D.P. Joshi v. State of Madhya Pradesh

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Venkatarama Ayyar, J.
In place of the rule that “Madhya Bharat students are exempted from capitation fees” anew
rule was substituted, which runs as follows:
“For all students who are ‘bona fide residents’ of Madhya Bharat no capitation fee should be
charged. But for other non-Madhya Bharat students the capitation fee should be retained as at
present at Rs. 1,300 for nominees and at Rs. 1,500 for others”.
[Vide Exhibit 6/1 quoted in Rustam Mody v. State: Sumitra Devi v. State, I.L.R. 1953 M P
87,.
‘Bona fide resident’ for the purpose of this rule was defined as:
“one who is –
(a) a citizenof Indianwhoseoriginaldomicile is in MadhyaBharat, providedhe has not
acquired a domicile elsewhere, or
(b) a citizenof India, whoseoriginaldomicile is not in Madhya Bharat but who has acquireda
domicilein Madhya Bharat and has resided there for not less than 5 years at the date, on which he
applies foradmission,or
(c) a person who migrated from Pakistan before September 30, 1948 and intends to residein
Madhya Bharatpermanently,or
(d) a personor class of personsor citizensof an area or territoryadjacent to Madhya Bharator
to India in respect of whom or which a Declaration of Eligibility has been made by the Madhya
BharatGovernment”.
In brief, the change effected by the new rule was that whereas previously exemption from
capitation fee was granted in favour of all Madhya Bharat students whatever that might mean,
under the revised rule it was limited to bona fide residents of Madhya Bharat.

5. Now the contention of Mr. N. C. Chatterjee for the petitioner is that this rule is in
   contravention of articles 14 and 15(1), and must therefore be struck down as unconstitutional and
   void. Article15(1)enacts:
   “The State shall not discriminate against any citizen on grounds only of religion, race, caste,
   sex, place of birth or any of them”.
   The argument of the petitioner is that the rule under challenge in so far as it imposes a
   capitationfeeon studentswho do not belongto Madhya Bharat whileproviding an exemptionthere
   from the students of Madhya Bharat, makesa discriminationbasedon the placeof birth, and that it
   offends article15(1).
   Whatever force there might have been in this contention if the question had arisen with
   referenceto the rule as it stoodwhenthe Statetookover the administration,the rulewas modifiedin
   1952, and that is what we are concerned with in this petition. The rule as modified is clearly not
   opento attack as infringingarticle 15(1). The ground for exemption from payment of capitation fee
   as laid down therein is bona fide residence in the State of Madhya Bharat. Residence and place of
   birth are two distinct conceptions with different connotations both in law and in fact, and when
   article 15(1) prohibits discrimination based on the place of birth, it cannot be read as prohibiting
   discriminationbasedon residence.Thisis not seriouslydisputed.
   The argumentthat is pressedon us is that thoughthe rule purportsto grantexemptionbased on
   residencewithinthe State, the definitionof bonafide residenceunderthe ruleshows that the
   exemption is really based on the place of birth. Considerable emphasis was laid on clauses (a) and
   (b) of the rule wherein ‘residence’ is defined in terms of domicile, and it was arguedthat the original
   domicile, as it is termed in the rules, could in substance mean onlyplace of birth, and that therefore
   the exemptionbasedon domicilewas, in effect, an exemptionbasedon placeof birthunder an alias.
   That,however,is not thetruelegalposition.
   Domicile of a person means his permanent home. “Domicile meant permanent home, and if
   that was not understood by itself no illustration could help to make it intelligible” observed Lord
   Cranworthin Whicker v. Hume[1859] 28 L.J. Ch. 396. Domicileof origin of a person means”the
   domicilereceivedby him at his birth”. (Vide Diceyon Conflict of Laws, 6th Edition, page 87). The
   learnedauthorthenproceedstoobserveat page88:
   “The domicile of origin, though received at birth, need not be either the country in which the
   infant is born, or the country in which his parents are residing, or the country to which his father
   belongs by race or allegiance, or the country of the infant’s nationality”.
   In Somerville v. Somerville, [1801] 5 Ves. 750, Arden, Master of Rolls, observed:
   “I speak of the domicile of origin rather than of birth. I find no authority which gives for the
   purpose of succession any effect to the place of birth. If the son of an Englishman is born upon a
   journey, his domicile will follow that of his father”.
6. Mr. N. C. Chatterjee argued that domicile of origin was often called domicile of birth, and
   invited our attention to certain observations of Lord Macnaghten in Winans v. Attorney-
   General, (1904 A.C. 287, 290. But then, the noble Lord went on to add that the use of the words
   “domicileof birth” was perhaps not accurate. But that apart, what hasto be noted is that whetherthe
   expression used is “domicile of origin” or “domicile of birth”, the concept involved in it is
   something different from what the words “place of birth” signify. And if “domicile of birth” and
   “place of birth” cannot be taken as synonymous, then the prohibitionenacted in article 15(1) against
   discriminationbasedon placeof birthcannotapplyto a discriminationbasedon domicile.
7. It was arguedthat under the Constitutionthere can be onlya single citizenship for the whole
   of India, and that it wouldrun counterto that notionto holdthat the Statecould makelaws basedon
   domicile within their territory. But citizenship and domicile represent two different conceptions.
   Citizenshiphas reference to the politicalstatus of a person, and domicileto his civilrights. A classic
   statementof the law on this subject is that of Lord Westburyin Udny v. Udny, [1869] L.R. 1 Sc. &
   Div. 441.Heobserves:
   “The law of England, and of almost all civilised countries, ascribes to each individual at his
   birth two distinct legal statuses or conditions: one by virtue of which he becomes the subject of
   some particular countrybindinghim by the tie of national allegiance, and which may be called his
   politicalstatus, another by virtueof which he has ascribed to him the characterof a citizenof some
   particular country and as such is possessed of certain municipal rights, and subject to certain
   obligations, which latter characteris the civil status or conditionof the individual, and may be quite
   differentfromhispoliticalstatus.
   The politicalstatus maydepend on different laws in different countries; whereasthe civil status
   is governed universally by one single principle, namely, that of domicile which is the criterion
   establishedby law for the purposeof determiningcivil status. For it is on this basisthat the personal
   rights of the party, that is to say, the law which determines his majority or minority, his marriage,
   succession,testacyorintestacy, mustdepend”.
   Dealing with this question Dicey says at page 94:
   “It was, indeed, at one time held by a confusion of the ideas of domicileand nationalitythat a
   man couldnot changehis domicile, for example,from Englandto California,withoutdoing at any
   rate as much as he could to become an American citizen. He must, as it was said, ‘intend quatenus
   in illo exuere patriam’. But this doctrine has now been pronounced erroneous by the highest
   authority”.
   Vide also the observations of Lord Lindley in 1904 A.C. 287, 299 (D).
   In Halsbury’s Laws of England, Vol. VI the law is thus stated at page 198, para 242:
   “Englishlaw determinesallquestionsin which it admitsthe operationof a personallaw bythe
   test of domicile For this purpose it regards the organisation of the civilised world in civil societies,
   each of which consists of all those persons who live in any territorial are which is subject to one
   system of law, and not its organisation in political societies or States, each of which may either be
   co-extensive with a single legal system or mayunite several systems under its own sovereignty”.
   Under the Constitution, article 5, which defines citizenship, itself proceeds on the basis that it
   is different from domicile, because under that article, domicileis not by itself sufficient to confer on
   a personthe statusof a citizenof thiscountry.
   8, A more serious question is that as the law knows only of domicile of a country as a whole
   and not of any particular place therein, whether there can be such a thing as Madhya Bharat
   domicile apart from Indian domicile. To answer this question we must examine what the word
   “domicile” in law imports. When we speakof a person is havinga domicileof a particularcountry,
   we mean that in certain matters such as succession, minority and marriage he is governed by the
   law of thatcountry.
   Domicile has reference to the system of law by which a person is governed, and when we
   speak of the domicile of a country, we assume that the same system of law prevails all over that
   country. But it might well happen that laws relating to succession and marriage might not be the
   sameallover the country, andthat different areasin the Statemight havedifferent laws in respect of
   those matters. In that case, each area having a distinct set of laws would itself be regarded as a
   countryforthepurposeofdomicile.
   The position is thus stated by Dicey at page 83:
   “The area contemplated throughout the Rules relating to domicile is a ‘country’ or ‘territory
   subject to one system of law’. The reason for this is that the object of this treatise, in so far as it is
   concerned with domicile, is to show how far a person’s rights are affected by his having his legal
   home or domicile within a territory governed by one system of law, i.e. within a given country,
   rather than withinanother.
   If, indeed, it happened that one part of a country, governed generally by one system of law,
   was in manyrespectssubject to specialrulesof law, then it would be essentialto determinewhether
   D was domiciled within such particular part, e.g. California in the United States; but in this case,
   such part would be pro tanto a separate country, in the sense in which that term is employed in
   theseRules”.
   The following statement of the law in Halsbury’s Laws of England, Volume VI, page 246,
   para 249 may also be quoted:
   ” where that State comprises more than one system of law, a Domicile is acquired in that
   part of the State where the individual resides”.
8. An instructive decision bearing on this point is Somerville v. Somerville, [1801] 31 E.R.
9. There, the dispute related to the personal estate of Lord Somerville, who had died intestate in
   London, his domicile of origin being Scotch. The contest was between those who were entitled to
   inherit if his domicile was Scotch, and those who were entitled to inherit if his domicile was
   English. It was urged in support of the claim of the latter that by reason of the death of Lord
   Somervilleat London, successionwas governedby Englishdomicile. In discussing this question
   the learned Masterof the Rollsreferredto the factthat the lawof successionin the Provinceof York
   was different fromthat prevailingin other parts of England, and was akin to Scotch law, and posed
   the question whether if a Yorkshire man died intestate in London, succession to his personal estate
   wouldbe governedbythe Lawof theProvinceof Yorkor of England.
   He observes:
   “It is surprisingthat questionsof this sort have not arisen in this countrywhen we considerthat
   till a verylateperiodandevennow for somepurposesa deferentsuccessionprevailsin the Province
   of York. The custom is veryanalogousto the lawof Scotland. Tilla verylate periodthe inhabitants
   of York were restrained from disposing of their property by testament And the question then
   would have been whether during the time the custom and the restraint of disposing by testament
   were in full force, a gentleman of the county of York coming to London for the winter and dying
   thereintestate,the dispositionof his personalestateshouldbe accordingto the customor the general
   law”. The principlethat was laid down was that “successionto the personal estate of an intestate is
   to be regulatedby the lawof the country, in which he was a domiciledinhabitantat the time of his
   death; withoutany regard whatsoeverto the placeeitherof the birthor the death or the situationof
   thepropertyat thattime”.
   On the facts, the decision was that the domicile of origin which was Scotch, governed the
   succession. What is of interest in this decision is that it recognizes that for purposes of succession
   there can be withinone political unit, as manydomiciles as there are systems of law, and that there
   can be a Scotchdomicile, an Englishdomicileand even a York domicilewithin Great Britain.
10. Under the Constitution, the power to legislate on succession, marriage and minority has
    been conferred under Entry 5 in the Concurrent List on both the Union and the State Legislatures,
    and it is thereforequite conceivablethat untilthe centre intervenesand enacts a uniformcode for the
    whole of India, each state might have its own laws on those subjects, and thus there could be
    different domiciles for different States. We do not, therefore, see any force in the contention that
    therecannotbea domicileof MadhyaBharatunderthe Constitution.
11. It was also urgedon behalfof the respondent that the word “domicile” in the rule might be
    construed not in its technical legal sense, but in a popular sense as meaning “residence”, and the
    followingpassage in Wharton’s Law Lexicon, 14th Edition, page 344 was quoted supportingsuch a
    construction:
    “By the term ‘domicile’, in its ordinary acceptation, is mean the place where a person lives or
    has his home. In this sense the place where a person has his actual residence, inhabitancy, or
    commorancy, is some times called his domicile”.
    In Mcmullen v. Wadsworth,[1889] 14 A.C. 631, it was observed by the Judicial Committee
    that “theword domicilein article 63 (of the Civil Code of Lower Canada) was used in the senseof
    residence, and did not refer to international domicile”. What has to be considered is whether in the
    present context “domicile” was used in the sense of residence. The rule requiring the payment of a
    capitation fee and providing for exemption there from refers only to bona fide residents within the
    State. There is no reference to domicile in the rule itself, but in the Explanation which follows,
    clauses(a) and(b) referto domicile,andtheyoccur as partof thedefinitionof “bonafideresident”.
    In Corpus Juris Secundum, Volume 28, page 5, it is stated:
    “Theterm ‘bonafideresidence’ meansthe residencewithdomiciliaryintent”.
    There is therefore considerable force in the contention of the respondent that when the rule-
    makingauthoritiesreferred to domicile in clauses (a) and (b) theywere thinking reallyof residence.
    In thisviewalso,thecontentionthattheruleisrepugnantto article15(1) mustfail.
    In the result, the petitionfails and is dismissed; but in the circumstancesthere willbe no order
    as to costs.