PETITIONER:
DR. YOGESH BHARDWAJ
Vs.
RESPONDENT:
STATE OF U.P. AND ORS.
DATE OF JUDGMENT24/04/1990
BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
SHARMA, L.M. (J)
CITATION:
1991 AIR 356 1990 SCR (2) 666
1990 SCC (3) 355 JT 1990 (2) 236
1990 SCALE (1)808
ACT:
Professional Colleges--Admission to.
U.P. State Universities Act, 1974--Section 28(5) and
Notification dated August 19, 1983--Clauses 2 and 4 Medical
College--Admission to M.D.S. course--Residence qualifica-
tion--Residence of five years in State of U.P. solely for
purpose of pursuing B.D.S. course--HeM amounts to bona fide
residence in the State and eligible for admission to M.D.S.
course--'Domicile'---Concept of in private international
law-Inapposite and inapplicable in the context.
Private International Law: Domicial--Concept of--Where
single unified system of law prevails--Domicile is of the
whole country--Not Statewise domicile--Mere residence in a
State does not comprehend volition or intention to settle
therein permanently--Residence should be voluntary and
lawful, not fleeting or transitory.
HEADNOTE:
The appellant who was nominated by the State of Himachal
Pradesh to undergo the B.D.S. course in the State of Uttar
Pradesh, successfully completed his course and secured the
B.D.S. degree. For this purpose he had stayed in that State
for over a period of five years. Later, he applied for
admission to the M.D.S. course at King George Medical Col-
lege, Lucknow and the subject of his choice was Oral Sur-
gery. He secured admission but the subject 'that was offered
to him was Periodontics.
The reason for denying the appellant the subject of his
choice, viz. Oral Surgery; was that he had to step down in
favour of others who had come within the rule of preference
provided for in the Notification dated August 19, 1983.
issued under Section 28(5) of the U.P. State Universities
Act, 1974, providing for reservation of seats, and prescrib-
ing a residence qualification for selection to the M.D.S.
course.
The High Court in its judgment in Writ Petition No. 5400
of 1989 following an earlier decision of the Court held that
those candidates who joined B.D.S. course on the basis of
nominations made by the
667
Central Government or their own State will not be treated to
be bona fide residents of Uttar Pradesh merely because they
have stayed in the State for five years for completion of
the course.
The appellant who was not a party to the proceedings in
the writ petition applied for clarification and modification
on the said judgment as it had adversely affected him. The
High Court rejected the application, holding that clause 2
of Notification stipulates two conditions viz: (i) institu-
tional and (ii) residential: and that the appellant satis-
fies the first requirement, namely, institutional but does
not fulfill the second requirement, viz 'bona fide
resident'; that a 'bona fide resident' is one who comes
within the meaning of that expression in clause 4 of this
Notification, and that residence merely for the purpose of
studies would not satisfy the requirement of clause 4.
In the appeal to this Court on the question: Whether the
appellant was a 'bona fide resident of Uttar Pradesh' within
the meaning of clause (b) of the Notification dated August
19, 1983.
Allowing the appeal, and setting aside the order of the
High Court, this Court,
HELD: 1. A person is treated as a 'bona fide resident of
Uttar Pradesh' in terms of sub-clauses (a) and (b) of Clause
4 by reason of either his 'domicile' or 'residence' in that
State. While sub-clause (a) speaks of the domicile of the
candidate and his father, sub-clause (b) speaks of a person,
whose father was not domiciled in the State and who himself
has resided for not less than five years in the State. The
concept of domicile is irrelevant to the construction of
sub-clause (b) in respect of the residence qualification of
the candidate. All that it requires is his requisite resi-
dence. [673A-B]
2. Clauses 2 and 4 indicate that a person should have
resided in Uttar Pradesh for the requisite period lawfully
and bona fide. The convers of bona fide being mala fide,
meaning lack of good faith, in the absence of any allegation
that the appellant's residence in that State was in any
manner opposed to the law of the land, or tainted by lack of
good faith, and in the light of the undisputed fact that his
residence was neither casual nor fleeting, but in excess of
the minimum period of five years, and for the definite
purpose of education, he satisfies the definition of a '
bona fide resident. ' [678B-C]
3. The construction placed by the High Court upon sub-clause
(b)
668
of clause 4 of the Notification is unsustainable. A person
such as the appellant who resided in the State of Uttar
Pradesh specifically for the purpose of undergoing a course
of studies for not less than five years albeit with the
intention of finally returning to his home State, also comes
within the meaning of the expression 'bona fide resident' as
defined in the said clause. [678D-E]
4. Domicile which is a private international law or
conflict of laws concept identifies a person, in cases
having a foreign element, with a territory subject to a
single system of law, which is regarded as his personal law.
[673B-C]
5. A person is domiciled in the country in which he is
considered to have his permanent home. His domicile is of
the whole country, being governed by common rules of law,
and not confined to a part of it. No one can be without a
domicile and no one can have two domiciles. [673C-D]
Re Fuld's Estate (No. 3) 1968 (P) 675; Casdagli v.
Casdagli. [1919] AC 145, 178 and Dicey & Morris, The Con-
flict of Laws, Vol. I page 24, referred to.
6. Domicile being a private international law concept,
is inapposite to the relevant provisions, having no foreign
element i.e. having no contact with any system of law other
than Indian. unless that expression is understood in a less
technical sense. [674D-E]
Dr. Pradeep Jain and Others etc. v. Union of India &
Others etc., [1984] 3 SCC 654, 666-669, referred to.
7. An expression which has acquired a special and tech-
nical connotation and developed as a rule of choice or
connecting factor amongst the competing diverse legal system
as to the choice of law of forum is, when employed out of
context, in situations having no contact with any foreign
system of law. apt to cloud the intended import of the
statutory instrument. [674E-F]
8. India though a Union of States, and a federation in
that sense, the whole country is governed by a single uni-
fied system of law, with a unified system of judicial admin-
istration, notwithstanding the constitutional distribution
of legislative powers between the Centre and the States.
1675B-C]
9. There is no State-wise domicile within the territory of
India. A
669
man who is domiciled in India is domiciled in every State in
India and is identified with a territorial system of legal
rules pervading throughout the country. He is domiciled in
the whole of this country even though his permanent home may
be located in a particular spot within it. [675C-D]
Halsbury's Laws of England, vol. 8 para 422; D.P. Joshi
v. The State of Madhya Bharat and Another, [1955] 1 SCR
1215; Udny v. Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell v.
Kennedy, [1868] LR 1 Sc & Div 307, H.L. and D.P. Joshi v.
The State of Madhya Bharat and Another, [1955] 1 SCR 1215,
referred to.
10. Education, business, profession, employment, health,
family or merely love of the place are some of the reasons
commonly regarded as sufficient for a choice of regular
abode. It is only lawful residence that can be taken into
account. If a man stays in a country in breach of immigra-
tion laws. his presence there does not constitute ordinary
residence. [677E-F]
11. 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 consti-
tute 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 feature of 'residence'
with those of 'domicile'. [676E-F]
12. A person is ordinarily resident in a country if his
residence there is not casual or uncertain, but is in the
ordinary course of his life. A man may be ordinarily resi-
dent or habitually resident in more than one place. While
'ordinary residence' is the physical residence in regard to
which intention is irrelevant, except to show that the
residence is not merely fleeting, 'habitual residence' may
denote a quality of endurance longer than ordinary resi-
dence, although duration, past or prospective, is only one
of the many relevant factors, and there is no requirement of
any particular minimum period. [676H; 677A-B]
13. 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 to mistake residence for domicile of
choice. [677F]
670
14. 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 within the guaran-
teed rights under the Constitution, and such a construction
must necessarily he avoided. [677G-H; 678A]
J.D. McClean, International & Comparative Law Quarterly,
[1962] Vol. II pp. 1153 et seq; Commissioner of Inland
Revenue v. Lysaght, [1928] AC 234; Levene v. Commissioner of
Inland Revenu, [1928] AC 217 at p. 222 and Dicey & Morris;
The Conflict of Laws, 10th ed., pp. 143-145 & 200-202.
Cheshire & North; Private International Law, 11th ed., pp.
171-173 and Halsbury's Laws of England, 4th ed., vol. 8 pp.
318-330, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 62 of
1990.
From the Judgment and Order dated 2.12.1989 of the
Allahabad High Court in C.M.Appn. No. 17984 (W) of 1989 in
W.P. No. 5400 of 1989.
Mukul Mudgal for the Appellant.
Anil Dev Singh, G.L. Sanghi, Mrs. Shobha Dikshit, E.C.
Agrawala, Atul Sharma and V.K. Pandita for the Respondents.
The Judgment of the Court was delivered by
THOMMEN, J. This appeal by special leave is against the
Order of the Allahabad High Court, Lucknow Bench, in C.M.
Application No. 17984 (W) of 1989 in Writ Petition No. 5400
of 1989. The application for clarification and modification
of the judgment in the Writ Petition was filed in the High
Court by the appellant, though not a party to that proceed-
ing, on the ground that he was adversely affected by it.
The appellant was nominated by the State of Himachal
Pradesh to undergo the B.D.S. course in the State of Uttar
Pradesh. The appellant successfully completed his course of
studies in Uttar Pradesh and secured the B.D.S. degree. For
that purpose he had stayed in that State for over a period
of five years. He later applied for admission to
671
the M.D.S. course at King George Medical College, Lucknow.
He secured admission to the course, but in a subject other
than that of his choice. The subject of his choice was Oral
Surgery, but what was offered to him was Periodontics. The
reason for denying the appellant the subject of his choice
was that he had to step down in favour of others who had
come within the rule of preference as per the Notification
dated August 19, 1983 issued under section 28(5) of the U.P.
State Universities Act, 1974 (U.P. Act No. 29 of 1974)
providing for reservation of seats and prescribing a resi-
dence qualification for selection to the M.D.S. course.
By the impugned order, the High Court rejected the
appellant’S prayer for clarification and modification of its
judgment in Writ Petition No. 5400 of 1989 and held that
that judgment was rendered in accordance with the principle
laid down in its earlier decision in Writ Petition No. 5325
of 1988 where the residence qualification prescribed by the
Notification was so construed as to be applicable only to a
person who was a resident in the State of Uttar Pradesh for
reasons other than that of merely completing a course of
studies. In other words, the High Court refused to accept
the appellant’s contention that the residence qualification
should be so construed as to entitle to admission a person,
like the appellant, who had come from outside the State
strictly and solely for the purpose of undergoing a course
of studies and returning to his own State upon completion of
the course. The High Court held that residence strictly for
studies without more did not bring a person within the ambit
of the Notification. This is what the High Court stated in
its judgment in Writ Petition No. 5400 of 1989, clarifica-
tion of which was sought by the appellant:
“In other words those candidates who joined B.D.S. Course on
the basis of nominations made by the Central Government or
their own State and were not bona fide residents of the
State of Uttar Pradesh prior to joining the B.D.S. Course
will not be treated to be bona fide residents of Uttar
Pradesh merely because they have stayed in the State of
Uttar Pradesh for five years or more for completion of the
B.D.S. Course or housemanship.”
The appellant does not challenge the validity of the
notified provisions. The sole question which arises for
consideration is as regards the construction of clause 4 of
the said Notification. Before reading that clause, it may be
noticed that clause 1 of the Notification provides for
reservation of seats in favour of candidates belonging to
the
672
categories specified therein. Clause 2 then provides:
“2. The remaining seats shall be filled up on the basis of
merit by the candidates who have passed the B.D.S. examina-
tion from the K.G. Medical College, Lucknow, obtaining a
minimum of 55% marks in the aggregate and who are bona fide
residents of Uttar Pradesh.
(emphasis supplied)
The High Court notices that clause 2 stipulates two
conditions, namely (i) institutional; and (ii) residential.
The High Court observes that the appellant satisfies the
first requirement–the institutional, but does not fulfill
the second requirement, namely, bona fide residence. A bona
fide resident is one who comes within the meaning of that
expression in clause 4, which reads:
“4. For the purpose of this order the expression ‘bona fide
resident of Uttar Pradesh’ shall mean–
(a) a citizen of India, the domicile of whose father is in
Uttar Pradesh and who himself is domiciled in Uttar Pradesh;
or
(b) a citizen of India, the domicile of whose father was not
in Uttar Pradesh but who himself has resided in Uttar Pra-
desh for not less than five years at the time of making the
application.”
(emphasis supplied)
It is not disputed that the appellant is a citizen of India
and is domiciled in India. The question is whether he is a
‘bona fide resident of Uttar Pradesh’. The contention of the
appellant before the High Court was that he had stayed in
the State of Uttar Pradesh for more than five years for the
purpose of completing his studies and was, therefore, fully
qualified as a bona fide resident of that State. The High
Court found that residence merely for the purpose of studies
would not satisfy the requirement of clause 4.
The appellant was nominated by the State of Himachal
Pradesh to undergo a course of studies in the State of Uttar
Pradesh and he stayed in Uttar Pradesh for over five years
solely for that purpose. There is no evidence that he had
any other object for staying for that length of time, as he
did, in Uttar Pradesh. There is no evidence that
673
he had any intention of indefinitely residing in that State.
A person is treated as a ‘bona fide resident of Uttar
Pradesh’ in terms of sub-clauses (a) and (b) of Clause 4 by
reason of either his ‘domicile’ or ‘residence’ in that
State. While sub-clause (a) speaks of the domicile of the
candidate and his father, sub-clause (b) speaks of a person,
whose father was not domiciled in the State and who himself
has resided for not less than five years in the State. The
concept of ‘domicile’ is irrelevant to the construction of
sub-clause (b) in respect of the residence qualification of
the candidate. All that it requires is his requisite resi-
dence.
Domicile which is a private international law or con-
flict of laws concept identifies a person, in cases having a
foreign element, with a territory subject to a single system
of law, which is regarded as his personal law. A person is
domiciled in the country in which he is considered to have
his permanent home. His domicile is of the whole country,
being governed by common rules of law, and not confined to a
part of it. No one can be without a domicile and no one can
have two domiciles.
A domicile of origin is attributed to every person at
birth by operation of law. This domicile is not decided by
his place of birth, or by the place of residence of his
father or mother, but by the domicile of the appropriate
parent at the time of his birth, according as he is legiti-
mate or illegitimate. It is possible for the domicile of
origin to be “transmitted through several generations no
member of which has ever resided for any length of time in
the country of the domicile of origin.” (See Dicey & Morris,
The Conflict of Laws, 10th ed. Vol. I, Rule 9, p. 108). The
domicile of origin continues until he acquires a domicile of
choice in another country. Upon abandonment of a domicile of
choice, he may acquire a new domicile of choice, or his
domicile of origin, which remained in abeyance, revives. The
burden of proving a change of domicile is on him who asserts
it. The domicile of origin is more tenacious. “Its character
is more enduring, its hold stronger and less easily shaken
off.” Per Lord Macnaghten, Winans v. A.G., [1904] AC 287,
290. The burden of proving that a domicile of origin is
abandoned is needed much heavier than in the case of a
domicile of choice. No domicile of choice can be acquired by
entering a country illegally.
The domicile of choice is a combination of residence and
intention. Residence which is a physical fact means “bodily
presence as an
674
inhabitant” (Re Newcomb, 192 N.Y. 238; 84 N.E. 950 (1908).
See Dicey, op. cit). Such residence must be combined with
intention to reside permanently or for an unlimited time in
a country. It is such intention coupled with residence that
acquires him a new domicile. It is immaterial for this
purpose that the residence is for a short duration, provided
it is coupled with the requisite state of the mind, namely
the intention to reside there permanently. “If a man intends
to return to the land of his birth upon a clearly foreseen
and reasonably anticipated contingency”, Re Fuld’s Estate
(No. 3) 1968 (P) 675. such as, the end of his studies, he
lacks the intention required by law. His “tastes, habits,
conduct, actions, ambitions, health, hopes, and projects”
Casdagli v. Casdagli, [1919] AC 145, 178 are keys to his
intention. “That place is properly the domicile of a person
in which he has voluntarily fixed the habitation of himself
and his family, not for a mere special and temporary pur-
pose, but with a present intention of making it his perma-
nent home, unless and until something (which is unexpected
or the happening of which is uncertain) shall occur to
induce him to adopt some other permanent home”. Lord v.
Colvin, [1859] 4 Drew 366 at 376.
We must, in this connection, hasten to add that ‘domi-
cile’, being a private international law concept, is inappo-
site to the relevant provisions, having no foreign element,
i.e., having no contact with any system of law other than
Indian, unless that expression is understood in a less
technical sense (see observations to this effect in Dr.
Pradeep Jain and Others etc. v. Union of India and Others
etc., [1984] 3 SCC 654. 666-669). An expression which has
acquired a special and technical connotation, and developed
as a rule of choice or connecting factor amongst the compet-
ing diverse legal systems as to the choice of law or forum,
is, when employed out of context, in situations having no
contact with any foreign system of law, apt to cloud the
intended import of the statutory instrument.
When a person is referred to as domiciled in a country,
the expression ‘country’ is used in private international
law as a term of art denoting, in the words of dicey, “the
whole of a territory subject under one sovereign to one body
of law”. See Dicey & Morris, The Conflict of Laws, Vol. 1,
page 24. But in a federation like the United States, Austra-
lia, or Canada, or in a composite State like the United
Kingdom, different systems of law may prevail in different
regions in respect of certain matters. In such cases, each
of the territories governed by a separate system of law is
treated, for the purpose of private international law, as a
‘country’, though in public international law or
675
constitutional law it is not a separate sovereign State. As
stated by Halsbury, “in federal states, some branches of law
are within the competence of the federal authorities and for
these purposes the whole federation will be subject to a
single system of law, and an individual may be spoken of as
domiciled in the federation as a whole; other branches of
law are within the competence of the states or provinces of
the federation, and the individual will be domiciled in one
state or province only”. Halsbury’s Laws of England Vol. 8,
para 422; See D.P. Joshi v. The state of Madhya Bharat and
Another, [1955] 1 SCR 12 15.
This is, however, not the position in India. Though a
Union of States, and a federation in that sense, the whole
country is governed by a single unified system of law, with
a unified system of judicial administration, notwithstanding
the constitutional distribution of legislative powers be-
tween the Centre and the States. There is no State-wise
domicile within the territory of India. A man who is domi-
ciled in India is domiciled in every State in India and is
identified with a territorial system of legal rules pervad-
ing throughout the country. He is ‘domiciled’ in the whole
of this country, even though his permanent home may be
located in a particular spot within it. Udny v. Udny, [1869]
LR 1 Sc & Div 441, H.L.; Bell v. Kennedy, i18681 LR 1 Sc &
Div 307, H.L. The expression, as understood in private
international law, makes no sense in the context of Clause
4, for Indian domicile cannot be limited to any particular
State within India. The full import of ‘domicile’ is, there-
fore, inapplicable to the construction of clause 4. We would
in this connection recall the words of this Court in Dr.
Pradeep Jain & Ors. v. Union of India & Ors., [1984] 3 SCC
654 at 668, See also D.P. Joshi v. The State of Madhya
Bharat and Another, [1955] 1 SCR 1215:
“It would be absurd to suggest that the legal system varies
from State to State or that the legal system of a State is
different from the legal system of the Union of India,
merely because with respect to the subjects within their
legislative competence, the States have power to make laws.
The concept of ‘domicile’ has no relevance to the applica-
bility 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. The
domicile which he has is only one domicile, namely, domicile
in the territory of India.”
676
‘Domicile’ for the purpose of clause 4 must, neverthe-
less, be understood and applied in a limited sense and in
contradistinction to ‘residence’, for that clause uses both
the expressions and demands compliance with either of them
with reference to the State of Uttar Pradesh. Unlike ‘resi-
dence’ which is only bodily presence, ‘domicile’ in this
context must necessarily mean physical residence coupled
with the intention to settle down in Uttar Pradesh, al-
though, being confined to a particular region rather than
the whole area of operation of the territorial legal system
and lacking in any foreign complexion or unconcerned with
any foreign element, the animus manendi required for the
purpose of clause 4 is much less in quality and contents
than what is required in Private International Law. Sub-
clause (a) of Clause 4 prescribes no minimum length of
residence or minimum degree of intention, and, however short
or insignificant the two elements may be, their combination,
in whatever proportion, is sufficient to constitute ‘domi-
cile’ for the purpose of clause 4(a).
In the present case, the appellant came to the State of
Uttar Pradesh with a predetermined mind, namely, to complete
the chosen course of studies and return to the State which
had nominated him for the purpose. Having regard to the time
and duration, the object and obligation, and the uncontro-
verted facts, the appellant was undoubtedly a bona fide
student who resided in Uttar Pradesh for over five years,
but whose residence did not acquire the attributes of
‘domicile’ within the meaning of clause 4(a). The question
then is whether the appellant is a ‘bona fide resident of
Uttar Pradesh’ within the meaning of clause 4(b).
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 consti-
tute 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 ‘resi-
dence’ with those of ‘domicile’. For an interesting discus-
sion on The Meaning of Residence, see J.D. McClean, Interna-
tional & Comparative Law Quarterly [1962] Vol. II PP. 1153
et seq.
A person is ordinarily resident in a country if his
residence there is not casual or uncertain, but is in the
ordinary course of his life. Per Viscount Cave, Commissioner
of Inland Revenue v. Lysaght, [1928] AC 234; Levene v.
Commissioners of Inland Revenue, [1928] AC 217
677
at p. 222. A man may be ordinarily resident or habitually
resident m more than one place. While ‘ordinary residence’
is the physical residence in regard to which intention is
irrelevant, except to show that the residence is not merely
fleeting, ‘habitual residence’ may denote a quality of
endurance longer than ordinary residence, although duration,
past or prospective, is only one of the many relevant fac-
tors, and there is no requirement of any particular minimum
period. See Dicey & Morris; The Conflict of Laws, 10th ed.,
PP. 143. 145 & 200-202. See also Cheshire & North; Private
International Law, 11th ed., PP. 171173; Halsbury’s Laws of
England, 4th ed., Vol. 8, PP. 3 18-330.
In Reg v. Barnet L.B.C., Ex p. Shah, [1983] 2 A.C. 309,
the House of Lords held that a person was ordinarily resi-
dent in the United Kingdom, if he normally resided lawfully
in that country from choice and for a settled purpose. If a
person resided there for the specific and limited purpose of
education, he was ordinarily resident in that country, even
if his permanent residence or real home was outside that
country or his future intention or expectation was to live
outside that country.
Residence must be voluntary. “Enforced presence by
reason of kidnaping or imprisonment, or a Robins’on Crusoe
existence on a desert island with no opportunity of escape,
may be so overwhelming a factor as to negative the will to
be where one is”. Per Lord Scarman, Reg v. Barnet L.B.C.,
Ex. p. Shah, [1983] 2 A.C. 309 at 344. Education, business,
profession, employment, health, family, or merely love of
the place are some of the reasons commonly regarded as
sufficient for a choice of regular abode. It is only lawful
residence that can be taken into account. If a man stays in
a country in breach of immigration laws, his presence there
does not constitute ordinary residence.
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 pre-
scribed within a unified legal system as a qualifying condi-
tion, 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
678
with the guaranteed rights under the Constitution, and such
a construction must necessarily be avoided.
Clause 2, which we have set out above, refers to a
‘bonafide’ resident and such a person is defined under
clause 4 to include a person who has resided in Uttar Pra-
desh for not less than five years at the time of making his
application. These two clauses indicate that a person should
have resided in Uttar Pradesh for the requisite period
lawfully and bona.fide. The converse of bona.fide being mala
fide, meaning lack of good faith, in the absence of any
allegation that the appellant’s residence in that State was
in any manner opposed to the law of the land, or tainted by
lack of good faith, and in the light of the undisputed fact
that his residence was neither casual nor fleeting, but in
excess of the minimum period of five years, and for the
definite purpose of education, he satisfies the definition
of a ‘bonafide resident’. Any other construction of the
clauses would, in our view, be unreasonably restrictive and
thus conflict with the appellant’s constitutional rights.
Viewed in this light, we have no doubt that the con-
struction placed by the High Court upon sub-clause (b) of
clause 4 of the Notification is unsustainable. In our opin-
ion, a person, such as the appellant, who resided in the
State of Uttar Pradesh specifically for the purpose of
undergoing a course of studies for not less than five years,
albeit with the intention of finally returning to his home
State, also comes within the meaning of the expression ‘bona
fide resident’ as defined in the said clause.
In the circumstances, we set aside the impugned order of
the High Court, and allow the appeal with the costs of the
appellant here and in the High Court.
N.V.K. Appeal
allowed.
679