JUDGMENT B.S. Chauhan, J.
1. The proceedings of the Dealer Selection Committee of Hindustan Petroleum Corporation Ltd., (hereinafter referred to as the "Corporation") taken in the meeting held on 4.11.2003, have been challenged in the present petition and a further direction has been sought that the Letter of Intent may not be issued in favour of private respondent No. 5, i.e.. Shri Keshav Nath Shukla (hereinafter referred to as "Shri Shukla") pursuant to the aforesaid selection. Other consequential reliefs have also been sought.
2. An advertisement was issued by the Corporation on 14.9.2000, for allotment of dealership of High Speed Diesel and Petrol. A perusal of the advertisement and the eligibility criteria as published by the Corporation shows that the applicant should have been a resident of the concerned district. For the said purpose, the applicants were required to produce separately a residence certificate issued within previous six months of the date of application duly signed by the Competent Government Authority as per the format attached. This was contained in Appendix D. In the eligibility criteria it has also been mentioned that if any statement made in the application or in the documents enclosed therein or subsequently submitted in pursuance of the application by the candidate at any stage is found to be incorrect or false, the application would be rejected without assigning any reason.
3. The note contained to the application form required to be filled up by every candidate reads as under:
The terms ordinarily resides used here will have the same meaning as in Section 20 of the Representation of People Act, 1950.
4. On the basis of the applications submitted by various persons, interview letters were issued by the Corporation for appearing before the Dealer Selection Committee on 4.11.2003. The petitioner and the respondent No. 5 and others appeared before the Dealer Selection Committee and thereafter a panel was prepared by the aforesaid selection committee in which Shri Shukla was placed at Serial No. 1, while Gayatri Devi and Lavkesh Kumar were placed at Serial Nos. 2 and 3 respectively.
5. The dispute in the present petition relates to Shri Shukla who had been placed at Serial No. 1, as according to the petitioner he was not a resident of Village Chak Parauna, though the residence certificate submitted by him did mention that he was a resident of Village Chak Parauna district Sant Ravidas Nagar. It has been stated that a complaint was made in respect of the aforesaid certificate of Shri Shukla and thereafter on an enquiry an order was passed by the Block Development Officer on 6.11.2003 to cancel the name of Shri Shukla from the Kutumb Register of Village Chak Parauna. It has also been stated in the petition that the name of Shri Shukla is recorded at Serial No. 32 in the Voters List of Village Manaura in Tehsll Madlahun of district Jaunpur. This voter list was prepared in the year 2003 and it also shows that the Photo Identity Card No. of Shri Shukla from that place is U. P. 48-254-0183019. It has also been mentioned that Shri Shukla was holding the post of Block Pramukh of Block Basanthi district Jaunpur, and on the basis of the aforesaid entries. The Chief Development Officer, Jaunpur has also issued a certificate that Shri Shukla is a resident of Village Manaura district Jaunpur. It has therefore been contended that Shri Shukla was not eligible and therefore the panel prepared by the Dealer Selection Committee on 4.11.2003, deserves to be set-aside and a fresh panel should be prepared. It has also been contended that even otherwise, the marks have not been correctly awarded to the petitioner by the Dealer Selection Committee.
6. In the counter-affidavit filed by the Corporation it has been stated that pursuant to the receipt of the complaint regarding the eligibility of Shri Shukla, the matter was investigated by the Senior Manager Networking Planning N.Z. and thereafter a Field Information Report was submitted mentioning therein that Shri Shukla had furnished false information regarding the residence certificate and that in fact he was not a resident of Chak Parauna, district Sant Ravidas Nagar. The said report was furnished after scrutinizing the records issued by the District Administration. It has also been stated that the Chief Development Officer/Incharge District Magistrate, Jaunpur, had also issued a certificate that Shri Shukla was a permanent resident of district Jaunpur and that even in the voter list of district Jaunpur the name of Shri Shukla appears at Serial No. 32. The counter-affidavit further mentions that Shri Shukla was therefore not eligible to be granted the dealership of Diesel and Petrol at Western End of Gopiganj at National Highway 2, district Ravidas Nagar.
7. A counter-affidavit has also been filed on behalf of Shri Shukla. In the said counter-affidavit, it has been admitted that Shri Shukla was the Block Pramukh in district Jaunpur, though it has been clarified that at the time when the application for dealership was submitted he was not the Block Pramukh and therefore this could not be a disqualification for allotment of dealership. Reliance has also been placed on the order dated 15.12.2003, passed by the Sub-Divisional Magistrate, Gyanpur, district Sant Ravidas Nagar, wherein it has been mentioned that Shri Shukla had been temporarily residing in Sant Ravidas Nagar for the last three years on the basis that he owned immovable properties in the said village.
8. The question that arises for our consideration is whether Shri Shukla could be awarded the dealership or not as the bone of contention between the parties is whether Shri Shukla was a resident of Village Chak Parauna, district Sant Ravidas Nagar for the purpose of allotment of the dealership as was required by the respondent Corporation. According to the petitioner and the respondent Corporation, Shri Shukla did not satisfy the requirement contained in the advertisement and the eligibility criteria as he was not a resident of the concerned district and, therefore, his application was liable to be rejected, while according to Shri Shukla he satisfied the requirement in view of the certificate dated 15.12.2003, issued by the Sub-Divisional Officer, Gyanpur.
9. The documents that have been brought on record by the petitioner and which have not been disputed, undoubtedly show that in the voters list the name of Shri Shukla appears at Serial No. 32 in Village Manaura, district Jaunpur. The documents also show that a certificate had been issued by the Block Development Officer for cancellation of the name of Shri Shukla from the Kutumb Register of Village Chak Parauna, district Sant Ravidas Nagar and that Shri Shukla was also a Block Pramukh of Block Barsathi, district Jaunpur. The certificate issued by the Chief Development Officer, Jaunpur, also clearly mentions that Shri Shukla is a resident of Village Manaura district Jaunpur. The Corporation also carried out a detailed investigation and a Field Information Report was also submitted to the effect that Shri Shukla had furnished false information regarding the fact that he was a resident of Chak Parauna, district Sant Ravidas Nagar. These facts have not been disputed by the petitioner, but what he contends is that in view of the order dated 15.12.2003, passed by the Sub-Divisional Magistrate, Sant Ravidas Nagar, it must be held that Shri Shukla was a resident of Village Chak Parauna, district Sant Ravidas Nagar.
10. We have carefully perused the order dated 15.12.2003, passed by the Sub-Divisional Magistrate, Gyanpur and find that the order contains a recital that Shri Shukla was only a temporary resident of the said village in view of the fact that he owns certain immovable property. There is no finding in the said order that he was a permanent resident of that Village.
11. The advertisement dated 14.9.2000, required that every applicant shall be resident of the district in which dealership is to be granted.
12. In order to properly appreciate the issue Involved herein it would be necessary to find out the meaning of residence.
13. Residence, in the ordinary sense, is more or less of a permanent character. The expression 'resides' mean to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has fixed his home or abode.
14. In Webster's Dictionary, 'to reside' has been defined as meaning to dwell permanently or for any length of time. Where there is such fixed home or such abode at one place, the person cannot be said to reside at any other place where he had gone on a casual or temporary visit. If a person lives with his wife and children in an established home, his legal and actual place of the residence is the same. (Vide Smt. Jeewanti Pandey v. Kishan Chandra Pandey ).
15. In Narsimha Rao v. Venkata Lakshmi , the Hon'ble Apex Court held that 'residence' does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well.
16. The word 'reside' in Order V, Rule 4 of the Code of Civil Procedure, has been defined to mean residence of a permanent character and not casual or temporary residence. If there is animus revertendi, his temporary stay at another place, however long, will not have the effect of changing his permanent residence at the original place. Reside refers to the place where a person stays with his family permanently and voluntarily. In Rajaqat Ullah Khan v. Emperor 1948 ALJ 305, 'to reside' was explained by this Court to mean to live or to have a dwelling place or abode. It cannot be equated with something in the nature of having a domicile in a particular place. Reside implies something more than a brief or flying visit to a place where a man resides with his family.
17. In Satya v. Teja Singh , the Hon'ble Apex Court observed that the word 'reside' is not free from ambiguity, as the word is capable of a variety of meaning according to the circumstances to which it is made applicable and the context in which it is found.
18. Residence is not meant to take in places of temporary stay however long the stay may be. The residence must answer a qualitative as well as quantitative test and the two elements of factum at animus must concur for determining as to whether a person is a resident of a particular place or not. The facts and circumstances of each case must be looked into and inference can be drawn after ascertaining the place where a person is expected to be ordinarily found. It must have an abode for a considerable time; to dwell permanently. For the purposes of determining that as to whether a person is a resident of a place or not, he must have a permanent and not a temporary abode with an intention to stay for an indefinite period.
19. The concept of residence has obtained various judicial opinions and responses. In Sarat Chandra Basu v. Bijoy Chand Mahatab Maharajadhiraj of Burdwan AIR 1937 PC 46, the Privy Council defined the word 'resides' as it occurs in Section 33 of the Registration Act, 1908, observing that it contemplates only permanent residence and excludes the temporary one.
20. The aforesaid judgment was approved and followed by the Hon'ble Apex Court in Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat and Ors. .
21. In Mst. Jagir Kaur v. Jaswant Singh , the Hon'ble Apex Court defined the word 'residence' referring to a place which is made by choice by a person, his abode permanently. However, the Court cautioned that such an issue should be determined taking into consideration the facts, the context and the purpose of a particular Statute.
22. In Union of India v. Dudh Nath Mishra , the Apex Court held that the word 'resides' is to be ordinarily considered taking into consideration the place where a person ordinarily resides and has an intention to stay at that place for a considerable length of time and it would not include a visit of a short or casual presence at that place.
23. Similar view has been reiterated while considering the case of L.P.G. dealership in Bhagwan Dass and Anr. v. Kamal Abrol and Ors. , and the Court held that it is necessary considering the nature of the business that a person should be local resident of the area where the dealership is to be allotted.
24. In Yogesh Bhardwaj v. State of U.P. and Ors. , while considering the requirement of residence in a particular State for the purposes of admission in Post Graduate Course of a Medical College, the Court held that the residence is a physical fact which means bodily present as an inhabitant. Such residence must be combined with an intention to reside permanently.
25. In view of the above, the conclusion is that residence has to be given an effective meaning considering the facts of the case and keeping in mind the purpose contemplated in a particular Statute and it includes only a permanent abode and not a temporary one.
26. The advertisement and the eligibility criteria published by the respondent Corporation clearly mentions that the applicant should be a resident of concerned district and the residence certificate that has to be submitted by the applicants should be in the required format. The format clearly shows that the term "ordinarily resident' should have been the same meaning as in Section 20 of Representation of People Act, 1950.
Section 20 of the Representation of People Act, 1950, defines the ordinarily resident as under:
20. Meaning of "ordinarily resident".-(1) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein.
(1A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
(7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf of the Central Government in consultation with the Election Commission.
27. The word ordinarily has been interpreted by the Hon'ble Apex Court time and again observing that unless there are compelling circumstances, requirement of law must be complied with and only in exceptional circumstances, the deviation thereof is permissible. (Vide Kailash Chandra v. Union of India and Ors. ; Krishan Gopal v. Shri Prakash Chandra and Ors. ; Union of India v. Majji Jangammayya ; Union of India v. Vipinchandra Heeralal Shah and Eicher Tractors Ltd.. Haryana v. Commissioner of Customs ).
28. In view of the above, the requirement of law demands that a person applying for dealership must be a permanent resident of the area concerned and no deviation to such condition is permissible.
29. In the instant case, the undisputed fact remains that on the date of interview, i.e., 4.11.2003, the respondent No. 5 was Block Pramukh in district Jaunpur. Under the provisions of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, it is mandatory for a Block Pramukh to be a permanent resident of the territorial area of that block, otherwise he would stand disqualified by virtue of the provisions of Section 13 (O) of the Act, 1961. The defence taken by the said respondent that on the date he filled application he was not the Block Pramukh would not tilt the balance in his favour for the reason that mere pendency of an application does not create any legal right in favour of the applicant and the application is to be decided as per the law applicable on the date of decision. This is what was observed by the Hon'ble Supreme Court in Union of India and Ors. v. Indian Charge Chrome and Anr. (1997) 7 SCC 314; State of Tamil Nadu v. Hind Stone and Ors. and Howrah Municipal Corporation and Ors. v. Ganges Rope Company Ltd. and Ors. .
30. In this view of the matter, and as has also been contended by the Corporation, the application form of Shri Shukla for allotment of dealership was liable to be rejected as he did not satisfy the requirement mentioned in the advertisement and the eligibility criteria published by the Corporation.
31. Shri Budhwar, learned Counsel appearing for the Corporation, however, argued that the present petition at the behest of Rashmi Pandey cannot be entertained as her name did not find place in the panel of three candidates prepared by the Dealer Selection Committee. Similar contention has been advanced with great vehemence by the learned Counsel appearing for respondent No. 5 Shri Shukla. However, we accept the submissions made by Shri V. B. Upadhyay, learned senior counsel for the petitioner that as the candidature of an ineligible candidate had been considered and he had been placed at Serial No. 1 of the merit list, the entire selection process stood vitiated.
32. We, therefore, allow this petition and quash the entire selection process held on 4.11.2003 in respect of retail outlet at Western End of Gopiganj N.H. 2, district Sant Ravidas Nagar. The respondent Corporation shall proceed in accordance with law.