Holding

The term "resident" in the eligibility criteria demands de facto, actual residence in Kangra district, not merely a legal or marital connection, and the High Court's contrary interpretation is set aside.

Summary

The Supreme Court examined an appeal concerning the allotment of a LPG dealership in Kangra district, Himachal Pradesh. The eligibility notice required the applicant to be a "resident" of Kangra, but the respondent argued that her marital connection to a husband owning property there satisfied the criterion. The trial court and first appellate court held she was not a resident, while the High Court reversed, deeming her a resident by virtue of her husband's property. The Supreme Court clarified that "resident" must be understood as de facto, actual residence – a person must physically dwell in the district for a considerable period, not merely have legal or marital ties. Consequently, the High Court’s interpretation was erroneous, its judgment was set aside, and the matter was remanded for fresh consideration. The appeal was disposed of without costs.

Issues considered

The meaning of "resident of Kangra district" in the eligibility criteria – whether it requires de facto (actual) residence or can be satisfied by de jure or marital connection.
Whether the residency requirement is a mandatory eligibility condition for the LPG dealership.
Whether the High Court erred in interpreting the residency criterion and granting the dealership to the respondent.

Legislation cited

Hindu Marriage Act, 1955s. 19
Registration Act, 1908s. 33

Subjects

residencede facto residenceeligibility criteriaLPG dealershipadministrative lawinterpretation of statutesde jure vs de factoHimachal PradeshHindustan Petroleum CorporationOil Selection Board

Judgment

A BHAGWAN DASS AND ANR.
v.
KAMAL ABROL AND ORS.

MAY 11, 2005

B [R.C. LAHOTI, CJ., G.P. MATHUR AND P.P. NAOLEKAR, JJ.]

Public Distribution:

Allotment of LPG dealership-Eligibility criterion of 're.sidence '-De
C facto residence or de jure residence-:-Held, candidate was to fulfill eligibility
criterion of residence, i.~.. it should be de factn residence and not merely a
connection with the place on account oFcandidate 's husband having some
personal and ancestral property in the regfonconcerned-Administrative Law.

Words and.Phrases:
. D
'Residence '-Meaning of

Respondent No. 3, Hindustan Petroleum Corporation, invited '
applications ftom residents of Kangra District in Himachal Pradesh, for
allotment of dealership/distributorship for Liquid Petroleum Gas. Various
E candidates including appellants an<J respondent No. 1 applied. Respondent
No. 1 wa~· iss~ed letter of intent: The appellants filed a suit, inter alia, for
declaration that letter of intent issued in favour of respondent No. 1 was
null and void, as she did not fulfil the criterion of 'resident' of Kangra
District. The plea of respondent No. 1 was that her husband owned land
F and~ancestral property in Kangra, and, therefore, she fulfilled the
eligibility. The trial court as also the first appellate court held that
respondent No. 1 was not resident of Kangra District. However, the High
Court in the second appeal held in favour of respondent No. 1. Aggrieved, (
the plaintiffs filed the present appeal.

G Disposing of the appeal and remanding the matter to the High Court,
the Court,

HELD: 1.1: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 ~,_
H· ~2
BHAGW AN DASS v. KAMAL ABROL 343

·".considerable period of time as distinguished from one who merely works A
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'.
(349-F-GJ
'
;-

1.2. There are two classifications of the meaning of the word
'resid.ence'. First is in the form of permanent and temporary residence B
and the second classification is based on de facto and de jure resid.ence.
The de facto concept of residence can also be understood clearly by the
meaning of the word 'residence' as given in Black's 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
c
he is connected to by mere ancestral connections or political connections
or connection by marriage. (349-G, H; 350-A)

Sri Kishore Chandra Singh v. Babu Ganesh Prasad Bhagat and Ors.,
AIR (1954) SC 316; Mst. Jagir Kaur and Anr, v. Jaswant Singh, AIR (1963) D
, SC 150 and Sarat Chandra Basu v. Bijoy Chand Mahatab Maharajadhiraj /
Bahadur of Burdwan, AIR (1937) PC 46, referred to.

Jeewanti Pandey v. Kishan Chandra Pandey, AIR (1982) SC 3 and
V.0.1. v. Dudh Nath Mishra and Ors., AIR (2000) SC 525, relied on.
E
Black's Law Dictionary, 8th Edition, referred to.

1.3. In the instant 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 eligibi_lity criteria to F
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. The intention of the framers appears to be to provide.
employment or source o~ earning for the residents of the Kangra district
in the form of LPG dealership/distributorship. The eligibility criterion
G
requires the person to be a resident of Karigra district only in the actual
sense and n-0t in any other sense. What is required to fulfill the eligibility
criteria of the residence is that the person should be a de facto resident
and not .to have mere connection with the place on account of her husband
having some personal and ancestral property in Kangra. There i~ no
-. finding recorded by the Court that the husband of respondent No.1 is H
344 SUPREME COURT REPORTS (2005] SUPP. l S.C.R.

A permanently residing at Kangra or has permanent abode in Kangra.
Respondent No.I primafacie 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.
(350-B-E)

B 2. The High Court has committed an error in construing that 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.
The judgment and decree passed by the High Court are set aside. The High
C Court would decide the appeals afresh in the light of interpretation given
in this judgment to the term 'resident of Kangra'. 1351-B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3268-3270
of 2005 .

. From the Judgment and Order dated 21.8.2002 of the Himachal Pradesh
D High Court in R.S.A. Nos. 13, 14 and 103 of 1997.

Druv Mehta and Mohit Choudhary for the Appellants.

Shambhu Prasad Singh, Ms.Manjula Gupta, Prem Sunder Jha, Mrs.
Rani Chhabra and Ms. Sudha Pal,for the Respondents.
E
The Judgment of the Court was delivered by

P.P. NAOLEKAR, J. Leave granted.

These three appeals have been preferred against the common order and
F 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. f
That respondent no.3, Hindustan Petroleum Corporation, is a
Government of India Undertaking and respondent no.2 is the Oil Selection
G 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/
dislributorship rights provided for certain eligibility criteria, which the applicant
H should possess. The criteria provided that the applicant should be an
BHAGWAN DASS v. KAMAL ABROL [NAOLEKAR, J.] 345

unemployed graduate, resident of Kangra district, family income not more A
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 vi.z., Bhagwan Dass and Ashok Kumar applied jointly as partners
along with other applicants. Respondent no. I Smt. Kamal Abrol and respondent
rio.5 Shri Abhay Singh had also applied for the said dealership/distributorship B
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 C
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. I 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 D
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 E
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. I is wrong, illegal, null and void and does not confer
any right, title and interest upon respondent no. I for allotment of dealership/
distributorship of LPG at Kangra. The appellants had claimed further relief F
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. I and 5 could not be
allotted the dealership of LPG at Kangra as they didn't fulfill the required G
eligibility criteria. It was held that the respondent no. I 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 H
346 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A were filed by both the appellants and the respondent no. I. 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
B and decree of the trial Court, the court had held that respondent no. I 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. I and 5 were held not
eligible for the dealership/distributorship rights whereas the appellants were
C 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 . ·
D 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 js no question of specific
E 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 Co~rt 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
F 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
G 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. I cannot be held not a resident of Distt. Kangra.
Admittedly, respondent no. I is married to her husband who ~wn,s a land and
ancestral property in Kangra. Therefore, in view of the fact that the husband
of respondent no. I is the resident of Kangra she will be deemed to be the
H resident of the said di~trict since her marriage. In other words, the High
,·

BHAGWAN DASS v. KAMAL ABROL [NAOLEKAR, J.] 347

Court's finding is that the husband of Respondent no. I having some ancestral A
- 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 ofKangra district has to be construed to be a permanent B
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. C
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 D /
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 E
· dwell permanently and for aw 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 i'lace permanently and regularly for some F
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 G
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 o~tained varied judicial opinions and
responses. To start with, in "the case of Sarai Chandra Basu v. Bijoy Chand
Mahatab Maharajadhiraj Bahadur of Burdwan, AIR 1937 PC 46, the Privy H
348 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A 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"
B
The decision of the Privy Council was quoted with approval and followed
by the Supreme Court in the case of Sri Kishore Chandra Singh v. Babu
Ganesh frasad Bhagat and Ors., AIR (1954) SC 316. The Supreme Court
later on in-the decision Mst. Jagir Kaur and Anr. v. Jaswant Singh, AIR
(1963) SC 150 has defined the word 'resides' in the following manner:
c
"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. Hertce this being the mixed
D 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
E l 9(ii) of the Hindu Marriage Act, 1955 the Supreme Court said: (Para 12)

"Jn ordinary sense 'residence' is more or less of a permanent
character. The expres_sion '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
F home at one place, his legal and actual residence is t,he 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. "
G Tiie 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
H in which it appears and it cannot be read in isolation._ By this decision another ·--:
BHAGW AN DASS v. KAMAL ABROL [NAOLEKAR, J.] 349

_dimension was added to the concept of residence in the form of concept of A
de facto residence and the c0ncept '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 B
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 C
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 D
'B'.

In U.O.J. 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 E
.....~ .,· -«'ordinarily resident'. It is clear that the person, before he can be said to be
.--:>~ordinarily residi11g 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 F
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 diff~rent from the place of G
'residence'. There are two classifications of the:imeaning of the word
.- 'residence'. First is in the form of permanent and temporary residence and
the second classification is based on de facto and dejure 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 H
350 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

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
B 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
C 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
D 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. I 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
·E and occasionally resides there for a few days. Respondent No. I 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
F 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
G 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. I on March 3, I 988 further
clarifies this requirement when it says that the dealer i_~ to be a full time
working dealer which necessitates the permanent residence at a place for
H which the dealership license is given. When the agency requires fu!Itime
BHAGWAN DASS v. KAMAL ABROL [NAOLEKAR, J.] 351

working dealer it would be only possible if the person actually resides in A
Kangra district and not working through agent or servants engaged for the
said puq)ose. 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.
B
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 C
second appeal against the appellant was based on its interpretation of the
criterion ofresidence 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. D
R.P. Appeal disposed of.