 and 6 Jayant Kumar Choudhary and Udaywant Kumar, who are also partners also applied for opening up a petrol pump outlet at village Nawada. Both, the petitioners and the private respondents 5 and 6 are agnates and are thus closely related to each other. The Indian Oil Corporation while making the selection found that Anuja Choudhary and Rituraj Choudhary were better candidates and awarded them 92.79 marks whereas respondents 5 and 6, namely, Jayant Kumar Choudhary and Udaywant Kumar were awarded 91.18 marks. The chart allotting marks is contained in Annexure-2 which indicates that marks are awarded by the Site Inspection Committee. The Site Inspection Committee had awarded marks on the basis of the candidates ability for future growth plan, personality business, income tax, immovable and moveable assets, educational qualifications etc.. The chart allotting marks is contained in Annexure-2 which indicates that marks are awarded by the Site Inspection Committee. The Site Inspection Committee had awarded marks on the basis of the candidates ability for future growth plan, personality business, income tax, immovable and moveable assets, educational qualifications etc.. One of the criteria for running and establishing a business on the basis of a license granted by the Indian Oil Corporation is that the persons should be a resident of the area where he intends to open and run the petrol pump outlet. 4. Once the petitioners were selected, the candidates who came second in the selection list, i.e. the private respondents 5 and 6, filed an objection that although the petitioners have their lands and ancestral house etc. at the village concerned, however, they do not permanently reside at the village and as such, the residence certificate granted to them by the Block Development Officer should be cancelled. The residence certificates granted was cancelled by the Circle Officer, Dalsingsarai vide Annexure-3 on the ground that the certificates were not legally granted. The petitioners then moved before the Sub Divisional Officer, who remanded the matter back to the Circle Officer. The Circle Officer upheld his earlier order cancelling the residence certificates dated 05.09.2011 vide Annexure-10. 5. The petitioners have challenged Annexure-10 on the ground that the order passed is not legally sustainable as it does not disclose the minds of the Circle Officer and state the reasons for cancelling the residence certificates. One of the grounds for passing the impugned order is that the Circle Officer comes to the conclusion that once the certificates had been cancelled by him earlier, he cannot review his order. The order does not disclose the materials on which the Circle Officer has relied. Dealing with this aspect, this Court finds that once there was a challenge to the earlier cancellation order dated 05.09.2011 by the respondents, the petitioners too had a right to challenge the order passed against him. The Sub Divisional Officer, who heard the matter, remanded the matter back to the Circle Officer and as such, this Court is of the view that the Circle Officer ought to have applied his mind afresh, as directed by the Sub Divisional Officer. The Sub Divisional Officer, who heard the matter, remanded the matter back to the Circle Officer and as such, this Court is of the view that the Circle Officer ought to have applied his mind afresh, as directed by the Sub Divisional Officer. However, the main contention of the parties before this Court needs to be clarified and discussed in order to understand the import of grant of a residence certificate, especially in view of the fact that it would be required for the purpose of grant of license by the Indian Oil Corporation to establish and run a petrol pump outlet in the village Nawada. 6. Before dealing with the material produced on behalf of the petitioners to establish that they are residents of village Keonti, Police Station Dalsingsarai in the district of Samastipur, this Court will discuss the criteria as laid down by the State Government vide its letter no. 673 dated 08th March, 2011 (Annexure-4). The circular deals with the criteria and procedure by which the Circle Officer can grant certificates such as caste certificates, income certificates, residential certificates, creamy layer certificates etc. Clause (10) of the said circular deals with the requirements which are essential for grant of residential certificates, which are as follows:- <span class="Hfont"> (10) vkokl izek.ki=k ds lk{; gsrq fuEukafdr vfHkys[k leqfpr ekus tk;saxs%µ vkosnd ;k vkosfndk ds ekrk&firk@iwoZt dkµ (10.1) jktLo vfHkys[k (;Fkk [kfr;ku] nkui=k] Hkwfe lacaèkh nLrkost] Hkwfeghuksa dks vkoafVr tehu ls lacafèkr vfHkys[k vkfnA) (10.2) jk'ku dkMZA (10.3) fuokZpu igpku i=kA (10.4) fo|qr foi=kA (10.5) nwjHkk"k foi=kA 7. The contention on behalf of the petitioners is that they had produced the required documents under Clause (10) (1) of the circular aforesaid before the Circle Officer for grant of the residence certificates. The application filed on their behalf as contained in Annexure-9 discloses that through a Partition Suit No. 190 of 1953, on the basis of a compromise decree dated 16.02.1960, there was a partition between Babu Hemant Choudhary, son of Babu Ramashray Prasad Choudhary & Babu Basant Kumar Choudhary and Babu Ramashray Choudhary, son of Babu Chaturvedi Prasad Choudhary and others. As a result of which, Shri Hemant Kumar Choudhary was awarded certain lands in the village. As a result of which, Shri Hemant Kumar Choudhary was awarded certain lands in the village. The petitioners have annexed the documents showing the lands that were allotted to Shri Hemant Kumar Choudhary as well as the telephone bills in the name of Shri Basant Kumar Choudhary, electricity bills also in the name of Shri Basant Kumar Choudhary, voters card of Hemant Kumar Choudhary, rent receipts in the name of Shri Basant Kumar Choudhary and return also in the name of Shri Hemant Kumar Choudhary. It has also been stated that Shri Basant Kumar Choudhary, son of Shri Hemant Kumar Choudhary was the plaintiff in the suit. The lands are recorded in the name of Shri Basant Kumar Choudhary. The petitioners are the daughter and son of Shri Basant Kumar Choudhary. It has been submitted on behalf of the petitioners that Shri Basant Kumar Choudhary being a practicing lawyer of the Patna High Court had built a house in North Shri Krishna Puri in the district of Patna. Shri Basant Kumar Choudhary used to look after his ancestral properties by visiting the village quite often. After his illness, his daughter who was earlier living with her husband at Mumbai, took over the management of the property. Subsequent to that, petitioner no. 2, who is the brother of petitioner no. 1, joined petitioner no. 1 for the purpose of looking after the said properties. Both of them began to reside at the village. It has also been stated that the husband of petitioner no. 1 is a Script Writer and he has joined petitioner no. 1 and lives in the village and visits Mumbai to present his scripts as and when required. It is specifically emphasized that the petitioner no. 1 had been living in the village since 2006. It has also been argued on behalf of the petitioners that the voters’ card cannot be a criteria for holding that a person is not the permanent resident of the village or town concerned, as the voters list and voters’ card may be changed from time to time in accordance with the circumstances. 8. This Court finds that there is no doubt about the fact that the petitioners’ forefather were resident of village Keonta. 8. This Court finds that there is no doubt about the fact that the petitioners’ forefather were resident of village Keonta. It cannot be disputed that the father of the petitioners must have been looking after his agricultural lands, residential house which are on rent and the house in which he lives when he used to visit the village. The documents also indicate that the petitioners’ father has all documents which would establish his title and possession over the lands in question. However, the question before this Court is whether the petitioners can be said to be the permanent residents of the village in question? 9. The meaning of the word ‘reside’ according to the Chambers Dictionary has been defined as “to dwell permanently; to be in residence; to abide; to be vested; to inhere, whereas the word ‘residence’ has been defined as the act or duration of dwelling in a place; the act of living in the place required by regulations or performance of functions; a stay in a place; a dwelling-place; a dwelling-house, especially one of some pretentions; that in which anything permanently inheres or has its seat. The fact or status of living or staying in a place while working, going to school, carrying out official duties etc. especially long enough to qualify for certain rights, privileges etc. whereas ‘resident’ is defined as living in a place for some continuous period, having a residence at that place”. 10. The Dictionary meaning of the word ‘reside or residence’ leads to the conclusion that a person who claims to be a resident of a place must be residing in the place continuously or for a long period, for any purpose whatsoever so that by virtue of residing at that place, he would be entitled to certain rights and privileges. 11. The meaning of the word ‘resident’ has been interpreted in different context, under different acts by a judgment of the Supreme Court in the case of Bhagwan Das Vs. Abroo [2005 (3) PLJR 122 (SC)]. 11. The meaning of the word ‘resident’ has been interpreted in different context, under different acts by a judgment of the Supreme Court in the case of Bhagwan Das Vs. Abroo [2005 (3) PLJR 122 (SC)]. In 1937, the Privy Council while deciding the meaning of the word ‘resides’ as it occurs in Section 33 of the Registration Act, 1908 has observed that “the expression resides as used in Section 33 is not defined in the statute, but there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence” whereas in the case of Sri Sri Sri Kishore Chandra Singh Vs. Babu Ganesh Prasad Bhagat and Others [ AIR 1954 SC 316 ] and in the case of Mst. Jagir Kaur and Another Vs. Jaswant Singh [AIR 1963 SC 150], the word ‘resides’ has been defined in the following manner:- “a person resides in a place if through choice make it his abode permanently or even temporarily”. 12. It is thus a mixed question of fact and law. Again, in the case of U.O.I. Vs. Dudh Nath Mishra and others [ AIR 2000 SC 525 ], the Supreme Court has interpreted the word ‘resides’ by showing that it has to be read as ‘ordinarily resident’. It is clear that a person, before he can be said to be ordinarily residing at a particular place has to have an intention to stay at the place for a considerable length of time and it would not include a visit of a short or casual presence at the place. After considering the aforesaid judgments, the Supreme Court has observed as follows:- “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 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’. Firstly is in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. There are two classifications of the meaning of the word ‘residence’. Firstly 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 the Black Law Dictionary, 8th Edition. 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”. 13. In the present case, the necessary eligibility criteria requires that the applicant should be a resident of village Keonta, inasmuch as he should be a person who is de facto residing at a place and is not present at the place merely because of an ancestral property or on a temporary basis. What is required is that he should be living in the place and should be drawing his ration from the place where he lives, paying the electricity bills, telephone bills and maintaining a residence in the village concerned. The idea behind allotting a license to the resident to run a petrol pump outlet etc. in the village is to afford opportunity to give employment to the persons of the said locality. A person who temporarily resides or comes and goes to the village as and when required cannot be said to be a permanent resident of the place in the context to grant of license to run a petrol pump outlet. 14. Having come to the aforesaid conclusion, this Court finds that what is required is that the Circle Officer should determine as to whether the petitioners are ‘de facto’ residents of the place. It is clarified that the documents supplied by the petitioners are related to the title etc. held by their father. 14. Having come to the aforesaid conclusion, this Court finds that what is required is that the Circle Officer should determine as to whether the petitioners are ‘de facto’ residents of the place. It is clarified that the documents supplied by the petitioners are related to the title etc. held by their father. It cannot be denied that the petitioners by virtue of being the children of Shri Basant Kumar Choudhary are entitled to say that they have an equal share in the property and as such the fact that the rent receipts were paid on behalf of the petitioners’ father for himself and his heirs would not be rejected on the ground that the documents are in the name of Shri Basant Kumar Choudhary. 15. The private respondents, on the other hand, argued that the petitioner no. 1 lives in Mumbai with her husband and he visits the village on certain occasions and thus, they cannot be said to be a permanent resident of the village. Likewise, it has been submitted that petitioner no. 2 had shown his permanent address as 5D/6, North S. K. Puri, Patna. It is also the address shown by him in the passport, driving license, mobile phones etc. The respondents submit that the petitioners visit the village quite often, but do not permanently reside at the village in question. 16. The petitioners may produce a copy of this order before the Circle Officer, Dalsingsarai, Samastipur within a period of one month from the date of receipt of a copy of this order. The Circle Officer will conduct an enquiry and decide the issues within a period of three months from the date of receipt/production of a copy of this order in terms of the findings of this Court mentioned aforesaid. 17. This writ application is disposed of with the aforesaid observations and directions. ?