{"id":20671,"date":"1990-04-24T00:00:00","date_gmt":"1990-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-yogesh-bhardwaj-vs-state-of-u-p-and-ors-on-24-april-1990"},"modified":"2018-05-06T21:32:21","modified_gmt":"2018-05-06T16:02:21","slug":"dr-yogesh-bhardwaj-vs-state-of-u-p-and-ors-on-24-april-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-yogesh-bhardwaj-vs-state-of-u-p-and-ors-on-24-april-1990","title":{"rendered":"Dr. Yogesh Bhardwaj vs State Of U.P. And Ors on 24 April, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. Yogesh Bhardwaj vs State Of U.P. And Ors on 24 April, 1990<\/div>\n
Equivalent citations: 1991 AIR 356, \t\t 1990 SCR (2) 666<\/div>\n
Author: T Thommen<\/div>\n
Bench: Thommen, T.K. (J)<\/div>\n
           PETITIONER:\nDR. YOGESH BHARDWAJ\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P. AND ORS.\n\nDATE OF JUDGMENT24\/04\/1990\n\nBENCH:\nTHOMMEN, T.K. (J)\nBENCH:\nTHOMMEN, T.K. (J)\nSHARMA, L.M. (J)\n\nCITATION:\n 1991 AIR  356\t\t  1990 SCR  (2) 666\n 1990 SCC  (3) 355\t  JT 1990 (2)\t236\n 1990 SCALE  (1)808\n\n\nACT:\nProfessional Colleges--Admission to.\n    U.P.  State\t Universities Act, 1974--Section  28(5)\t and\nNotification dated August 19, 1983--Clauses 2 and 4  Medical\nCollege--Admission  to M.D.S.  course--Residence  qualifica-\ntion--Residence\t of five years in State of U.P.\t solely\t for\npurpose of pursuing B.D.S. course--HeM amounts to bona\tfide\nresidence in the State and eligible for admission to  M.D.S.\ncourse--'Domicile'---Concept  of  in  private  international\nlaw-Inapposite and inapplicable in the context.\n    Private  International Law: Domicial--Concept  of--Where\nsingle\tunified system of law prevails--Domicile is  of\t the\nwhole  country--Not Statewise domicile--Mere residence in  a\nState  does not comprehend volition or intention  to  settle\ntherein\t permanently--Residence\t should\t be  voluntary\t and\nlawful, not fleeting or transitory.\n\n\n\nHEADNOTE:\n    The appellant who was nominated by the State of Himachal\nPradesh\t to undergo the B.D.S. course in the State of  Uttar\nPradesh,  successfully completed his course and secured\t the\nB.D.S. degree. For this purpose he had stayed in that  State\nfor  over  a  period of five years. Later,  he\tapplied\t for\nadmission  to the M.D.S. course at King George Medical\tCol-\nlege,  Lucknow and the subject of his choice was  Oral\tSur-\ngery. He secured admission but the subject 'that was offered\nto him was Periodontics.\n    The reason for denying the appellant the subject of\t his\nchoice,\t viz. Oral Surgery; was that he had to step down  in\nfavour of others who had come within the rule of  preference\nprovided  for  in the Notification dated  August  19,  1983.\nissued\tunder Section 28(5) of the U.P.\t State\tUniversities\nAct, 1974, providing for reservation of seats, and prescrib-\ning  a residence qualification for selection to\t the  M.D.S.\ncourse.\n    The High Court in its judgment in Writ Petition No. 5400\nof 1989 following an earlier decision of the Court held that\nthose  candidates who joined B.D.S. course on the  basis  of\nnominations made by the\n667\nCentral Government or their own State will not be treated to\nbe bona fide residents of Uttar Pradesh merely because\tthey\nhave  stayed in the State for five years for  completion  of\nthe course.\n    The appellant who was not a party to the proceedings  in\nthe writ petition applied for clarification and modification\non  the said judgment as it had adversely affected him.\t The\nHigh  Court rejected the application, holding that clause  2\nof Notification stipulates two conditions viz: (i)  institu-\ntional\tand (ii) residential: and that the appellant  satis-\nfies  the first requirement, namely, institutional but\tdoes\nnot   fulfill  the  second  requirement,  viz\t'bona\tfide\nresident';  that  a 'bona fide resident' is  one  who  comes\nwithin\tthe meaning of that expression in clause 4  of\tthis\nNotification,  and that residence merely for the purpose  of\nstudies would not satisfy the requirement of clause 4.\n    In the appeal to this Court on the question: Whether the\nappellant was a 'bona fide resident of Uttar Pradesh' within\nthe  meaning of clause (b) of the Notification dated  August\n19, 1983.\n    Allowing the appeal, and setting aside the order of\t the\nHigh Court, this Court,\n    HELD: 1. A person is treated as a 'bona fide resident of\nUttar Pradesh' in terms of sub-clauses (a) and (b) of Clause\n4 by reason of either his 'domicile' or 'residence' in\tthat\nState.\tWhile sub-clause (a) speaks of the domicile  of\t the\ncandidate and his father, sub-clause (b) speaks of a person,\nwhose father was not domiciled in the State and who  himself\nhas  resided for not less than five years in the State.\t The\nconcept\t of  domicile is irrelevant to the  construction  of\nsub-clause (b) in respect of the residence qualification  of\nthe  candidate. All that it requires is his requisite  resi-\ndence. [673A-B]\n    2.\tClauses 2 and 4 indicate that a person\tshould\thave\nresided\t in Uttar Pradesh for the requisite period  lawfully\nand  bona  fide. The convers of bona fide being\t mala  fide,\nmeaning lack of good faith, in the absence of any allegation\nthat  the  appellant's residence in that State\twas  in\t any\nmanner opposed to the law of the land, or tainted by lack of\ngood faith, and in the light of the undisputed fact that his\nresidence was neither casual nor fleeting, but in excess  of\nthe  minimum  period  of five years, and  for  the  definite\npurpose\t of  education, he satisfies the definition of\ta  '\nbona fide resident. ' [678B-C]\n3. The construction placed by the High Court upon sub-clause\n(b)\n668\nof  clause 4 of the Notification is unsustainable. A  person\nsuch  as  the appellant who resided in the  State  of  Uttar\nPradesh specifically for the purpose of undergoing a  course\nof  studies  for not less than five years  albeit  with\t the\nintention of finally returning to his home State, also comes\nwithin the meaning of the expression 'bona fide resident' as\ndefined in the said clause. [678D-E]\n    4.\tDomicile  which is a private  international  law  or\nconflict  of  laws  concept identifies a  person,  in  cases\nhaving\ta  foreign element, with a territory  subject  to  a\nsingle system of law, which is regarded as his personal law.\n[673B-C]\n    5.\tA person is domiciled in the country in which he  is\nconsidered  to have his permanent home. His domicile  is  of\nthe  whole country, being governed by common rules  of\tlaw,\nand  not confined to a part of it. No one can be  without  a\ndomicile and no one can have two domiciles. [673C-D]\n    Re\tFuld's\tEstate\t(No. 3) 1968 (P)  675;\tCasdagli  v.\nCasdagli.  [1919] AC 145, 178 and Dicey & Morris,  The\tCon-\nflict of Laws, Vol. I page 24, referred to.\n    6.\tDomicile being a private international law  concept,\nis inapposite to the relevant provisions, having no  foreign\nelement i.e. having no contact with any system of law  other\nthan Indian. unless that expression is understood in a\tless\ntechnical sense. [674D-E]\n    Dr.\t Pradeep  Jain and Others etc. v. Union of  India  &\nOthers etc., [1984] 3 SCC 654, 666-669, referred to.\n    7. An expression which has acquired a special and  tech-\nnical  connotation  and\t developed as a rule  of  choice  or\nconnecting factor amongst the competing diverse legal system\nas  to the choice of law of forum is, when employed  out  of\ncontext,  in situations having no contact with\tany  foreign\nsystem\tof  law.  apt to cloud the intended  import  of\t the\nstatutory instrument. [674E-F]\n    8.\tIndia though a Union of States, and a federation  in\nthat  sense, the whole country is governed by a single\tuni-\nfied system of law, with a unified system of judicial admin-\nistration,  notwithstanding the constitutional\tdistribution\nof  legislative\t powers between the Centre and\tthe  States.\n1675B-C]\n9.  There is no State-wise domicile within the territory  of\nIndia. A\n669\nman who is domiciled in India is domiciled in every State in\nIndia  and is identified with a territorial system of  legal\nrules  pervading throughout the country. He is domiciled  in\nthe whole of this country even though his permanent home may\nbe located in a particular spot within it. [675C-D]\n    Halsbury's Laws of England, vol. 8 para 422; D.P.  Joshi\nv.  The\t State of Madhya Bharat and Another,<\/a>  [1955]  1\t SCR\n1215; Udny v. Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell  v.\nKennedy,  [1868] LR 1 Sc & Div 307, H.L. and D.P.  Joshi  v.\nThe  State of Madhya Bharat and Another,<\/a> [1955] 1 SCR  1215,\nreferred to.\n    10. Education, business, profession, employment, health,\nfamily\tor merely love of the place are some of the  reasons\ncommonly  regarded  as sufficient for a\t choice\t of  regular\nabode.\tIt is only lawful residence that can be\t taken\tinto\naccount.  If a man stays in a country in breach of  immigra-\ntion  laws. his presence there does not constitute  ordinary\nresidence. [677E-F]\n    11. Residence is a physical fact. No volition is  needed\nto establish it. Unlike in the case of a domicile of choice,\nanimus manendi is not an essential requirement of residence.\nAny period of physical presence, however short, may  consti-\ntute  residence provided it is not transitory,\tfleeting  or\ncasual. Intention is not relevant to prove the physical fact\nof residence except to the extent of showing that it is\t not\na  mere\t fleeting or transitory existence. To insist  on  an\nelement of volition is to confuse the feature of 'residence'\nwith those of 'domicile'. [676E-F]\n    12. A person is ordinarily resident in a country if\t his\nresidence  there is not casual or uncertain, but is  in\t the\nordinary  course of his life. A man may be ordinarily  resi-\ndent  or habitually resident in more than one  place.  While\n'ordinary residence' is the physical residence in regard  to\nwhich  intention  is  irrelevant, except to  show  that\t the\nresidence  is not merely fleeting, 'habitual residence'\t may\ndenote\ta  quality of endurance longer than  ordinary  resi-\ndence,\talthough duration, past or prospective, is only\t one\nof the many relevant factors, and there is no requirement of\nany particular minimum period. [676H; 677A-B]\n    13. While residence and intention are the two  essential\nelements constituting the 'domicile of choice', residence in\nits  own  right is a connecting factor in a  national  legal\nsystem\tfor purposes of taxation, jurisdiction,\t service  of\nsummons,  voting etc. To read into residence volition  as  a\nnecessary  element is to mistake residence for\tdomicile  of\nchoice. [677F]\n670\n    14. Where residence is prescribed within a unified legal\nsystem\tas a qualifying condition, it is essential that\t the\nexpression  is so understood as to have the widest room\t for\nthe full enjoyment of the right of equality before the\tlaw.\nAny  construction  which works to the  disadvantage  of\t the\ncitizen\t lawfully  seeking legitimate  avenues\tof  progress\nwithin the country will be out of harmony within the guaran-\nteed rights under the Constitution, and such a\tconstruction\nmust necessarily he avoided. [677G-H; 678A]\n    J.D. McClean, International & Comparative Law Quarterly,\n[1962]\tVol.  II  pp. 1153 et seq;  Commissioner  of  Inland\nRevenue v. Lysaght, [1928] AC 234; Levene v. Commissioner of\nInland\tRevenu, [1928] AC 217 at p. 222 and Dicey &  Morris;\nThe  Conflict  of  Laws, 10th ed., pp.\t143-145\t &  200-202.\nCheshire  & North; Private International Law, 11th ed.,\t pp.\n171-173 and Halsbury's Laws of England, 4th ed., vol. 8\t pp.\n318-330, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 62 of
\n1990.\n<\/p>\n
    From  the  Judgment\t and Order dated  2.12.1989  of\t the
\nAllahabad  High Court in C.M.Appn. No. 17984 (W) of 1989  in
\nW.P. No. 5400 of 1989.\n<\/p>\n
Mukul Mudgal for the Appellant.\n<\/p>\n
    Anil  Dev Singh, G.L. Sanghi, Mrs. Shobha Dikshit,\tE.C.
\nAgrawala, Atul Sharma and V.K. Pandita for the Respondents.
\nThe Judgment of the Court was delivered by
\n    THOMMEN, J. This appeal by special leave is against\t the
\nOrder  of the Allahabad High Court, Lucknow Bench,  in\tC.M.
\nApplication No. 17984 (W) of 1989 in Writ Petition No.\t5400
\nof 1989. The application for clarification and\tmodification
\nof  the judgment in the Writ Petition was filed in the\tHigh
\nCourt by the appellant, though not a party to that  proceed-
\ning, on the ground that he was adversely affected by it.
\n    The\t appellant  was nominated by the State\tof  Himachal
\nPradesh\t to undergo the B.D.S. course in the State of  Uttar
\nPradesh. The appellant successfully completed his course  of
\nstudies in Uttar Pradesh and secured the B.D.S. degree.\t For
\nthat  purpose he had stayed in that State for over a  period
\nof five years. He later applied for admission to
\n671<\/span>
\nthe  M.D.S. course at King George Medical College,  Lucknow.
\nHe  secured admission to the course, but in a subject  other
\nthan that of his choice. The subject of his choice was\tOral
\nSurgery,  but what was offered to him was Periodontics.\t The
\nreason\tfor denying the appellant the subject of his  choice
\nwas  that  he had to step down in favour of others  who\t had
\ncome  within the rule of preference as per the\tNotification
\ndated August 19, 1983 issued under section 28(5) of the U.P.
\nState  Universities  Act,  1974 (U.P. Act No.  29  of  1974)
\nproviding  for reservation of seats and prescribing a  resi-
\ndence qualification for selection to the M.D.S. course.
\n    By\tthe  impugned  order, the High\tCourt  rejected\t the
\nappellant’S prayer for clarification and modification of its
\njudgment  in  Writ Petition No. 5400 of 1989 and  held\tthat
\nthat judgment was rendered in accordance with the  principle
\nlaid down in its earlier decision in Writ Petition No.\t5325
\nof 1988 where the residence qualification prescribed by\t the
\nNotification was so construed as to be applicable only to  a
\nperson who was a resident in the State of Uttar Pradesh\t for
\nreasons\t other\tthan that of merely completing a  course  of
\nstudies.  In other words, the High Court refused  to  accept
\nthe appellant’s contention that the residence  qualification
\nshould be so construed as to entitle to admission a  person,
\nlike  the  appellant, who had come from\t outside  the  State
\nstrictly  and solely for the purpose of undergoing a  course
\nof studies and returning to his own State upon completion of
\nthe course. The High Court held that residence strictly\t for
\nstudies without more did not bring a person within the ambit
\nof  the Notification. This is what the High Court stated  in
\nits  judgment in Writ Petition No. 5400 of 1989,  clarifica-
\ntion of which was sought by the appellant:\n<\/p>\n
“In other words those candidates who joined B.D.S. Course on
\nthe  basis of nominations made by the Central Government  or
\ntheir  own  State and were not bona fide  residents  of\t the
\nState  of Uttar Pradesh prior to joining the  B.D.S.  Course
\nwill  not  be  treated to be bona fide\tresidents  of  Uttar
\nPradesh\t merely\t because they have stayed in  the  State  of
\nUttar  Pradesh for five years or more for completion of\t the
\nB.D.S. Course or housemanship.”\n<\/p>\n
    The\t appellant  does not challenge the validity  of\t the
\nnotified  provisions.  The sole question  which\t arises\t for
\nconsideration is as regards the construction of clause 4  of
\nthe said Notification. Before reading that clause, it may be
\nnoticed\t that  clause  1 of the\t Notification  provides\t for
\nreservation  of seats in favour of candidates  belonging  to
\nthe
\n672<\/span>
\ncategories specified therein. Clause 2 then provides:
\n“2.  The remaining seats shall be filled up on the basis  of
\nmerit by the candidates who have passed the B.D.S.  examina-
\ntion  from  the K.G. Medical College, Lucknow,\tobtaining  a
\nminimum of 55% marks in the aggregate and who are bona\tfide
\nresidents of Uttar Pradesh.\n<\/p>\n
(emphasis supplied)
\n    The\t High  Court notices that clause  2  stipulates\t two
\nconditions, namely (i) institutional; and (ii)\tresidential.
\nThe  High  Court observes that the appellant  satisfies\t the
\nfirst  requirement–the institutional, but does not  fulfill
\nthe second requirement, namely, bona fide residence. A\tbona
\nfide  resident is one who comes within the meaning  of\tthat
\nexpression in clause 4, which reads:\n<\/p>\n
“4. For the purpose of this order the expression ‘bona\tfide
\nresident of Uttar Pradesh’ shall mean–\n<\/p>\n
(a)  a citizen of India, the domicile of whose father is  in
\nUttar Pradesh and who himself is domiciled in Uttar Pradesh;
\nor\n<\/p>\n
(b) a citizen of India, the domicile of whose father was not
\nin  Uttar Pradesh but who himself has resided in Uttar\tPra-
\ndesh for not less than five years at the time of making\t the
\napplication.”\n<\/p>\n
(emphasis supplied)
\nIt is not disputed that the appellant is a citizen of  India
\nand  is domiciled in India. The question is whether he is  a
\n‘bona fide resident of Uttar Pradesh’. The contention of the
\nappellant  before the High Court was that he had  stayed  in
\nthe State of Uttar Pradesh for more than five years for\t the
\npurpose of completing his studies and was, therefore,  fully
\nqualified  as a bona fide resident of that State.  The\tHigh
\nCourt found that residence merely for the purpose of studies
\nwould not satisfy the requirement of clause 4.
\n    The\t appellant  was nominated by the State\tof  Himachal
\nPradesh to undergo a course of studies in the State of Uttar
\nPradesh\t and he stayed in Uttar Pradesh for over five  years
\nsolely\tfor that purpose. There is no evidence that  he\t had
\nany other object for staying for that length of time, as  he
\ndid, in Uttar Pradesh. There is no evidence that
\n673<\/span>
\nhe had any intention of indefinitely residing in that State.
\n    A  person is treated as a ‘bona fide resident  of  Uttar
\nPradesh’ in terms of sub-clauses (a) and (b) of Clause 4  by
\nreason\tof  either  his ‘domicile’ or  ‘residence’  in\tthat
\nState.\tWhile sub-clause (a) speaks of the domicile  of\t the
\ncandidate and his father, sub-clause (b) speaks of a person,
\nwhose father was not domiciled in the State and who  himself
\nhas  resided for not less than five years in the State.\t The
\nconcept\t of ‘domicile’ is irrelevant to the construction  of
\nsub-clause (b) in respect of the residence qualification  of
\nthe  candidate. All that it requires is his requisite  resi-
\ndence.\n<\/p>\n
    Domicile  which is a private international law  or\tcon-
\nflict of laws concept identifies a person, in cases having a
\nforeign element, with a territory subject to a single system
\nof  law, which is regarded as his personal law. A person  is
\ndomiciled  in the country in which he is considered to\thave
\nhis  permanent home. His domicile is of the  whole  country,
\nbeing governed by common rules of law, and not confined to a
\npart of it. No one can be without a domicile and no one\t can
\nhave two domiciles.\n<\/p>\n
    A  domicile of origin is attributed to every  person  at
\nbirth  by operation of law. This domicile is not decided  by
\nhis  place  of birth, or by the place of  residence  of\t his
\nfather\tor  mother, but by the domicile of  the\t appropriate
\nparent at the time of his birth, according as he is  legiti-
\nmate  or  illegitimate. It is possible for the\tdomicile  of
\norigin\tto  be “transmitted through several  generations  no
\nmember\tof which has ever resided for any length of time  in
\nthe country of the domicile of origin.” (See Dicey & Morris,
\nThe Conflict of Laws, 10th ed. Vol. I, Rule 9, p. 108).\t The
\ndomicile of origin continues until he acquires a domicile of
\nchoice in another country. Upon abandonment of a domicile of
\nchoice,\t he  may acquire a new domicile of  choice,  or\t his
\ndomicile of origin, which remained in abeyance, revives. The
\nburden of proving a change of domicile is on him who asserts
\nit. The domicile of origin is more tenacious. “Its character
\nis  more enduring, its hold stronger and less easily  shaken
\noff.”  Per Lord Macnaghten, Winans v. A.G., [1904]  AC\t287,\n<\/p>\n
290.  The  burden of proving that a domicile  of  origin  is
\nabandoned  is  needed  much heavier than in the\t case  of  a
\ndomicile of choice. No domicile of choice can be acquired by
\nentering a country illegally.\n<\/p>\n
    The domicile of choice is a combination of residence and
\nintention. Residence which is a physical fact means  “bodily
\npresence as an
\n674<\/span>
\ninhabitant”  (Re Newcomb, 192 N.Y. 238; 84 N.E. 950  (1908).
\nSee  Dicey, op. cit). Such residence must be  combined\twith
\nintention to reside permanently or for an unlimited time  in
\na country. It is such intention coupled with residence\tthat
\nacquires  him  a  new domicile. It is  immaterial  for\tthis
\npurpose that the residence is for a short duration, provided
\nit  is coupled with the requisite state of the mind,  namely
\nthe intention to reside there permanently. “If a man intends
\nto  return to the land of his birth upon a clearly  foreseen
\nand  reasonably anticipated contingency”, Re  Fuld’s  Estate
\n(No.  3) 1968 (P) 675. such as, the end of his\tstudies,  he
\nlacks  the intention required by law. His  “tastes,  habits,
\nconduct,  actions, ambitions, health, hopes,  and  projects”
\nCasdagli  v.  Casdagli, [1919] AC 145, 178 are keys  to\t his
\nintention. “That place is properly the domicile of a  person
\nin which he has voluntarily fixed the habitation of  himself
\nand  his family, not for a mere special and  temporary\tpur-
\npose,  but with a present intention of making it his  perma-
\nnent  home, unless and until something (which is  unexpected
\nor  the\t happening  of which is uncertain)  shall  occur  to
\ninduce\thim  to adopt some other permanent  home”.  Lord  v.
\nColvin, [1859] 4 Drew 366 at 376.\n<\/p>\n
    We\tmust, in this connection, hasten to add that  ‘domi-
\ncile’, being a private international law concept, is inappo-
\nsite to the relevant provisions, having no foreign  element,
\ni.e.,  having no contact with any system of law\t other\tthan
\nIndian,\t unless\t that  expression is understood\t in  a\tless
\ntechnical  sense  (see observations to this  effect  in\t Dr.
\nPradeep\t Jain and Others etc. v. Union of India\t and  Others
\netc.,  [1984] 3 SCC 654. 666-669). An expression  which\t has
\nacquired a special and technical connotation, and  developed
\nas a rule of choice or connecting factor amongst the compet-
\ning diverse legal systems as to the choice of law or  forum,
\nis,  when employed out of context, in situations  having  no
\ncontact\t with  any foreign system of law, apt to  cloud\t the
\nintended import of the statutory instrument.
\n    When a person is referred to as domiciled in a  country,
\nthe  expression ‘country’ is used in  private  international
\nlaw  as a term of art denoting, in the words of dicey,\t“the
\nwhole of a territory subject under one sovereign to one body
\nof  law”. See Dicey & Morris, The Conflict of Laws, Vol.  1,
\npage 24. But in a federation like the United States, Austra-
\nlia,  or  Canada, or in a composite State  like\t the  United
\nKingdom,  different systems of law may prevail in  different
\nregions\t in respect of certain matters. In such cases,\teach
\nof  the territories governed by a separate system of law  is
\ntreated, for the purpose of private international law, as  a
\n‘country’, though in public international law or
\n675<\/span>
\nconstitutional law it is not a separate sovereign State.  As
\nstated by Halsbury, “in federal states, some branches of law
\nare within the competence of the federal authorities and for
\nthese  purposes\t the whole federation will be subject  to  a
\nsingle system of law, and an individual may be spoken of  as
\ndomiciled  in the federation as a whole; other\tbranches  of
\nlaw are within the competence of the states or provinces  of
\nthe federation, and the individual will be domiciled in\t one
\nstate or province only”. Halsbury’s Laws of England Vol.  8,
\npara  422; See D.P. Joshi v. The state of Madhya Bharat\t and
\nAnother, [1955] 1 SCR 12 15.\n<\/p>\n
    This  is, however, not the position in India.  Though  a
\nUnion  of States, and a federation in that sense, the  whole
\ncountry is governed by a single unified system of law,\twith
\na unified system of judicial administration, notwithstanding
\nthe  constitutional distribution of legislative\t powers\t be-
\ntween  the  Centre and the States. There  is  no  State-wise
\ndomicile  within the territory of India. A man who is  domi-
\nciled  in India is domiciled in every State in India and  is
\nidentified with a territorial system of legal rules  pervad-
\ning  throughout the country. He is ‘domiciled’ in the  whole
\nof  this  country,  even though his permanent  home  may  be
\nlocated in a particular spot within it. Udny v. Udny, [1869]
\nLR  1 Sc & Div 441, H.L.; Bell v. Kennedy, i18681 LR 1 Sc  &
\nDiv  307,  H.L.\t The expression, as  understood\t in  private
\ninternational  law, makes no sense in the context of  Clause
\n4,  for Indian domicile cannot be limited to any  particular
\nState within India. The full import of ‘domicile’ is, there-
\nfore, inapplicable to the construction of clause 4. We would
\nin  this  connection recall the words of this Court  in\t Dr.
\nPradeep\t Jain & Ors. v. Union of India & Ors., [1984] 3\t SCC
\n654  at\t 668,  See also D.P. Joshi v. The  State  of  Madhya
\nBharat and Another,<\/a> [1955] 1 SCR 1215:\n<\/p>\n
“It would be absurd to suggest that the legal system  varies
\nfrom  State to State or that the legal system of a State  is
\ndifferent  from\t the  legal system of the  Union  of  India,
\nmerely\tbecause\t with respect to the subjects  within  their
\nlegislative competence, the States have power to make  laws.
\nThe  concept of ‘domicile’ has no relevance to the  applica-
\nbility of municipal laws, whether made by the Union of India
\nor by the States. It would not, therefore, in our opinion be
\nright  to  say that a citizen of India is domiciled  in\t one
\nState  or  another forming part of the Union of\t India.\t The
\ndomicile which he has is only one domicile, namely, domicile
\nin the territory of India.”\n<\/p>\n
676<\/span><\/p>\n
    ‘Domicile’\tfor the purpose of clause 4 must,  neverthe-
\nless,  be understood and applied in a limited sense  and  in
\ncontradistinction to ‘residence’, for that clause uses\tboth
\nthe  expressions and demands compliance with either of\tthem
\nwith reference to the State of Uttar Pradesh. Unlike  ‘resi-
\ndence’\twhich  is only bodily presence, ‘domicile’  in\tthis
\ncontext\t must  necessarily mean physical  residence  coupled
\nwith  the  intention to settle down in\tUttar  Pradesh,\t al-
\nthough,\t being confined to a particular region\trather\tthan
\nthe whole area of operation of the territorial legal  system
\nand  lacking in any foreign complexion or  unconcerned\twith
\nany  foreign  element, the animus manendi required  for\t the
\npurpose\t of  clause 4 is much less in quality  and  contents
\nthan  what  is required in Private International  Law.\tSub-
\nclause\t(a)  of\t Clause 4 prescribes no\t minimum  length  of
\nresidence or minimum degree of intention, and, however short
\nor insignificant the two elements may be, their combination,
\nin  whatever proportion, is sufficient to constitute  ‘domi-
\ncile’ for the purpose of clause 4(a).\n<\/p>\n
    In the present case, the appellant came to the State  of
\nUttar Pradesh with a predetermined mind, namely, to complete
\nthe  chosen course of studies and return to the State  which
\nhad nominated him for the purpose. Having regard to the time
\nand  duration, the object and obligation, and the  uncontro-
\nverted\tfacts,\tthe appellant was undoubtedly  a  bona\tfide
\nstudent\t who resided in Uttar Pradesh for over\tfive  years,
\nbut  whose  residence  did not\tacquire\t the  attributes  of
\n‘domicile’  within the meaning of clause 4(a). The  question
\nthen  is whether the appellant is a ‘bona fide\tresident  of
\nUttar Pradesh’ within the meaning of clause 4(b).
\n    Residence  is a physical fact. No volition is needed  to
\nestablish  it. Unlike in the case of a domicile\t of  choice,
\nanimus manendi is not an essential requirement of residence.
\nAny period of physical presence, however short, may  consti-
\ntute  residence provided it is not transitory,\tfleeting  or
\ncasual. Intention is not relevant to prove the physical fact
\nof residence except to the extent of showing that it is\t not
\na  mere\t fleeting or transitory existence To  insist  on  an
\nelement\t of  volition is to confuse the features  of  ‘resi-
\ndence’ with those of ‘domicile’. For an interesting  discus-
\nsion on The Meaning of Residence, see J.D. McClean, Interna-
\ntional\t& Comparative Law Quarterly [1962] Vol. II PP.\t1153
\net seq.\n<\/p>\n
    A  person  is ordinarily resident in a  country  if\t his
\nresidence  there is not casual or uncertain, but is  in\t the
\nordinary course of his life. Per Viscount Cave, Commissioner
\nof  Inland  Revenue  v. Lysaght, [1928] AC  234;  Levene  v.
\nCommissioners of Inland Revenue, [1928] AC 217
\n677<\/span>
\nat  p. 222. A man may be ordinarily resident  or  habitually
\nresident  m more than one place. While ‘ordinary  residence’
\nis  the physical residence in regard to which  intention  is
\nirrelevant, except to show that the residence is not  merely
\nfleeting,  ‘habitual  residence’  may denote  a\t quality  of
\nendurance longer than ordinary residence, although duration,
\npast  or prospective, is only one of the many relevant\tfac-
\ntors, and there is no requirement of any particular  minimum
\nperiod. See Dicey & Morris; The Conflict of Laws, 10th\ted.,
\nPP.  143. 145 & 200-202. See also Cheshire & North;  Private
\nInternational Law, 11th ed., PP. 171173; Halsbury’s Laws  of
\nEngland, 4th ed., Vol. 8, PP. 3 18-330.\n<\/p>\n
    In Reg v. Barnet L.B.C., Ex p. Shah, [1983] 2 A.C.\t309,
\nthe  House of Lords held that a person was ordinarily  resi-
\ndent in the United Kingdom, if he normally resided  lawfully
\nin that country from choice and for a settled purpose. If  a
\nperson resided there for the specific and limited purpose of
\neducation, he was ordinarily resident in that country,\teven
\nif  his\t permanent residence or real home was  outside\tthat
\ncountry\t or his future intention or expectation was to\tlive
\noutside that country.\n<\/p>\n
    Residence  must  be\t voluntary.  “Enforced\tpresence  by
\nreason\tof kidnaping or imprisonment, or a Robins’on  Crusoe
\nexistence on a desert island with no opportunity of  escape,
\nmay  be so overwhelming a factor as to negative the will  to
\nbe  where one is”. Per Lord Scarman, Reg v.  Barnet  L.B.C.,
\nEx. p. Shah, [1983] 2 A.C. 309 at 344. Education,  business,
\nprofession,  employment, health, family, or merely  love  of
\nthe  place  are\t some of the reasons  commonly\tregarded  as
\nsufficient for a choice of regular abode. It is only  lawful
\nresidence that can be taken into account. If a man stays  in
\na country in breach of immigration laws, his presence  there
\ndoes not constitute ordinary residence.\n<\/p>\n
    While  residence  and intention are\t the  two  essential
\nelements constituting the ‘domicile of choice’ residence  in
\nits  own  right is a connecting factor in a  national  legal
\nsystem\tfor purposes of taxation, jurisdiction,\t service  of
\nsummons,  voting etc. To read into residence volition  as  a
\nnecessary element is, as stated above, to mistake  residence
\nfor domicile of choice, and that is the error which the High
\nCourt  appears\tto have committed. Where residence  is\tpre-
\nscribed within a unified legal system as a qualifying condi-
\ntion,  it is essential that the expression is so  understood
\nas  to\thave the widest room for the full enjoyment  of\t the
\nright  of  equality before the law. Any\t construction  which
\nworks  to the disadvantage of the citizen  lawfully  seeking
\nlegitimate  avenues of progress within the country  will  be
\nout of harmony
\n678<\/span>
\nwith the guaranteed rights under the Constitution, and\tsuch
\na construction must necessarily be avoided.
\n    Clause  2,\twhich  we have set out above,  refers  to  a
\n‘bonafide’  resident  and  such a person  is  defined  under
\nclause\t4 to include a person who has resided in Uttar\tPra-
\ndesh for not less than five years at the time of making\t his
\napplication. These two clauses indicate that a person should
\nhave  resided  in  Uttar Pradesh for  the  requisite  period
\nlawfully and bona.fide. The converse of bona.fide being mala
\nfide,  meaning\tlack of good faith, in the  absence  of\t any
\nallegation that the appellant’s residence in that State\t was
\nin any manner opposed to the law of the land, or tainted  by
\nlack of good faith, and in the light of the undisputed\tfact
\nthat  his residence was neither casual nor fleeting, but  in
\nexcess\tof  the minimum period of five years,  and  for\t the
\ndefinite  purpose of education, he satisfies the  definition
\nof  a  ‘bonafide resident’. Any other  construction  of\t the
\nclauses would, in our view, be unreasonably restrictive\t and
\nthus conflict with the appellant’s constitutional rights.
\n    Viewed  in\tthis light, we have no doubt that  the\tcon-
\nstruction  placed by the High Court upon sub-clause  (b)  of
\nclause 4 of the Notification is unsustainable. In our  opin-
\nion,  a\t person, such as the appellant, who resided  in\t the
\nState  of  Uttar  Pradesh specifically for  the\t purpose  of
\nundergoing a course of studies for not less than five years,
\nalbeit\twith the intention of finally returning to his\thome
\nState, also comes within the meaning of the expression ‘bona
\nfide resident’ as defined in the said clause.
\n    In the circumstances, we set aside the impugned order of
\nthe  High Court, and allow the appeal with the costs of\t the
\nappellant here and in the High Court.\n<\/p>\n
N.V.K.\t\t\t\t\t\t      Appeal\nallowed.\n679<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. Yogesh Bhardwaj vs State Of U.P. And Ors on 24 April, 1990 Equivalent citations: 1991 AIR 356, 1990 SCR (2) 666 Author: T Thommen Bench: Thommen, T.K. (J) 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) […]<\/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-20671","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. Yogesh Bhardwaj vs State Of U.P. 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