{"id":1464,"date":"1955-01-27T00:00:00","date_gmt":"1955-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-p-joshi-vs-the-state-of-madhya-bharat-on-27-january-1955"},"modified":"2018-08-19T00:17:12","modified_gmt":"2018-08-18T18:47:12","slug":"d-p-joshi-vs-the-state-of-madhya-bharat-on-27-january-1955","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-p-joshi-vs-the-state-of-madhya-bharat-on-27-january-1955","title":{"rendered":"D. P. Joshi vs The State Of Madhya Bharat … on 27 January, 1955"},"content":{"rendered":"
Supreme Court of India<\/div>\n
D. P. Joshi vs The State Of Madhya Bharat … on 27 January, 1955<\/div>\n
Equivalent citations: 1955 AIR 334, \t\t 1955 SCR (1)1215<\/div>\n
Author: B K Mukherjee<\/div>\n
Bench: Mukherjee, Bijan Kr. (Cj), Bose, Vivian, Jagannadhadas, B., Aiyyar, T.L. Venkatarama, Sinha, Bhuvneshwar P.<\/div>\n
           PETITIONER:\nD. P. JOSHI\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MADHYA BHARAT ANDANOTHER.\n\nDATE OF JUDGMENT:\n27\/01\/1955\n\nBENCH:\nMUKHERJEE, BIJAN KR. (CJ)\nBENCH:\nMUKHERJEE, BIJAN KR. (CJ)\nBOSE, VIVIAN\nJAGANNADHADAS, B.\nAIYYAR, T.L. VENKATARAMA\nSINHA, BHUVNESHWAR P.\n\nCITATION:\n 1955 AIR  334\t\t  1955 SCR  (1)1215\n\n\nACT:\nConstitution of India, Arts. 44 and 15-Rule laying down that\nno capitation fee should be charged from students-Bona\tfide\nresidents  of  Madhya Bharat-But capitation  fee  should  be\ncharged\t from non-Madhya Bharat\t students-Whether  infringes\nthe Constitution.\n\n\n\nHEADNOTE:\nThe Government of the State of Madhya Bharat substituted the\nfollowing  new\trule for the old rule for admission  to\t the\nMahatma Gandhi Memorial Medical College Indore, when it took\nover  the  administration  of the  College  from  a  private\ncommittee.\n For  all students who are 'bona fide residents'  of  Madhya\nBharat\tno capitation fee should be charged.  But for  other\nnon-Madhya  Bharat  students the capitation  fee  should  be\nretained as at present at Rs. 1,300 for nominees and at\t Rs.\n1,500 for others\".\nBona fide resident' for the purpose of this rule was defined\nas: one who is-\n (a) a citizen of India whose original domicile is in Madhya\nBharat,provided he has not acquired a domicile elsewhere, or\n(b)  a\tcitizen of India, whose original domicile is not  in\nMadhya\tBharat\tbut who has acquired a\tdomicile  in  Madhya\nBharat\tand has resided there for not less than 5  years  at\nthe date, on which he applies for admission, or\n(c)a person who migrated from Pakistan before September\t 30,\n1948 intends to reside in Madhya Bharat permanently, or\n  (d) a person or class of persons or citizens of an area or\nterritory adjacent to Madhya -Bharat or to India in  respect\nof whom or which a Declaration of Eligibility has been\tmade\nby the Madhya Bharat Government\".\nThe   question\tfor  determination  was\t whether  the\trule\ninfringed the fundamental rights guaranteed by Arts. 14\t and\n15(1) of the Constitution.\nHeld, per VFNKATARAMA AYYAR J. (MUKHERJEA C.J., VIVIAN\tBosE\nand SINHA JJ. concurring, JAGANNADHADAS J. dissenting)\tthat\nthe  rule did not infringe the fundamental right  guaranteed\nby  Art. 15(1) because residence and place of birth are\t two\ndistinct conceptions with different connotations both in law\nand  in fact, and when Art. 15(1)  prohibits  discrimination\nbased  on  the\tplace  of  birth,  it  cannot  be  read\t  as\nprohibiting discrimination based on residence.\n156\n1216\nDomicile  of a person means big permanent home and is  some-\ntimes used in the sense of residence.\nHeld further, that the imposition of capitation fee on\tsome\nof the students and not on others was not discriminatory  as\nbeing  in  contravention  of Art. 14  of  the  Constitution,\nbecause the classification was based on a ground which had a\nreasonable relation to the subject matter of the legislation\nas the object of the classification underlying the  impugned\nrule  was  clearly to help to some extent students  who\t are\nresidents  of  Madhya  Bharat in the  prosecution  of  their\nstudies\t and it was quite a laudable object for a  State  to\nencourage education - within its borders.  A  classification\nmade  on  a geographical basis would be eminently  just\t and\nreasonable when it relates to education which is the concern\nprimarily of the State.\n     Per  JAGANNADHADAS\t J.-There is no place  for  regional\ndomicile  in the existing Indian Law.  In the  circumstances\nthe phrase     original domicile in Madhya Bharat\" is  meant\nto  convey the \"Place of birth (of the applicant) in  Madhya\nBharat\".  It is true that \"domicile of origin\" and \"place of\nbirth\"\tare  two different, matters.  But that\tis  so\tonly\nwhere  the use of the phrase \"domicile of origin\" conveys  a\ndefinite  legal meaning.  In the present case  however,\t the\nphrase\t\"domicile  of origin in Madhya\tBharat\"\t conveys  no\nlegal meaning, and if any meaning has to be attached to\t it,\nthen it could only have reference to the,\"places of birth\".\nTherefore,  the rule in question has reference to  place  of\nbirth in Madhya Bharat primarily, and offends Art. 15 of the\nConstitution.  Even in the view that the rule has  reference\nto  the juristic concept of regional domicile and  for\tthat\nreason\tdoes not fall within the scope of the inhibition  of\nArt. 15, a distinction based on such domicile cannot, in any\nway,  be considered reasonable with reference to Art. 14  of\nthe Constitution.\nBitstam\t Mody v. State: Sumitra Devi v. State  (I.L.R.\t1953\nMadhya\tBharat\t87), Whicker v. Hume ([1859] 28\t L.  J.\t Ch.\n396), Somerville v. Somerville ([1801] 5 Ves. 750),  -Winans\nv.  Attorney General (1904 A.C. 287), Udny v.  Udny  ([1869]\nL.R.  I\t Sc. & Div. 441), Mcmullen v. Wadsworth\t ([1889]  14\nA.C.  631), The State of Punjab v. Ajaib Singh\tand<\/a>  another\n([1953] S.C.R. 254) and Om Prakash v. The State (A.I.R. 1953\nPunjab 93), referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION-: Petition No. 367 of 1954.
\nUnder  Article\t32  of the Constitution\t of  India  for\t the
\nenforcement of Fundamental Rights.\n<\/p>\n
N.   C. Chatterjee and Veda Vyas, (S.  K. Kapur and Ganpat    Rai,
\nwith them), for the petitioner.\n<\/p>\n
M.   C. Setalvad, Attorney-General of India (Shiv
\nDyal and P. G. -Gokhale, with him), for respondent No. 1.\n<\/p>\n
\t\t\t    1217<\/span><\/p>\n
1955.  January 27.  The judgment of Mukherjea C. J.,  Vivian
\nBose,  Venkatarama  Ayyar  and Sinha JJ.  was  delivered  by
\nVenkatarama  Ayyar J.Jagannadhadas J. delivered\t a  separate
\njudgment.\n<\/p>\n
VENKATARAMA AYYAR J.-This is a petition under article 32  of
\nthe  Constitution.   There is at  Indore  a  Medical-College
\nknown as the Mahatma Gandhi Memorial Medical College run  by
\nthe  State  of\tMadhya\tBharat.\t The  petitioner  who  is  a
\nresident of Delhi was admitted as a student of this  College
\nin July. 1952, and is now studying in the third year  class,
\nM.B.B.S.  Course.  His complaint is that the rules in  force
\nin this institution discriminate in the matter of fees\tbet-
\nween  students who are residents of Madhya Bharat and  those
\nwho are not, and that the latter have to pay in addition  to
\nthe  tuition fees and charges payable by all the students  a
\nsum of Rs. 1,500 per annum as capitation fee, and that\tthis
\nis  in\tcontravention  of  articles  14\t and  15(1)  of\t the
\nConstitution.\tThe  petitioner accordingly  prays  that  an
\nappropriate writ might be issued prohibiting the  respondent
\nfrom  collecting  from him capitation fee  for\tthe  current
\nyear, and directing a refund of Rs. 3,000 collected from him
\nas capitation fee for the first two years.\n<\/p>\n
The  respondent\t contests the petition.\t  In  the  affidavit
\nfiled  on its behalf, it is stated that the  institution  in
\nquestion had its origin in private enterprise, and was under
\nthe  management\t of a Committee; that it was  the  Committee
\nthat  had made the rule imposing capitation fee on  students
\nwho  did  not belong to Madhya Bharat, that the\t State\ttook
\nover  the  College  subject to the  conditions\trelating  to
\nreservation of seats under which it was being run, and\tthat
\nthe  requirement of a capitation fee from non-residents\t did
\nnot  offend either article 14 or article 15(1) of  the\tCon-
\nstitution.\n<\/p>\n
A brief narration of the history of the institution will  be
\nuseful\tfor  a correct appreciation of\tthe  contentions  on
\neither\tside.  The beginnings of the institution go back  to
\nthe year 1878, when a Dr. Beaumont started a Medical  School
\nat Indore under the name of
\n1218<\/span>
\nIndore\tMedical School, as an adjunct to a  hospital  called
\nthe  Indore  Charity Dispensary.  It  received\tconsiderable
\nfinancial  assistance from the rulers of Gwalior  and  other
\nIndian\tStates,\t and became well established;  and  it.\t is.
\nclaimed\t on  its behalf that the  medical  practitioners  of
\nCentral\t India,\t Rajasthan  and\t neighbouring  States\twere
\nlargely recruited from its alumni.  In 1910 the name of\t the
\nschool\twas changed to King Edward Memorial School,  Indore,
\nand  it was thereafter under the management of a  Committee.
\nIn  1940 the Committee decided to improve the status of\t the
\nSchool, and started collecting funds for equipping ,it as  a
\nfirst-class   Medical\tCollege.   The\t arrangements\twere
\ncompleted   in\t1947,  and  in\t1948  the  institution\t was
\naffiliated  to the University of Agra.\tIt then came  to  be
\nknown  as the Mahatma Gandhi Memorial Medical  College.\t  In
\n1950  the  College Council resolved to\trequest\t the  Madhya
\nBharat\t Government   to  takeover  -the  running   of\t the
\ninstitution,  subject  to  the\tarrangements  entered\tinto
\nbetween\t the institution and certain States and\t donors\t for
\nreservation  of seats for their nominees.  The proposal\t was
\naccepted  by the respondent, and by resolution\tdated  17-3-
\n1951 it took over the administration of the College.
\nAccording to the rules relating to admission to the  College
\nwhich  were  in force at that time, the\t maximum  number  of
\nstudents who could be admitted in any year was 50, and\tthey
\nwere   classed\tinto  two  groups,  nominees  and   ordinary
\nstudents.  The Committee had arranged to raise funds for the
\ninstitution  on\t a promise that those  who  contributed\t Rs.
\n7,000  would  be entitled to nominate one student  each\t for
\nadmission  into the College, and that those students  called
\nnominees  should  pay,\tin addition to the  usual  fees\t and
\ncharges, a capitation fee of Rs. 1,300 per annum.  Excluding
\nthe  seats which have thus to be reserved for the  nominees,
\nthe  remaining\tseats  were  thrown  open  to  all  eligible
\napplicants  who\t came  to be called  selfnominees,  and\t the
\nrequisite  number was selected from among them on the  basis
\nof  merit.  Then came the rule which is at the root  of\t the
\npresent\t controversy.\tIt  provided  that  “Madhya   Bharat
\nstudents are
\n\t\t\t    1219<\/span>
\nexempted from capitation fees”. (Vide 1952 Calendar, page  5
\nand  Exhibit G).  After the State took over the\t management,
\nit introduced certain modifications in the rules, and it  is
\nwith these new rules that the present petition is concerned,
\nthe petitioner having been admitted under them.\t In place of
\nthe  rule  that “Madhya Bharat students\t are  exempted\tfrom
\ncapitation  fees” a Dew rule was substituted, which runs  as
\nfollows:\n<\/p>\n
“For  all  students who are `bonafide residents’  of  Madhya
\nBharat\tno capitation fee should be charged.  But for  other
\nnon-Madhya  Bharat  students the capitation  fee  should  be
\nretained as at present at Rs. 1,300 for nominees and at\t Rs.
\n1,500  for others”. [Vide Exhibit 6\/1 quoted in Rustam\tMody
\nv. State: Sumitra Devi v. State(1)].\n<\/p>\n
‘Bona  fide  resident’\tfor the purpose\t of  this  rule\t was
\ndefined as:\n<\/p>\n
“one who is-\n<\/p>\n
(a)a  citizen of India whose original domicile is in  Madhya
\nBharat,\t provided be has not acquired a domicile  elsewhere,
\nor\n<\/p>\n
(b)a  citizen  of India, whose original domicile is  not  in
\nMadhya\tBharat\tbut who has acquired a\tdomicile  in  Madhya
\nBharat\tand has resided there for not less than 5  years  at
\nthe date, on which he applies for admission, or\n<\/p>\n
(c)a person who migrated from Pakistan before September\t 30,
\n1948 and intends to reside in Madhya Bharat permanently, or\n<\/p>\n
(d)a  person or class of persons or citizens of an  area  or
\nterritory  adjacent to Madhya Bharat or to India in  respect
\nof whom or which a Declaration of Eligibility has been\tmade
\nby the Madhya Bharat Government”.\n<\/p>\n
In  brief,  the\t change effected by the new  rule  was\tthat
\nwhereas previously exemption from capitation fee was granted
\nin favour of all Madhya Bharat students whatever that  might
\nmean,  under  the revised rule it was limited to  bona\tfide
\nresidents of Madhya Bharat.\n<\/p>\n
Now the contention of Mr. N. C. Chatterjee for the
\n(1)  I.L.R. 1953 Madhya Bharat 87, 99,
\n1220<\/span>
\npetitioner is that this rule is in contravention of articles
\n14  and\t 15(1),\t and  must  therefore  be  struck  down\t  as
\nunconstitutional and void.  Article 15(1) enacts:
\n“The  State  shall not discriminate against any\t citizen  on
\ngrounds\t only of religion, race, caste, sex, place of  birth
\nor any of them”.\n<\/p>\n
The  argument  of  the petitioner is  that  the\t rule  under
\nchallenge  in  so  far as it imposes  a\t capitation  fee  on
\nstudents who do not belong to Madhya Bharat while  providing
\nan exemption therefrom to students of Madhya Bharat, makes a
\ndiscrimination\tbased  on the place of birth,  and  that  it
\noffends\t article  15 (1).  Whatever force there\t might\thave
\nbeen  in  this contention if the question  had\tarisen\twith
\nreference  to the rule as it stood when the State took\tover
\nthe administration, the rule was modified in 1952, and\tthat
\nis what we are concerned with in this petition.\t The rule as
\nmodified is clearly not open to attack as infringing article
\n15(1).\tThe ground for exemption from payment of  capitation
\nfee as laid down therein is bona fide residence in the State
\nof  Madhya  Bharat.  Residence and place of  birth  are\t two
\ndistinct conceptions with different connotations both in law
\nand in fact, and when article 15(1) prohibits discrimination
\nbased  on  the\tplace  of  birth,  it  cannot  be  read\t  as
\nprohibiting discrimination based on residence.\tThis is\t not
\nseriously  disputed.  The argument that is pressed on us  is
\nthat  though the rule purports to grant. exemption based  on
\nresidence  within  the\tState, the  definition\tof  bonafide
\nresidence under the rule shows that the exemption is  really
\nbased on the place of birth.  Considerable emphasis was laid
\non  clauses (a) and (b) of the rule wherein  ‘residence’  is
\ndefined\t in  terms of domicile, and it was argued  that\t the
\noriginal  domicile, as it is termed in the rules,  could  in
\nsubstance  mean only place of birth, and that therefore\t the
\nexemption  based  on domicile was, in effect,  an  exemption
\nbased  on place of birth under an alia8.  That, however,  is
\nnot the true legal position.  Domicile of a person means his
\npermanent home.\t “Domicile meant permanent home, and if that
\nwas  not understood by itself no illustration could help  to
\nmake it
\n1221<\/span>
\nintelligible” observed Lord Cranworth in Whicker v. Hume(1).
\nDomicile of origin of a person means “the domicile  received
\nby  him at his birth”. (Vide Dicey on Conflict of Laws,\t 6th
\nEdition,  page\t87).  The learned author  then\tproceeds  to
\nobserve at page 88:\n<\/p>\n
“The domicile of origin, though received at birth, need\t not
\nbe  either the country in which the infant is born,  or\t the
\ncountry in which his parents are residing, or the country to
\nwhich  his  father  belongs by race or\tallegiance,  or\t the
\ncountry of the infant’s nationality”.\n<\/p>\n
In Somerville v. Somerville(2), Arden, Master of the  Rolls,
\nobserved:\n<\/p>\n
“I speak of the domicile of origin rather than of birth.   I
\nfind no authority which gives for the purpose of  succession
\nany  effect  to\t the  place of birth.\tIf  the\t son  of  an
\nEnglishman is born upon a journey, his domicile will  follow
\nthat of his father”.\n<\/p>\n
Mr.  N.\t C. Chatterjee argued that domicile  of\t origin\t was
\noften called domicile of birth, and invited our attention to
\ncertain\t observations  of  Lord\t Macnaghten  in\t Winans\t  v.
\nAttorney-General(1).   But then, the noble Lord went  on  to
\nadd  that  the\tuse of the words  “domicile  of\t birth”\t was
\nperhaps not accurate.  But that apart, what has to be  noted
\nis that whether the expression used is “domicile of  origin”
\nor  “domicile  of  birth”, the concept\tinvolved  in  it  is
\nsomething  different  from what the words “place  of  birth”
\nsignify.  And  if “domicile of birth” and “place  of  birth”
\ncannot be taken as synonymous, then the prohibition  enacted
\nin  article 15(1) against discrimination based on  place  of
\nbirth cannot apply to a discrimination based on domicile.
\nIt  was\t argued that -under the Constitution there  -can  be
\nonly  a single citizenship for the whole of India, and\tthat
\nit  would run counter to that notion to hold that the  State
\ncould  make laws based on domicile within their\t territory,.
\nBut   citizenship  and\tdomicile  represent  two   different
\nconceptions.   Citizenship  has reference to  the  political
\nstatus of a person, and
\n(1)  [1859] 28 L.J. Ch. 396, 400.\n<\/p>\n
(2)  [1801] 5 Ves. 750 at 786, 787; 31 E.R. 839, 858.
\n(3)  1901 A.C. 287, 290.\n<\/p>\n
1222<\/span><\/p>\n
domicile  to his civil rights.\tA classic statement  of\t the
\nlaw  on\t this subject is that of Lord Westbury\tin  Udny  v.
\nUdny(1).  He observes:\n<\/p>\n
“The law of England, and of almost all civilised  countries,
\nascribes to each individual at his birth two distinct  legal
\nstatuses  or conditions: one by virtue of which\t he  becomes
\nthe  subject of some particular co untry binding him by\t the
\ntie  of\t national allegiance, and which may  be\t called\t his
\npolitical status, another by virtue of which be has ascribed
\nto him the character of a citizen of some particular country
\nand  as such is possessed of certain municipal\trights,\t and
\nsubject\t to certain obligations, which latter  character  is
\nthe civil status or condition of the individual, and may  be
\nquite  different from his political status.   The  political
\nstatus may depend on different laws in different  countries;
\nwhereas\t the  civil status is governed universally  by\t-one
\nsingle\tprinciple,  namely, that of domicil,  which  is\t the
\ncriterion established by law for the purpose of\t determining
\ncivil  status.\t For it is on this basis that  the  personal
\nrights\tof  the\t party,\t that  is  to  say,  the  law  which
\ndetermines   his   majority  or\t minority,   his   marriage,
\nsuccession, testacy or intestacy, must depend”.
\nDealing with this question Dicey says at page 94:
\n“It  was,  indeed, at one time held by a  confusion  of\t the
\nideas  of  domicile  and nationality that a  man  could\t not
\nchange\t his   domicile,  for  example,\t from\tEngland\t  to
\nCalifornia, without doing at any rate as much as he could to
\nbecome\tan  American  citizen.\tHe must,  as  it  was  said,
\n‘intend quatenus in illo exuere patriam’.  But this doctrine
\nhas now been pronounced erroneous by the highest authority”.
\nVide  also  the observations of Lord Lindley  in  Winans  v.
\nAttorney-General(1). In Halsbury’s Laws of England, Vol.  VI
\nthe law is thus stated at page 198, para 242:
\n“English law determines all questions in which it admits the
\noperation of a personal law by the test of domicile For this
\npurpose it regards the organisa-\n<\/p>\n
(1)  [1869] L.R. I Sc. & Div. 441, 457.\n<\/p>\n
(2)  1904 A.C. 287, 299.\n<\/p>\n
\t\t\t    1223<\/span><\/p>\n
tion  of  the civilised world in civil\tsocieties,  each  of
\nwhich  consists\t of  all  those\t persons  who  live  in\t any
\nterritorial area which is subject to one system of law,\t and
\nnot its Organization in political societies or States, ,each
\nof  which  may either be co-extensive with  a  single  legal
\nsystem\t or  may  unite\t several  systems  under   its\t own
\nsovereignty”.\n<\/p>\n
Under  the  Constitution,  article 5,  which  defines  citi-
\nzenship,  itself proceeds on the basis that it is  different
\nfrom  domicile, because under that article, domicile is\t not
\nby  itself sufficient to confer on a person the status of  a
\ncitizen of this country.\n<\/p>\n
A  more\t serious question is that as the law knows  only  of
\ndomicile  of a country as a whole and not of any  particular
\nplace  therein, whether there can be such a thing as  Madhya
\nBharat domicile apart from Indian domicile.  To answer\tthis
\nquestion  we  must examine what the word “domicile”  in\t law
\nimports.  When we speak of a person as having a domicile  of
\na  particular country, we mean that in certain matters\tsuch
\nas  succession minority and marriage he is governed  by\t the
\nlaw  of that country.  Domicile has reference to the  system
\nof  law by which a person is governed, and when we speak  of
\nthe domicile of a country, we assume that the same system of
\nlaw  prevails  all  over that country.\tBut  it\t might\twell
\nhappen\tthat laws relating to succession and marriage  might
\nnot  be\t the same all over the country, and  that  different
\nareas  in the State might have different laws in respect  of
\nthose  matters.\t In that case, each area having\t a  distinct
\nset  of laws would itself be regarded as a country  for\t the
\npurpose\t of domicile.  The position is thus stated by  Dicey
\nat page 83:\n<\/p>\n
“The  area  contemplated throughout the\t Rules\trelating  to
\ndomicile  is a ‘country’ or territory subject to one  system
\nof  law’.   The reason for this is that the object  of\tthis
\ntreatise, in so far as it is concerned with domicile, is  to
\nshow  how far a person’s rights are affected by\t his  having
\nhis  legal home or domicile within a territory\tgoverned  by
\none system of law, i.e. within a given country, rather\tthan
\nwithin
\n157<\/span>
\n1224<\/span>
\nanother.   If,\tindeed,\t it  happened that  one\t part  of  a
\ncountry,  governed  generally by one system of law,  was  in
\nmany respects subject to special rules of law, then it would
\nbe  essential  to determine whether D was  domiciled  within
\nsuch particular part, e.g. California in the United  States;
\nbut  in this case, such part would be pro tanto\t a  separate
\ncountry,  in  the sense in which that term  is\temployed  in
\nthese Rules”.\n<\/p>\n
The  following\tstatement of the law in Halsbury’s  Laws  of
\nEngland, Volume VI, page 246, para 249 may also be quoted:
\nlaw,  a domicil is acquired in that part of the State  where
\nthe individual resides”.\n<\/p>\n
An instructive decision bearing on this point is  Somerville
\nv.  Somerville(1).   There,  the  dispute  related  to\t the
\npersonal  estate of Lord Somerville, who had died  intestate
\nin London, his domicile of origin being Scotch.\t The contest
\nwas  between  those  who were entitled\tto  inherit  if\t his
\ndomicile was Scotch, and those who were entitled to  inherit
\nif his domicile was English.  It was urged in support of the
\nclaim  of  the latter that by reason of the  death  of\tLord
\nSomerville  at\tLondon, succession was governed\t by  English
\ndomicile.  In discussing this question the learned Master of
\nthe Rolls referred to the fact that the law of succession in
\nthe  Province of York was different from that prevailing  in
\nother  parts  of England, and was akin to  Scotch  law,\t and
\nposed the question whether if a Yorkshire man died intestate
\nin  London,  succession\t to his\t personal  estate  would  be
\ngoverned  by the Law of the Province of York or of  England.
\nHe observes:\n<\/p>\n
“It  is\t surprising  that questions of this  sort  have\t not
\narisen\tin  this country when we consider that till  a\tvery
\nlate  period  and  even now for some  purposes\ta  different
\nsuccession prevails in the Province of York.  The custom  is
\nvery  analogous\t to the law of Scotland.  Till a  very\tlate
\nperiod\t the  inhabitants  of  York  were  restrained\tfrom
\ndisposing of their property by testament……………. And
\nthe question then would have been
\n(1)  [1801] 31 E.R. 839.\n<\/p>\n
1225<\/span><\/p>\n
whether\t during\t the time the custom and  the  restraint  of
\ndisposing  by testament were in full force, a  gentleman  of
\nthe county of York coming to London for the winter and dying
\nthere  intestate,  the disposition of  his  personal  estate
\nshould be according to the custom or the general law”.
\nThe principle that was laid down was that “succession to the
\npersonal  estate of an intestate is to be regulated  by\t the
\nlaw  of the country, in which be was a domiciled  inhabitant
\nat  the time of his death; without any regard whatsoever  to
\nthe place either of the birth or the death or the  situation
\nof  the property at that time”.\t On the facts, the  decision
\nwas  that the domicile of origin which was Scotch,  governed
\nthe  succession.   What is of interest in this\tdecision  is
\nthat it recognizes that for purposes of succession there can
\nbe within one political unit, as many domiciles as there are
\nsystems of law, and that there can be a Scotch domicile,  an
\nEnglish\t domicile  and\teven a York  domicile  within  Great
\nBritain.\n<\/p>\n
Under\tthe   Constitution,  the  power\t to   legislate\t  on
\nsuccession,  marriage and minority has been conferred  under
\nEntry  5  in the Concurrent List on both the Union  and\t the
\nState  Legislatures, and it is therefore  quite\t conceivable
\nthat  until the Centre intervenes and enacts a uniform\tcode
\nfor  the whole of India, each State might have its own\tlaws
\non  those  subjects,  and  thus\t there\tcould  be  different
\ndomiciles  for different States.  We do not, therefore,\t see
\nany force in the contention that there cannot be a  domicile
\nof Madhya Bharat under the Constitution.\n<\/p>\n
It was also urged on behalf of the respondent that the\tword
\n“domicile”  in\tthe  rule  might be  construed\tnot  in\t its
\ntechnical  legal  sense, but in a popular sense\t as  meaning
\n“residence”,  and  the following passage  in  Wharton’s\t Law
\nLexicon,  14th\tEdition, page 344 was quoted  as  supporting
\nsuch a construction:\n<\/p>\n
“By  the  term ‘domicile’, in its ordinary  acceptation,  is
\nmeant  the place where a person lives or has his  home.\t  In
\nthis  sense  the  place\t where\ta  person  has\this   actual
\nresidence,  inhabitancy, or commoraney, is sometimes  called
\nhis domicile”,
\n1226<\/span>
\nIn Mcmullen v. Wadsworth(1), it was observed by the Judicial
\nCommittee  that\t “the word `domicil’ in article 63  (of\t the
\nCivil  Code  of\t Lower\tCanada) was used  in  the  sense  of
\nresidence,  and\t did not refer to  international  domicile”.
\nWhat has to be considered is whether in the present  context
\n“domicile”  was\t used in the sense of residence.   The\trule
\nrequiring the payment of a capitation fee and providing\t for
\nexemption  therefrom  refers  only to  bona  fide  residents
\nwithin the State.  There is no reference to domicile in\t the
\nrule  itself, but in the Explanation which follows,  clauses\n<\/p>\n
(a) and (b) refer to domicile, and they occur as part of the
\ndefinition   of\t “bonafide  resident”.\t In   Corpus   Juris
\nSecundum, Volume 28, page 5, it is stated:\n<\/p>\n
“The  term  `bonafide residence’ means\tthe  residence\twith
\ndomiciliary intent”.\n<\/p>\n
There  is therefore considerable force in the contention  of
\nthe   respondent  that\twhen  the  rule-making\t authorities
\nreferred  to  domicile\tin clauses (a)\tand  (b)  they\twere
\nthinking  really  of  residence.  In  this  view  also,\t the
\ncontention that the rule is repugnant to article 15(1)\tmust
\nfail.\n<\/p>\n
There was a good deal of argument before us on the  validity
\nof  clause  (d)\t of  the rule.\t It  was  contended  by\t the
\npetitioner that clause introduced a new element\t unconnected
\nwith  domicile\tor residence which formed the basis  of\t the
\nprevious  clause,  that it put foreign nationals on  a\tmore
\nadvantageous  footing  than Indian citizens,  and  that\t the
\nentire\trule  must be discarded as based on no\trational  or
\nintelligible principle.\t No doubt, clause (d) strikes a\t new
\nnote.\tAnd  it\t may  be that as  a  matter  of\t policy\t the
\nmanagement  of the institution decided that it would  be  an
\nadvantage  to  associate citizens of  other  countries\twith
\nIndian\tcitizens in educational institutions, and  therefore
\nreserved  a few seats for them on the  most-favoured  nation
\ntreatment basis.  The validity of this reservation, however,
\ndoes not arise for decision in this petition, and as clauses\n<\/p>\n
(a)  to (c) rest on a classification based on  domicile\t and
\nresidence, and are
\n(1)  [1889] 14 A.C. 631,
\n\t\t\t    1227<\/span>
\ndistinct and severable from clause (d), they would be  valid
\neven if clause (d) were to be held bad.\n<\/p>\n
It  must be mentioned that the rule relating to the  payment
\nof capitation fee discussed above was again modified by\t the
\nmanagement as a result of the decision of the High Court  of
\nMadhya\tBharat\tin  Rustam Mody v. State:  Sumitra  Devi  v.
\nState(1).   The rule as amended-and that is what is  now  in
\nforce-runs as follows:\n<\/p>\n
“Only those students, who are bona fide residents of  Madhya
\nBharat\tand  have  been\t selected  for\tbeing  admitted\t  in
\naccordance  with  the  allocation scheme and  the  rules  of
\nadmission  to  the  seats  specifically\t reserved  for\t the
\nresidents of Madhya Bharat are exempted from the payment  of
\nCapitation Fees.  All other students admitted to seats other
\nthan those reserved for the residents of Madhya Bharat shall
\nbe liable to pay Capitation Fees as prescribed”.
\nUnder  this  rule also, the exemption is in favour  of\tbona
\nfide  residents\t of  Madhya  Bharat”,  and  therefore\twith
\nreference  to  the  points  now\t under\tconsideration,\t the
\nposition under the present rule would appear to be the\tsame
\nas  under the previous one.  It is unnecessary\tto  consider
\nthis matter further, as learned counsel on either side\twere
\nagreed that the rights of the petitioner must be  determined
\nin  accordance with the rule which was in force when he\t was
\nadmitted.\n<\/p>\n
It is next contended for the petitioner that the  imposition
\nof capitation fee on some of the students and not on  others
\nis discriminatory, and is in contravention of Article 14  of
\nthe  Constitution,  and therefore void.\t The  impugned\trule
\ndivides,  as already stated, Self-nominees into two  groups,
\nthose who are bona fide residents of Madhya Bharat and those
\nwho  are not, and while it imposes a capitation fee  on\t the
\nlatter,\t it exempts the former from the payment thereof.  It
\nthus proceeds on a classification based on residence  within
\nthe  State, and the only point for decision is\twhether\t the
\nground of classification has a fair and substantial relation
\nto the purpose of the law, or whether it is purely arbitrary
\nand fanciful,,
\n(1)  I.L.R. 1953 Madhya Bharat 87,
\n1228<\/span>
\nThe  object  of the classification underlying  the  impugned
\nrule  was  clearly to help to some extent students  who\t are
\nresidents  of  Madhya  Bharat in the  prosecution  of  their
\nstudies,  and  it  cannot be disputed that  it\tis  quite  a
\nlegitimate  and laudable objective for a State to  encourage
\neducation within its borders.  Education is a State subject,
\nand  one of the directive principles declared in Part IV  of
\nthe  Constitution  is that the State should  make  effective
\nprovisions  for education within the limits of its  economy.
\n(Vide  article\t41).  The State has to\tcontribute  for\t the
\nupkeep and the running of its educational institutions.\t  We
\nare  in this petition concerned with a Medical College,\t and
\nit  is well-known that it requires considerable\t finance  to
\nmaintain  such\tan institution.\t If the State has  to  spend
\nmoney on it, is it unreasonable that it should so order\t the
\neducational  system that the advantage of it would  to\tsome
\nextent\tat  least  inure for the benefit of  the  State?   A
\nconcession given to the residents of the State in the matter
\nof  fees  is  obviously calculated to  serve  that  end,  as
\npresumably  some  of them might, after passing\tout  of\t the
\nCollege,  settle down as doctors and serve the needs of\t the
\nlocality.   The\t classification is thus based  on  a  ground
\nwhich has a reasonable relation to the subject-matter of the
\nlegislation,  and is in consequence not open to attack.\t  It
\nhas  been  held in The State of Punjab v.  Ajaib  Singh\t and<\/a>
\nanother(1) that a classification might validly be made on  a
\ngeographical   basis.\tSuch  a\t classification\t  would\t  be
\neminently just and reasonable, where it relates to education
\nwhich\tis  the\t concern  primarily  of\t the   State.\t The
\ncontention, therefore, that the rule imposing capitation fee
\nis in contravention of article 14 must be rejected.
\nWe have proceeded so far on the assumption that the impugned
\nrule  is  a “law” as defined in article 13.  If\t it  is\t not
\nthat,  article 14 would have no application.  It was  indeed
\ncontended  by the learned Attorney General on behalf of\t the
\nrespondent   that   the\t  rule\tin  question   is   a\tmere
\nadministrative\t or  executive\torder,\tand   that   however
\nliberally the word “law” might be
\n(1)  [1953] S.C.R. 254.\n<\/p>\n
1229<\/span><\/p>\n
construed, it should be limited to what is an expression  of
\nthe  legislative  power\t and cannot comprehend\twhat  is  an
\nexecutive order.  In support of this contention he relied on
\nthe  decision  in Om Prakash v. The State(1).  In  the\tview
\nwhich  we have taken that even on the footing that it  is  a
\nlaw, the rule does not offend article 14, we do not consider
\nit necessary to express any opinion on this question.
\nOne  other contention put forward by the respondent  remains
\nto  be\tnoticed.  It was urged that as the  institution\t was
\noriginally  under private management and the State  took  it
\nover  subject to the conditions under which it was  run,  it
\nwas  bound  to enforce the rule relating to the\t payment  of
\ncapitation  fee which was previously in operation.  But\t the
\nterms under which the State took over expressly reserve only
\nthe  agreement\tfor  reserving seats  for  the\tnominees  of
\nparticipating  States  and donors, and do  not\tcontain\t any
\nundertaking  to maintain the rule relating to imposition  of
\ncapitation  fee.   Whether if such an undertaking  had\tbeen
\ngiven  it could have been set up in answer to a\t fundamental
\nright, does not therefore arise for decision.
\nIn  the result, the petition fails and is dismissed; but  in
\nthe circumstances there will be no order as to costs.
\nJAGANNADHADAS J.-I regret that I feel obliged to differ.
\nThe question that arises is whether the petitioner who is  a
\nresident  of Delhi and has been admitted in July,  1952,  by
\nthe  State  of\tMadhya Bharat as a student  in\tthe  Mahatma
\nGandhi\tMemorial Medical College at Indore and who has\tbeen
\ncalled\tupon  to  pay  a  sum of  Rs.  1,500  per  annum  as
\ncapitation  fee, in addition to the tuition fees  and  other
\ncharges\t payable  by  all the students\tof  the\t college  in
\ngeneral,  is entitled to a writ restraining the\t authorities
\nconcerned  from\t levying that capitation fee on\t the  ground
\nthat the rule under which be is asked to pay is repugnant to
\nthe Constitution.  The history of the
\n(1)  A.I.R. 1953 Punjab 93.\n<\/p>\n
1230<\/span><\/p>\n
institution and the relevant rules have been set out in\t the
\njudgment   of  the  majority  just  delivered  and   it\t  is
\nunnecessary  to repeat them.  It is desirable,\thowever,  to
\nmention, at the outset two matters.  The exact authority for
\nthese  rules, that is to say, the question whether they\t are
\nrules  made under a rule-making power having  a\t legislative
\nbasis, or whether they are merely executive orders, which it
\nis  open to the State Government to change as  they  please,
\nhas  not  been\tclearly\t elucidated.   Though  the   learned
\nAttorney General suggested, in -the course of his arguments,
\nthat  these  were merely executive orders and that  as\tsuch
\nthey  did  not come within the scope of article\t 14  of\t the
\nConstitution, the material placed before us throws no  light
\nthereon.  Nor has the question as to whether these executive
\norders\twhich  are issued by the State and  are\t general  in
\ntheir  application within the ambit of their subject  matter
\nconstitute  laws  falling with in the scope of\tarticle\t 14,
\nbeen  sufficiently canvassed before us.\t The discussion\t has
\nproceeded on the assumption that the validity of these rules
\nmay  be\t judged with reference both to the  article  14\t and
\narticle 15, no other article obviously having any direct
\nbearing.\n<\/p>\n
Now,  as has been pointed out in the majority judgment,\t the
\nrelevant  original  rule by the date when  the\tCollege\t was
\ntaken  over  by the State from private management  was\tthat
\n“Madhya Bharat students are exempted from capitation  fees”.
\nOn  the\t State\ttaking\tover  the  College,  this  rule\t was
\nsubstituted by the following, new rule:\n<\/p>\n
“For  all students who are ‘bona fide residents’  of  Madhya
\nBharat\tno capitation fee should be charged.  But for  other
\nnon-Madhya  Bharat  students the capitation  fee  should  be
\nretained as at present at Rs. 1,300 for nominees and at\t Rs.
\n1,500 for others”.\n<\/p>\n
“Bona fide resident” for the purposes of the above rule\t was
\ndefined as
\n“(a)  a\t citizen  of India, whose original  domicile  is  in
\nMadhya\tBharat,\t provided  he has not  acquired\t a  domicile
\nelsewhere, or\n<\/p>\n
(b)  a\tcitizen of India, whose original domicile  is
\n1231<\/span>
\nnot  in\t Madhya Bharat but who has acquired  a\tdomicile  in
\nMadhya\tBharat\tand has resided there for not  less  than  5
\nyears, at the date on which he applies for admission, or\n<\/p>\n
(c)  a person who migrated from Pakistan before A. September
\n30, 1948 and intends to reside in Madhya Bharat permanently,
\nor\n<\/p>\n
(d)  a person or class of persons or citizens of an area  or
\nterritory  adjacent to Madhya Bharat or to India in  respect
\nof whom or which a Declaration of Eligibility has been\tmade
\nby the Madhya Bharat Government”.\n<\/p>\n
This,  it is said, was the rule in force when the  applicant
\nwas  admitted into the College.\t This rule is again said  to
\nhave been modified recently and the same is as follows:
\n“Only those students, who are bona fide residents of  Madhya
\nBharat\tand  have  been\t selected  for\tbeing  admitted\t  in
\naccordance  with  the  allocation scheme and  the  rules  of
\nadmission  to  the  seats  specifically\t reserved  for\t the
\nresidents of Madhya Bharat are exempted from the payment  of
\ncapitation fees.  All other students admitted to seats other
\nthan those reserved for the residents of Madhya Bharat shall
\nbe liable to pay capitation fees as prescribed”.
\nIn  the affidavit filed in this Court by Shri H.  L.  Gupta,
\nAssistant  Secretary to the Government of Madhya Bharat,  it
\nis  stated that this was meant to be only a  restatement  by
\nthe  Government of their real intention in order to  clarify
\nwhat  the  prior  rule\twas  meant  to\tconvey.\t  Now,\twith
\nreference  to  these rules, it is necessary  to\t notice\t the
\nsuggestion made in the course of the argument that the rules
\nby  the\t use  of the word  “exemption”\tindicate  that\tsome
\nstudents get the benefit of not paying what would  otherwise
\nhave been payable and that therefore others cannot  complain
\nof  any hostile action constituting discrimination.   But  a
\ncopy  of  the rules for admission to  the  regular  M.B.B.S.
\ncourses\t  (copied  from\t Mahatma  Gandhi  Memorial   Medical
\nCollege,  Indore, Calendar of 1954) with which we have\tbeen
\nfurnished as one of the
\n1232<\/span>
\nenclosures to the affidavit of the petitioner, and which  is
\nat  pages 34 to 38 of the paper-book, on a perusal  thereof,
\nclearly\t shows\tat  page 37 that the capitation\t fee  is  in
\naddition to the normal fees and that this is payable only in
\nrespect of some students, while all the students in  general
\npay certain prescribed fees.  But whether the rule is in the
\nnature of an exemption for some students or is by way of  an
\naddition  for  the others, there is  clearly  discrimination
\nbetween the two groups which affects the one adversely.\t The
\nvery use of the phrase “capitation fees” for this additional
\namount levied from some, is indicative of its discriminatory
\ncharacter.   The only question accordingly is  whether\tthis
\ndiscrimination\tfalls within the mischief of either  article
\n14 or article 15.  It is desirable for this purpose to\thave
\na  clear understanding of what exactly the relevant rule  at
\nthe date of the admission of the applicant into the  College
\nsignifies.\n<\/p>\n
It has been stated that this rule has to be understood\twith
\nreference to the allocation scheme for admission of students
\nwhich  is said to be as follows in the affidavit of Shri  H.
\nL.  Gupta, Assistant Secretary to the Government  of  Madhya
\nBharat.\n<\/p>\n
“The  basis of allocation of seats at the time of  admission
\neach  year is that out of the total number of candidates  to
\nbe newly admitted a certain number of seats is reserved\t for
\n‘nominees’  of such States as also of such individuals\twith
\nwhom  there  is a contract of reservation of  seats,  and  a
\ncertain number of seats is reserved for Madhya Bharat.\t The
\nrest go to what are called ‘self-nominees’.  All  candidates
\n(except Central Government nominees) are, however,  admitted
\nby  a competitive examination and are selected in  order  of
\nmerit for each category”.\n<\/p>\n
It  has been stated by the applicant in his reply  affidavit
\nthat, while the competitive examination is the same for all,
\nit  is\tonly the marks of the candidates  in  each  separate
\ngroup  that are taken into consideration inter se.   However
\nthis may be, there appear to be, as stated by the  Assistant
\nSecretary  to  the  Madhya Bharat  Government,\tthree  broad
\ncategories: (1) A
\n1233<\/span>
\ncertain number of seats reserved for “bona fide students  of
\nMadhya\tBharat”. (2) A certain number of seats reserved\t for
\nsome  specified\t States\t and the  original  donors,  who  in
\nrespect\t of  their  nominees have to  pay  capitation  fees,
\nsomewhat lower in amount, and (3)  The rest of the  students
\nwho  have  to pay the higher capitation\t fees.\t The  second
\ncategory  above mentioned may be left out  of  consideration
\nfor  the  present case, since that depends on  certain\tpre-
\nexisting  contractual obligations and  different  considera-
\ntions  may  arise and the present petitioner does  not\tfall
\nwithin\tthis  category.\t The question of  discrimination  in
\nthis case arises really with reference to categories I and 3
\nabove  and  turns  upon\t the exact  meaning  of\t the  phrase
\n“bonafide,  residents”\tas  defined in the  rules.  If\tthis
\ndefinition was meant to convey fairly andsubstantially,\t the
\nqualification  of  residence in Madhya\tBharat\tand  nothing
\nelse,  it  may be, that this is not hit. by article  15\t and
\nthat  it  may also be a reasonable  classification,  on\t the
\nfacts and circumstances of a particular State, for  purposes\n<\/p>\n
-of  article 14. The learned Attorney-General himself  based
\nhis arguments, at one stage, on this view of the  definition
\nof “bona fide resident” in the rules.  But the difficulty is
\nthat the learned Attorney-General has not committed himself,
\non behalf of the State, as to this being the only reasonable
\nmeaning\t of  the  definition.\tHe  put\t it  as\t a  kind  of
\nalternative.   The Assistant Secretary to the Madhya  Bharat
\nGovernment,  Shri H. L. Gupta, in his affidavit clearly\t and
\ncategorically  says  that the charging\tof  capitation\tfee,
\ntruly  speaking,  is  not on the basis\tof  residence.\t The
\nrestatement  of\t the  rule by the  Government  is  not\talso
\ndefinite  or  clear about it inasmuch as it uses  again\t the
\nphrase\t“bona fide residents of Madhya Bharat”.\t  Bona\tfide
\nresidents of Madhya Bharat, as defined, is clearly something
\nquite different from the class which can be designated ordi-
\nnarily as “residents of Madhya Bharat”.\t Now out of the four
\ncategories  comprised in the definition, obviously  (c)\t and\n<\/p>\n
(d) have absolutely nothing to do with actual residence.  It
\nis  also difficult to discover any principle with  reference
\nto which discrimination can be justified in favour of (1)  a
\nPakistani migrant
\n1234<\/span>
\nwith the mere intention to make Madhya Bharat his  permanent
\nresidence,  and (2) a person, belonging to  the\t  contiguous
\nareas  of  Madhya Bharat, or the contiguous areas  of  India
\n(and  excluding\t citizens of India from\t the  non-contiguous
\nareas  of  Madhya  Bharat, like the  applicant).   The\tmain
\ncategories, however, are those which fall within (a) and (b)
\nof the definition.  But it is difficult to say even of these
\ncategories  that  they\tare based merely  on  residence,  as
\nsuch., of the person concerned.\t Category (b) has  reference
\nto  “Domicile  in Madhya Bharat” plus  residence  in  Madhya
\nBharat\tfor  the  preceding five years.\t  Category  (a)\t has
\nreference  only to “original domicile in Madhya Bharat”\t and
\nby  contrast  with  category (b)  which\t requires  precedent
\nresidence,  is\tclearly\t intended  not\tto  insist  on\t any
\nprecedent residence.  Even if it be assumed that  “domicile”
\nmeans “permanent home” as stated by Lord Cranston in Whicker
\nv.  Hume(1)  this has no necessary reference to\t the  appli-
\ncant’s\tactual\tresidence  at  the  relevant  time.   It  is
\ndifficult  to  see why the fact of  the\t applicant’s  father
\nhaving\thad his permanent home in Madhya Bharat at the\ttime
\nof applicant’s birth should be a ground of preference or why
\na  person who has made Madhya Bharat his permanent home\t but
\nleft  it  for  a  time\tand  returned  only,  say,  an\tyear
\npreviously  should  be denied it.  Thus\t the  definition  of
\n“bona  fide resident” taken as a whole or even confining  it
\nto  categories (a), (b) and (c) cannot be said to  be  based
\nmerely\t on  residence\tin  Madhya  Bharat.   Nor  can\t any
\nintelligible  basis  of grouping be  gathered  therefrom  by
\nimputing  to the word “domicile” the meaning “residence”  or
\n(.permanent  home”.   It is interesting to notice,  in\tthis
\nconnection,  that  category (b) in requiring  Madhya  Bharat
\ndomicile  and  precedent residence for\tfive  years  follows
\nclosely the pattern of Indian citizenship based on  category\n<\/p>\n
(c)  of\t article  5 of the Constitution\t with  “domicile  of
\nMadhya Bharat” substituted for “domicile of India” and\tthis
\nraises\tthe  question of the concept  of  regional  domicile
\n(tending to the growth of the idea of regional\tcitizenship)
\nwhich will be discussed presently.\n<\/p>\n
(1)  [1859] 28 L.J. Ch. 396, 398.\n<\/p>\n
\t\t\t    1235<\/span><\/p>\n
Now  confining our attention to the category (a)  which\t has
\ngiven rise to the main controversy in this case, it  appears
\nto  me\tquite clear that the phrase ‘.original\tdomicile  in
\nMadhya\tBharat”\t used therein could not have been  meant  to
\nindicate  either the residence or the permanent home of\t the
\napplicant  in  Madhya  Bharat.\tWhat  then  is\tthe  meaning
\nintended to be conveyed thereby.  Is the word “domicile”  in
\nthis  phrase to be understood in the legalistic sense or  as
\nthe  likely  framer of the relvant rule-possibly a  lay\t man
\nlike  the Director of Public Instruction of the\t State-would
\nhave  understood  it  to mean.\tIt  is\tnecessary  for\tthis
\npurpose\t to have a clear idea of the concept  of  “domicile”
\nand  its applicability in relation to any particular  region
\nwithin\ta  country like India.\tNow the jurists\t concept  of
\ndomicile  is  one  which  can  be  best\t gathered  from\t the
\nfollowing  passage in the classic judgment of Lord  Westbury
\nin Udny v. Udny(1).\n<\/p>\n
“The law of England, and of almost all civilized  countries,
\nascribes to each individual at his birth two distinct  legal
\nstatuses  or conditions; one by virtue of which\t he  becomes
\nthe  subject of some particular country, binding him by\t the
\ntie  of\t natural  allegiance and which\tmay  be\t called\t his
\npolitical status; another by virtue of which he has ascribed
\nto  him\t the  character\t of a  citizen\tof  some  particular
\ncountry,  and  as  such is possessed  of  certain  municipal
\nrights,\t and  subject to certain obligations,  which  latter
\ncharacter   is\tthe  civil  status  or\tcondition   of\t the
\nindividual,  and may be quite different from  his  political
\nstatus.\t  The political status may depend on different\tlaws
\nin different countries; whereas the civil status is governed
\nuniversally  by\t one  single  principle,  namely,  that\t  of
\ndomicil,  which is the criterion established by law for\t the
\npurpose\t of  determining civil status.\tFor it\tis  on\tthis
\nbasis that the personal rights of the party, that is to say,
\nthe  law  which\t determines his majority  or  minority,\t his
\nmarriage, succession, testacy, or intestacy, must depend”.
\nThus  domicile is that attribute of a person’s status  which
\naccording to International Law determines
\n(1)  [1869] L.R 1 Sc. & Div. 441, 457,
\n1236<\/span>
\nthe  personal laws by which he is governed and on which\t his
\npersonal  laws\tdepend.\t The question for  consideration  is
\nwhether\t this  concept\tof domicile can apply  to  the\tword
\n“domicile” in the phrase “domicile in Madhya Bharat”.  Dicey
\nin his Conflict of Laws (6th Edn.), at pages 43 and 78\tsays
\nas follows:\n<\/p>\n
“A person’s domicile (meaning thereby the place of domicile)
\nis  the\t country  which\t is considered\tby  law\t to  be\t his
\npermanent home” and at page 82 he says
\n“the  area contemplated relating to domicile is a  `country’
\nor ‘territory subject to one system of law’
\nFarnsworth  in\this  book on the Residence  and\t Domicil  of
\nCorporations (1939 Edition) says as follows at page 1:
\n“In any consideration of domicile the area contemplated\t has
\nalways been taken to be a ‘country’ or Ca territory  subject
\nto one system of law”‘.\n<\/p>\n
It  is no doubt true that there are countries  which  though
\npolitically  one  unit\thave  different\t personal  laws,  in
\ndifferent areas thereof.  In such a case the sub-unit  which
\nis  governed by one system of law is the area  of  domicile.
\nThus  for  instance, as has been pointed out,  though  Great
\nBritain\t is one single political unit, the personal laws  in
\nScotland  are  different and therefore\tScotch\tdomicile  is
\nrecognised.   But  this is a matter  of\t historical  growth.
\nNow,  so  far as India is concerned it appears\tto  me\tthat
\nthere  has so far been no such concept of domicile  of\tsub-
\nunits  known or recognised by law, for the only purpose\t for
\nwhich  it is normally relevant and which attracts  it,\tviz.
\npersonal  laws of the citizens of India.  The personal\tlaws
\nin  India,  as\tis well known, depend  mostly  on  religious
\naffiliations.\tThis  has been so from pre  British  period.
\nThe  earliest British regulations have recognised  this\t and
\nthe  same has been continued by a specific  provision  being
\nincorporated  in the Civil Courts Act or analogous  Acts  of
\nthe  various  Provinces\t or States to the  effect  that\t the
\nCourts\tare  to\t decide\t matters  relating  to\tHindus\t and
\nMuhammadans,  etc.  with reference to their  personal  laws,
\nThese Acts
\n1237<\/span>
\nhave  invariably  a provision by way of a direction  to\t the
\nCourts concerned, more or less in the following terms:
\n“To  decide any question regarding succession,\tinheritance,
\nmarriage, or caste, or any religious usage or institution or
\nthe  like by the Muhammadan law in cases where\tthe  parties
\nare Muhammadans and by Hindu law in cases where the  parties
\nare Hindus”.\n<\/p>\n
In respect of some of these matters as well as in respect of
\nother  matters\twhich properly fall within the\tcategory  of
\npersonal  laws\tsuch as for instance  minority,\t succession,
\netc., there have been legislative modifications.  But it  is
\nnoteworthy  that those modifications are almost entirely  of
\nan  all-India character and not on anv regional basis  (viz.
\nIndian Majority Act, Indian Succession Act).  So far as I am
\naware there are only a few instances of Provincial or  State
\nlegislation  on\t any matters relating to personal  laws\t and
\nthat too, to an extremely small and limited extent.  Thus it
\nwill  be  seen that the Province or the State  of  India  to
\nwhich a Hindu or Muslim belongs has no relevance or relation
\nto his personal laws.  Indeed, the contrary is emphasised by
\nthe  fact that, a Hindu at any rate, carries with. him\teven
\nhis  own  school  of Hindu law in spite of  migration  to  a
\ndifferent Province or State.  Now, so far as Indian citizens
\nwho  are neither Hindus nor Muslims are concerned, such\t as,
\nIndian\tChristians  or Anglo-Indians, they are\tgoverned  by
\npersonal  laws\twhich are all-India %in\t character  and\t not
\nregional, as for instance the Indian Succession Act. (It may
\nbe  mentioned  that even in Europe until  the  middle  ages,
\npersonal  laws\tdepended on race and not on  domicile.\t See
\nPhilippine on International Law, page 36).  In this state of
\nthe  factual situation as regards the personal laws  of\t the
\nvarious\t categories of persons who comprise the bulk of\t the
\npopulation of India, it appears to me to be clear that there
\nhas  been  in India up to the present moment  no  scope\t for
\ngrowth\tof  any concept of State or Provincial\tdomicile  as
\ndistinct  from Indian domicile.\t There is thus no place\t for
\nregional domicile, in the existing Indian law.\tNor is there
\nany reason
\n1238<\/span>
\nto  think  that such a situation will arise  in\t the  future
\nunder the present Constitution.\t For this purpose, it may be
\nnoticed\t that the exclusive legislative power of  the  State
\ndoes  not  extend to personal laws.  Personal laws  are\t the
\nsubject\t matter of item No. 5 of the Concurrent\t Legislative
\nList.  It is relevant in this connection also to notice that
\narticle 44 of the Constitution enjoins that “the State shall
\nendeavour  to secure for the citizens a uniform\t civil\tcode
\nthroughout  the\t territory  of\tIndia”.\t  It  is   extremely
\nunlikely  therefore  that regional personal  laws  will\t be,
\nallowed to become operative in any substantial measure.\t  It
\nmay be also mentioned that there is single citizenship under
\nthe   Constitution   for  the  whole  of  India\t  and\tthat
\n“citizenship and naturalisation” have been listed within the
\nexclusive  competence of the Union Legislature.\t  Of  course
\ncitizenship is different from domicile.\t But I mention\tthis
\nhere only to emphasize the view, that consistently with\t the
\nConstitution,  the concept of regional domicile\t which\tdoes
\nnot  exist at the present day and which if recognised  would
\ntend to the growth of claims of regional citizenship (as for
\ninstance in the United States of America) would be  entirely
\nforeign\t to the intendment of the Constitution.\t It is\twith
\nreference  to  the  above  considerations  that\t the  phrase
\n“domicile  in Madhya Bharat” in the relevant  rule  defining
\nthe  phrase “bona fide resident of Madhya Bharat” has to  be
\nconsidered and understood.  Since the concept of domicile in
\nMadhya\tBharat,\t is,  in my view, unknown  to  the  existing
\nIndian\tlaw, I do not think it permissible to  construe\t the
\nphrase “domicile in Madhya Bharat” used in the relevant rule
\nas  having anything to do with the regional domicile of\t the
\nkind known to the English system of law.  The recognition of
\nsuch  a concept of regional domicile in English or  American
\nlaw does not necessitate that we should import the same idea
\ninto   our  country  contrary  to  the\tintendment  of\t the
\nConstitution.\tWe have got to consider the meaning  of\t the
\nphrase\t“original  domicile in Madhya Bharat”  used  in\t the
\nrelevant rule with reference to the existing state of law in
\nIndia, which, I conceive, does not recognise such a regional
\ndomicile.\n<\/p>\n
1239<\/span><\/p>\n
I  have\t already  given my reasons  for\t thinking  that\t the
\nmeaning of “residence” or “permanent home” of the  applicant
\ncannot\tbe read into the phrase “domicile in Madhya  Bharat”
\nused  in clause (a).  In the circumstances it appears to  me
\nto be reasonably clear that the phrase “original domicile in
\nMadhya\tBharat” is meant to convey the “place of  birth\t (of
\nthe applicant) in Madhya Bharat”.  It is perfectly true that
\n“domicile of origin” and “place of birth” are two  different
\nmatters.   But that is so only where the use of\t the  phrase
\n“domicile of origin” conveys a definite legal meaning.\t But
\nwhere,\tas  in\tthe present case, the  phrase  “domicile  of
\norigin in Madhya Bharat” conveys no legal meaning, as I have
\npointed out above, and if any meaning has to be attached  to
\nit,  then  it  could only have reference to  the  “place  of
\nbirth”.\t This would accord with what was likely to have been
\ncontemplated by the framer of the rule.\t Normally a person’s
\ndomicile of origin is the place of his birth except in a few
\nand  exceptional  cases.   In  this  context  the  following
\npassage from Corpus Juris Secundum, Vol. 28 at page 1095 may
\nbe noticed:\n<\/p>\n
“A person’s domicil of origin is the domicile of his  birth.
\nIt is generally but not necessarily the place of birth”.
\nIn this connection it is to be remembered that the  relevant
\nrule is a substitute for the pre-existing rule which was  as
\nfollows:\n<\/p>\n
“Madhya Bharat students are exempted from capitation fees”.
\nThe phrase “Madhya Bharat students” has no reference  either
\nto residence or domicile, and there can be no doubt that  it
\nnormally connoted students who were born in Madhya Bharat.
\nIn  my\topinion\t when the State authorities  took  over\t the
\nmanagement of the institution from private hands and made  a
\nchange\tin  the rule by coining a hybrid definition  of\t the
\nphrase\t“bona fide residents of Madhya Bharat”\tplacing\t the
\ncategory  of citizens whose original domicile is  in  Madhya
\nBharat\tin  the\t forefront of  that  definition,  they\tonly
\nattempted to camouflage the
\n1240<\/span>
\nimplication  thereof so as to accord with  the\tpre-existing
\nrule,\tviz.  that  the\t benefits  of  the  exemption\tfrom
\ncapitation fees should be available only to persons born  in
\nMadhya\tBharat and the burden of the capitation fees  should
\nbe borne by persons not born in Madhya Bharat.\tIn the\tview
\nI take of the real meaning and effect of the rule, which  is
\nunder\tdiscussion,   neither  an  attempt   at\t  subsequent
\nclarification  nor the actual manner in which it is said  to
\nbe administered or intended to be administered, as stated by
\nthe  Assistant Secretary to the Madhya\tBharat\tGovernment,,
\nShri  H.  L. Gupta, in his affidavit, even  if\taccepted  as
\ncorrect,  can have any bearing.\t The fact that some  of\t the
\nadmitted  students of the Medical College who are  residents
\nof  Madhya  Bharat  may not be entitled\t to  exemption\tfrom
\ncapitation   fee  under\t the  rule  as\tnow  sought  to\t  be
\ninterpreted  is\t not relevant so long as a  student  in\t the
\nposition  of  the applicant cannot have the benefit  of\t the
\nexemption, even if he got the highest marks in the  competi-
\ntion.\tIn  my\tview, therefore, the rule  in  question\t has
\nreference  to  place of birth in  Madhya  Bharat  primarily,
\nthough a number of other miscellaneous categories might also
\ncome  in  under other and different heads.  Hence  the\trule
\noffends\t article 15 of the Constitution.  Even in  the\tview
\nthat  the  rule\t has reference to the  juristic\t concept  of
\nregional  domicil and for that reason does not\tfall  within
\nthe  scope of the inhibition of article 15, 1 am  unable  to
\nsee how, with reference to article 14, the distinction based
\non  such domicile can be considered reasonable.\t No  sugges-
\ntion  has been put forward how “original domicile in  Madhya
\nBharat”\t is a reasonable ground for classification.   In  my
\nopinion, therefore, the primary content of the rule relating
\nto  capitation fees which is contained in clause (a) of\t the
\ndefinition  of\t“bona fide resident of Madhya  Bharat”\tdoes
\noperate\t to  the disadvantage of the petitioner\t by  way  of
\nunconstitutional discrimination.  Hence the State Government
\ncannot\t validly  seek\tto  levy  capitation  fees  on\t the
\npetitioner with reference to that rule.\n<\/p>\n
I would, therefore, allow this application.\n<\/p>\n
1241<\/span><\/p>\n
I  think  it  right  to add that  the  question\t as  to\t the
\nexistence  or  admissibility  of  the  concept\tof  regional
\ndomicile as distinguished from Indian domicile and as to the
\nbearing\t of this on the meaning of the concerned. rule\twere
\nnot  canvassed or suggested at the hearing A before  us\t and
\nthat the Court has not bad the benefit of arguments on these
\nand the connected matters. if, therefore, I have ventured to
\ndiffer,\t notwithstanding  my respect for the  views  of\t the
\nmajority and notwithstanding the absence of assistance\tfrom
\nthe  Bar, it is out of the conviction that the\trecognition,
\nexpress\t or implied, of regional domicile by a\tdecision  of
\nthis  Court  would  be contrary to  the\t intendment  of\t the
\nConstitution.\n<\/p>\n
By  COURT.-In accordance with the opinion of  the  majority,
\nthe Petition is dismissed without costs.\n<\/p>\n
\t     Petition dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India D. P. Joshi vs The State Of Madhya Bharat … on 27 January, 1955 Equivalent citations: 1955 AIR 334, 1955 SCR (1)1215 Author: B K Mukherjee Bench: Mukherjee, Bijan Kr. (Cj), Bose, Vivian, Jagannadhadas, B., Aiyyar, T.L. Venkatarama, Sinha, Bhuvneshwar P. PETITIONER: D. P. JOSHI Vs. RESPONDENT: THE STATE OF MADHYA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-1464","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nD. P. 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