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2012 DIGILAW 624 (PAT)

Renu Devi v. Indian Oil Corporation Ltd.

2012-04-16

RAMESH KUMAR DATTA

body2012
ORDER Heard learned counsel for the petitioner and learned counsels for the respondent Indian Oil Corporation and private respondent No.3. 2. The petitioner seeks a direction upon the respondens to cancel the selection of respondent No.3. Smt.Anita Kumari @ Anita Devi as dealer of Kisan Seva Kendra, Usri on Kubri-Jaipur Road, District-Arwal and further to select and award the same to the petitioner, being the second empanelled candidate in the merit list, in place of respondent No.3. In the interlocutory application, which was allowed, the petitioner has further sought to quash the Letter of Intent dated 11.7.2011 issued by the respondent Oil Company in favour of respondent No.3. 3. The short facts of the case are that the petitioner and many other candidates along with respondent No.3 filed their applications pursuant to the advertisement dated 14.7.2010 for dealership of Kisan Seva Kendra at Usri on Kubri Jaipur Road within Arwal District. After the completion of the selection process the respondent No.3 (Anita Kumari @ Anita Devi) was placed at serial No.1 in the merit list and petitioner was at serial No.2, apart from other candidates at different places. The petitioner filed a complaint before the respondent authorities of the Indian Oil Corporation stating that the respondent No.3 is not a resident of Arwal District, which is the requirement for appointment as dealer in Kisan Seva Kendra in terms of the advertisement and Guidelines, rather she is a resident of Aurangabad District and was also contesting the election for the post of Member of Daudnagar Panchayat Samiti which is in the District of Aurangbaad and claimed that since respondent No.3 was disqualified, hence as No.2 in the merit list, the petitioner should be awarded the dealership. 4. The admitted position is that respondent No.3 is a voter in Samsher Nagar Panchayat in the District of Aurangabad and in the voters list her name appears at serial No.188. It is also an admitted position that the name of her husband, Radha Krishna Kumar is at serial No.187 of the same voters list and that of the father-in-law, mother-in-law as also other in-laws around the said serial numbers in the said voters list. It is also an admitted fact that the respondent No.3 contested the election for Member of Daudnagar Panchayat Samiti and was duly elected to the said post. It is also an admitted fact that the respondent No.3 contested the election for Member of Daudnagar Panchayat Samiti and was duly elected to the said post. The petitioner has also brought on record an affidavit sworn by respondent No.3 on 28.2.2011 before the Notary Public which she haf filed along with her nomination paper for the said post in which she has stated that she was the resident of village-Samsher Nagar in Daudnagar Police Station, District-Aurangabad and was filing her nomination paper for election as Member of the Panchayat Samiti. Other document (Form-A) in connection with the election including the names of the candidates who had filed their nomination, the document (Form-9) by which the candidates were declared contestant for the election and Form-21 showing the result of election in which the Respondent No.3 was declared elected, have been brought on the record. The said facts are admitted and not in dispute. 5. On the aforesaid facts, learned counsel for the petitioner submits that the Residence Certificate dated 28.7.2010 issued by the Circle Officer, Karpi, Arwal on which the respondents have relied cannot be relied upon because it does not fulfil the requirement of valid Residence Certificate. 6. Learned counsel for the petitioner also refers in this regard the voters list of 2004 for Vidhan Sabha in which also the name of the respondent No.3 appears in the voters list of Aurangabad District, as also the voters list of 2008 for Samsher Nagar Primary Agricultural Co-operative Society in Aurangabad District where also the names of the respondent No.3 along with her family members find place. On the strength of the same, it is submitted that respondent No.3 is, in fact, the resident of Samsher Nagar, P.S. Daudnagar, District- Aurangabad and that too is politically active in the Panchayat Samiti under Aurangabad District and the Residence Certificate has been obtained by her for the sole purpose of getting the benefit of dealership of Kisan Sewa Kendra in Aurangabad District. 7. 7. It is urged by learned counsel for the petitioner that the mere fact that the respondent No.3 originally hails from Kasauti village in Arwal District cannot be a ground for her to be considered as a resident of the said District in view of the aforesaid documents which clearly show that respondent No.3 is not only a voter of Aurangabad District but she is also actively participating in the local politics of the Panchayat, etc. in the said District. 8. It is further submitted by learned counsel for the petitioner that respondent No.3 is estopped from taking the plea that she is the resident of Arwal District in view of her own affidavit sworn at the time of election to Daudnagar Panchayat Samiti that she is a resident of village Samsher Nagar under Daudnagar Block of Aurangabad District. 9. Learned counsel for the respondent Indian Oil Corporation, on the other hand, submits that under paragraph No. 2(ka) of the Guidelines for Selection of Operator of Kisan Sewa Kendra it is provided that the applicant should be a resident of the concerned District and he must produce a Residence Certificate issued by a competent Government Official which includes the Circle Officer, apart from others. It is submitted by him that the only requirement so far as the respondent Indian Oil Corporation is concerned is to look into the Residence Certificate issued by a competent authority and it is not for the Indian Oil Corporation to take its own view in the matter as the said function is purely that of the local revenue officials. It is, thus, submitted by learned counsel that the only remedy of the petitioner in such maters is to challenge the Residence Certificate issued by the competent authority and the Indian Oil Corporation can only abide by the result of such determination or re-determination by the revenue authorities. 10. Learned counsel also submits that the question of residence is one of de facto residence, i.e. a person must be actually residing at the place. It is further submitted that a mere existence of the name of respondent No.3 in the voters list is not sufficient to decide the said issue. 10. Learned counsel also submits that the question of residence is one of de facto residence, i.e. a person must be actually residing at the place. It is further submitted that a mere existence of the name of respondent No.3 in the voters list is not sufficient to decide the said issue. According to learned counsel the stand of respondent No.3 has been that she was residing with her mother in the village under Arwal District and accordingly, it cannot be said that she is not a resident of Arwal District, although her husband may be residing in Aurangabad District. 11. In support of the aforesaid stand, learned counsel relies upon a decision of the Supreme Court in the case of Bhagwan Dass and another Vs. Kamal Abrol and others: 2005(3) PLJR 122 (S.C.) in paragraph Nos. 11 and 12 of which it has been held as follows: “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 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 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. 12. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra District. 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 for which the word ‘resident’ is used or as to why the criteria of resident is put as an eligibility criteria for allotment of LPG. In the present case the intention of the framers appears to be to provide employment or source of earning for the residents of the Kangra District in the form of LPG dealership/distributorship. The eligibility criterion requires the person to be a resident of Kanga District only in the actual sense and not in any other sense. What is required to fulfil the eligibility criteria of the residence is that the person should be a de facto residence and not to have the 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 Mandi, since her name appears in the voter’s 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 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 criteria 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 have 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 the respondent No.1 on March 3, 1988 further clarifies this requirement when it says that the dealer is to be a full time working dealer which necessitates the 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.” 12. Learned counsel for respondent No.3 while adopting the submission of learned counsel for the Indian Oil Corporation submits that although the respondent No.3 was married in a village which is situated in Aurangabad District but, as a matter of fact, the said village and the respondent No.3’s maiden village located in Arwal District are quite close to each other, i.e., 15-20 K.M. only. It is stated that the mother of respondent No.3 is a widow and has five daughters and respondent No.3 is the only daughter who has been married in a village which is quite close to her mother’s village under Arwal District, although in another District, and for the said reason respondent No.3, in order to take care of her mother and the agricultural property left behind by the father of respondent No.3, resides in the village with her mother. It is thus submitted by learned counsel for respondent no.3 that she, as a matter of fact, resides in the village under Arwal District and is definitely entitled to the dealership of Kisan Seva Kendra. For the said reason, learned counsel also submits that mere contesting of election from a village in Aurangabad District does not change the situation, as the respondent No.3 is not required to reside permanently in village Samsher Nagar under Aurangabad District for the purpose of attending her duty as she is merely a Member of the Panchayat Samiti and does not hold any full time office. 13. Learned counsel for respondent No.3 further submits that the affidavit regarding she being a resident of Samsher Nagar in Aurangabad District does not mean that she is a permanent resident of that District rather since the said village is her husband’s village, therefore, she also resides there from time to time but not on a permanent basis. She is still a resident of her home village prior to her marriage. 14. The question as to the meaning of residence has been considered at length in the decision of the Apex Court in the case of Bhagwan Dass (supra) where it has been held that the term ‘resident’ is flexible, elastic and somewhat ambiguous and is difficult to define with any exactness. However, since the said matter related to L.P.G. distributorship by an Oil Company, for which also the requirement of residence in the District was part of the eligibility criteria, it provides definite guidelines as to the meaning of being a resident of a particular District for the purpose of getting dealership from a Petroleum Company. It has been clearly held in the said case that the term ‘residence’ has to be taken in the sense of de facto residence at the place where the dealership licence is to be issued. It has been further held that mere connection on account of the husband of the applicant having some personal and ancestral property in a particular District, would not make a person a resident of that place. Note is taken of the fact that a person would prima facie be a permanent resident of a place if his name appears in the voter list of the said place. Note is taken of the fact that a person would prima facie be a permanent resident of a place if his name appears in the voter list of the said place. It has been stated that the intention for fixing the criteria is of providing employment and source of earning to a person who is actually a resident of the District. Moreover, the requirement of being personally present for running the dealership was also one of the considerations as a dealer must be a full time dealer and not working through agent or servant for the said purpose. 15. Even if the submission of learned counsel for respondent No.3 is accepted that on account of the widowhood of her mother, the respondent No.3 is living in the village of her mother, the same does not explain as to why the name of the petitioner continuously appears in the voters list of Aurangabad District when she claims to be the de facto resident of Aurangabad District. The question in the present matter is not merely the presence of the name of the respondent No.3 in the voters list of Aurangabad District. She is, as a matter of fact, an active participant in the Daudnagar Panchayat Samiti and has successfully contested for the post of Member of the Daudnagar Panchayat Samiti. The same clearly goes to show that her presence in Aurangabad District is not a mere casual connection and that she is not only temporarily residing there, rather she is actively engaged in local politics there which coupled with the fact that her name also appears in the voters list of the Panchayat as also of the Vidhan Sabha and Primary Agricultural Co-operative Society goes to show that she is a de facto resident of Aurangabad District. She may from time to time have been looking after her mother and alleged properties in Arwal District also. 16. There is also substantial force in the submission of learned counsel for the petitioner that the respondent No.3 having filed an affidavit stating that she was a resident of village Samsher Nagar, P.S. Daudnagar in the District of Aurangabad is estopped from claiming otherwise. It is evident that the claim of respondent No.3 regarding permanent residence of Arwal District is only for the purpose of getting the benefit of the dealership of Kisan Seva Kendra. 17. It is evident that the claim of respondent No.3 regarding permanent residence of Arwal District is only for the purpose of getting the benefit of the dealership of Kisan Seva Kendra. 17. From a consideration of the various parameters laid down in the case of Bhagawan Dass (supra), it is evident that respondent No.3 is a de facto resident of village Samshernagar in Aurangabad District. That being the position, she would not be entitled to grant of dealership of Kisan Sewa Kendra in Arwal District. 18. This Court also does not find any force in the submission of learned counsel for the Indian Oil Corporation that the Corporation is bound by the Residence Certificate issued by a local revenue official as specified in Clause 2 (ka) of the Guidelines for Selection of Operator of Kisan Sewa Kendra. The Residence Certificates are being issued by the revenue authorities for different unconnected purposes and the issuance of the same does not necessarily conform to the requirement of the Oil Company. If a Residence Certificate is granted by the Revenue Authority contrary to the requirement for a dealership of a Petroleum Company as laid down in the decision of the Apex Court in Bhagwan Dass Case (supra) the said Residence Certificate will not bind either the Oil Company or any other person not selected. As held in the said decision by the Apex Court, the purpose of requirement of Residence Certificate would, in fact, be a more relevant consideration in such matters than the mere issuance of the Residence Certificate by a Revenue Official. Thus, it cannot be held that the only remedy of a person, who is aggrieved by the Residence Certificate issued by the Revenue Officials is to challenge the same before the issuing official, who may have justified reasons for issuing the said Certificate for certain other purposes but not for dealership of the Oil Company. 19. I may also here refer to the submission of learned counsel for the petitioner that the Ration Card, which contains the name of respondent No.3 along with her family members is of the year 1996 when the age of respondent No.3 was merely 18 years and she was obviously unmarried. Hence, no reliance can be placed on the said Ration Card. 20. Hence, no reliance can be placed on the said Ration Card. 20. Thus, on a consideration of the entire facts and circumstances of the case, this Court is of the view that respondent No.3 not being a de facto resident of Arwal District is not entitled to the dealership of Kisan Sewa Kendra of Arwal District. The authorities of the Indian Oil Corporation are, accordingly, directed to cancel the selection of respondent No.3 and proceed further in the matter in accordance with law, including considering the claim of the petitioner being at serial No.2 in the merit list. 21. The writ application is, thus, allowed with the aforesaid observations and directions. ?