Hon'ble Ran Vijai Singh,J.
(Delivered by Hon'ble Ran Vijai Singh,J.) This writ petition has been filed with the following prayers:
"(i) Issue a writ or direction in the nature of certiorari quashing the order dated 07.09.2006 passed by the General Manager, Indian Oil Corporation Limited, Lucknow ( enclosed as annexure-1 to the writ petition.)
(ii) Certiorari quashing the orders dated 24.12.2009 and 13.02.2010 (enclosed as annexure-2 & 3 to the writ petition) passed by the Principal Secretary (Revenue) Government of Uttar Pradesh, Lucknow.
(iii) Certiorari quashing the order dated 14.05.2008 passed by the District Magistrate, Sonbhadra (enclosed as annexure-7 to this writ petition);
(iv) Mandamus commanding the General Manager, Indian Oil Corporation Ltd., Lucknow (respondent no.2) to restore the supply of SKO of the dealership of the petitioner.
(v) Any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstance of the case."
Through order dated 07.09.2006, General Manager of Indian Oil Corporation Ltd., U.P. State Office, Lucknow has decided the representation of the petitioner pursuant to the order of this Court dated 24.02.2006 passed in Writ Petition No.28435 of 2006. Whereas vide order dated 24.12.2009 the Principal Secretary Revenue has decided the petitioner's representation pursuant to the order of this Court dated 13.10.2009 passed in Writ Petition No. 28166 of 2008. By this order the Principal Secretary has held that the residence certificate could be issued to the petitioner after completion of three years from 22.07.1999. Whereas vide order dated 13.2.2010 the petitioner's review application has been rejected by the Principal Secretary on the ground that earlier order was passed only after considering the material available on the record and except that nothing could be brought on record by the petitioner which may alter the situation. Further vide order dated 14.05.2008 the District Magistrate, Sonbhadra has cancelled/rejected the petitioner's residence certificate.
The facts giving rise to this case are that the Indian Oil Corporation issued an advertisement on 28.12.1997 for grant of retail out-let /S.K.O.-L.D.O. Dealership, in which one place was at Duddhi District Sonbhadra (Item No.10 the advancement). Amongst the conditions for making application, one condition was that the person making such application should be resident of that very district for which dealership has been invited. Another condition was that the gross income of the candidate/his/her family for the year 1996-1997 should not exceed Rs.2 lacs per annum. It appears that on 31.5.1998 the Indian Oil Corporation Limited issued a corrigendum mentioning the correct district for allotment of S.K.O.-L.D.O. retail out let. Pursuant thereof the petitioner has also applied along with his residence certificate dated 16.06.1998 issued by Tehsildar Duddhi and Income Certificate. The interview for the said purpose was held on 20.04.2007 and the dealership was given to the petitioner.
From the perusal of para 8 of the counter affidavit it transpire that District Magistrate, Sonbhadra vide order dated 19.10.2001 has cancelled the petitioner's earlier certificate by stating that it was never issued. It appears when the petitioner came to know about the same he filed an application on the ground that the earlier certificate was issued only after due inquiry and looking into the relevant documents in this regard. On this it transpired that the earlier domicile certificate issued by the Tehsildar, Duddhi Sonbhadra was not mentioned in the official record due to clerical mistake and again the District Magistrate, Sonbhadra after seeking reports, vide order dated 03.11.2001 has again granted residence certificate to the petitioner.
It appears aggrieved by the allotment in favour of the petitioner the contesting respondent no.6 Narenadra Nath Dubey filed a complaint before the Corporation with the allegations:-
Challenging this order the respondent no.6 has filed Writ Petition No. 28435 of 2001. In this writ petition, this Court has passed an order dated 23.07.2002 for maintaining status quo in respect of dealership. It also transpires that the respondent no.6 has also made a complaint to the State Government and the State Government directed the Commissioner, Vindhachal Division, Mirzapur to hold an inquiry in the matter. In pursuance thereof the District Magistrate, Sonbhadra was required to inquire into the matter. This report was submitted on 21.11.2003. In the report it is recorded that the petitioner is permanent resident of District Mirzapur. On this the petitioner's domicile certificate was cancelled by the District Magistrate on 28.02.2004.
Aggrieved by the order dated 28.02.2004 Smt. Rachana Agarwal (the petitioner) has filed writ petition No. 13652 of 2004. On 05.04.2004 this Court directed the said writ petition to be connected with writ petition No. 28435 of 2002 with the direction to maintain status quo with respect to the dealership.
On 24.02.2006 this Court has quashed the order dated 14.06.2002 and remitted the matter before the Corporation to decide the same afresh on the ground that the Corporation while holding the income within limit has not mentioned the gross income of the relevant year in the impugned order dated 14.06.2002. Pursuant to the order of this Court the decision was to be taken within three months. In pursuance thereof the General Manager of the Corporation vide order dated 07.09.2006 has found that the petitioner's return for the relevant year worth Rs.1,93,750/- which was below Rs.2 lacs, therefore, the income was found to be well within limit. Whereas the earlier order of the Corporation with regard to residence certificate which was passed on the basis of certificate issued by the Tehsildar of the year 1988 & 2001 was found to be incorrect as subsequently the District Magistrate has cancelled the same on 28.02.2004, the Chairman has found the petitioner, ineligible for the allotment of dealership. Thereafter both the writ petitions were disposed of by the Division Bench of this Court on 12.02.2007 (annexure-11 to the counter affidavit of this writ petition ) with the following directions:-
" The records clearly indicate that during the pendency of the writ petition filed by Narendra Nath Dubey, the order dated 28.02.2004 was passed by the District Magistrate cancelling the earlier residence certificate issued in favour of Smt. Rachana Agrawal. The said order does not indicate that any opportunity whatsoever was given to Smt. Rachana Agrawal before passing the said order. We, therefore, find considerable force in the contentions advanced by the learned Senior counsel for Smt. Rachana Agrawal that the said order deserves to be set aside as it had been passed in gross violation of principles of natural justice. We, therefore, have no hesitation in quashing the order dated 28.02.2004 passed by the District Magistrate. It would, however, be open to the District Magistrate to pass a fresh order in accordance with law after giving adequate opportunity to the parties concerned. The parties may file documents within a period of two weeks along with a certified copy of the order and the District Magistrate shall, thereafter pass the order within a period of six weeks.
It is only in the event that the District Magistrate comes to the conclusion that the earlier domicile certificate issued in favour of Smt. Rachana Agrawal does not suffer from any infirmity that it will be necessary for the Indian Oil Corporation to examine the issue regarding income of Smt. Rachana Agrawal as was required to be examined by our order dated 24.2.2006. In such a situation, the Corporation shall pass an appropriate order after giving opportunity of hearing to the parties within a period of six weeks.
With these observations, both the writ petitions are disposed of. Interim order passed by us earlier in favour of Smt. Rachana Agrawal shall continue till the matter is finally decided by the Corporation."
Thereafter the District Magistrate Sonbhadra on the basis of randum checking with regard to the resident of the petitioner at Duddhi and the report of the Commissioner, Vindhyachal Division, Mirzapur dated 21.11.2003 came to the conclusion that the petitioner is not resident of Duddhi, District Sonbhadra as for obtaining the residence certificate continuous living at a particular place is necessary (Annexure-12 to the counter affidavit of the writ petition).
Aggrieved by the order dated 01.09.2007 passed by District Magistrate, Sonbhadra (rejecting the representation of the petitioner for domicile certificate) the petitioner has filed Civil Misc. Writ Petition No.46364 of 2007 which was allowed by this Court on 26.09.2007 with a direction to the District Magistrate, Sonbhadra to decide the matter afresh after affording fullest opportunity of hearing to the petitioner. The relevant part of the order dated 26.09.2007(Annexure-13 to the counter affidavit of the writ petition ) passed by this Court is reproduced below:-
" The dispute in the present writ petition is with regard to the residence certificate granted to the petitioner by the District Magistrate, Sonebhadra. It appears that on a complaint, an inquiry was held and the residence certificate granted to the petitioner on 16.06.1998 was cancelled on 28.02.2004. The petitioner challenged the cancellation of residence certificate by means of Civil Misc. Writ Petition No. 13652 of 2004. A Division Bench of this Court allowed the writ petition on 12,02.2007 on the ground that before cancelling the residence certificate opportunity of hearing was required to be afforded to the petitioner. Thereafter an opportunity of hearing was afforded to the petitioner by the District Magistrate and the petitioner had submitted her reply by means of representation dated 26.06.2007. A copy of the representation has been filed as Annexure-7 to the writ petition wherein in paras 23 to 28 various assertions have been made apart from other evidences which have been filed along with the representation to prove that the petitioner is a resident of district Sonbhadra but the District Magistrate in the impugned order dated 01.09.2007 (Annexure-1 to the writ petition) has not considered the material mentioned in the representation in details nor he has recorded any reason for discarding the evidence mentioned by the petitioner to establish that she is a resident of district Sonebhadra. The order passed by the District Magistrate is a non-speaking order without any cogent reason, therefore, it cannot be maintained.
In the result, this petition succeeds and is allowed. The order dated 01.09.2007 (Annexure-1 to the writ petition) passed by the District Magistrate, Sonbhadra is quashed. The District Magistrate, Sonbhadra is directed to decide the matter afresh by a reasoned and speaking order in accordance with law within a period of two months from the date a certificate copy of this order is produced before him.
In case the petitioner is running the kerosene oil dealership, then the supply of the petitioner shall be resumed forthwith by the respondents which shall be subject to the decision of the District Magistrate, Sonbhadra."
On this again District Magistrate, Sonbhadra vide order dated 14.05.2008 rejected the petitioner's representation holding that petitioner is resident of District Mirzapur. Consequently he also cancelled the residence certificate issued on 03.11.2001 The operative portion of the order (Annexure-14 to the counter affidavit of the writ petition) is reproduced below:-
" tgkWa rd Jherh jpuk vxzoky ds fuokl dk iz'u gS mUgksaus Lo;a o"kZ 1998 ds iwoZ rd vk;dj fjVuZ esa dksfpax dk dk;Z fn[kk;k gS vkSj irk ckthjko dVjk ehjtkiqj vafdr fd;k gSA leLr rF;ksa ds ifj'khyu ls vij ftykf/kdkjh ¼[email protected]½ lksuHknz ,oa vij ftykf/kdkjh ¼[email protected]½ fetkZiqj dh tkWp vk[;k ds mijkUr vk;qDr foU/;kpy e.My ehjtkiqj }kjkfudkys x;s fu"d"kZ fnukWd 21-11-2003 dh iqf"V gksrh gSaA i=koyh ij miyC/k lk{;ksa ,oa mHk; i{kksa dh vksj ls izLrqr vfHkys[kksa ds ifj'khyu rFkk muds }kjk fo}ku vf/koDrkx.k ds rdksZa ds vuqJo.k ds mijkUr eSa bl fu"d"kZ ij igqWprk gwW fd Jherh jpuk vxzoky iRuh Jh vfer vxzoky lkekUr;k ckthjko dVjk] ehjtkiqj dh gh fuokfluh gSaA buds ifr ds uke ls dLck nq)h tuin&lksuHknz esa Hkw[k.M gS ftls mUgksaus fnukWd 24&11&82 dks dz;k fd;k gSA bl Hkw[k.M esa muds }kjk ,d iDdk edku dk fuekZ.k fd;k x;k gSA blh vk/kkj ij mUgksaus fo|qr dusD'ku ,oa jk'ku dkMZ gkfly dj fy;k gSA fuokZpu ukekoyh esa Jherh jpuk vxzoky dk uke Hkh ntZ gqvk fdUrq og bl edku esa lkekU;r;k fuokl ugh djrh gSA bl edku esa fdjksflu vk;y dk dkjksckj gksrk gSA vius dkjksckj ds fujh{k.k ds fy, dHkh&dHkh nq)h vkrh gSA Jherh jpuk vxzoky lkekU;r;k vius ifr Mk0 vfer vxzoky ds lkFk ehjtkiqj esa fuokl djrh gSA Jherh jpuk vxzoky iRuh Mk0 vfer vxzoky dh vksj ls izLrqr iz'uxr izR;kosnu fujLr fd;s tkus ;ksX; gSa A vLrq Jherh jpuk vxzoky ds }kjk izLrqr iz'uxr izR;kosnu fujLr djrs gq, Jherh jpuk vxzoky iRuh Jh vfer vxzoky ds i{k esa jsyos LVs'ku jksM nq)h tuin&lksuHknz ds fuoklh gksus dk fuxZr fuokl izek.k&i= la[;k [email protected]&[email protected] fnukWd 03 uoEcj]2001 fujLr fd;k tkrk gSA rn~uqlkj fl0fe0fj0fi0 la[;k 46364 lu 2007 esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k fnukWd 26-09-2007 ds leknj esa Jherh jpuk vxzoky iRuh Mk0 vfer vxzoky }kjk izLrqr izR;kosnu fuLrkfjr fd;k x;k A lEcfU/kr dks lwfpr fd;k tk; ,oa ckn vko';d dk;Zokgh i=koyh lefiZr vfHkys[kkxkj gksA fnukWd 14-5-2008 ¼vt; dqekj 'kqDyk½ ftykf/kdkjh] lksuHknzA Aggrieved by that order the petitioner has filed another writ petition 28166 of 2008 which was decided on 12.06.2008 in which an interim order was also granted by this Court to the extent that till the next date of listing, the staying the effect and operation of the impugned orders dated 14.5.2008 and 07.09.2006 (Annexure No.1A and 1B to the writ petition) rejecting the petitioner's application Income certificate as well the order passed by the General Manager, M/s Indian Oil Corporation Ltd. was also passed. It was also directed that in case, if the petitioner is running the kerosene oil dealership, then supply of the petitioner shall be resumed forthwith by the respondents. This writ petition was disposed of with the direction to the Principal Secretary Revenue Uttar Pradesh to take appropriate decision after affording fullest opportunity of hearing to all the parties concerned.
It is thereafter the Principal Secretary Revenue, vide order dated 24.12.2009 has rejected the claim of the petitioner. The petitioner has filed review application that too was rejected by the impugned order dated 13.02.2010 (Annexure-2 & 3 to the writ petition). The Principal Secretary, Revenue taking note of the Government Order No. Bha.Sa.-55/Teen-99771 (1)/83 dated 18.01.2000 which prescribes essential conditions for granting domicile/permanent residence certificate has found that the petitioner has not been living at Duddhi District Sonbhadra prior to 1998 when the advertisement was made and her illegibility for grant of domicile/residence certificate will ripe after completion of three years with effect from 22nd July 1999 (the date of issuance of second Ration card).
While coming to this conclusion, although the Principal Secretary has taken note of the fact that the petitioner has immovable property at Duddhi which was purchased by her husband through registered sale deed dated 24.11.1982, and construction of a house thereon along with its electrification in the year 1986 but he ignored this fact, holding that having immovable property at a particular place may be a relevant criteria for issuing a residence certificate and taking note of the fact that the ration card was issued on 22.07.1999 and name of the petitioner's husband although find place in the voter list of the year 1995 belonging to Duddhi but there the name of the wife of the petitioner's husband is mentioned as Anita Devi and not Rachana. Whereas in the voter list of Mirzapur the name of the petitioner's husband as well as petitioner both finds place in the relevant year 1995 -1998 placing much reliance upon the voter list and the ration card the Principal Secretary concluded that the petitioner does not reside at Duddhi and came to the conclusion that in view of the Government Order of the year 18.01.2000, the petitioner will acquire the eligibility for granting domicile/permanent residence certificate after completion of three years w.e.f. 22.07.1999. The conclusion drawn by the Principal Secretary is reproduced below:-
mRrj izns'k 'kklu jktLo vuqHkkx&9 la[;k &[email protected]&9&2009 y[kum fnukWd 24 fnlEcj 2009 ............................
fu"d"kZ%& mijksDr foospuk ls ;g Li"V gksrk gS fd Jherh jpuk vxzoky o"kZ 1998 esa tuin lksuHknz ds vf/kokl izek.k i= dh vgZrkvksa dks iwjk ugh djrh FkhA lkFk gh muds i{k esa rglhynkj] nq)h }kjk fuxZr vf/kokl izek.k i= fnukWd 16-6-1998 =qfViw.kZ Fkk rFkk 'kkldh; vfHkys[kksa esa ntZ ugh ik;k x;k A Jherh jpuk vxzoky }kjk tuin lksuHknz esa vius vf/kokl lEcU/kh vgZrkvksa dks 22 tqykbZ] 1999 ds fuokl ds rhu o"kZ i'pkr iwjk djrh gSA vr% muds i{k esa 22 tqykbZ] 2002 ds i'pkr ls vf/kokl dk izek.k i= tuin lksuHknz ls fuxZr fd;k tkuk fof/klaxr gksxkA ¼jkt izrki flag ½ izeq[k lfpoA While assailing this order Sri Keshri Nath Tripathi learned Senior Counsel assisted by Sri Nikhil Agrawal and Sri Arvind Srivastava learned counsel for the petitioner has submitted although the Government Orders dated 18.01.2000 as well as 18.02.2003 meant for issuing domicile/residence certificate were not applicable in the case of petitioner on the basis of which the petitioner's representation has been rejected, but assuming those Government orders are applicable even then the petitioner's case fully falls within the ambit of those Government orders also. It is also contended that while considering the ration card no. 230989 issued on 22.07.1999 the Principal Secretary Revenue has erred in over looking the cancelled ration card no. 594277 dated 29.11.1994 issued from District Sonbhadra. It is also contended that the basis of discrediting the ration card no. 594277 of the 1994 is absolutely unfounded as ration card issued from one district cannot be renewed in another district and it was a specific case of the petitioner that the ration card of the year 1994 was issued from district Sonbhadra and not from Mirzapur as has been noticed by the Principal Secretary.
The attention has been drawn towards the certificate issued by the Sub Divisional Officer, Mirzapur dated 07.08.2011 (annexure-11 to the representation filed by the petitioner before Principal Secretary. According to which ration card no. 594277 was issued from Duddhi district Sonbhadra on 29.11.1994. It is also submitted that the report of Sub Divisional Magistrate dated 06.01.2011 showing petitioner's living at Sonbhadra ( running into 66 pages ) which was on record has not been considered by the Principal Secretary. Further the Principal Secretary has also misread the Commissioner's report dated 04.08.2001 written to the Chief Secretary U.P. Lucknow ( Annexure 27 to the representation ). The petitioner has also brought on record the information furnished by the District Supply Officer, Sonbhdra dated 13.03.2010 with regard to the issuance of ration card from district Sonbhadra. In the submission of learned counsel for the petitioner the impugned order is perfectly illegal, arbitrary having been passed without application of mind, on irrelevant consideration by misreading, misunderstanding and misconstruing the material available on record, therefore, the same deserves to be quashed.
Learned counsel for the petitioner although supplied photo stat copies of the number of a decisions of the Apex Court in support of his case but in the last he has placed reliance only upon three judgements of the Apex Court 1984 (3) SCC 654 - Dr. Pradeep Jain and others along with other connected petitions. 2000 (2) SCC 20 Union of India and others Vs. Dudh Nath Prasad , 2005 (11) SCC 66 Bhagwan Das and another vs Kamal Abrol and others.
Refuting the submissions of learned counsel for the petitioner, Sri Gajendra Pratap learned Senior Counsel assisted by Sri Anoop Trivedi learned counsel for the respondents has made following submissions:
(i) So far as relief nos. 1 and 3 are concerned the writ petition is not maintainable being second writ petition on the same cause of action.
(ii) The finding based upon the appreciation of evidence and records submitted by various revenue authorities are not open to challenge under the writ jurisdiction.
(iii) The filing of this writ petition amounts to abuse of process of court. (iv ) In view of the judgement of Apex Court in the case of - Union of India & Others Vs Dudh Nath Prasad J.T.2000 (1) SC 1 the residence certificate has rightly been cancelled.
Sri Tarun Verma learned counsel appearing for the Indian Oil Corporation has also made his submissions some what on the line of the submissions made by learned counsel for the contesting respondents. In addition to that he has submitted that although the Corporation authorities have found the petitioner's gross income below Rs.2 lacs which was required under the advertisement but as the petitioner's residence certificate had ultimately been cancelled by the District Magistrate. The Corporation found the petitioner ineligible for allotment of retail out let.
Learned Standing Counsel appearing for the State respondent has although not filed counter affidavit in spite of the time granted by this Court but he had defended the order passed by the Principal Secretary Revenue by submitting in view of the Government Order 2000 which was meant for issuing a residence/domicile certificate, requiring continuous living of three years, which was not therewith the petitioner prior to 1998, therefore, the conclusion drawn by the Principal Secretary Revenue that the petitioner has acquired the eligibility criteria for issuing residence certificate after completion of three years with effect from 22.07.1999 is perfectly valid and do not call for any interference under Article 226 of the Constitution of India. He has also submitted that the finding of fact recorded by the authorities dis- entitling the petitioner for issuing residence certificate is not open to challenge under writ jurisdiction.
In substance all the counsel appearing for the respondents have vehemently opposed the entertaining the writ petition against the findings of fact recorded by the competent authority.
We have heard learned counsel for the parties and gone through the records of the writ petition, counter affidavits, rejoinder affidavits, supplementary affidavit, (except the supplementary affidavit filed on the date of hearing) ,supplementary counter affidavit, supplementary rejoinder affidavit filed by the respective parties. In fact, this case has a chequered history and parties to the petition are fighting with each other with teeth and nail leaving no alternative to be repented upon right from 1998 to this time.
Apart from what we have noticed in the preceding paragraphs of this judgement it is stated in the writ petition that while passing the order dated 13.10.2009 the Division Bench of this Court had not entered into the merit of the case and on the basis of various decisions cited by the parties have remitted the matter to the Principal Secretary Revenue for deciding the matter once for all after giving fullest opportunity to either of the parties. It is contended that after the judgement of this Court the petitioner along with certified copy of this order has filed a representation along with all supporting materials before Principal Secretary Revenue. Hearing on the said representation took place on 17.12.2009. Number of documents were brought on record of representation including the papers relating to purchase of the land by the petitioner's husband through registered sale deed dated 24.11.1982, the papers getting electric connection no. 4705/010421 in the year 1986 along with certificate of Junior Engineer Purvaanchal Vidyut Vitran Khand Robertsganj, the copy of the voter list of Tehsil Duddhi disclosing the name of the petitioner at serial no. 227 and the name of petitioner's husband at serial no. 226 ( although the name of the petitioner was inadvertently mentioned as Anita in place of Rachna), the residence certificate dated 16.06.1998 issued by the Tehsildar, Duddhi Sonbhadra in favour of the petitioner, the certificate issued by the Sabhasad of Ward No.2 Duddhi mentioning the petitioner's residence at Railway Station Road Duddhi, a new ration card no.230989 dated 22.07.1999 issued after cancelling ration card of 594277 dated 29.11.1994, Government Order dated 18.01.2000 laying down the condition for issuance of domicile/residence certificate, the policy of the Indian Oil Corporation for allotment of retail out let particularly item no. 1.2.5.3 and 1.2.6 requiring the residence certificate issued within six months from the date of the advertisement by the Revenue Officer not below the rank of Tehsildar, Incharge of the area, Commissioner of Police/ Deputy Commissioner of Police, in respect to his/her being resident of that district, Item no. 1.2.7.1 requiring gross income not exceeding Rs.2 lacs per annum, another certificate dated 15.5.2001 issued by the Tehsildar Duddhi confirming the earlier certificate issued on 16.6.1998, certificate issued by Up Ziladhikari Sakaldhih Varanasi certifying that the residence certificate issued to Smt. Rachana on 16.6.1998, letter dated 03.10.2001 written to the Superintendent of Police Mirzapur requesting for taking action against Sri Narendra Nath Dubey the respondent no. 6 who fraudulently got issued a residence certificate from district Mirzapur in the name of the petitioner showing her/she is resident at Mirzapur with a view to defeat the claim of the petitioner. The photo copy of the certificate dated 05.10.2001 issued by the then District Magistrate Sonbhadra after conducting the detail inquiry mentioning that petitioner is resident of Duddhi District Sonbhadra ( Annexure-18 to the representation), another certificate dated 03.11.2001 issued by the District Magistrate Duddhi mentioning that Smt. Rachana Agarwal is resident of Station Road Duddhi and her husband has acquired immovable property for more than 10 years back in the district. The report of the Tehsildar dated 17.10.2001 verifying the fact that the petitioner is the resident of Station Road Duddhi (Annexure-19 to the representation), another report dated 06.01.2001 submitted by Sub Divisional Magistrate, Duddhi containing (66 pages )holding that the petitioner is the resident of Station Road at Duddhi (Annexure-22 to the representation), another certificate of District Magistrate Sri Rama Reddy dated 12.2.2002 written to Sri J.P.Singh Inquiry Officer appointed by Indian Oil Corporation confirming the issuance of resident certificate in favour of the petitioner (Annexure- 21 to the representation), report of the Commissioner, Vindhyachal Divisision, Vindhyachal which was sought on the letter of Additional Secretary Lok Sabha Secretariat dated 16.07.2002 on this the Chief Secretary Government of Uttar Pradesh required the details of the allottees of retail out let containing the details of the social economic and political status (party affiliation), (ii) domicile,(iii) whether the allottee/s has/have being convicted by the court of law. The copy of the voter list containing details in which petitioner's name finds at serial no. 227 (Annexure-25 to the representation), another report of Commissioner Vindhyachal Division Vindhayachal to the Chief Secretary Government of Uttar Pradesh through letter dated 04.08.2002 in favour of the petitioner (Annexure-27 to the representation), another report dated 25.08.2002 sent by District Magistrate Sonbhadra to the Secretary Chief Minister on the complaint of the petitioner as well as Sri Shailendra Kumar reportor Jan Satta Express (Annexure-28 to the representation), true copy of the report dated 06.01.2003 prepared by Up Ziladikari Pipri District Sonbhadra (Annexure-29 to the representation), the Government Order dated 18.02.2003 on the subject of issuance of domicile residence certificate (Annexure-30 to the representation) mentioning that any one of the documents mentioned for issuance of residence certificate would be sufficient proof for issuance of certificate to a person. In paragraph 99 of the writ petition the petitioner has stated that the petitioner fulfils the criteria laid down in the earlier Government Order dated 18.01.2000 as well as Government Order dated 18.02.2003 as she has a valid ration card and her name has been shown in the voter list and has a house built on the land purchased through sale deed dated 24.11.1982 along with electric connection in the year 1986.
Attention of the Court has also been towards paragraph 108 containing the part of the inquiry report submitted by the Commissioner dated 04.08.2002 sent to the Chief Secretary U.P. Government for appreciation few lines of the same are reproduced below:-
i=koyh esa ftykf/kdkjh] lksuHknz dk i= fnukWd 12&2&02 miyC/k gSA ;g i= bf.M;u vkW;y dkjiksjs'ku] y[kum dks lEcksf/kr gS] ftlesa ;g dgk x;k gSfd twu 1998 esa tks vf/kokl izek.k i= Jheh jpuk vxzoky ds i{k esa tkjh fd;k x;k Fkk] mlds i;kZIr vk/kkj miyC/k ik;k x;k A tSls fd Jherh jpuk vxzoky ds ifr ds uke twu 1998 ds cgqr o"kksZa iwoZ ls [kjhnh xbZ tehu] ml ij cuk;k x;k iDdk edku vkSj ml edku ds fy, Jherh vxzoky ds ifr ds uke VsyhQksu dusD'ku] fctyh dusD'ku]jk'ku dkMZ] o"kZ 1992 ds fuokZpu vk;ksx }kjk izpfyr ernkrk lwph esa uke vafdr gksuk vkfn twu 1998 ls cgqr iwoZ ls gh jguk ik;k x;k] tks vU; lacaf/kr rF;ksa ds lkFk ,d O;fDr ;k ifjokj ds ml LFkku ij vf/kokl ekuus ds fy, i;kZIr lcwr ekuk tkrk gSA^^------------------------------
bl lca/k esa lkekU; iz'kklu foHkkx }kjk [email protected];h fuokl izek.k i= tkjh djsu dh izfrfdz;k ds 'kklukns'k fnukWd 12-01-02 dks Hkh voyksdu fd;k x;k A blesa ;g dgk x;k gS fd izek.ki= tkjh djrs le; ;g ns[kk tk;sxk fd izkFkhZ dh lcaf/kr ftys esa vpy lEifRr de ls de rhu o"kksZ ls gks rFkk og xr rhu o"kksZ ls ml ftys esa fuokl dj jgk gksA blds vykok ;g Hkh 'krZ gS fd izkFkhZ }kjk fdlh vU; ftys ls [email protected] izek.k i= izkIr u fd;k gksA i=koyh ls Li"V gS fd Jherh jpuk vxzoky dks fuokl izek.k i= twu 1998 esa tkjh fd;k x;k Fkk rFkk miftykf/kdkjh dh vk[;k ls ;g Hkh Li"V gS fd Jherh vxzoky mijksDr 'krksZ dks iwjk djrh gSA bl izdkj ftykf/kdkjh }kjk tkjh fd;k x;k izek.k i= esa gLr{ksi djus dk i;kZIr vk/kkj izrhr ugh gksrk gSA ;g Hkh izrhr gksrk gSfd Jherh jpuk vxzoky ,oa muds ifr ds uke dbZ LFkkuksa ij vpy laEifRr ,oa VsyhQksu dusD'ku vkfn gSA vr% bl vk/kkj ij mUgksaus lksuHknz dk fuokl izek.k i= izkIr dj fy;k gksxkA vius 'kiFki= ds lkFk mUgksaus nq)h ds fuokl ds ckjs esa dbZ izek.k tSls& fctyh dusD'ku]jk'ku dkMZ vkfn fn;s gSa ] tks lkekU;r;k muds ;gkWa ds fuoklh gksus ds i;kZIr vk/kkj gksus pkfg,A^^ Learned counsel for the petitioner while inviting the attention of the court towards the impugned order dated 24.12.2009 and 13.02.2010 passed by the Principal Secretary Revenue has submitted that the Principal Secretary Revenue has passed the impugned orders in complete, disregard to the order passed by the Division Bench of this Court dated 13.10.2009, as while passing the impugned order the Principal Secretary Revenue neither considered the law laid down by the Apex Court in the decisions cited by either of the parties regarding issuance of domicile/residence certificate nor the various reports/other documents submitted before the State Government/State Authorities annexed along with representation. It has also been submitted that the Government order either of the year 2000 or 2003 were came into force after the relevant year in which the residence certificate was required and the Principal Secretary Revenue while passing the impugned order in the year 2009, either should have placed reliance upon the current Government Order 2003 or should have based his decision on the practice prevailing prior to the year 2000 or for the purposes of present case of the year 1998 but for the best reason known to him he has considered the petitioner's case on the basis of Government Order 2000. It is submitted that although the petitioner falls under the ambit of that Government Order also as the petitioner's husband had purchased the land in the year 1982 and got constructed a house thereon and got an electric connection in the year 1986 and this was the sufficient proof apart from ration card/voter list disclosing intention to settle at Duddhi but no weight was given to these papers and decision has based on random absence of the petitioner during some visit of Revenue Officer and other irrelevant papers.
Sri Gajendra Pratap learned Senior Counsel appearing for the respondents has firstly contended that with respect to relief no.1 the quashing of the orders dated 07.09.2006 passed by General Manager, Indian Oil Corporation Lucknow and order dated 14.05.2008 passed by District Magistrate Sonbhadra rejecting the petitioner's representation the present writ petition would not be maintainable being the second writ petition. In this regard it is to be noticed that while taking note of the order dated 07.09.2006 the writ petitions no. 13652 of 2004 and 28435 of 2002 were disposed of by the common judgement dated 12.02.2007 with the direction to the District Magistrate, after quashing the order dated 28.04.2004 cancelling the petitioner's residence certificate, to pass fresh order in accordance with law after giving adequate opportunity to the parties concerned. Thereafter it was made incumbent upon the Corporation to take a fresh decision after the decision of District Magistrate with regard to the domicile/residence certificate. It is noticeable that the General Manager of the Corporation vide order dated 07.09.2006 has held that the petitioner's income was below Rs.2 lacs per annum and it was in the four ambit of the advertisement, therefore, it was partly in favour of the petitioner, so far as other eligibility i.e., it relates to the Income certificate and so far as the residence certificate is concerned it was negated by the Corporation on the ground that the petitioner's residence certificate has now been cancelled on which basis the allotment was made and subsequent thereto it has again been the subject matter of the writ petition No.28166 of 2008 which was filed with the following prayers:-
"1. Certiorari quashing the order dated 14.05.2008 (Annexure No.1A) passed by the District Magistrate, Sonbhadra (respondent no.3) rejecting the representation of the petitioner as well as cancelling the residency certificate dated 3rd November, 2001;
2.Certiorari quashing the order dated 07.09.2006 (Annexure-1B) passed by the respondent no.4 cancelling the dealership of the petitioner.
3.Mandamus/prohibition restraining or prohibiting the respondents, their officers, servants and agents in acting in any manner pursuant to the order dated 14.5.2008 (Annexure-1A);
4.Mandamus commanding the respondents to restore the residency certificate dated 16.6.1998 as certified on 03.10.2001 of the petitioner as well as to restore the supplies of SKO to the petitioner;
5.Mandamus commanding the respondent no.3 & 4 to resume the supplies of the kerosene to the dealership of the petitioner;
6.Any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case;
7.To award the cost of the petition to the petitioner."
The writ petition no. 28166 of 2008 was disposed of by this Court with the following observations:-
Against these background we feel that it is expedient that the Principal Secretary, Revenue is the Appropriate Authority to finalize the issue once for all so that the dispute cannot be repeated again and again. Therefore, in disposing the writ petition we direct the Principal Secretary, Revenue, State of U.P. to consider the cause within a period of six weeks upon giving fullest opportunity of hearing to all the parties concerned and by passing a reasoned order thereon. For the purpose of effective adjudication a copy of the writ petition and its annexures can be treated as part and parcel of the representation.
In view of such circumstances the order impugned cannot be sustained and accordingly cannot be given effect and will be kept in abeyance subject to the decision of the Principal Secretary, Revenue.
No order is passed as to costs.
From the perusal of the prayer made in the aforesaid writ petition and the order passed by this Court on 13.10.2009 it transpires that in the writ petition No. 28166 of 2008 the orders dated 07.09.2006 and 14.05.2008 passed by the General Manager, Indian Oil Corporation and the District Magistrate Sonbhadra were under challenge along with other relief and this writ petition was disposed of without going into the merit of the order impugned with the observation that the order impugned cannot be sustained and accordingly cannot be given effect and will be kept in abeyance subject to the decision of Principal Secretary Revenue. Here we find that this Court has never observed that either the order passed by the Principal Secretary Revenue or the Corporation which were the subject matter of the writ petition No. 28166 of 2008 and were relegated to the Principal Secretary for adjudication cannot be challenged subsequently. It is well settled that any order passed by any authority is always open to challenge if the order has not been passed within four corner of law and in accordance with directions issued by this Court (if it has been passed on the direction of Court). As would appear from the perusal of the record and the submissions made by learned counsel for the petitioner, the Principal Secretary has erred in law in deciding the case on merit pursuant to the directions of this Court dated 13.10.2009 (which will be dealt with in letter part of the judgement).
In other words the chapter which was open in the year 1998 and has been read, understood and closed time and again by the administrative authorities as well as by the court, has yet to be read and understood in its true perspective unless it is closed finally. The stream of cause of action which has started has yet to terminate to its logical end and for that purpose we are of the view that the entire subject matter would fall under the stream of fresh cause of action, hence in our view the writ petition would be maintainable.
So far as the submissions of learned counsel for the respondent with respect to second submissions i.e., the finding recorded by the competent authority based upon the evidence etc. is not open to challenge under the writ jurisdiction and third submissions the filing of the present writ petition amount to abuse of process of the court and fourth submissions in view of the decision of the Apex Court in the case of -Union of India & Others Vs Dudh Nath Prasad (Supra) are concerned they are connected with each other therefore, they are being dealt with together.
It is well settled principle that the finding of facts based upon the appreciation of evidence and records arrived at by a competent authority is normally not open to challenge in the writ jurisdiction which is an extraordinary remedy of the land and the learned counsel for the respondents may be correct in their submissions to that extent but simultaneously it is also settled law that if the findings arrived at in the impugned order are based on non consideration of the material available on record or misreading of the record and contrary to the decisions of the court pursuant to which the order has been passed that is always open to challenge by an aggrieved person and in that eventuality if the submissions of learned counsel for the respondents are taken to be correct then it will lead to injustice.
Here we find that the following facts would appear from the perusal of the record and rival submissions made by the parties and the various orders passed by the authorities including the impugned order passed by the Principal Secretary Revenue.
Undisputed fact:
( i ) The factum of purchasing of the land by the petitioner's husband through registered sale deed in the year 1982.
( ii ) Construction of a house over the land.
( iii ) Getting Electric connection in the aforesaid house in the year 1986
(iv) Running of Kerosene business in the aforesaid premises by the petitioner.
( v ) Getting Telephone connection.
1. The disputed facts:
( i ) The ration card issued in the year 1994 consisting of two units in the name of petitioner and her husband.
(ii ) The name of the petitioner's husband and the petitioner in the voter list of the year 1995 of Duddhi District Sonbhadra.
The Principal Secretary Revenue while passing the impugned order has although undisputedly admitted the factum of the purchasing of a land and construction of a house and electrification but what he recorded is that this can be one of the condition amongst other for issuing a residence/domicile certificate and so far other conditions are concerned, those are still unsatisfied and he based his decision upon the Government Order of the year 2000 and came to the conclusion that the petitioner will acquire the eligibility criteria for issuing residence/domicile certificate only after completion of three years from 22.07.1999.
Here we would like to narrate the relevant conditions for issuing a domicile certificate contained in the Government Order dated 18.01.2000 izek.k&i= fuEu vk/kkj ij tkjh fd;k tk;sxk %& izkFkhZ Hkkjr dk ukxfjd gksA izkFkhZ dk lacaf/kr ftys esa vpy lEifRr de ls de 03 o"kZ ls gksA og xr 03 o"kZ ls ml ftys esa fuokl dj jgk gksA izkFkhZ }kjk fdlh vU; ftls ls [email protected] fuokl izek.k izkIr u fd;k x;k gksA mijksDr dzekWd &03 ,oa 04 dh 'krsZ ,sls vfHkHkkodksa ds vkfJrksa ds ekeys esa f'kfFky fd;s tkus ;ksX; gksxh] tks fdlh 'kkldh; lsok esa LFkkbZ lsod gksa] ,oa lsokjr gksus ds dkj.k ewy fuokl LFkku ij vLFkkbZ :ils fuokl u dj jgs gksA izkFkhZ }kjk izkFkZuk&i= ds lkFk t:jh vfHkys[kh; lk{; izLrqr fd;s tk;saxsA mnkgj.k Lo:i vpy lEifRr ds vfHkys[1] jk'ku dkMZ] oksVj lwph dh izfrfyfi bR;kfn vfHkys[k nkf[ky fd;s tk,axsA izkFkhZ }kjk bl vk'k; dk 'kiFk&i= Hkh fn;k tk,xk fd mlus fdlh vU; ftys ls [email protected] fuokl izek.k i= izkIr ugha fd;k gSA izkFkZuk&i= dh tkWp LFkkuh; ys[[email protected]@uk;c rglhynkj ls djkbZ tk;sxh A tkWp ds vk/kkj ij mDr rF; lgh ik;s tkus dh n'kk esa izek.k&i= tkjh fd;k tk;sxkA From the perusal of the aforesaid condition it transpires that for obtaining domicile/permanent residence certificate, it would be necessary that the person requiring the said certificate must have acquired immovable property which could not be less then three years on the date of application, person must be residing for the last three years and have not obtained domicile certificate from any other district.
However, thereafter another Government order was issued on 18.02.2003 for appreciation the Government order is reproduced below:-
[email protected]; fuokl lEcU/kh izek.k&i= dk fuxZr djus ds lEc/k esa la[;k% [email protected]&2003&77¼11½@83 izs"kd] lsok esa rqylh xkSM+ leLr ftykf/kdkjh lfpo] mRrj izns'kA mRrj izns'k 'kkluA lekU; iz'kklu vuqHkkx y[kum fnukWd% 18 Qkjojh 2003 fo"k;% [email protected]; fuokl lEcU/kh izek.k&i= fuxZr fd;s tkus ds lEcU/k esa izfdz;k dk fu/kkZj.kA egksn;]
ftykf/kdkjh ds le{k [email protected]; fuokl laca/kh izek.k i= fuxZr djus gsrq izkFkZuk i= izkIr gksrs jgrs gSaA [email protected]; fuokl lEcU/kh izek.k i= dh vko';drk lkekU;r% iSjk&fefyVzh o vU; laLFkkvksa esa jkstxkj gsrq HkrhZ fMxzh dkyst o fo'ofo|ky;ksa esa izos'k ,oa ,y0ih0th0 &dsjksflau&Mhty Mhyjf'ki vkfn izkIr djus ds ekeyksa esa gksrh gSA izk;% tuinksa ls ,sls ekeys 'kklu dks lanfHkZr dj fn;s tkrs gSaA 2- [email protected]; fuokl laca/kh izek.k i= fuxZr fd;s tkus gsrq fu/kkZfjr fn'kk funsZ'k ,oa izfd;k ds ljyhdj.k dh vko';drk blfy, eglwl dh tk jgh gS D;ksafd mDr izek.k i= dh ukxfjdrk tSls egRoiw.kZ rFkk vge fcUnq ls tksM+ dj ns[kk tk jgk gS ftlls Hkze dh fLFkfr cuh gh jgrh gS ,oa vuk;kl [email protected]; fuokl laca/kh izek.k i= tkjh fd;s tkus fo"k;d izfdz;k dks ^ukxfjdrk^ ls tksM+dj ns[kus ls mRiUu gq, Hkze ds dkj.k gh dHkh &dHkh 'kklu dks vleatl dh fLFkfr dk lekuk djuk iM+rk gSA 3- bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd mi;qZDr leLr rF;ksa ds vkyksd esa lE;d fopkjksijkUr 'kklu }kjk vc rd [email protected]; fuokl laca/kh lfVZfQdsV tkjh djus gsrq fu/kkZfjr izfdz;k fo"k;d 'kklukns'k la[;k&Hkk0l0&[email protected]&99&77¼11½@83 fnukWd 18&1&2000 rFkk 'kklukns'k la[;k&593 rhu&2000&77¼11½@83] fnukWd 15&2&2000 dks fujLr djrs gq, ,rn~}kjk Mksekslkby @lkekU; fuokl lEca/kh izek.k i= fuxZr fd;s tkus gsrq fuEu izfdz;k iz[;kfir dh tkrh gS%& ¼1½ lkekU; fuokl izekf.k i= vf/kdrj fdlh 'kS{kf.kd laLFkk esa izos'k gsrq vFkok fdlh lsok;kstu gsrq vkosnu djus ds iz;kstukFkZ tkjh fd;k tk;sxk ,oa ;g izek.k i= bUgha iz;kstuksa ds fy, ekU; gksxk o rn~uqlkj ;g izek.k i= ij mfYyf[kr gksxkA ¼2½ lEcfU/kr tuin ds ftyk eftLVzsV vFkok muds }kjk bl gsrq fyf[kr :i ls vf/kd`r vij ftyk [email protected] fMohtuy eftLVzsV ;g izek.k i= nsus ds fy, l{ke vf/kdkjh gksaxsA ¼3½ izek.k i= ikus ds fy, ;g vko';d gS fd vkosnu ;k mlds ekrk&firk ml tuin ds ewy fuoklh gks vFkok og vLFkk;h :i ls xr rhu o"kZ ls ml tuin esa fuokl dj jgk gksA ¼4½ tks O;fDr fdlh ,slh ljdkjh vFkok xSj&ljdkjh lsok esa gS] tks LFkkukUrj.kh; gS] dks fu;eksa esa flfFkyrk iznku dh tk;sxhA ¼5½ izek.k i= izkIr djus ds fy, vkosnd dk fu/kkZfjr izk:i&1 ij izkFkZuk i= nks izfr;ksa esa nsuk gksxkA izkFkZuk i= ij vkosnu ds nks uohure QksVks gksuk vko';d gS ,d QksVks vfHkys[kukFkZ o nwljk izek.k i= ij pLik dj ¼fuxeZu vf/kdkjh }kjk eqgj o gLrk{kj lfgr tkjh djus gsrq½ izLrqr djasxs A izkFkZuk i= dk izk:i&1 layXu gSa A ¼6½ izkFkhZ }kjk fuEufyf[kr x.kekU; O;fDr;ksa esa ls fdlh ,d }kjk ;Fkk& tks 'kkldh; lsok eas jktif=r vf/kdkjh gks] laln lnL;] fo/kk;d v/;{k ftyk iapk;r] v/;{k uxj iapk;r ,oa jk"Vzhd`r cSadksa ds 'kk[kk izcU/kd }kjk lR;kiu i= layXu izk:i ij] izkFkZuk i= ds lkFk miyC/k djk;k tk;sxkA ¼7½ fdlh Hkh f'k{k.k laLFkk ;k lsok;kstd dk izek.k i=] v/;{k xzke iapk;r] v/;{k uxj iapk;r dk izek.k i=] jk'ku dkMZZ MzkbZfoax ykbZlsUl ] ikliksVZ pquko ifjp; i= vk;dj dk LFkk;h ys[kk la[;k ¼ih0,0,u0½ Hkou dj tydj fotyh fcy vkfn Hkh vkosnu i= ds izLrj&4 ds iz;kstukFkZ vuqeU; gksaxsA buesa ls dksbZ Hkh ,d vfHkys[k izkFkZuk i= ds lkFk layfXur fd;k tk;sxkA ¼8½ le{k izkf/kdkjh ;k izek.k i= fuxZr djus okys vf/kdkjh dk ;g mRrjnkf;Ro gksxk fd vkosnu i= izkIr gksus ds ,d lIrkg esa tkWp gsrq lEcfU/kr tkWp vf/[email protected] dks izkIr djk fn;k tk;sA blds mijkUr muls nks lIrkg esa tkWp vk[;k eWxk yh tk;s rFkk blds ,d lIrkg ds vUnj lkekU; fuokl laca/kh izek.k i= fuxZr djus dk ;k mldh tkWp vkifRr;ksa dks vkosnd dks lwfpr dj fn;k tk;sA ¼9½ le{k vf/kdkjh bl rF; ls larq"V gksus ij fd vkosnd ;k mlds ekrk&firk ml tuin ds ewy fuoklh gSa ;k de ls]de rhu o"kZ dh vof/k ls ml tuin esa fuokl dj jgs gSa rks og izk:i&2 esa lkekU; fuoklizek.k i= fuxZr djasaxsaA izek.k i= dk izk:i&2 layXu gSaA ¼10½ mi;qZDr izek.k i= fdlh vkS|ksfxd laLFkk esa izns'k vFkok fdlh lsok;kstu gsrq vkosnu djus ds iz;kstu ds fy, gh tkjh fd;k tk;sxk rFkk blls ukxfjdrk izkIr djus dk dksbZ laca/k ugha gksxkA mYys[kuh; gS fd ukxfjdrk dk fo"k; ^fn flVhtuf'ki ,DV& 1955^ esa Li"V :i ls izkfo/kkfur gS rFkk ;gHkkjr ljdkj ds fopkj {ks= dk fo"k; gSA ;fn fdlh O;fDr dh ukxfjdrk ij iz'ufpUg gks vFkok bl ij fopkj fd;k tkuk gks rks izdj.k ftyk eftLVzsV ds ek/;e ls 'kklu dks izLrqr gksxk] ftls vUrr% Hkkjr ljdkj dks fopkjkFkZ izsf"kr dj fn;k tk;sxkA 4-d`i;k mDr vkns'kksa dk dM+kbZ ls vuqikyu lqfuf'pr fd;k tk;A Hkonh;] rqylh xkSM+ lfpo] From the close scrutiny of the "subject" matter of the Government Order dated 18.01.2000 and 18.02.2003 it would transpire that the first one is related to domicile/permanent residence certificate, whereas later one dated 18.02.2003 is with respect to the domicile/General residence certificate which is meant with respect to the admission in the educational Institutions, for distribution of Kerosene and Light Diesel Oil (SKO & LDO) and L.P.G. etc. The distinguishing feature of this Government order for obtaining this certificate appears to be the person/parent of the person must have been residing for at least three years at that place and for obtaining certificate any one of the evidence like ration card, driving license, election card etc. be necessary. This certificate could be issued by Adhyachak Gram Panchayat, Adhyachak Nagar Panchayat only after holding inquiry by any officer/official of that very office.
It is also a glaring fact which would reveal from the bare reading of aforesaid Government order that while issuing this order the earlier Government Order dated 18.01.2000 ( on which basis the Principal Secretary Revenue has passed impugned order) and the Government Order dated 15.2.2000 have been cancelled/repealed.
Here it would also be necessary to analyse the case of the petitioner with respect to the issuance of domicile/residence certificate in the context of the requirement of the residence certificate issued by Indian Oil Corporation for allotting the retail out let. In paragraph 35 of the writ petition few paragraphs of the policy has been quoted for ready reference. The relevant part of that very policy which deals with the residence is quoted below:-
1.2.5. Residence:
1.2.5.3. Open Category: Residents of the district in which location is advertised will only be eligible. 1.2.6. Proof of Residence (For all Categories): Residency certificate issued within previous six months of the date of advertisement by the Revenue Officer not below the rank of a Tehsildar or a Deputy Tehsildar in charge of the area or Commissioner of Police/ Dy. Commissioner of Police, in support of his/her being a resident of that district will have to be produced.
The advertisement inviting applications for allotting retail out let has also been brought on record. The condition no. (Gha) of the conditions given in the advertisement reads as " lEcfU/kr LFkku dsa vkxs n'kkZ;s x;s ftys dk fuoklh gksA" if the word "Niwasi" is read along with the policy of the Indian Oil Corporation cited above it would transpires that the word "Niwasi" is synonym of the English word " residence/domicile" ( policy 1.2.5) It would further transpire from the perusal of policy 1.2.6 that the residence certificate should not be less then six months older from the date of advertisement which is to be issued by the revenue officer not below the rank of Tehsildar or Deputy Tehsildar Incharge of the area or Commissioner of Police/Deputy Commissioner of Police.
Sri Gajendra Pratap learned Senior Counsel for the respondent while placing reliance upon the judgement of the Apex Court in the case of Union of India and ors Vs Dudh Nath Prasad (supra) has submitted that the petitioner was not entitled to be issued domicile/residence certificate in view of the law laid down by the Apex Court. The decision cited by the respondent was on its own fact where a member of Indian Administrative and Allied Services, entered into the service on the basis of the Schedule Caste certificate issued from the State of West Bengal, as the said person was " Nuniya" by caste. It appears a complaint was made against the person concerned that he was born in district 'Siwan' State of Bihar and native of that place. He had also obtained graduate degree from State of Bihar and in the State of Bihar "Nuniya" community falls under the category of O.B.C. and not under the Scheduled Caste as it falls in the State of West Bengal. On this complaint the Comptroller and Auditor General of India wrote to Sri Dudh Nath Prasad (respondent in that case) that he ceases to be a member of Indian Administrative and Allied Services as he entered into the service on the basis of false caste certificate. This communication was challenged before the Central Administrative Tribunal on the ground that the parent of the petitioner has been residing in the State of West Bengal for the last 30 years and as per advertisement invited by Union Public Service Commission, the Scheduled Caste certificate was to be issued by the District Collector or the Sub Divisional Officer or any other officer from a place in which his parent/or surviving parent ordinarily reside. Taking note of that the Tribunal came to the conclusion as the parent of the applicant were ordinarily residing in the State of West Bengal for more than 30 years, therefore, the certificate had rightly been issued in favour of Sri Dudh Nath Prasasd. The Union of India challenged the aforesaid order before the Apex Court and the Apex Court after citing the meaning of the word ' ordinarily resides ' given in various dictionaries and the case law decided on the point upheld the judgement passed by the Tribunal. The few relevant paragraphs of the aforesaid judgements are reproduced below:-
14. The word "reside" has been defined in the Oxford Dictionary as "dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place. " The meaning, therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a "considerable time".
15. In Black's Law Dictionary, 5th Edition, the word " reside" has been given the following meaning:
" Live, dwell, abide, sojourn, stay, remain, lodge; to settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right"
In the same Dictionary, the word "residence" has been defined as under:
" Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undermined period, not infrequently, but not necessarily combined with design to stay permanently Bodily presence and the intention of remaining in a place, to sit down, to stay in a place, to settle, to remain, and is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile."
16. If the two meanings referred to above are to be read along with the word "ordinarily", it becomes 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 that place for a considerably long time. It would not include a flying visit or a short or casual present at that place.
17. .......... In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense."
20. In Tomlin's Law Dictionary, "domicile " has been defined as " the place where a man has his home."
21. In Whicker v. Hume, 28 LJ. Ch. 396, it was held that a person's domicile means, generally speaking, the place where he has his permanent home.
22. In McMullen v. Wadsworth, 14 A.C. 631, it was observed that "the Roman law still holds good that ' it is not by naked assertion but by deeds and acts that a domicile is established."
23. .........
24. In Ross v. Ross,(1930 )A.C.1, Lord Buckmaster while dealing with a case relating to change of domicile observed that "Declarations of intention are rightly regarded as determining the question of a change of domicile, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made, and they must further be fortified and carried into effect by conduct and action consistent with the declared expression".
25. ......
26. ......
27. ....... Domicile and residence are different and yet related concepts. Ordinarily domicile operates as the basis of jurisdiction, in such vital aspect of a person's private life like marriage, legitimacy and succession. But on the other hand residence operates as the basis of jurisdiction in cases like taxation, right to vote, in certain aspects of matrimonial question, and generally in cases where public rights are involved.
Learned counsel for the petitioner has also placed reliance upon few paragraphs of the said judgement, in addition to that he has also placed reliance two other judgements of the Apex Court reported in 1990 (3) SCC Yogesh Bhardwaj Vs State of Uttar Pradesh and others and particularly invited attention 8,9,10,11,14,17,18,19, and 21.
For appreciation relevant lines of those paras are quoted below:-
8. .........The concept of 'domicile' is irrelevant to the construction of sub-clause (b) in respect of the residence qualification of the candidate. All that it requires is his requisite residence.
9. ........ A person is domiciled in the country in which he is considered to have his permanent home. His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it. No one can be without a domicile and no one can have two domiciles.
10. A domicile of origin is attributed to every person at birth by operation of law. This domicile is not decided by his place of birth, or by the place of residence of his father or mother, but by the domicile of the appropriate parent at the time of his birth, according as he is legitimate or illegitimate. It is possible for the domicile of origin to be "transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin." The domicile of origin continues until he acquires a domicile of choice in another country. Upon abandonment of a domicile of choice, he may acquire a new domicile of choice, or his domicile of origin, which remained in abeyance, revives.
11. The domicile of choice is a combination of residence and intention. Residence which is a physical fact means "bodily presence as an inhabitant". Such residence must be combined with intention to reside permanently or for an unlimited time in a country. It is such intention coupled with residence that acquires him a new domicile. It is immaterial for this purpose that the residence is for a short duration, provided it is coupled with the requisite state of the mind, namely the intention to reside there permanently.
12. .....................
13. .....................
14. .................... A man who is domiciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervading throughout the country.
15. .......................
16. .......................
17. Residence is a physical fact. No volition is needed to establish it. Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence. Any period of physical presence, however short, may constitute residence provided it is not transitory, fleeting or casual. Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence. To insist on an element of volition is to confuse the features of 'residence' with those of 'domicile'.
18. ............... A man may be ordinarily resident or habitually resident in more than one place. While 'ordinary residence' is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, 'habitual residence' may denote a quality of endurance longer than ordinary residence, although duration, past or prospective, is only one of the many relevant factors, and there is no requirement of any particular minimum period.
19. In Reg v. Barnet L.B.C., Ex p. Nilish Shah the House of Lords held that a person was ordinarily resident in the United Kingdom, if he normally resided lawfully in that country from choice and for a settled purpose. If a person resided there for the specific and limited purpose of education, he was ordinarily resident in that country, even if his permanent residence or real home was outside that country or his future intention or expectation was to live outside that country.
20. ..................................................
21. While residence and intention are the two essential elements constituting the 'domicile of choice', residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc. Another judgement on which reliance has been placed is happens to be Bhagwan Das and another Vs Kamal Abrol 2005 (11) SCC 66. The attention has been drawn towards the paragraphs no. 5,6,9,10 and 11.
5. The question for consideration here is whether the eligibility criterion of being a resident of Kangra district has to be construed to be a permanent or defacto residence or temporary or de jure residence.
6.........From the above it can be seen that the term " residence" make it clear that the word " residents" includes two types which are: (1) a permanent residence, and (2) a temporary residence. First type of residence forms all the permanent dwelling which means that the person has settled down at a particular place permanently and regularly for some purpose. The second type refers to a situation that the person is not residing at a place forever but residing at a place for a temporary period or not for a considerable length of time. This is also referred to as a temporary living in a place. Hence, in one place the word "residence" is interpreted in the strict sense to include only permanent living at a place which may be referred to as domicile and in the second place the word is interpreted in the flexible sense to show a temporary or tentative evidence.
7...........
8...........
9. .........The word residence is flexible and has many shades of meaning but it must take its colour and content from the context in which it appears and it cannot be read in isolation. By this decision another dimension was added to the concept of residence in the form of concept of de facto residence and the concept of de jure residence. The Supreme Court in this case has clearly distinguished between the concept of actual residence or de facto residence and legal residence or de jure residence. The actual residence means the place where the person is residing actually at a given point of time. On the other hand concept of de jure residence or the legal residence means the place at which the person is residing in law. The latter form of residence may or may not be the actual residence or the place where the person actually stays or resides. A person holding property or land in a particular place or city or having some ancestral roots, in the city may be a residence of that particular place in the legal sense, but his actual residence will be the place where he is presently residing and coupled with the fact of animus manendi or an intention to stay for a considerable period.
10. ..........The word resident is read with the word ordinarily hence making the phrase " ordinarily resident". It is clear that the person, before he can be said to be ordinarily residing at a particular place has to have 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.
11. ...........There are to classifications of the meaning of the word "residence" . First is in the form of permanent and temporary residence and the second classifications is based on de facto and de jure residence. The de factor concept of residence can also be understood clearly by the meaning of the word "residence" as given in Black's Law Dictionary, 8th Edn. 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 place where he is connected to by mere ancestral connections or political connections or connection by marriage.
As would appear from the law laid down by the Apex Court in the above cases that domicile certificate and the residence are different but are used in related concept. In other words in view of the judgement of the Apex Court in Bhagwan Das case the word residence is flexible and has many shades of meaning but it must take its colour and content from the context in which it appears and cannot be read in isolation. In fact from going through the judgements cited by counsel for the parties, we find that no straight jacket formula can be carved out for understanding the meaning of the word residence. It has to be read in the context in which it is used coupled with the intention of the user of the word in a particular statute or paper. Here it has to been seen in the context of the Indian Oil Corporation while inviting the application.
Here in this case we have gone through the various orders passed by the Administrative Authorities as well as the Corporation and we have not been able to find out any material from which it can be inferred that what was the intention of the Corporation by using the word "lEcfU/kr LFkku dsa vkxs n'kkZ;s x;s ftys dk fuoklh gks^^ whether the Corporation has intended while using this word, the person applying for the same should be permanent resident or temporary but time and again the Corporation has been depending upon the residence certificate issued by the revenue officers mentioned in the advertisement, on the strength of the prevailing practice or on the basis of the Government Orders for issuing such certificate. Here in the present case the advertisement was issued in the year 1997 and finally the retail out let was allotted to the petitioner in the year 1998 on the basis of the residence certificate issued by the Tehsildar in the year 1998 itself. It is not on the record either of the writ petition or counter affidavits that what was the relevant criteria for issuing residence certificate in the year 1998, what we find from the perusal of the impugned order passed by the Principal Secretary Revenue that the same has been passed on the basis of the repealed Government Order dated 18.1.2000 which in substance was meant for issuing domicile certificate/permanent residence certificate and the essential condition for issuing such certificate was that the person must be having immovable property in the concerned district and his/her continuous living at that very place should not be less than three years. However, the impugned order was passed in the year 2009 and much prior to that in the year 2003 another Government Order was issued after repealing the Government Order dated 18.01.2000 which is meant for issuance of domicile/residence certificate particularly for study purposes as well as for allotment of dealership of supply of Kerosene Oil and Light Diesel Oil (S.K.O./L.D.O. ). In this Government Order we find that anyone of the documents mentioned in the Government Order i.e., 2003 is treated to be sufficient for issuing residence certificate. However, we fail to understand that while passing the impugned order the Principal Secretary Revenue has not passed his order on the basis of Government Order of 2003 which was issued particularly for allotment of S.K.O. & L.D.O. dealership and based his decision on repealed Government order dated 18.01.2000.
We also find that even the ingredients contained in the Government Order dated 18.01.2000 were fully satisfied for issuing residence certificate which has been granted on various occasions to the petitioner on the basis of various reports submitted by the revenue officers mentioned in the preceding paragraphs of the judgement but we fail to understand that in spite of the specific direction of this Court those materials were not taken into consideration. It is also noticeable that even the documents which were considered by the Principal Secretary Revenue to our mind were sufficient for issuing a residence certificate to the petitioner but the Principal Secretary Revenue while passing the impugned order did not care to look the same in true letters and spirits, for example he has admitted the factum of the purchasing of the land by the petitioner's husband through registered sale deed in the year 1982, construction of a house thereon and the electrification in that house in the year 1986 but he ignored the same saying that it is amongst one of the conditions for issuing residence certificate. So far as ration card of the year 22.7.1999 is concerned he has came to the conclusion that the ration card was issued after the relevant year i.e., 1998 from the district Sonbhadra, therefore, it could not be requisite material for proving continuous living for issuing residence certificate and on this basis he came to the conclusion that the petitioner acquired the eligibility after completion of three years from 22.7.2099 but while observing so he has ignored the certificate issued by the Sub Divisional Officer, Duddhi district Sonbhadra on 07.08.2001 mentioning that after cancelling the ration card no. 594277 dated 29.11.1994 ration card no. 230989 consisting of two units was issued on 22.7.1999. It has been the case of the petitioner throughout that the card issued in the year 1994 was also issued from district Sonbhadra and not from district Mirzapur, but this aspect of the matter has not been considered by the Principal Secretary Revenue. So far as the voter list of the year 1995 belonging to Duddhi district Sonbhadra is concerned, the Principal Secretary Revenue has drawn the inference that in the voter list of 1995 although the name of the petitioner's husband appears but the name of the petitioner does not appear as her name is Rachana Agrawal, whereas in the voter list it is mentioned as Anita. It was also brought in the notice of the Principal Secretary through representation that the name of the petitioner has wrongly been typed as Anita in place of Rachana but this aspect of the matter has also not been looked into by the Principal Secretary Revenue.
What we have noticed after going through the records that the petitioner's husband happened to be member of the Joint Hindu Family and was permanent resident of Mirzapur and was also running clinic at Mirzapur. Now a days breaking of Joint families have been natural phenomena and members of Joint families are trying to settle at some other places may be due to shortage of accommodation or expansion of the business or due to constrain relationship in between the family members and in this on going phenomena of the resettlement many arrangements are to be made and ordinarily a person cannot be able to shift within a day or two unless he is fully financially secured apart from emotional ties which continues for a long if the relationship is sweet. As would appear from the facts of this case that in the process of settlement at different place the petitioner's husband has purchased a piece of land in the year 1982 at Duddhi District Sonbbhadra and built a house thereon and get electrified in the year 1986. This fact would go to show that the petitioner's husband had every intention to live at district Sonbhadra, the factum of petitioner's income from district Mirzapur through coaching as has been complained by the respondent no.6 cannot be said to be an unnatural thing and it may be possible that even during process of settlement at Duddhi the petitioner must have continued the running of coaching at Mirzapur and in this process she must have been visiting time and again at district Mirzapur prior to year 1998. There is no material on record to show that the petitioner was living at Mirzapur permanently except finding of her name in the voter list. To our mind the finding of name of the petitioner in the voter list of district Mirzapur could not have been made sole basis for rejecting the petitioner's application for issuing residence certificate particularly in the circumstance when in the year 1994 the petitioner was having valid ration card at Sonbhadra which is presumed to have been issued by the food and supply department only after due verification.
So far as the name of the petitioner, as alleged has wrongly been typed in the voter list of 1995 is concerned, it appears worth believable as mentioning of wrong name, wrong parentage and age etc. are not very unusual in the voter list coupled with the fact that there was no material on record to show that the petitioner's husband has married with two ladies and in absence of such material it can safely be presumed that the name of Anita showing wife of Dr. Amit Agrawal, the husband the petitioner is typographical mistake, therefore, this could also not have been made basis for rejecting the petitioner's representation and on the factum of the petitioner's living at Duddhi district Sonbhadra on the strength of ration card w.e.f. 1994. It is worth while to note that voter list is prepared after five years on the eve of elections either of the General Election of Member of Parliament or legislative assembly or Local Bodies under the supervision of Election Commission. Therefore, it may be a supporting evidence and cannot be made sole basis for rejecting the application for grant of residence certificate. For example assuming a person started living after preparation of the voter list in the year 1995 at Duddhi and advertisement inviting application for allotment of retail out let has been made in the year 1999 then the name of the person applying for that retail out let will not find place in the voter list, as in the normal course after 1995 the voter list could be published in the year 2000. Therefore, no definite conclusion could be drawn on the basis of voter list, it may be a supporting evidence for grant of any certificate but it cannot be a conclusive proof. To our mind basing of the decision on the voter list ignoring the permanent house and other supporting materials is just like basing the decision on mole head ignoring the mountain.
We are of the view that the the material evidence for issuing residence certificate at a particular place would be the having of a house and for the purpose of this case the continuous living in that very house for the last three years prior to 1998. For proving the period of three years the voter list and the ration card may be a supporting evidence but no conclusive evidence. The petitioner has brought on record the certificate issued by the Sabhasad and the other reports of the revenue authorities certifying that the petitioner has been living at that very place for more than three years but those documents which have been formed the part of the record through representation before the Principal Secretary Revenue mentioned in the preceding paragraphs of this judgement have not at all been considered by the Principal Secretary Revenue who was directed to decide the issue for once and all. He has also proceeded casually like the other Administrative Authorities working under him.
We have noticed that the matter has been remanded by this Court time and again on several occasions with the unambiguous directions but it is unfortunate that the Administrative Authorities have taken it very casually and decided the same without application of mind and in this phenomena, the situation of the petitioner has become just like shuttlecock, which has been thrown by this side to that side.
Now we feel that much water has flown and almost thirteen years have gone, and now the time has come to close the chapter at least from this Court on the risk of stepping in the shoes of statutory / competent authority, which the courts normally does not do but here we found that administrative authorities have not understood the mild legal language used in order to give proper weight to the court's order. We expect that the statutory Authorities empowered to issue such certificate should have discharged their duties with utmost care within four corner of law. In view of the foregoing discussions we are constrained to observe that even the Principal Secretary Revenue who is sitting almost on the highest seat of the hierarchy of the service has also not cared to read the judgement of this Court dated 13.10.2009 and proceeded to decide the matter in a very casual manner. Therefore we have adjudicated the matter on merit on the basis of the material which have been considered by them.
In view of the foregoing discussions the writ petition succeeds and is allowed.
The impugned orders dated 24.12.2009 and 13.02.2010 passed by Principal Secretary (Revenue) Government Of Uttar Pradesh Lucknow are hereby quashed. So far as the order dated 07.09.2006 passed by the General Manager, Indian Oil Company is concerned it is quashed to the extent by which it has found the petitioner ineligible for allotment of S.K.O./L.D.O. retail out let. The Indian Oil Corporation is directed to pass formal order resuming the supply of S.K.O./L.D.O. to the petitioner expeditiously not later than four weeks from the date of receipt of certified copy of the judgement of this Court.
Dt.03.11.2011 PKB W.P.17554-2010