SUPREME COURT OF INDIA
Bhagwan Dass
Vs
Kamal Abrol
Appeal (Civil) 3268-3270 of 2005
(R.C.Lahoti (CJI) and G.P.Mathur)
11/05/2005
P. P. NAOLEKAR,J.
Leave granted
These three appeals have been preferred against the common order and final
judgment dated 21.8.2002 passed by the High Court of Himachal Pradesh in
Regular Second Appeal Nos. 13/97 14/97 and 103/97. The appeals arise on the
following facts.
That respondent no.3, Hindustan Petroleum Corporation, is a Government of India
Undertaking and respondent no.2 is the Oil Selection Board. The respondent nos.
2 and 3 and the Union of India had intended to open a retail outlet for the
distribution of Liquid Petroleum Gas (LPG) in Kangra town of the State of
Himachal Pradesh and for that purpose it had invited applications for allotment
of dealership/distributorship for LPG through notice published in the newspaper
on 14.8.85. The notice of inviting dealership/distributorship rights provided
for certain eligibility criteria, which the applicant should possess. The
criteria provided that the applicant should be an unemployed graduate, resident
of Kangra district, family income not more that Rs.24000/-, having no close relatives
as a dealer or distributor of any oil company and the applicant also should not
be a partner or having dealership or distributorship agency in any petroleum
corporation company.
The appellants viz., Bhagwan Dass and Ashok Kumar applied jointly as partners
along with other applicants. Respondent no.1 Smt. Kamal Abrol and respondent
no. 5 Shri Abhay Singh had also applied for the said dealership/distributorship
rights. There were other applicants also along with these applicants. The Oil
Selection Board called the appellants and respondent nos. 1 and 5 for interview
as their applications were found prima facie falling within the criteria laid
down for selection. The interviewing Selection Board recommended their names to
the Hindustan Petroleum Corporation Limited in form of a merit list that
consisted of respondent no. 1, respondent no. 5 and the appellants in the order
of merit. Respondent no.3, Hindustan Petroleum Corporation (HPCL), had issued
letter of intent to respondent no. 1 and she was directed to complete certain
formalities to make the allotment in her favour. Aggrieved by the said decision
of the Corporation, the appellants filed a writ petition before the Punjab and
Haryana High Court challenging the allotment.
The writ petition was disposed of by the learned single Judge on the point that
the remedy does not lie under Article 226 of the Constitution and the
appropriate remedy would be to approach the Civil Court. Pursuant thereto, a
civil suit was filed by the appellants impleading all the present respondents
as party defendants, claiming relief that the decree for declaration be issued
that selection of respondent nos. 1 and 5 by respondent nos. 2, 3 and 4 is
wrong, illegal, null and void and is liable to be set aside and, therefore,
letter of intent dated 3.3.88 for allotment of LPG dealership/distributorship
of HPCL issued in favour of respondent no.1 is wrong, illegal, null and void
and does not confer any right, title and interest upon respondent no.1 for
allotment of dealership/distributorship of LPG at Kangra.
The appellants had claimed further relief in form of a mandatory injunction
seeking direction to respondent nos. 2, 3 and 4 to allot the LPG
dealership/distributorship at Kangra to the appellants. After trial the civil
suit filed by the appellants was partly allowed. The trial court gave decree of
declaration that respondent nos. 1 and 5 could not be allotted the dealership
of LPG at Kangra as they didn't fulfill the required eligibility criteria. It
was held that the respondent no.1 was not a resident of the Kangra Distt. and
hence did not fulfill the mandatory requirement.
However, the trial court dismissed the suit claiming mandatory injunction for
giving distributorship of LPG to the appellant. Aggrieved by the judgment and
decree of the trial court, cross appeals were filed by both the appellants and
the respondent no.1. Respondent no.5 was also a party in appeal along with
other respondents. Upholding the order of the trial Court, the selection of
respondent nos. 1 and 5 was declared illegal, null and void. The appellate
court further gave mandatory injunction in favour of the appellants and
directed the Corporation to allot the LPG dealership at Kangra town to the
appellants. While confirming the judgment and decree of the trial Court, the
court had held that respondent no.1 not being the resident of Kangra Distt.,
does not fulfill the eligibility criteria and thus is not entitled for
dealership.
The net result of the judgment and decree of the First appeal court was that
respondent nos. 1 and 5 were held not eligible for the
dealership/distributorship rights whereas the appellants were held entitled to
allotment of the dealership/distributorship in Kangra Distt., they being the
only candidate remaining for the selection of distributorship right.
Aggrieved by the order of the First appellate court, 3 appeals were preferred,
two by Kamal Abrol and the third one by HPCL before the High Court. The High
Court had framed various questions of law and had held the question of territorial
jurisdiction in favour of the appellants. On the matter of mandatory injunction
granted by the First appellate court, it has been held by the High Court that
there was no contract between the respondents and the appellants to allot the
dealership and, therefore, there is no question of specific performance of
contract or enforcement thereof. It is further held that the Corporation was
under no obligation to accept the recommendation of respondent no. 2,
therefore, no mandate can be issued by the Court to that effect as it is the
administrative discretion and set aside the decision of the First appellate
court on that issue. What we find from the pleadings of respondent nos. 2 and 3
is that there is some sort of admission on the binding nature of the recommendations
made by the Oil selection Board but as will be presently shown, we do not
propose to deal with the findings in these appeals. The High Court has held
that the requirement of the applicants being the "residents" of
Kangra Distt. is mandatory in nature. However, the residential requirement
cannot be held to be that of permanent nature. The High Court has recorded
specific findings that since the term 'residents' include both temporary and
permanent residence (except a short or casual stay), the respondent no.1 cannot
be held not a resident of Distt. Kangra. Admittedly, respondent no.1 is married
to her husband who owns a land and ancestral property in Kangra.
Therefore, in view of the fact that the husband of respondent no.1 is the
resident of Kangra she will be deemed to be the resident of the said district
since her marriage. In other words, the High Court's finding is that the
husband of Respondent no.1 having some ancestral and other personal property at
district Kangra and she being married to him shall be held to be the resident
of district Kangra and is eligible for allotment of LPG dealership.
The question for consideration here is whether the eligibility criterion of
being the resident of Kangra district has to be construed to be a permanent or
de facto residence or temporary or de jure residence.
The word 'resident' is in common usage and many definitions were attributed to
it in different decisions. Nevertheless, it is difficult to give an exact
definition for the term is flexible, elastic and somewhat ambiguous. The
meaning of the word ' resident' in itself creates certain doubts. It does not
have any technical meaning and no fixed meaning, would be applicable in all the
facts and circumstances. It is used in various senses and has received various
interpretations by the Courts. Generally, the construction of the term is
governed by the connection in which it is used and it is dependent on the
context of the subject matter, and the object, the purpose or result designed
to be accompanied by its use, and the meaning has to be adduced from the facts
and circumstances taken together in each particular case.
The word 'resident' as defined in Oxford Dictionary is " to dwell
permanently or for considerable time, to have one's stay or usual abode, to
live in or at a particular place". Similarly, the Webster's Dictionary has
defined it as " to dwell permanently and for any length of time" and
words like dwelling place or abode are held to be synonymous. From the above it
can be seen that the term 'residence' makes it clear that the word 'residents'
includes two types which are: 1) a permanent residence and 2) a temporary
residence. First type of residence form 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 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 a domicile and in the second place the word
is interpreted flexible sense to show a temporary or tentative residence.
The concept of residence has obtained varied judicial opinions and responses.
To start with, in the case of Sarat Chandra Basu v. Bijoy Chand Mahatab
Maharajadhiraj Bahadur of Burdwan, 1937 AIR(PC) 46, the Privy Council
while dealing with the word 'resides' as it occurs in Section 33 of the Registration Act, 1908 has observed that:
"the expression resides as used in Section 33 is not defined in the
statute, but there is no reason for assuming that it contemplates only
permanent residence and excludes temporary residence" *
The decision of the Privy Council was quoted with approval and followed by the
Supreme Court in the case of Sri Sri Sri Kishore Chandra Singh v. Babu Ganesh
Prasad Bhagat and Ors, The Supreme Court later on in the decision Mst.
Jagir Kaur and another v. Jaswant Singh 1963 AIR(SC) 150 has defined the
word 'resides' in the following manner: a person resides in a place if through
choice make it his abode permanently or even temporarily"
In the same decision the Supreme Court pointed out that the question of
residence is a mixed question of law and fact. Hence this being the mixed
question of law and fact has to be decided keeping in mind the facts and
circumstances of each case. The meaning of the word 'residence' would in
ultimate analysis depend upon the context and the purpose of a particular
statute. In another decision of the Supreme Court in the case of Jeewanti
Pandey v. Kishan Chandra Pandey, while construing Section 19(ii) of the Hindu Marriage Act, 1955 the Supreme Court said: (Para 12)
"In ordinary sense 'residence' is more or less of a permanent
character. The expression 'resides' means to make an abode for a considerable
time; to dwell permanently or for a length of time to have a fixed home or
abode. Where there is such fixed home or such home at one place, his legal and
actual residence is the same and cannot be said to reside at any other place
where he had gone on a casual or temporary visit. But if he has not established
home, his actual and physical habitation is the place where he actually or
personally resides." *
The court has further said in paragraph 13 that it is plain in the context of
clause (ii) of Section 19 of the Act, that the word 'resides' meant actual
place of residence and not a legal or constructive residence. It clearly does
not indicate the place of origin. The words 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 reside. A person holding property or land in
a particular place or city or having some ancestral roots to the city may be a
resident 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 manedi or an intention to stay for a considerable period.
The concept of de facto and de jure residence can also be understood by the
following example. If a person suppose has the residency certificate of a place
say 'A', but actually for his living he stays at the place 'B'. Then de jure he
can be said to be the resident of place 'A' but de facto he is the resident of
the place 'B'. In U.O.I. v. Dudh Nath Mishra and Ors., Division Bench of
this Court has held that the word 'resides' has to be interpreted in the
context of the purpose of the statute in which the words 'resides' is used. The
word resident is read with 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.
From the aforesaid analysis it is apparent that the word 'residence' is
generally understood as referring to a person in connection with the place
where he lives, and may be defined as one who resides in a place or one who
dwells in a place for a considerable period of time as distinguished from one
who merely works in a certain locality or comes casually for a visit and the
place of work or the place of casual visit are different from the place of
'residence'. #
There are two classifications of the meaning of the word 'residence'. First is
in the form of permanent and temporary residence and the second classification
is based on de facto and de jure residence. The de facto concept of residence
can also be understood clearly by the meaning of the word 'residence' as given
in the Black Law Dictionary, 8th Edition. It is given that the word residence
means bodily presence as an inhabitant in a given place. Thus de facto
residence is also to be understood as the place where one regularly resides as
different to the places where he is connected to by mere ancestral connections
or political connections or connection by marriage.
In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. The advertisement inviting the applications has not defined the same and hence it would be necessary to see the intention of the framers of the eligibility criteria to understand the true meaning or the sense for which the word 'resident' is used or as to why the criteria of resident is put as an eligibility criteria for allotment of LPG. In the present case the intention of the framers appears to be to provide employment or source of earning for the residents of the Kangra district in the form of LPG dealership/distributorship.
The eligibility criterion requires the person to be a resident of Kangra
district only in the actual sense and not in any other sense. What is required
to fulfill the eligibility criteria of the residence is that the person should
be a de facto residence and not to have the mere connection with the place on
account of her husband having some personal and ancestral property in Kangra. #
There is no finding recorded by the Court that the husband of Respondent
No.1 is permanently residing at Kangra or has permanent abode in Kangra. From
the finding arrived at by the High Court it can be said that her husband having
ancestral property in Kangra is a visitor to that place and occasionally
resides there for a few days. Respondent No.1 prima facie appears to be a
permanent resident of Mandi, since her name appears in the voter's list of
Mandi and that she has been drawing her ration from Mandi as per the case set
up by the appellants.
It is further clear that the intention of providing employment and source of
earning to the residents of the place would be fulfilled only if the person is
actually living in Kangra and not by his/her remote connection to the place. It
may also be seen that another eligibility criteria is that the person should
not be a partner or having any dealership or distributorship agency in any
petroleum company and, therefore, the dealership/distributorship has to be
allotted to the person who does not hold any other dealership/distributorship
agency of any other petroleum company.
This term indicates that the corporation wants that the dealership at a
particular place have to be handled by that person, which would necessarily
require the personal presence of that person at the place of business. The
notice of intent issued to the respondent no.1 on March 3, 1988 further
clarifies this requirement when it says that the dealer is to be a full time
working dealer which necessitates the permanent residence at a place for which
the dealership license is given.
When the agency requires full time working dealer it would be only possible
if the person actually resides in Kangra district and not working through agent
or servants engaged for the said purpose. This further indicates that the
dealer is required to be a de facto resident of the place from where the
dealership license is to be issued and it is not permissible to have casual
connection or temporary residence at that place. #
For the aforesaid reasons we are of the view that the High Court has committed
an error in construing the term 'resident of Kangra District' does not require
a person to be a permanent resident of that place and his casual connection to
the district would fulfill the necessary mandatory criteria provided in the ad.
notice. As the approach of the High Court in deciding the second appeal against
the appellant was based on its interpretation of the criterion of residence and
as we have taken a different view of the matter, we set aside the judgment and
decree passed by the High Court and remand the matter back to the Court for
fresh consideration of the appeals in the light of interpretation given by us
to the term 'resident of Kangra'. The appeals are disposed of accordingly with
no order as to costs.