High Court Patna High Court - Orders

Dilip Kumar vs Union Of India & Ors on 9 September, 2011

Patna High Court – Orders
Dilip Kumar vs Union Of India & Ors on 9 September, 2011
                      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.
                                                    --------

                      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.
                                                   ---------

                                           PRESENT
                                  HON'BLE MR. JUSTICE S. N. HUSSAIN
                                               --------

                                                   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.)