Writ Petition No.2380 of 2010

29th April, 2010

Petitioner Counsel: Shri. S. T. SHELKE
Respondent Counsel: Shri. A. P. BHANDARI,Shri. ALOK SHARMA,Shri. K. B. CHOUDHARI

Cases Cited:
D. P. Joshi Vs. State of Madhya Bharat, A.I.R. 1955 SC 334 [Para 19]
Dr. Pradeep Jain Vs. Union of India, A.I.R. 1984 SC 1420(1) [Para 19]
Yogesh Bhardwaj Vs. State of U.P., (1990)3 SCC 355 [Para 20]
Union of India Vs. Dudh Nath Prasad, (2000)2 SCC 20 [Para 21]

JUDGMENT

NARESH H. PATIL, J.:- Rule. Rule made returnable forthwith.

2. By this Petition, the Petitioner prays for quashing and setting aside a communication dated 9th March, 2010 issued by Respondent No.1 Indian Oil Corporation Limited, Aurangabad Divisional Office, Aurangabad.

3. The Petitioner states that the Respondent No.1 issued an advertisement on 17th August, 2009 in daily newspapers Sakal and Lokmat for selection of Kisan Seva Kendra Retail Outlet Dealer (for short 'KSK Dealership') at Khanapur, Taluka-Akole, District-Ahmednagar. The said dealership was for open category candidates. One of the condition was that the applicant should be resident of village Khanapur.

4. The Petitioner accordingly applied in the prescribed form. The Petitioner's application came to be rejected on the ground that 'the proof of residence is not as per requirement of advertisement'. The Petitioner was not found eligible after scrutiny and accordingly by the impugned communication dated 9th March, 2010 the decision of the Respondent No.1 was informed to the Petitioner.

5. In substance, the Petitioner contends that after obtaining residence certificate by Talathi of village Gardani and other necessary documents, the Petitioner obtained certificate titled as 'Certificate of Age and Domicile' issued by Tahsildar & Executive Magistrate, Taluka Akole. It is the contention of the Petitioner that based on the documents annexed with the application, the Tahsildar issued certificate of Domicile. The Petitioner ought to have been heard by the Respondent No.1 before taking any decision, so that the Petitioner would have been in a position to put up his case before the Authorities concerned.

6. The Respondent No.1 filed affidavit-in-reply twice, first on 18th March, 2010 and second on 24th March, 2010. In first affidavit-in-reply the deponent contends that the applicant had submitted Domicile Certificate, which is not recognized as proof of residence in view of clause 2.2 of the advertisement.

7. In second affidavit-in-reply the deponent contends that the Petitioner was not eligible, as he failed to submit the residence certificate. The said defect was noticed during the scrutiny. In Paras 5 and 6 the deponent contends that :

"5. I say that, "Domicile" is more concerned with the affinity of a person, in relation to a particular country and "Residence" relates to a particular place. For the scheme, the person must be resident of a particular District or any place therein. Therefore, there is a need of "Residence Certificate".

6. I say that, when the advertisement has clarified the fact that, "Residence Certificate" is to be submitted, there is no room for any other interpretation. The scrutinizing staff is not supposed to keep on interpreting the documents on record, though the document prescribed is not submitted. If such a process of interpretation is adopted, the same would lead to unimaginable consequences. If a particular document is prescribed in the advertisement and the same is not submitted, there is no reason why such application shall be entertained."

8. The deponent further submits that the other candidates did submit 'Residence Certificate' issued by the Talathi of village Khanapur and Akole.

9. Shri. Shelke, the learned counsel appearing for the Petitioner submitted that the condition stipulated in the advertisement in respect of submission of Residence Certificate itself is confusing one and not clear. It is prone for interpretation. It was further submitted that the Domicile Certificate was issued on the basis of the documents filed by the Petitioner and the certificate issued by the Talathi which points out that the Petitioner is resident of village Gardani, Taluka-Akole, District-Ahmednagar. The counsel submitted that the Respondent No.1 has taken technical stand and had mechanically rejected the application of the Petitioner without application of mind.

10. The learned counsel appearing for the Respondent No.1 submits that the clause 2.2 of the advertisement is very clear. There is no ambiguity in the same. The Petitioner ought to have submitted Residence Certificate instead of Domicile Certificate. The terms of the advertisement do not confer any right on the scrutiny officer or committee to interpret the certificates or call for the candidate to furnish other material in support of the claim of the residence. In case of other candidates, they had submitted such Residence Certificates which demonstrate that in general the candidates have understood the terms and conditions of the advertisement.

11. Shri. Alok Sharma, the learned counsel appearing for the Union of India placed on record a communication issued by the Under Secretary to the Government of India dated 28th February, 2006 addressed to Chairman of the Oil Companies including Indian Oil Corporation Limited, Bharat Petroleum Corporation Limited, Hindustan Petroleum Corporation Limited and IBP Company Limited. Broad guidelines for selection of candidate for running rural retail outlet were mentioned in the said communication. Clause 5 refers to eligibility criteria. Sub-clause (a) of Clause 5 reads thus :

"(a) The applicant shall be the resident of the same revenue village. If no candidate is available in the village, other candidates from the same village panchayat may be considered."

12. Shri. K. B. Choudhari, the learned A.G.P. had also sought information in respect of the authority of Government Officers to issue Residence Certificate, Domicile Certificate or Nationality Certificate. The learned A.G.P. placed on record the Government Resolution dated 27th September, 1950, Government Circular dated 20th August, 1974 and Government Resolution dated 1st March, 1989, for our perusal. The A.G.P. submitted that certain authorities are empowered to issue "Certificate of Age, Nationality and Domicile". A proforma of the same is also part of the said compilation. The said proforma basically indicates the place of birth of person in the State. It mentions that the person concerned is citizen of India and residence of the State and domiciled in the State of Maharashtra. The learned A.G.P. submitted that he could not get any further instructions on the issue as to who is authorized to issue Residence Certificate in respect of persons residing at village, Taluka or District place but it was submitted that routinely and commonly such Residence Certificates are issued by Revenue Officers.

13. After reading clause 2.2 of the advertisement, we are of the view that the said clause in respect of submission of Residence Certificate could have been clearly drafted and worded by the Respondent No.1 company. We had even verified from some of the disposed matters, the clauses in respect of Residence proof framed, by the Company and it is noticed that the same are not worded in identical fashion in which present clause 2.2 is worded. But at the same time, we could gather that the thrust of the clause is in respect of demand of Residence Certificate from the candidate. The Company had even mentioned that the said Residence Certificate issued by Talathi or Taluka Tahsildar is required.

14. Shri. Bhandari, the learned counsel for Respondent No.1-Company submitted that there has been no inter-se communication between the Respondent No.1-Company and the State Authorities as to which of the Officers are authorized to issue Residence Certificate in the State of Maharashtra and the format prescribed by the State, if any. The learned counsel for Respondent No.1 submitted that commonly the requirement of submission of Residence Certificate is known to the candidates as the said certificates are routinely issued by Revenue Officers like Talathi and Tahsildar.

15. We had probed the matter little more because it was informed to the Court that the requirement of Residence Certificate of the present nature was part of advertisement in several cases and therefore the Respondent No.1-Company was keen to have final word on the said issue so that the Company could properly frame the clauses in future in the advertisement in respect of submission of Residence Certificate and the candidates properly and clearly understand the same.

16. We had even perused the proceedings of disposed Writ Petition Nos.6216 of 2007 and 6243 of 2007 wherein the issue of Residence Certificate demanded by the Respondent No.1-Company was raised. We had even perused the stand of the Respondent No.1 in the affidavit-in-reply filed in those Petitions.

17. We have noticed that the Respondent No.1 in the present advertisement, had prescribed the proforma of applications to be submitted by the partners of the firm, co-operative societies etc.. We noticed that time and again on rejection of application on the ground of want of Residence Certificate, Petitions have been filed in this Court. To avoid litigation on the issue and to have clarity on the issue, we find that it would be appropriate that if the Respondent No.1-Company drafts necessary clauses in more clear words if necessary by providing a proforma of the Residence Certificate which is required by the Company.

18. The learned counsel for the Petitioner has referred to the dictionary meaning in Black's Law Dictionary of term "Domicile". The counsel for the Petitioner also referred to the decision in the case of Louis De Raedt Vs. Union of India and others, reported in A.I.R. (Sic) Supreme Court Page 1886, in respect of the definition of "Domicile".

19. The learned counsel for Respondent No.1 referred to the Judgment in the case of D. P. Joshi Vs. State of Madhya Bharat and another, reported in A.I.R. 1955 Supreme Court Page 334 and the Judgment in the case of Dr. Pradeep Jain etc. etc. Vs. Union of India and others, reported in A.I.R. 1984 Supreme Court Page 1420(1). In the case of Dr. Pradeep Jain Vs. Union of India, cited supra, the Apex Court in Para 8 of the Judgment observed thus :

"8. Now it is clear on a reading of the Constitution that it recognises only one domicile, namely, domicile in India. Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, "domicile in the territory of India".

The concept of 'domicile' has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one state or another forming part of the Union of India.

It is true and there we agree with the argument advanced on behalf of the State Governments, that the word 'domicile' in the Rules of some of the State Governments prescribing domiciliary requirement for admission to medical colleges situate within their territories, is used not in its technical legal sense but in a popular sense as meaning residence and is intended to convey the idea of intention to reside permanently or indefinitely.

The concept of domicile if used for a purpose other than its legitimate purpose may give rise to lethal radiations which may in the long run tend to break up the unity and integrity of the country. We would, therefore, strongly urge upon the State Governments to exercise this wrong use of the expression 'domicile' from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions."

20. We find it relevant to refer to two Judgments of the Apex Court. In the case of Yogesh Bhardwaj Vs. State of U.P. and others, reported in (1990)3 Supreme Court Cases Page 355, the Apex Court in Para 17 and 21 observed thus :

"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'.

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.. To read into residence volition as a necessary element is, as stated above, to mistake residence for domicile of choice, and that is the error which the High Court appears to have committed. Where residence is prescribed within a unified legal system as a qualifying condition, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law. Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided."

21. In the case of Union of India and others Vs. Dudh Nath Prasad, reported in (2000)2 Supreme Court Cases Page 20, the Apex Court in Paras 19 to 21 observed thus :

"19. Learned counsel for the appellants then attempted to import the concept of 'domicile' as understood in Private International law, in his arguments and contended that before a person can be said to be "Ordinarily residing" at a particular place, he must satisfy all the requirements which go to constitute 'domicile'. He further contended that since the respondent was born in a village in the State of Bihar, he shall be treated to have his domicile of nativity in that State. We are not prepared to accept this contention.

20. In Tomlin's Law Dictionary, "domicile" has been defined as "the place where a man has his home".

21. In Whicker Vs. Hume it was held that a person's domicile means, generally speaking, the place where he has his permanent home.

22. In McMullen Vs. Wadsworth 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. Lord Macnaghten in Winans Vs. A.G. observed that : "Domicile of origin, or, as it is sometimes called, perhaps less accurately, domicile of birth, differs from domicile of choice mainly in this - that its character is more enduring, its hold stronger and less easily shaken off."

24. In Ross Vs. Ross, 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. In another case, namely, Ramsay Vs. Liverpool Royal Infirmary Lord Dunedin observed at p.594 that : "The animus of changing domicile may be inferred from the factum of residence".

26. Etymologically, "residence" and "domicile" carry the same meaning, inasmuch as both refer to the 'permanent home', but under Private International Law, "domicile" carries a little different sense and exhibits many facets. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. 'Domicile' may also take many colours; it may be the domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. In Private International Law, "domicile" jurisprudentially has a different concept altogether. It plays an important role in the Conflict of Laws. The subject has been elaborately considered by Dicey in his book "Conflict of Laws" (6th Edn.) as also in another book by Phillimore on Domicile. An equally valuable discussion is to be found in Private International jurisprudence by Foote and by Westlake on Private International Law."

22. Considering the definitions of term "domicile" and "residence" as dealt with in the dictionaries and the Judgments cited supra, it is noted that the domicile and residence are different and yet related concepts. They have to be understood in the context in which they are used having regard to the nature and purpose. The purpose for which clause 2.2 in the advertisement is framed by the Respondent No.1 Oil Company, is to obtain proof of residence of a person at which place the Company decided to offer and run the retail outlet. The retail outlet is to be sanctioned at village Khanapur, Taluka-Akole, District-Ahmednagar and therefore, rightfully the Respondent No.1-Company demanded a Residence Certificate issued by Talathi or Tahsildar. It is true that the other candidates did file Residence Certificates issued by the respective Talathis but the Petitioner submitted a Domicile Certificate.

23. In the facts of the case, we find that the Petitioner's Domicile Certificate and even Residence Certificate annexed to the Petition refers to his residence at village Gardani, Taluka-Akole, whereas the Respondent No.1 was to sanction retail outlet at village Khanapur, which is reflected at Sr. no.183 of the advertisement. The explanation of the Petitioner on that ground does not satisfy condition of proof of residence of village Khanapur. We therefore, find that the Petitioner has failed to make out any case for getting the impugned communication quashed and set aside.

24. In the light of the facts of the case, we observe that the Respondent No.1-Company, in future, shall frame the clauses in respect of submission of Residence Certificate in more clear words and manner. If possible, the Company may consider for providing format of the Residence Certificate in the Advertisement itself. The Respondent No.1-Company shall also get the issue cleared from the State Authorities in respect of issuance of Residence Certificate by the respective Authorities. In case the State had not issued any instructions, directions to the Revenue Officers in respect of issuance of Residence Certificate; then the State shall issue appropriate instructions and guidelines to the concerned officers for issuance of Residence Certificate in the prescribed form.

25. The Union Ministry of Petroleums, is directed to consider to issue appropriate instructions in the light of the observations made by us as above to the Oil Companies operating in the State of Maharashtra.

26. With the observations made as above, we are of the view that there is no merit in the Petition. The Writ Petition is accordingly dismissed. Rule stands discharged.

Petition dismissed.