PETITIONER:
D. P. JOSHI
Vs.
RESPONDENT:
THE STATE OF MADHYA BHARAT ANDANOTHER.
DATE OF JUDGMENT:
27/01/1955
BENCH:
MUKHERJEE, BIJAN KR. (CJ)
BENCH:
MUKHERJEE, BIJAN KR. (CJ)
BOSE, VIVIAN
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.
CITATION:
1955 AIR 334 1955 SCR (1)1215
ACT:
Constitution of India, Arts. 44 and 15-Rule laying down that
no capitation fee should be charged from students-Bona fide
residents of Madhya Bharat-But capitation fee should be
charged from non-Madhya Bharat students-Whether infringes
the Constitution.
HEADNOTE:
The Government of the State of Madhya Bharat substituted the
following new rule for the old rule for admission to the
Mahatma Gandhi Memorial Medical College Indore, when it took
over the administration of the College from a private
committee.
For all students who are 'bona fide residents' of Madhya
Bharat no capitation fee should be charged. But for other
non-Madhya Bharat students the capitation fee should be
retained as at present at Rs. 1,300 for nominees and at Rs.
1,500 for others".
Bona fide resident' for the purpose of this rule was defined
as: one who is-
(a) a citizen of India whose original domicile is in Madhya
Bharat,provided he has not acquired a domicile elsewhere, or
(b) a citizen of India, whose original domicile is not in
Madhya Bharat but who has acquired a domicile in Madhya
Bharat and has resided there for not less than 5 years at
the date, on which he applies for admission, or
(c)a person who migrated from Pakistan before September 30,
1948 intends to reside in Madhya Bharat permanently, or
(d) a person or class of persons or citizens of an area or
territory adjacent to Madhya -Bharat or to India in respect
of whom or which a Declaration of Eligibility has been made
by the Madhya Bharat Government".
The question for determination was whether the rule
infringed the fundamental rights guaranteed by Arts. 14 and
15(1) of the Constitution.
Held, per VFNKATARAMA AYYAR J. (MUKHERJEA C.J., VIVIAN BosE
and SINHA JJ. concurring, JAGANNADHADAS J. dissenting) that
the rule did not infringe the fundamental right guaranteed
by Art. 15(1) because residence and place of birth are two
distinct conceptions with different connotations both in law
and in fact, and when Art. 15(1) prohibits discrimination
based on the place of birth, it cannot be read as
prohibiting discrimination based on residence.
156
1216
Domicile of a person means big permanent home and is some-
times used in the sense of residence.
Held further, that the imposition of capitation fee on some
of the students and not on others was not discriminatory as
being in contravention of Art. 14 of the Constitution,
because the classification was based on a ground which had a
reasonable relation to the subject matter of the legislation
as the object of the classification underlying the impugned
rule was clearly to help to some extent students who are
residents of Madhya Bharat in the prosecution of their
studies and it was quite a laudable object for a State to
encourage education - within its borders. A classification
made on a geographical basis would be eminently just and
reasonable when it relates to education which is the concern
primarily of the State.
Per JAGANNADHADAS J.-There is no place for regional
domicile in the existing Indian Law. In the circumstances
the phrase original domicile in Madhya Bharat" is meant
to convey the "Place of birth (of the applicant) in Madhya
Bharat". It is true that "domicile of origin" and "place of
birth" are two different, matters. But that is so only
where the use of the phrase "domicile of origin" conveys a
definite legal meaning. In the present case however, the
phrase "domicile of origin in Madhya Bharat" conveys no
legal meaning, and if any meaning has to be attached to it,
then it could only have reference to the,"places of birth".
Therefore, the rule in question has reference to place of
birth in Madhya Bharat primarily, and offends Art. 15 of the
Constitution. Even in the view that the rule has reference
to the juristic concept of regional domicile and for that
reason does not fall within the scope of the inhibition of
Art. 15, a distinction based on such domicile cannot, in any
way, be considered reasonable with reference to Art. 14 of
the Constitution.
Bitstam Mody v. State: Sumitra Devi v. State (I.L.R. 1953
Madhya Bharat 87), Whicker v. Hume ([1859] 28 L. J. Ch.
396), Somerville v. Somerville ([1801] 5 Ves. 750), -Winans
v. Attorney General (1904 A.C. 287), Udny v. Udny ([1869]
L.R. I Sc. & Div. 441), Mcmullen v. Wadsworth ([1889] 14
A.C. 631), The State of Punjab v. Ajaib Singh and another
([1953] S.C.R. 254) and Om Prakash v. The State (A.I.R. 1953
Punjab 93), referred to.
JUDGMENT:
ORIGINAL JURISDICTION-: Petition No. 367 of 1954.
Under Article 32 of the Constitution of India for the
enforcement of Fundamental Rights.
N. C. Chatterjee and Veda Vyas, (S. K. Kapur and Ganpat Rai,
with them), for the petitioner.
M. C. Setalvad, Attorney-General of India (Shiv
Dyal and P. G. -Gokhale, with him), for respondent No. 1.
1217
1955. January 27. The judgment of Mukherjea C. J., Vivian
Bose, Venkatarama Ayyar and Sinha JJ. was delivered by
Venkatarama Ayyar J.Jagannadhadas J. delivered a separate
judgment.
VENKATARAMA AYYAR J.-This is a petition under article 32 of
the Constitution. There is at Indore a Medical-College
known as the Mahatma Gandhi Memorial Medical College run by
the State of Madhya Bharat. The petitioner who is a
resident of Delhi was admitted as a student of this College
in July. 1952, and is now studying in the third year class,
M.B.B.S. Course. His complaint is that the rules in force
in this institution discriminate in the matter of fees bet-
ween students who are residents of Madhya Bharat and those
who are not, and that the latter have to pay in addition to
the tuition fees and charges payable by all the students a
sum of Rs. 1,500 per annum as capitation fee, and that this
is in contravention of articles 14 and 15(1) of the
Constitution. The petitioner accordingly prays that an
appropriate writ might be issued prohibiting the respondent
from collecting from him capitation fee for the current
year, and directing a refund of Rs. 3,000 collected from him
as capitation fee for the first two years.
The respondent contests the petition. In the affidavit
filed on its behalf, it is stated that the institution in
question had its origin in private enterprise, and was under
the management of a Committee; that it was the Committee
that had made the rule imposing capitation fee on students
who did not belong to Madhya Bharat, that the State took
over the College subject to the conditions relating to
reservation of seats under which it was being run, and that
the requirement of a capitation fee from non-residents did
not offend either article 14 or article 15(1) of the Con-
stitution.
A brief narration of the history of the institution will be
useful for a correct appreciation of the contentions on
either side. The beginnings of the institution go back to
the year 1878, when a Dr. Beaumont started a Medical School
at Indore under the name of
1218
Indore Medical School, as an adjunct to a hospital called
the Indore Charity Dispensary. It received considerable
financial assistance from the rulers of Gwalior and other
Indian States, and became well established; and it. is.
claimed on its behalf that the medical practitioners of
Central India, Rajasthan and neighbouring States were
largely recruited from its alumni. In 1910 the name of the
school was changed to King Edward Memorial School, Indore,
and it was thereafter under the management of a Committee.
In 1940 the Committee decided to improve the status of the
School, and started collecting funds for equipping ,it as a
first-class Medical College. The arrangements were
completed in 1947, and in 1948 the institution was
affiliated to the University of Agra. It then came to be
known as the Mahatma Gandhi Memorial Medical College. In
1950 the College Council resolved to request the Madhya
Bharat Government to takeover -the running of the
institution, subject to the arrangements entered into
between the institution and certain States and donors for
reservation of seats for their nominees. The proposal was
accepted by the respondent, and by resolution dated 17-3-
1951 it took over the administration of the College.
According to the rules relating to admission to the College
which were in force at that time, the maximum number of
students who could be admitted in any year was 50, and they
were classed into two groups, nominees and ordinary
students. The Committee had arranged to raise funds for the
institution on a promise that those who contributed Rs.
7,000 would be entitled to nominate one student each for
admission into the College, and that those students called
nominees should pay, in addition to the usual fees and
charges, a capitation fee of Rs. 1,300 per annum. Excluding
the seats which have thus to be reserved for the nominees,
the remaining seats were thrown open to all eligible
applicants who came to be called selfnominees, and the
requisite number was selected from among them on the basis
of merit. Then came the rule which is at the root of the
present controversy. It provided that “Madhya Bharat
students are
1219
exempted from capitation fees”. (Vide 1952 Calendar, page 5
and Exhibit G). After the State took over the management,
it introduced certain modifications in the rules, and it is
with these new rules that the present petition is concerned,
the petitioner having been admitted under them. In place of
the rule that “Madhya Bharat students are exempted from
capitation fees” a Dew rule was substituted, which runs as
follows:
“For all students who are `bonafide residents’ of Madhya
Bharat no capitation fee should be charged. But for other
non-Madhya Bharat students the capitation fee should be
retained as at present at Rs. 1,300 for nominees and at Rs.
1,500 for others”. [Vide Exhibit 6/1 quoted in Rustam Mody
v. State: Sumitra Devi v. State(1)].
‘Bona fide resident’ for the purpose of this rule was
defined as:
“one who is-
(a)a citizen of India whose original domicile is in Madhya
Bharat, provided be has not acquired a domicile elsewhere,
or
(b)a citizen of India, whose original domicile is not in
Madhya Bharat but who has acquired a domicile in Madhya
Bharat and has resided there for not less than 5 years at
the date, on which he applies for admission, or
(c)a person who migrated from Pakistan before September 30,
1948 and intends to reside in Madhya Bharat permanently, or
(d)a person or class of persons or citizens of an area or
territory adjacent to Madhya Bharat or to India in respect
of whom or which a Declaration of Eligibility has been made
by the Madhya Bharat Government”.
In brief, the change effected by the new rule was that
whereas previously exemption from capitation fee was granted
in favour of all Madhya Bharat students whatever that might
mean, under the revised rule it was limited to bona fide
residents of Madhya Bharat.
Now the contention of Mr. N. C. Chatterjee for the
(1) I.L.R. 1953 Madhya Bharat 87, 99,
1220
petitioner is that this rule is in contravention of articles
14 and 15(1), and must therefore be struck down as
unconstitutional and void. Article 15(1) enacts:
“The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth
or any of them”.
The argument of the petitioner is that the rule under
challenge in so far as it imposes a capitation fee on
students who do not belong to Madhya Bharat while providing
an exemption therefrom to students of Madhya Bharat, makes a
discrimination based on the place of birth, and that it
offends article 15 (1). Whatever force there might have
been in this contention if the question had arisen with
reference to the rule as it stood when the State took over
the administration, the rule was modified in 1952, and that
is what we are concerned with in this petition. The rule as
modified is clearly not open to attack as infringing article
15(1). The ground for exemption from payment of capitation
fee as laid down therein is bona fide residence in the State
of Madhya Bharat. Residence and place of birth are two
distinct conceptions with different connotations both in law
and in fact, and when article 15(1) prohibits discrimination
based on the place of birth, it cannot be read as
prohibiting discrimination based on residence. This is not
seriously disputed. The argument that is pressed on us is
that though the rule purports to grant. exemption based on
residence within the State, the definition of bonafide
residence under the rule shows that the exemption is really
based on the place of birth. Considerable emphasis was laid
on clauses (a) and (b) of the rule wherein ‘residence’ is
defined in terms of domicile, and it was argued that the
original domicile, as it is termed in the rules, could in
substance mean only place of birth, and that therefore the
exemption based on domicile was, in effect, an exemption
based on place of birth under an alia8. That, however, is
not the true legal position. Domicile of a person means his
permanent home. “Domicile meant permanent home, and if that
was not understood by itself no illustration could help to
make it
1221
intelligible” observed Lord Cranworth in Whicker v. Hume(1).
Domicile of origin of a person means “the domicile received
by him at his birth”. (Vide Dicey on Conflict of Laws, 6th
Edition, page 87). The learned author then proceeds to
observe at page 88:
“The domicile of origin, though received at birth, need not
be either the country in which the infant is born, or the
country in which his parents are residing, or the country to
which his father belongs by race or allegiance, or the
country of the infant’s nationality”.
In Somerville v. Somerville(2), Arden, Master of the Rolls,
observed:
“I speak of the domicile of origin rather than of birth. I
find no authority which gives for the purpose of succession
any effect to the place of birth. If the son of an
Englishman is born upon a journey, his domicile will follow
that of his father”.
Mr. N. C. Chatterjee argued that domicile of origin was
often called domicile of birth, and invited our attention to
certain observations of Lord Macnaghten in Winans v.
Attorney-General(1). But then, the noble Lord went on to
add that the use of the words “domicile of birth” was
perhaps not accurate. But that apart, what has to be noted
is that whether the expression used is “domicile of origin”
or “domicile of birth”, the concept involved in it is
something different from what the words “place of birth”
signify. And if “domicile of birth” and “place of birth”
cannot be taken as synonymous, then the prohibition enacted
in article 15(1) against discrimination based on place of
birth cannot apply to a discrimination based on domicile.
It was argued that -under the Constitution there -can be
only a single citizenship for the whole of India, and that
it would run counter to that notion to hold that the State
could make laws based on domicile within their territory,.
But citizenship and domicile represent two different
conceptions. Citizenship has reference to the political
status of a person, and
(1) [1859] 28 L.J. Ch. 396, 400.
(2) [1801] 5 Ves. 750 at 786, 787; 31 E.R. 839, 858.
(3) 1901 A.C. 287, 290.
1222
domicile to his civil rights. A classic statement of the
law on this subject is that of Lord Westbury in Udny v.
Udny(1). He observes:
“The law of England, and of almost all civilised countries,
ascribes to each individual at his birth two distinct legal
statuses or conditions: one by virtue of which he becomes
the subject of some particular co untry binding him by the
tie of national allegiance, and which may be called his
political status, another by virtue of which be has ascribed
to him the character of a citizen of some particular country
and as such is possessed of certain municipal rights, and
subject to certain obligations, which latter character is
the civil status or condition of the individual, and may be
quite different from his political status. The political
status may depend on different laws in different countries;
whereas the civil status is governed universally by -one
single principle, namely, that of domicil, which is the
criterion established by law for the purpose of determining
civil status. For it is on this basis that the personal
rights of the party, that is to say, the law which
determines his majority or minority, his marriage,
succession, testacy or intestacy, must depend”.
Dealing with this question Dicey says at page 94:
“It was, indeed, at one time held by a confusion of the
ideas of domicile and nationality that a man could not
change his domicile, for example, from England to
California, without doing at any rate as much as he could to
become an American citizen. He must, as it was said,
‘intend quatenus in illo exuere patriam’. But this doctrine
has now been pronounced erroneous by the highest authority”.
Vide also the observations of Lord Lindley in Winans v.
Attorney-General(1). In Halsbury’s Laws of England, Vol. VI
the law is thus stated at page 198, para 242:
“English law determines all questions in which it admits the
operation of a personal law by the test of domicile For this
purpose it regards the organisa-
(1) [1869] L.R. I Sc. & Div. 441, 457.
(2) 1904 A.C. 287, 299.
1223
tion of the civilised world in civil societies, each of
which consists of all those persons who live in any
territorial area which is subject to one system of law, and
not its Organization in political societies or States, ,each
of which may either be co-extensive with a single legal
system or may unite several systems under its own
sovereignty”.
Under the Constitution, article 5, which defines citi-
zenship, itself proceeds on the basis that it is different
from domicile, because under that article, domicile is not
by itself sufficient to confer on a person the status of a
citizen of this country.
A more serious question is that as the law knows only of
domicile of a country as a whole and not of any particular
place therein, whether there can be such a thing as Madhya
Bharat domicile apart from Indian domicile. To answer this
question we must examine what the word “domicile” in law
imports. When we speak of a person as having a domicile of
a particular country, we mean that in certain matters such
as succession minority and marriage he is governed by the
law of that country. Domicile has reference to the system
of law by which a person is governed, and when we speak of
the domicile of a country, we assume that the same system of
law prevails all over that country. But it might well
happen that laws relating to succession and marriage might
not be the same all over the country, and that different
areas in the State might have different laws in respect of
those matters. In that case, each area having a distinct
set of laws would itself be regarded as a country for the
purpose of domicile. The position is thus stated by Dicey
at page 83:
“The area contemplated throughout the Rules relating to
domicile is a ‘country’ or territory subject to one system
of law’. The reason for this is that the object of this
treatise, in so far as it is concerned with domicile, is to
show how far a person’s rights are affected by his having
his legal home or domicile within a territory governed by
one system of law, i.e. within a given country, rather than
within
157
1224
another. If, indeed, it happened that one part of a
country, governed generally by one system of law, was in
many respects subject to special rules of law, then it would
be essential to determine whether D was domiciled within
such particular part, e.g. California in the United States;
but in this case, such part would be pro tanto a separate
country, in the sense in which that term is employed in
these Rules”.
The following statement of the law in Halsbury’s Laws of
England, Volume VI, page 246, para 249 may also be quoted:
law, a domicil is acquired in that part of the State where
the individual resides”.
An instructive decision bearing on this point is Somerville
v. Somerville(1). There, the dispute related to the
personal estate of Lord Somerville, who had died intestate
in London, his domicile of origin being Scotch. The contest
was between those who were entitled to inherit if his
domicile was Scotch, and those who were entitled to inherit
if his domicile was English. It was urged in support of the
claim of the latter that by reason of the death of Lord
Somerville at London, succession was governed by English
domicile. In discussing this question the learned Master of
the Rolls referred to the fact that the law of succession in
the Province of York was different from that prevailing in
other parts of England, and was akin to Scotch law, and
posed the question whether if a Yorkshire man died intestate
in London, succession to his personal estate would be
governed by the Law of the Province of York or of England.
He observes:
“It is surprising that questions of this sort have not
arisen in this country when we consider that till a very
late period and even now for some purposes a different
succession prevails in the Province of York. The custom is
very analogous to the law of Scotland. Till a very late
period the inhabitants of York were restrained from
disposing of their property by testament……………. And
the question then would have been
(1) [1801] 31 E.R. 839.
1225
whether during the time the custom and the restraint of
disposing by testament were in full force, a gentleman of
the county of York coming to London for the winter and dying
there intestate, the disposition of his personal estate
should be according to the custom or the general law”.
The principle that was laid down was that “succession to the
personal estate of an intestate is to be regulated by the
law of the country, in which be was a domiciled inhabitant
at the time of his death; without any regard whatsoever to
the place either of the birth or the death or the situation
of the property at that time”. On the facts, the decision
was that the domicile of origin which was Scotch, governed
the succession. What is of interest in this decision is
that it recognizes that for purposes of succession there can
be within one political unit, as many domiciles as there are
systems of law, and that there can be a Scotch domicile, an
English domicile and even a York domicile within Great
Britain.
Under the Constitution, the power to legislate on
succession, marriage and minority has been conferred under
Entry 5 in the Concurrent List on both the Union and the
State Legislatures, and it is therefore quite conceivable
that until the Centre intervenes and enacts a uniform code
for the whole of India, each State might have its own laws
on those subjects, and thus there could be different
domiciles for different States. We do not, therefore, see
any force in the contention that there cannot be a domicile
of Madhya Bharat under the Constitution.
It was also urged on behalf of the respondent that the word
“domicile” in the rule might be construed not in its
technical legal sense, but in a popular sense as meaning
“residence”, and the following passage in Wharton’s Law
Lexicon, 14th Edition, page 344 was quoted as supporting
such a construction:
“By the term ‘domicile’, in its ordinary acceptation, is
meant the place where a person lives or has his home. In
this sense the place where a person has his actual
residence, inhabitancy, or commoraney, is sometimes called
his domicile”,
1226
In Mcmullen v. Wadsworth(1), it was observed by the Judicial
Committee that “the word `domicil’ in article 63 (of the
Civil Code of Lower Canada) was used in the sense of
residence, and did not refer to international domicile”.
What has to be considered is whether in the present context
“domicile” was used in the sense of residence. The rule
requiring the payment of a capitation fee and providing for
exemption therefrom refers only to bona fide residents
within the State. There is no reference to domicile in the
rule itself, but in the Explanation which follows, clauses
(a) and (b) refer to domicile, and they occur as part of the
definition of “bonafide resident”. In Corpus Juris
Secundum, Volume 28, page 5, it is stated:
“The term `bonafide residence’ means the residence with
domiciliary intent”.
There is therefore considerable force in the contention of
the respondent that when the rule-making authorities
referred to domicile in clauses (a) and (b) they were
thinking really of residence. In this view also, the
contention that the rule is repugnant to article 15(1) must
fail.
There was a good deal of argument before us on the validity
of clause (d) of the rule. It was contended by the
petitioner that clause introduced a new element unconnected
with domicile or residence which formed the basis of the
previous clause, that it put foreign nationals on a more
advantageous footing than Indian citizens, and that the
entire rule must be discarded as based on no rational or
intelligible principle. No doubt, clause (d) strikes a new
note. And it may be that as a matter of policy the
management of the institution decided that it would be an
advantage to associate citizens of other countries with
Indian citizens in educational institutions, and therefore
reserved a few seats for them on the most-favoured nation
treatment basis. The validity of this reservation, however,
does not arise for decision in this petition, and as clauses
(a) to (c) rest on a classification based on domicile and
residence, and are
(1) [1889] 14 A.C. 631,
1227
distinct and severable from clause (d), they would be valid
even if clause (d) were to be held bad.
It must be mentioned that the rule relating to the payment
of capitation fee discussed above was again modified by the
management as a result of the decision of the High Court of
Madhya Bharat in Rustam Mody v. State: Sumitra Devi v.
State(1). The rule as amended-and that is what is now in
force-runs as follows:
“Only those students, who are bona fide residents of Madhya
Bharat and have been selected for being admitted in
accordance with the allocation scheme and the rules of
admission to the seats specifically reserved for the
residents of Madhya Bharat are exempted from the payment of
Capitation Fees. All other students admitted to seats other
than those reserved for the residents of Madhya Bharat shall
be liable to pay Capitation Fees as prescribed”.
Under this rule also, the exemption is in favour of bona
fide residents of Madhya Bharat”, and therefore with
reference to the points now under consideration, the
position under the present rule would appear to be the same
as under the previous one. It is unnecessary to consider
this matter further, as learned counsel on either side were
agreed that the rights of the petitioner must be determined
in accordance with the rule which was in force when he was
admitted.
It is next contended for the petitioner that the imposition
of capitation fee on some of the students and not on others
is discriminatory, and is in contravention of Article 14 of
the Constitution, and therefore void. The impugned rule
divides, as already stated, Self-nominees into two groups,
those who are bona fide residents of Madhya Bharat and those
who are not, and while it imposes a capitation fee on the
latter, it exempts the former from the payment thereof. It
thus proceeds on a classification based on residence within
the State, and the only point for decision is whether the
ground of classification has a fair and substantial relation
to the purpose of the law, or whether it is purely arbitrary
and fanciful,,
(1) I.L.R. 1953 Madhya Bharat 87,
1228
The object of the classification underlying the impugned
rule was clearly to help to some extent students who are
residents of Madhya Bharat in the prosecution of their
studies, and it cannot be disputed that it is quite a
legitimate and laudable objective for a State to encourage
education within its borders. Education is a State subject,
and one of the directive principles declared in Part IV of
the Constitution is that the State should make effective
provisions for education within the limits of its economy.
(Vide article 41). The State has to contribute for the
upkeep and the running of its educational institutions. We
are in this petition concerned with a Medical College, and
it is well-known that it requires considerable finance to
maintain such an institution. If the State has to spend
money on it, is it unreasonable that it should so order the
educational system that the advantage of it would to some
extent at least inure for the benefit of the State? A
concession given to the residents of the State in the matter
of fees is obviously calculated to serve that end, as
presumably some of them might, after passing out of the
College, settle down as doctors and serve the needs of the
locality. The classification is thus based on a ground
which has a reasonable relation to the subject-matter of the
legislation, and is in consequence not open to attack. It
has been held in The State of Punjab v. Ajaib Singh and
another(1) that a classification might validly be made on a
geographical basis. Such a classification would be
eminently just and reasonable, where it relates to education
which is the concern primarily of the State. The
contention, therefore, that the rule imposing capitation fee
is in contravention of article 14 must be rejected.
We have proceeded so far on the assumption that the impugned
rule is a “law” as defined in article 13. If it is not
that, article 14 would have no application. It was indeed
contended by the learned Attorney General on behalf of the
respondent that the rule in question is a mere
administrative or executive order, and that however
liberally the word “law” might be
(1) [1953] S.C.R. 254.
1229
construed, it should be limited to what is an expression of
the legislative power and cannot comprehend what is an
executive order. In support of this contention he relied on
the decision in Om Prakash v. The State(1). In the view
which we have taken that even on the footing that it is a
law, the rule does not offend article 14, we do not consider
it necessary to express any opinion on this question.
One other contention put forward by the respondent remains
to be noticed. It was urged that as the institution was
originally under private management and the State took it
over subject to the conditions under which it was run, it
was bound to enforce the rule relating to the payment of
capitation fee which was previously in operation. But the
terms under which the State took over expressly reserve only
the agreement for reserving seats for the nominees of
participating States and donors, and do not contain any
undertaking to maintain the rule relating to imposition of
capitation fee. Whether if such an undertaking had been
given it could have been set up in answer to a fundamental
right, does not therefore arise for decision.
In the result, the petition fails and is dismissed; but in
the circumstances there will be no order as to costs.
JAGANNADHADAS J.-I regret that I feel obliged to differ.
The question that arises is whether the petitioner who is a
resident of Delhi and has been admitted in July, 1952, by
the State of Madhya Bharat as a student in the Mahatma
Gandhi Memorial Medical College at Indore and who has been
called upon to pay a sum of Rs. 1,500 per annum as
capitation fee, in addition to the tuition fees and other
charges payable by all the students of the college in
general, is entitled to a writ restraining the authorities
concerned from levying that capitation fee on the ground
that the rule under which be is asked to pay is repugnant to
the Constitution. The history of the
(1) A.I.R. 1953 Punjab 93.
1230
institution and the relevant rules have been set out in the
judgment of the majority just delivered and it is
unnecessary to repeat them. It is desirable, however, to
mention, at the outset two matters. The exact authority for
these rules, that is to say, the question whether they are
rules made under a rule-making power having a legislative
basis, or whether they are merely executive orders, which it
is open to the State Government to change as they please,
has not been clearly elucidated. Though the learned
Attorney General suggested, in -the course of his arguments,
that these were merely executive orders and that as such
they did not come within the scope of article 14 of the
Constitution, the material placed before us throws no light
thereon. Nor has the question as to whether these executive
orders which are issued by the State and are general in
their application within the ambit of their subject matter
constitute laws falling with in the scope of article 14,
been sufficiently canvassed before us. The discussion has
proceeded on the assumption that the validity of these rules
may be judged with reference both to the article 14 and
article 15, no other article obviously having any direct
bearing.
Now, as has been pointed out in the majority judgment, the
relevant original rule by the date when the College was
taken over by the State from private management was that
“Madhya Bharat students are exempted from capitation fees”.
On the State taking over the College, this rule was
substituted by the following, new rule:
“For all students who are ‘bona fide residents’ of Madhya
Bharat no capitation fee should be charged. But for other
non-Madhya Bharat students the capitation fee should be
retained as at present at Rs. 1,300 for nominees and at Rs.
1,500 for others”.
“Bona fide resident” for the purposes of the above rule was
defined as
“(a) a citizen of India, whose original domicile is in
Madhya Bharat, provided he has not acquired a domicile
elsewhere, or
(b) a citizen of India, whose original domicile is
1231
not in Madhya Bharat but who has acquired a domicile in
Madhya Bharat and has resided there for not less than 5
years, at the date on which he applies for admission, or
(c) a person who migrated from Pakistan before A. September
30, 1948 and intends to reside in Madhya Bharat permanently,
or
(d) a person or class of persons or citizens of an area or
territory adjacent to Madhya Bharat or to India in respect
of whom or which a Declaration of Eligibility has been made
by the Madhya Bharat Government”.
This, it is said, was the rule in force when the applicant
was admitted into the College. This rule is again said to
have been modified recently and the same is as follows:
“Only those students, who are bona fide residents of Madhya
Bharat and have been selected for being admitted in
accordance with the allocation scheme and the rules of
admission to the seats specifically reserved for the
residents of Madhya Bharat are exempted from the payment of
capitation fees. All other students admitted to seats other
than those reserved for the residents of Madhya Bharat shall
be liable to pay capitation fees as prescribed”.
In the affidavit filed in this Court by Shri H. L. Gupta,
Assistant Secretary to the Government of Madhya Bharat, it
is stated that this was meant to be only a restatement by
the Government of their real intention in order to clarify
what the prior rule was meant to convey. Now, with
reference to these rules, it is necessary to notice the
suggestion made in the course of the argument that the rules
by the use of the word “exemption” indicate that some
students get the benefit of not paying what would otherwise
have been payable and that therefore others cannot complain
of any hostile action constituting discrimination. But a
copy of the rules for admission to the regular M.B.B.S.
courses (copied from Mahatma Gandhi Memorial Medical
College, Indore, Calendar of 1954) with which we have been
furnished as one of the
1232
enclosures to the affidavit of the petitioner, and which is
at pages 34 to 38 of the paper-book, on a perusal thereof,
clearly shows at page 37 that the capitation fee is in
addition to the normal fees and that this is payable only in
respect of some students, while all the students in general
pay certain prescribed fees. But whether the rule is in the
nature of an exemption for some students or is by way of an
addition for the others, there is clearly discrimination
between the two groups which affects the one adversely. The
very use of the phrase “capitation fees” for this additional
amount levied from some, is indicative of its discriminatory
character. The only question accordingly is whether this
discrimination falls within the mischief of either article
14 or article 15. It is desirable for this purpose to have
a clear understanding of what exactly the relevant rule at
the date of the admission of the applicant into the College
signifies.
It has been stated that this rule has to be understood with
reference to the allocation scheme for admission of students
which is said to be as follows in the affidavit of Shri H.
L. Gupta, Assistant Secretary to the Government of Madhya
Bharat.
“The basis of allocation of seats at the time of admission
each year is that out of the total number of candidates to
be newly admitted a certain number of seats is reserved for
‘nominees’ of such States as also of such individuals with
whom there is a contract of reservation of seats, and a
certain number of seats is reserved for Madhya Bharat. The
rest go to what are called ‘self-nominees’. All candidates
(except Central Government nominees) are, however, admitted
by a competitive examination and are selected in order of
merit for each category”.
It has been stated by the applicant in his reply affidavit
that, while the competitive examination is the same for all,
it is only the marks of the candidates in each separate
group that are taken into consideration inter se. However
this may be, there appear to be, as stated by the Assistant
Secretary to the Madhya Bharat Government, three broad
categories: (1) A
1233
certain number of seats reserved for “bona fide students of
Madhya Bharat”. (2) A certain number of seats reserved for
some specified States and the original donors, who in
respect of their nominees have to pay capitation fees,
somewhat lower in amount, and (3) The rest of the students
who have to pay the higher capitation fees. The second
category above mentioned may be left out of consideration
for the present case, since that depends on certain pre-
existing contractual obligations and different considera-
tions may arise and the present petitioner does not fall
within this category. The question of discrimination in
this case arises really with reference to categories I and 3
above and turns upon the exact meaning of the phrase
“bonafide, residents” as defined in the rules. If this
definition was meant to convey fairly andsubstantially, the
qualification of residence in Madhya Bharat and nothing
else, it may be, that this is not hit. by article 15 and
that it may also be a reasonable classification, on the
facts and circumstances of a particular State, for purposes
-of article 14. The learned Attorney-General himself based
his arguments, at one stage, on this view of the definition
of “bona fide resident” in the rules. But the difficulty is
that the learned Attorney-General has not committed himself,
on behalf of the State, as to this being the only reasonable
meaning of the definition. He put it as a kind of
alternative. The Assistant Secretary to the Madhya Bharat
Government, Shri H. L. Gupta, in his affidavit clearly and
categorically says that the charging of capitation fee,
truly speaking, is not on the basis of residence. The
restatement of the rule by the Government is not also
definite or clear about it inasmuch as it uses again the
phrase “bona fide residents of Madhya Bharat”. Bona fide
residents of Madhya Bharat, as defined, is clearly something
quite different from the class which can be designated ordi-
narily as “residents of Madhya Bharat”. Now out of the four
categories comprised in the definition, obviously (c) and
(d) have absolutely nothing to do with actual residence. It
is also difficult to discover any principle with reference
to which discrimination can be justified in favour of (1) a
Pakistani migrant
1234
with the mere intention to make Madhya Bharat his permanent
residence, and (2) a person, belonging to the contiguous
areas of Madhya Bharat, or the contiguous areas of India
(and excluding citizens of India from the non-contiguous
areas of Madhya Bharat, like the applicant). The main
categories, however, are those which fall within (a) and (b)
of the definition. But it is difficult to say even of these
categories that they are based merely on residence, as
such., of the person concerned. Category (b) has reference
to “Domicile in Madhya Bharat” plus residence in Madhya
Bharat for the preceding five years. Category (a) has
reference only to “original domicile in Madhya Bharat” and
by contrast with category (b) which requires precedent
residence, is clearly intended not to insist on any
precedent residence. Even if it be assumed that “domicile”
means “permanent home” as stated by Lord Cranston in Whicker
v. Hume(1) this has no necessary reference to the appli-
cant’s actual residence at the relevant time. It is
difficult to see why the fact of the applicant’s father
having had his permanent home in Madhya Bharat at the time
of applicant’s birth should be a ground of preference or why
a person who has made Madhya Bharat his permanent home but
left it for a time and returned only, say, an year
previously should be denied it. Thus the definition of
“bona fide resident” taken as a whole or even confining it
to categories (a), (b) and (c) cannot be said to be based
merely on residence in Madhya Bharat. Nor can any
intelligible basis of grouping be gathered therefrom by
imputing to the word “domicile” the meaning “residence” or
(.permanent home”. It is interesting to notice, in this
connection, that category (b) in requiring Madhya Bharat
domicile and precedent residence for five years follows
closely the pattern of Indian citizenship based on category
(c) of article 5 of the Constitution with “domicile of
Madhya Bharat” substituted for “domicile of India” and this
raises the question of the concept of regional domicile
(tending to the growth of the idea of regional citizenship)
which will be discussed presently.
(1) [1859] 28 L.J. Ch. 396, 398.
1235
Now confining our attention to the category (a) which has
given rise to the main controversy in this case, it appears
to me quite clear that the phrase ‘.original domicile in
Madhya Bharat” used therein could not have been meant to
indicate either the residence or the permanent home of the
applicant in Madhya Bharat. What then is the meaning
intended to be conveyed thereby. Is the word “domicile” in
this phrase to be understood in the legalistic sense or as
the likely framer of the relvant rule-possibly a lay man
like the Director of Public Instruction of the State-would
have understood it to mean. It is necessary for this
purpose to have a clear idea of the concept of “domicile”
and its applicability in relation to any particular region
within a country like India. Now the jurists concept of
domicile is one which can be best gathered from the
following passage in the classic judgment of Lord Westbury
in Udny v. Udny(1).
“The law of England, and of almost all civilized countries,
ascribes to each individual at his birth two distinct legal
statuses or conditions; one by virtue of which he becomes
the subject of some particular country, binding him by the
tie of natural allegiance and which may be called his
political status; another by virtue of which he has ascribed
to him the character of a citizen of some particular
country, and as such is possessed of certain municipal
rights, and subject to certain obligations, which latter
character is the civil status or condition of the
individual, and may be quite different from his political
status. The political status may depend on different laws
in different countries; whereas the civil status is governed
universally by one single principle, namely, that of
domicil, which is the criterion established by law for the
purpose of determining civil status. For it is on this
basis that the personal rights of the party, that is to say,
the law which determines his majority or minority, his
marriage, succession, testacy, or intestacy, must depend”.
Thus domicile is that attribute of a person’s status which
according to International Law determines
(1) [1869] L.R 1 Sc. & Div. 441, 457,
1236
the personal laws by which he is governed and on which his
personal laws depend. The question for consideration is
whether this concept of domicile can apply to the word
“domicile” in the phrase “domicile in Madhya Bharat”. Dicey
in his Conflict of Laws (6th Edn.), at pages 43 and 78 says
as follows:
“A person’s domicile (meaning thereby the place of domicile)
is the country which is considered by law to be his
permanent home” and at page 82 he says
“the area contemplated relating to domicile is a `country’
or ‘territory subject to one system of law’
Farnsworth in his book on the Residence and Domicil of
Corporations (1939 Edition) says as follows at page 1:
“In any consideration of domicile the area contemplated has
always been taken to be a ‘country’ or Ca territory subject
to one system of law”‘.
It is no doubt true that there are countries which though
politically one unit have different personal laws, in
different areas thereof. In such a case the sub-unit which
is governed by one system of law is the area of domicile.
Thus for instance, as has been pointed out, though Great
Britain is one single political unit, the personal laws in
Scotland are different and therefore Scotch domicile is
recognised. But this is a matter of historical growth.
Now, so far as India is concerned it appears to me that
there has so far been no such concept of domicile of sub-
units known or recognised by law, for the only purpose for
which it is normally relevant and which attracts it, viz.
personal laws of the citizens of India. The personal laws
in India, as is well known, depend mostly on religious
affiliations. This has been so from pre British period.
The earliest British regulations have recognised this and
the same has been continued by a specific provision being
incorporated in the Civil Courts Act or analogous Acts of
the various Provinces or States to the effect that the
Courts are to decide matters relating to Hindus and
Muhammadans, etc. with reference to their personal laws,
These Acts
1237
have invariably a provision by way of a direction to the
Courts concerned, more or less in the following terms:
“To decide any question regarding succession, inheritance,
marriage, or caste, or any religious usage or institution or
the like by the Muhammadan law in cases where the parties
are Muhammadans and by Hindu law in cases where the parties
are Hindus”.
In respect of some of these matters as well as in respect of
other matters which properly fall within the category of
personal laws such as for instance minority, succession,
etc., there have been legislative modifications. But it is
noteworthy that those modifications are almost entirely of
an all-India character and not on anv regional basis (viz.
Indian Majority Act, Indian Succession Act). So far as I am
aware there are only a few instances of Provincial or State
legislation on any matters relating to personal laws and
that too, to an extremely small and limited extent. Thus it
will be seen that the Province or the State of India to
which a Hindu or Muslim belongs has no relevance or relation
to his personal laws. Indeed, the contrary is emphasised by
the fact that, a Hindu at any rate, carries with. him even
his own school of Hindu law in spite of migration to a
different Province or State. Now, so far as Indian citizens
who are neither Hindus nor Muslims are concerned, such as,
Indian Christians or Anglo-Indians, they are governed by
personal laws which are all-India %in character and not
regional, as for instance the Indian Succession Act. (It may
be mentioned that even in Europe until the middle ages,
personal laws depended on race and not on domicile. See
Philippine on International Law, page 36). In this state of
the factual situation as regards the personal laws of the
various categories of persons who comprise the bulk of the
population of India, it appears to me to be clear that there
has been in India up to the present moment no scope for
growth of any concept of State or Provincial domicile as
distinct from Indian domicile. There is thus no place for
regional domicile, in the existing Indian law. Nor is there
any reason
1238
to think that such a situation will arise in the future
under the present Constitution. For this purpose, it may be
noticed that the exclusive legislative power of the State
does not extend to personal laws. Personal laws are the
subject matter of item No. 5 of the Concurrent Legislative
List. It is relevant in this connection also to notice that
article 44 of the Constitution enjoins that “the State shall
endeavour to secure for the citizens a uniform civil code
throughout the territory of India”. It is extremely
unlikely therefore that regional personal laws will be,
allowed to become operative in any substantial measure. It
may be also mentioned that there is single citizenship under
the Constitution for the whole of India and that
“citizenship and naturalisation” have been listed within the
exclusive competence of the Union Legislature. Of course
citizenship is different from domicile. But I mention this
here only to emphasize the view, that consistently with the
Constitution, the concept of regional domicile which does
not exist at the present day and which if recognised would
tend to the growth of claims of regional citizenship (as for
instance in the United States of America) would be entirely
foreign to the intendment of the Constitution. It is with
reference to the above considerations that the phrase
“domicile in Madhya Bharat” in the relevant rule defining
the phrase “bona fide resident of Madhya Bharat” has to be
considered and understood. Since the concept of domicile in
Madhya Bharat, is, in my view, unknown to the existing
Indian law, I do not think it permissible to construe the
phrase “domicile in Madhya Bharat” used in the relevant rule
as having anything to do with the regional domicile of the
kind known to the English system of law. The recognition of
such a concept of regional domicile in English or American
law does not necessitate that we should import the same idea
into our country contrary to the intendment of the
Constitution. We have got to consider the meaning of the
phrase “original domicile in Madhya Bharat” used in the
relevant rule with reference to the existing state of law in
India, which, I conceive, does not recognise such a regional
domicile.
1239
I have already given my reasons for thinking that the
meaning of “residence” or “permanent home” of the applicant
cannot be read into the phrase “domicile in Madhya Bharat”
used in clause (a). In the circumstances it appears to me
to be reasonably clear that the phrase “original domicile in
Madhya Bharat” is meant to convey the “place of birth (of
the applicant) in Madhya Bharat”. It is perfectly true that
“domicile of origin” and “place of birth” are two different
matters. But that is so only where the use of the phrase
“domicile of origin” conveys a definite legal meaning. But
where, as in the present case, the phrase “domicile of
origin in Madhya Bharat” conveys no legal meaning, as I have
pointed out above, and if any meaning has to be attached to
it, then it could only have reference to the “place of
birth”. This would accord with what was likely to have been
contemplated by the framer of the rule. Normally a person’s
domicile of origin is the place of his birth except in a few
and exceptional cases. In this context the following
passage from Corpus Juris Secundum, Vol. 28 at page 1095 may
be noticed:
“A person’s domicil of origin is the domicile of his birth.
It is generally but not necessarily the place of birth”.
In this connection it is to be remembered that the relevant
rule is a substitute for the pre-existing rule which was as
follows:
“Madhya Bharat students are exempted from capitation fees”.
The phrase “Madhya Bharat students” has no reference either
to residence or domicile, and there can be no doubt that it
normally connoted students who were born in Madhya Bharat.
In my opinion when the State authorities took over the
management of the institution from private hands and made a
change in the rule by coining a hybrid definition of the
phrase “bona fide residents of Madhya Bharat” placing the
category of citizens whose original domicile is in Madhya
Bharat in the forefront of that definition, they only
attempted to camouflage the
1240
implication thereof so as to accord with the pre-existing
rule, viz. that the benefits of the exemption from
capitation fees should be available only to persons born in
Madhya Bharat and the burden of the capitation fees should
be borne by persons not born in Madhya Bharat. In the view
I take of the real meaning and effect of the rule, which is
under discussion, neither an attempt at subsequent
clarification nor the actual manner in which it is said to
be administered or intended to be administered, as stated by
the Assistant Secretary to the Madhya Bharat Government,,
Shri H. L. Gupta, in his affidavit, even if accepted as
correct, can have any bearing. The fact that some of the
admitted students of the Medical College who are residents
of Madhya Bharat may not be entitled to exemption from
capitation fee under the rule as now sought to be
interpreted is not relevant so long as a student in the
position of the applicant cannot have the benefit of the
exemption, even if he got the highest marks in the competi-
tion. In my view, therefore, the rule in question has
reference to place of birth in Madhya Bharat primarily,
though a number of other miscellaneous categories might also
come in under other and different heads. Hence the rule
offends article 15 of the Constitution. Even in the view
that the rule has reference to the juristic concept of
regional domicil and for that reason does not fall within
the scope of the inhibition of article 15, 1 am unable to
see how, with reference to article 14, the distinction based
on such domicile can be considered reasonable. No sugges-
tion has been put forward how “original domicile in Madhya
Bharat” is a reasonable ground for classification. In my
opinion, therefore, the primary content of the rule relating
to capitation fees which is contained in clause (a) of the
definition of “bona fide resident of Madhya Bharat” does
operate to the disadvantage of the petitioner by way of
unconstitutional discrimination. Hence the State Government
cannot validly seek to levy capitation fees on the
petitioner with reference to that rule.
I would, therefore, allow this application.
1241
I think it right to add that the question as to the
existence or admissibility of the concept of regional
domicile as distinguished from Indian domicile and as to the
bearing of this on the meaning of the concerned. rule were
not canvassed or suggested at the hearing A before us and
that the Court has not bad the benefit of arguments on these
and the connected matters. if, therefore, I have ventured to
differ, notwithstanding my respect for the views of the
majority and notwithstanding the absence of assistance from
the Bar, it is out of the conviction that the recognition,
express or implied, of regional domicile by a decision of
this Court would be contrary to the intendment of the
Constitution.
By COURT.-In accordance with the opinion of the majority,
the Petition is dismissed without costs.
Petition dismissed.
