IN THE HIGH COURT OF JUDICATURE AT PATNA
C. W. J. C. NO. 2760 OF 2002
Dilip Kumar, son of Sri Babulal Choudhary, resident of Mohalla
Delha, Dularganj, P.S.Gaya, District-Gaya.
...... Petitioner.
Versus
1. Union of India through the Ministry of Petroleum, Govt. of
India, New Delhi.
2. The Chairman, the Hindustan Petroleum Corporation Ltd.,
Petroleum House, 17J, Tata Road, Mumbai- 400 026.
3. Senior Regional Manager, Hindustan Petroleum Corporation
Ltd., Lok Nayak Bhawan, 6th Floor, Frazer Road, Patna- 800
001.
4. The Chairman, Dealer Selection Board, 2nd Floor, Bihar
Industries Association Building, Near Sinha Library Road,
Patna- 800 001.
5. Circle Officer, Town Anchal, Gaya.
6. Surendra Prasad S/o Late Mahadev Ram,
Resident of Village and Post Mahdeiya, via- Nagar Uttari,
District Garhwa, at present posted as Junior Engineer, Bihar
State Electricity Board and residing at Qr. No. L.I.G.118,
Chanakayapuri, A.P. Colony, Gaya.
..... Respondents.
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For the petitioner : Mr. N. K. Agrawal, Senior Advocate
With M/s Sanjeet Kumar &
D.N.Tiwari, Advocates.
For respondent nos.2 & 3 : Mr. Rajeev Prakash, Advocate.
For respondent nos. 4 & 5: Mr. Vinay Kirti Singh, Standing Counsel no.5
For respondent no.6 : Mr. Dinu Kumar, Advocate.
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PRESENT
HON'BLE MR. JUSTICE S. N. HUSSAIN
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ORDER
16/ 09.09.2011 Learned counsel for the petitioner, learned counsel for the State
of Bihar and learned counsel for the Hindustan Petroleum Corporation
Limited (hereinafter referred to as ‘the Corporation’ for the sake of
brevity) and its authorities have been heard in detail. Neither any counter
affidavit has been filed on behalf of respondent no.6, nor anyone has
appeared on his behalf even though notices were sent and had been validly
served upon him and the name of his learned counsel vide vakalatnama
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dated 15.05.2002 is appearing on the daily cause list.
2. This writ petition has been filed by the petitioner challenging
order dated 11.01.2002 (Annexure-1) by which the Chairman, Dealer
Selection Board, Patna (respondent no.4) dismissed his petition filed
pursuant to order dated 10.08.2001 (Annexure-4) passed by a bench of this
court in CWJC No.10235 of 2001.
3. The short facts of the case is that on 26.09.2000 a notice was
issued in the ‘Hindustan’ daily Hindi Newspaper by the Corporation
inviting application for appointment of retail outlet dealers for several
places, including Gaya Bye-pass Road, which is the location in dispute in
the instant writ petition. In the said notice, it was specifically mentioned
that the applicant must be of the area where the retail out let was to be
established. The petitioner being the resident of the said area applied in
the prescribed format and within the prescribed time before the authority
concerned for appointment of retail outlet dealer of the Corporation for
Gaya Bye-pass Road. Respondent no.6, who was the resident of district of
Garahwa, but at the relevant time was posted at Gaya from 10.08.1999 as
Junior Electrical Engineer (General Cadre), also applied for the aforesaid
proposed location.
4. All the applicants, including the petitioner and respondent
no.6 appeared before the Dealer Selection Board in April, 2001 and the
merit list was prepared by the Board in which respondent no.6 was placed
at serial No.1 whereas the petitioner was placed at serial no.2. This order
of the Board was challenged by the petitioner in CWJC No.10235 of 2001
which was considered by a Bench of this Court and was disposed of vide
order dated 10.08.2001 (Annnexure-4) after finding that the writ petition
was premature as nothing had been brought on record to show that the
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dealership had been granted in favour of any one. It was also observed that
the petitioner may file his objection for exclusion of respondent no.6 from
the merit list before the Chairman, Dealer Selection Board who shall
consider the same and dispose it of before grant of dealership, if not
already granted, by a reasoned order in accordance with law.
5. Immediately thereafter the petitioner filed his detailed
objection dated 24.08.2001 (Annexure-5) before the Chairman, Dealer
Selection Board. The petitioner also filed another application on
18.10.2001 (Annexure-6) annexing therewith the order of Anchal
Adhikari, Gaya Town dated 06.10.2001 by which the earlier Residence
Certificate of Gaya dated 30.10.2000 granted to respondent no.6 was
cancelled as he was found to be resident of the District of Garahwa, which
was also apparent from notification of the Bihar State Electricity Board
dated 12.11.1999 (Annexure-7) in which respondent no.6 was shown at
serial no.49 having Garahwa as his Home District.
6. The said application of the petitioner was rejected by the
Chairman, Dealer Selection Board vide his impugned order dated
11.01.2002 (Annexure-1) on the ground that respondent no.6, being the
Junior Engineer in the Bihar State Electricity Board posted at Gaya at the
relevant time, will be deemed to be the resident of Gaya and hence there
would be no hindrance in his appointment as a dealer for the aforesaid
place. However, it was found in the said order that respondent no.6 had
himself given an undertaking before the Corporation that the said
Corporation under its policy will not appoint as dealer/ distributor if he
was employed and hence he would produce proof of acceptance of his
resignation by his employer, namely the Bihar State Electricity Board
before issuance of letter of intent for the said dealership. Hence, the
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Chairman, Dealer Selection Board in his aforesaid impugned order
directed that letter of intent may be issued to respondent no.6 but before its
issuance respondent no.6 must submit his resignation letter and order of
acceptance of his resignation from his employer, namely Bihar State
Electricity Board and if he did not produce it, the Corporation will be free
to cancel the letter of intent etc.
7. The aforesaid facts are not in dispute. It is also not in dispute
that respondent no.6, who was transferred and posted at Gaya in the year
1999, was transferred from Gaya to Aurangabad in the year 2004 and even
after service of notice of the instant writ petition he did not appear in the
case nor he had shown any interest in the matter even before the
Corporation. Furthermore, there is nothing to show that in compliance of
the impugned order dated 11.01.2002 (Annexure-1) respondent no.6 had
produced his letter of resignation addressed to his employer or any order
of the Bihar State Electricity Board showing acceptance of his resignation.
8. It is clear from the record of this Court that against the
impugned order of the Chairman of the Board (respondent no.4) dated
11.01.2002 (annexure-1) the instant writ petition was filed by the
petitioner immediately thereafter on 20.02.2002 and by an interim order
dated 21.03.2002 a Bench of this Court directed the respondent-authorities
not to issue any letter of intent in favour of respondent no.6 until further
orders, if not yet issued.
9. It is the specific case of respondents that Government of
India, Ministry of Petroleum & Natural Gas vide its letter dated
09.08.2002 communicated the policy decision of the government in public
interest and directed all the Public Sector Oil Companies to cancel all the
Petrol Pumps and Kerosene Dealerships made under the recommendation
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of the Dealer Selection Boards since 01.01.2000 forthwith. It was also
stated that pursuant to Article 146A of the Articles of Association of the
Corporation it was required to give immediate effect to such directives
from the Government of India and hence the Corporation vide order dated
13.08.2002 (Annexure-B to the counter affidavit of the Corporation)
withdrew letter of intent dated 15.04.2002 issued by the Corporation in
favour of respondent no.6 and directed it to be treated as cancelled with
immediate effect.
10. Learned counsel for the respondents has also claimed that
Government of India, Ministry of Petroleum and Natural Gas received
reports alleging irregularities in allotment of retail outlets, LPG
distributorship and SKO-LDO dealership and hence it issued order dated
09.08.2002 directing all the Oil Companies to cancel all the allotments
made in regard to the retail outlet, LPG distributorship and SKO- LDO
dealerships on the recommendations of Dealer Selection Board since
01.01.2000 forthwith except in case of under ‘Operation Vijay Scheme’.
This order was the subject matter of challenge before the Apex Court in its
Civil Original Jurisdiction in Transferred Case No.100 of 2002 (Mukund
Swarup Mishra Vs Union of India & Ors.) and in that case the Apex Court
constituted a committee for considering all the 417 cases in which
allegations were made, out of which there were 32 cases from Bihar. The
Committee submitted its report on the basis of which some cancellations
were set aside and some cancellations were upheld by the Apex court in its
order dated 07.11.2008 while deciding the aforesaid case. However, the
said matter before the Supreme Court was regarding 413 cases including
32 from Bihar, but neither the petitioner nor the proposed location in
question was amongst them, hence the said matter has no effect at all on
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the instant case which has to be considered only in view of the in-
competency of the first empanelled candidate, namely respondent no.6. In
this connection, the case law relied by learned counsel for the respondents
in case of Onkar Lal Bajaj and others versus Union of India and another
reported (2003) 2 Supreme Court Cases 673 is not applicable to the facts
and circumstances of this case.
11. From the record of this case it is also apparent that the letter
of intent issued by the Corporation in favour of respondent no.6 had no
legal effect also as it was issued on 15.04.2002 by the concerned authority
in utter violation of the specific interim order of this court dated
21.03.2002 by which the Corporation and its authorities were restrained
from issuing any letter of intent in favour of respondent no.6, if not issued
till that date.
12. So far the word ‘resident’ is concerned the Chamber
Dictionary defines it as dwelling in a place for some time and residing on
one’s own estate and not having migrated, whereas Webster’s Dictionary
defines it as a place where a person dwells permanently and for any length
of time and the Oxford Dictionary defines it as a place where a person
dwells permanently or for considerable time, to have one’s stay or usual
abode, to live in or at a particular place.
13. From the aforesaid definitions, it is quite apparent that a
residence of a person can be permanent and temporary, out of which
permanent residence means a place where a person is permanently
dwelling or has been permanently settled down, whereas a temporary
residence means a place where a person is residing for a short period only
for some specific purpose. As per the definitions, it is quite apparent that
the residence of a person can be said to be his permanent dwelling and it
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included his present residence if it is coupled with the fact of animus
manedi or an intention to stay for a considerable period.
14. It may be noted that while deciding the question of
residence either ‘permanent’ or ‘temporary’; defacto or de jure; and actual
or constructive, it is necessary to see the purpose for which it is required.
For such an agency which is the subject matter of this writ petition it
requires full time working dealer which would not be possible by a person
if he is not the permanent resident of the area concerned and is permanent
resident of another place or if his temporary place of residence is shifting
in quick succession, merely to work through his servants or agents.
Hence, a person having merely casual connections or temporary residence
in that area who is bound to be transferred at short intervals cannot be
included within the definition of ‘resident’ for the said purpose. In this
regard, reference may be made to a decision of the Apex Court in case of
Bhagwan Dass & Anr. Vs. Kamal Barol & Ors. reported in 2005 (3) PLJR
(SC )122.
15. From the eligibility criteria for award of
dealership/distributorship it transpires that in Part-I, the applicant is
required to be the resident of the advertised location and adjoining district
as mentioned in the advertisement, whereas in Part-II thereof the applicant
was required to produce separately a residence certificate issued within
previous six months of the date of application duly signed by the
Government authorities. The advertisement also provided that preference
had to be given to the persons of the District where the required location is
situated. In the said circumstances, the term ‘ordinarily resident’ used here
will have the same meaning as has been given in Section 20 of the
Representation of People Act, 1950 which specifically provides that
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person having a service qualification shall be deemed to be ordinarily
resident on any date in the constituency, but for his having such service
qualification, he would have been ordinarily resident on that date.
16. In the said circumstances, it is quite apparent that
respondent no.6 was transferred and was temporarily posted at Gaya in the
year 1999 only for the requirement of his service and was transferred from
there after sometime in the year 2004 and hence his stay at Gaya being
only for the purposes of his service he cannot be legally assumed to be an
ordinary resident of Gaya because except for his service he would not
have been residing at Gaya either permanently or temporarily; de facto or
de jure; actually or constructively; especially when there is nothing to
prove anything to the contrary.
17. However, in any view of the matter, the residence
certificate wrongly issued by the authority concerned on 30.10.2000
having been cancelled by the said authority on 06.10.2001 and letter of
intent issued by the respondent-Corporation in favour of respondent no.6
on 15.04.2002 having been withdrawn and cancelled by the Corporation
vide letter dated 13.08.2002 and respondent no.6 not having raised any
objection thereto at any stage and before any Forum, the said respondent
no.6, who was the first empanelled candidate, has no claim left in the
mater, which is now only between the Corporation and the petitioner, who
was the second empanelled candidate.
18. In a similar matter, the Apex Court in case of Moumita
Poddar Vs. Indian Oil Corporation Limited and another reported in
(2010) 9 Supreme Court Cases 291 had specifically held that if the letter
of intent issued to the first empanelled candidate is cancelled for any
reason it will be given to the next candidate in the merit list. Hence there is
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no occasion for setting aside the entire procedure and steps taken by the
authorities for such selection inspite of the fact that much time has lapsed
since the merit list was prepared. This plea of the respondents cannot be
legally entertained, especially when the petitioner has taken due steps in
filing this writ petition and is prosecuting this writ petition since 2002 and
any fresh procedure for selection is bound to seriously prejudice the
petitioner, who was duly placed at serial no.2 in the panel/merit list and for
making such selection no period has been prescribed either in the
advertisement or in the brochure or even in the by laws. In this regard,
reference may be made to a decision of the Apex Court in case of Monika
Gupta Vs. Union of India & Others reported in (2010) 6 Supreme Court
Cases 574 as well as a decision of a Bench of this Court in case of Anil
Kumar Singh Vs. Union of India and ors reported in 2000(3 )PLJR 176.
19. In the aforesaid facts and circumstances, this writ petition is
allowed. The impugned order dated 11.01.2002 (Annexure-1) passed by
the Chairman, Dealer Selection Board (respondent no.4) is quashed and
the respondent-Corporation and its authorities are directed to appoint the
petitioner, who was empanelled at serial no.2 in the selection list and who
has been found otherwise competent and issue letter of intent and
complete all the other formalities in his favour for appointing him as retail
outlet dealer of the Hindustan Petroleum Corporation Ltd. for the proposed
location at Gaya Bye-pass Road.
Sunil (S. N. Hussain, J.)