http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  3268-3270 of 2005

PETITIONER: BHAGWAN DASS & ANR.

RESPONDENT: KAMAL ABROL & ORS.

DATE OF JUDGMENT: 11/05/2005

BENCH: CJI G.P. Mathur, P.P. Naolekar

JUDGMENT: JUDGMENT

(Arising out of SLP) Nos.1920-1922 of 2003)

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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,  AIR 1937 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, AIR 1954 SC 316.  The Supreme Court later on in the  decision Mst. Jagir Kaur and another v. Jaswant Singh   AIR  1963 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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, AIR 1982 SC 3 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 j ure 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., AIR 2000 SC 525  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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.