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PETITIONER: DR. YOGESH BHARDWAJ

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT24/04/1990

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SHARMA, L.M. (J)

CITATION:  1991 AIR  356            1990 SCR  (2) 666  1990 SCC  (3) 355        JT 1990 (2)   236  1990 SCALE  (1)808

ACT: Professional Colleges--Admission to.     U.P.  State  Universities Act, 1974--Section  28(5)  and Notification dated August 19, 1983--Clauses 2 and 4  Medical College--Admission  to M.D.S.  course--Residence  qualifica- tion--Residence  of five years in State of U.P.  solely  for purpose of pursuing B.D.S. course--HeM amounts to bona  fide residence in the State and eligible for admission to  M.D.S. course--’Domicile’---Concept  of  in  private  international law-Inapposite and inapplicable in the context.     Private  International Law: Domicial--Concept  of--Where single  unified system of law prevails--Domicile is  of  the whole  country--Not Statewise domicile--Mere residence in  a State  does not comprehend volition or intention  to  settle therein  permanently--Residence  should  be  voluntary   and lawful, not fleeting or transitory.

HEADNOTE:     The appellant who was nominated by the State of Himachal Pradesh  to undergo the B.D.S. course in the State of  Uttar Pradesh,  successfully completed his course and secured  the B.D.S. degree. For this purpose he had stayed in that  State for  over  a  period of five years. Later,  he  applied  for admission  to the M.D.S. course at King George Medical  Col- lege,  Lucknow and the subject of his choice was  Oral  Sur- gery. He secured admission but the subject ’that was offered to him was Periodontics.     The reason for denying the appellant the subject of  his choice,  viz. Oral Surgery; was that he had to step down  in favour of others who had come within the rule of  preference provided  for  in the Notification dated  August  19,  1983. issued  under Section 28(5) of the U.P.  State  Universities Act, 1974, providing for reservation of seats, and prescrib- ing  a residence qualification for selection to  the  M.D.S. course.     The High Court in its judgment in Writ Petition No. 5400 of 1989 following an earlier decision of the Court held that those  candidates who joined B.D.S. course on the  basis  of nominations made by the 667 Central Government or their own State will not be treated to

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be bona fide residents of Uttar Pradesh merely because  they have  stayed in the State for five years for  completion  of the course.     The appellant who was not a party to the proceedings  in the writ petition applied for clarification and modification on  the said judgment as it had adversely affected him.  The High  Court rejected the application, holding that clause  2 of Notification stipulates two conditions viz: (i)  institu- tional  and (ii) residential: and that the appellant  satis- fies  the first requirement, namely, institutional but  does not   fulfill  the  second  requirement,  viz   ’bona   fide resident’;  that  a ’bona fide resident’ is  one  who  comes within  the meaning of that expression in clause 4  of  this Notification,  and that residence merely for the purpose  of studies would not satisfy the requirement of clause 4.     In the appeal to this Court on the question: Whether the appellant was a ’bona fide resident of Uttar Pradesh’ within the  meaning of clause (b) of the Notification dated  August 19, 1983.     Allowing the appeal, and setting aside the order of  the High Court, this Court,     HELD: 1. A person is treated as a ’bona fide resident of Uttar Pradesh’ in terms of sub-clauses (a) and (b) of Clause 4 by reason of either his ’domicile’ or ’residence’ in  that State.  While sub-clause (a) speaks of the domicile  of  the candidate and his father, sub-clause (b) speaks of a person, whose father was not domiciled in the State and who  himself has  resided for not less than five years in the State.  The concept  of  domicile is irrelevant to the  construction  of sub-clause (b) in respect of the residence qualification  of the  candidate. All that it requires is his requisite  resi- dence. [673A-B]     2.  Clauses 2 and 4 indicate that a person  should  have resided  in Uttar Pradesh for the requisite period  lawfully and  bona  fide. The convers of bona fide being  mala  fide, meaning lack of good faith, in the absence of any allegation that  the  appellant’s residence in that State  was  in  any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess  of the  minimum  period  of five years, and  for  the  definite purpose  of  education, he satisfies the definition of  a  ’ bona fide resident. ’ [678B-C] 3. The construction placed by the High Court upon sub-clause (b) 668 of  clause 4 of the Notification is unsustainable. A  person such  as  the appellant who resided in the  State  of  Uttar Pradesh specifically for the purpose of undergoing a  course of  studies  for not less than five years  albeit  with  the intention of finally returning to his home State, also comes within the meaning of the expression ’bona fide resident’ as defined in the said clause. [678D-E]     4.  Domicile  which is a private  international  law  or conflict  of  laws  concept identifies a  person,  in  cases having  a  foreign element, with a territory  subject  to  a single system of law, which is regarded as his personal law. [673B-C]     5.  A person is domiciled in the country in which he  is considered  to have his permanent home. His domicile  is  of the  whole country, being governed by common rules  of  law, and  not confined to a part of it. No one can be  without  a domicile and no one can have two domiciles. [673C-D]     Re  Fuld’s  Estate  (No. 3) 1968 (P)  675;  Casdagli  v. Casdagli.  [1919] AC 145, 178 and Dicey & Morris,  The  Con-

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flict of Laws, Vol. I page 24, referred to.     6.  Domicile being a private international law  concept, is inapposite to the relevant provisions, having no  foreign element i.e. having no contact with any system of law  other than Indian. unless that expression is understood in a  less technical sense. [674D-E]     Dr.  Pradeep  Jain and Others etc. v. Union of  India  & Others etc., [1984] 3 SCC 654, 666-669, referred to.     7. An expression which has acquired a special and  tech- nical  connotation  and  developed as a rule  of  choice  or connecting factor amongst the competing diverse legal system as  to the choice of law of forum is, when employed  out  of context,  in situations having no contact with  any  foreign system  of  law.  apt to cloud the intended  import  of  the statutory instrument. [674E-F]     8.  India though a Union of States, and a federation  in that  sense, the whole country is governed by a single  uni- fied system of law, with a unified system of judicial admin- istration,  notwithstanding the constitutional  distribution of  legislative  powers between the Centre and  the  States. 1675B-C] 9.  There is no State-wise domicile within the territory  of India. A 669 man who is domiciled in India is domiciled in every State in India  and is identified with a territorial system of  legal rules  pervading throughout the country. He is domiciled  in the whole of this country even though his permanent home may be located in a particular spot within it. [675C-D]     Halsbury’s Laws of England, vol. 8 para 422; D.P.  Joshi v.  The  State of Madhya Bharat and Another,  [1955]  1  SCR 1215; Udny v. Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell  v. Kennedy,  [1868] LR 1 Sc & Div 307, H.L. and D.P.  Joshi  v. The  State of Madhya Bharat and Another, [1955] 1 SCR  1215, referred to.     10. Education, business, profession, employment, health, family  or merely love of the place are some of the  reasons commonly  regarded  as sufficient for a  choice  of  regular abode.  It is only lawful residence that can be  taken  into account.  If a man stays in a country in breach of  immigra- tion  laws. his presence there does not constitute  ordinary residence. [677E-F]     11. Residence is a physical fact. No volition is  needed to establish it. Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence. Any period of physical presence, however short, may  consti- tute  residence provided it is not transitory,  fleeting  or casual. Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is  not a  mere  fleeting or transitory existence. To insist  on  an element of volition is to confuse the feature of ’residence’ with those of ’domicile’. [676E-F]     12. A person is ordinarily resident in a country if  his residence  there is not casual or uncertain, but is  in  the ordinary  course of his life. A man may be ordinarily  resi- dent  or habitually resident in more than one  place.  While ’ordinary residence’ is the physical residence in regard  to which  intention  is  irrelevant, except to  show  that  the residence  is not merely fleeting, ’habitual residence’  may denote  a  quality of endurance longer than  ordinary  resi- dence,  although duration, past or prospective, is only  one of the many relevant factors, and there is no requirement of any particular minimum period. [676H; 677A-B]     13. While residence and intention are the two  essential elements constituting the ’domicile of choice’, residence in

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its  own  right is a connecting factor in a  national  legal system  for purposes of taxation, jurisdiction,  service  of summons,  voting etc. To read into residence volition  as  a necessary  element is to mistake residence for  domicile  of choice. [677F] 670     14. Where residence is prescribed within a unified legal system  as a qualifying condition, it is essential that  the expression  is so understood as to have the widest room  for the full enjoyment of the right of equality before the  law. Any  construction  which works to the  disadvantage  of  the citizen  lawfully  seeking legitimate  avenues  of  progress within the country will be out of harmony within the guaran- teed rights under the Constitution, and such a  construction must necessarily he avoided. [677G-H; 678A]     J.D. McClean, International & Comparative Law Quarterly, [1962]  Vol.  II  pp. 1153 et seq;  Commissioner  of  Inland Revenue v. Lysaght, [1928] AC 234; Levene v. Commissioner of Inland  Revenu, [1928] AC 217 at p. 222 and Dicey &  Morris; The  Conflict  of  Laws, 10th ed., pp.  143-145  &  200-202. Cheshire  & North; Private International Law, 11th ed.,  pp. 171-173 and Halsbury’s Laws of England, 4th ed., vol. 8  pp. 318-330, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 62 of 1990.     From  the  Judgment  and Order dated  2.12.1989  of  the Allahabad  High Court in C.M.Appn. No. 17984 (W) of 1989  in W.P. No. 5400 of 1989. Mukul Mudgal for the Appellant.     Anil  Dev Singh, G.L. Sanghi, Mrs. Shobha Dikshit,  E.C. Agrawala, Atul Sharma and V.K. Pandita for the Respondents. The Judgment of the Court was delivered by     THOMMEN, J. This appeal by special leave is against  the Order  of the Allahabad High Court, Lucknow Bench,  in  C.M. Application No. 17984 (W) of 1989 in Writ Petition No.  5400 of 1989. The application for clarification and  modification of  the judgment in the Writ Petition was filed in the  High Court by the appellant, though not a party to that  proceed- ing, on the ground that he was adversely affected by it.     The  appellant  was nominated by the State  of  Himachal Pradesh  to undergo the B.D.S. course in the State of  Uttar Pradesh. The appellant successfully completed his course  of studies in Uttar Pradesh and secured the B.D.S. degree.  For that  purpose he had stayed in that State for over a  period of five years. He later applied for admission to 671 the  M.D.S. course at King George Medical College,  Lucknow. He  secured admission to the course, but in a subject  other than that of his choice. The subject of his choice was  Oral Surgery,  but what was offered to him was Periodontics.  The reason  for denying the appellant the subject of his  choice was  that  he had to step down in favour of others  who  had come  within the rule of preference as per the  Notification dated August 19, 1983 issued under section 28(5) of the U.P. State  Universities  Act,  1974 (U.P. Act No.  29  of  1974) providing  for reservation of seats and prescribing a  resi- dence qualification for selection to the M.D.S. course.     By  the  impugned  order, the High  Court  rejected  the appellant’S prayer for clarification and modification of its judgment  in  Writ Petition No. 5400 of 1989 and  held  that that judgment was rendered in accordance with the  principle

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laid down in its earlier decision in Writ Petition No.  5325 of 1988 where the residence qualification prescribed by  the Notification was so construed as to be applicable only to  a person who was a resident in the State of Uttar Pradesh  for reasons  other  than that of merely completing a  course  of studies.  In other words, the High Court refused  to  accept the appellant’s contention that the residence  qualification should be so construed as to entitle to admission a  person, like  the  appellant, who had come from  outside  the  State strictly  and solely for the purpose of undergoing a  course of studies and returning to his own State upon completion of the course. The High Court held that residence strictly  for studies without more did not bring a person within the ambit of  the Notification. This is what the High Court stated  in its  judgment in Writ Petition No. 5400 of 1989,  clarifica- tion of which was sought by the appellant: "In other words those candidates who joined B.D.S. Course on the  basis of nominations made by the Central Government  or their  own  State and were not bona fide  residents  of  the State  of Uttar Pradesh prior to joining the  B.D.S.  Course will  not  be  treated to be bona fide  residents  of  Uttar Pradesh  merely  because they have stayed in  the  State  of Uttar  Pradesh for five years or more for completion of  the B.D.S. Course or housemanship."     The  appellant  does not challenge the validity  of  the notified  provisions.  The sole question  which  arises  for consideration is as regards the construction of clause 4  of the said Notification. Before reading that clause, it may be noticed  that  clause  1 of the  Notification  provides  for reservation  of seats in favour of candidates  belonging  to the 672 categories specified therein. Clause 2 then provides: "2.  The remaining seats shall be filled up on the basis  of merit by the candidates who have passed the B.D.S.  examina- tion  from  the K.G. Medical College, Lucknow,  obtaining  a minimum of 55% marks in the aggregate and who are bona  fide residents of Uttar Pradesh. (emphasis supplied)     The  High  Court notices that clause  2  stipulates  two conditions, namely (i) institutional; and (ii)  residential. The  High  Court observes that the appellant  satisfies  the first  requirement--the institutional, but does not  fulfill the second requirement, namely, bona fide residence. A  bona fide  resident is one who comes within the meaning  of  that expression in clause 4, which reads: "4. For the purpose of this order the expression ’bona  fide resident of Uttar Pradesh’ shall mean-- (a)  a citizen of India, the domicile of whose father is  in Uttar Pradesh and who himself is domiciled in Uttar Pradesh; or (b) a citizen of India, the domicile of whose father was not in  Uttar Pradesh but who himself has resided in Uttar  Pra- desh for not less than five years at the time of making  the application." (emphasis supplied) It is not disputed that the appellant is a citizen of  India and  is domiciled in India. The question is whether he is  a ’bona fide resident of Uttar Pradesh’. The contention of the appellant  before the High Court was that he had  stayed  in the State of Uttar Pradesh for more than five years for  the purpose of completing his studies and was, therefore,  fully qualified  as a bona fide resident of that State.  The  High Court found that residence merely for the purpose of studies would not satisfy the requirement of clause 4.

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   The  appellant  was nominated by the State  of  Himachal Pradesh to undergo a course of studies in the State of Uttar Pradesh  and he stayed in Uttar Pradesh for over five  years solely  for that purpose. There is no evidence that  he  had any other object for staying for that length of time, as  he did, in Uttar Pradesh. There is no evidence that 673 he had any intention of indefinitely residing in that State.     A  person is treated as a ’bona fide resident  of  Uttar Pradesh’ in terms of sub-clauses (a) and (b) of Clause 4  by reason  of  either  his ’domicile’ or  ’residence’  in  that State.  While sub-clause (a) speaks of the domicile  of  the candidate and his father, sub-clause (b) speaks of a person, whose father was not domiciled in the State and who  himself has  resided for not less than five years in the State.  The concept  of ’domicile’ is irrelevant to the construction  of sub-clause (b) in respect of the residence qualification  of the  candidate. All that it requires is his requisite  resi- dence.     Domicile  which is a private international law  or  con- flict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of  law, which is regarded as his personal law. A person  is domiciled  in the country in which he is considered to  have his  permanent home. His domicile is of the  whole  country, being governed by common rules of law, and not confined to a part of it. No one can be without a domicile and no one  can have two domiciles.     A  domicile of origin is attributed to every  person  at birth  by operation of law. This domicile is not decided  by his  place  of birth, or by the place of  residence  of  his father  or  mother, but by the domicile of  the  appropriate parent at the time of his birth, according as he is  legiti- mate  or  illegitimate. It is possible for the  domicile  of origin  to  be "transmitted through several  generations  no member  of which has ever resided for any length of time  in the country of the domicile of origin." (See Dicey & Morris, The Conflict of Laws, 10th ed. Vol. I, Rule 9, p. 108).  The domicile of origin continues until he acquires a domicile of choice in another country. Upon abandonment of a domicile of choice,  he  may acquire a new domicile of  choice,  or  his domicile of origin, which remained in abeyance, revives. The burden of proving a change of domicile is on him who asserts it. The domicile of origin is more tenacious. "Its character is  more enduring, its hold stronger and less easily  shaken off."  Per Lord Macnaghten, Winans v. A.G., [1904]  AC  287, 290.  The  burden of proving that a domicile  of  origin  is abandoned  is  needed  much heavier than in the  case  of  a domicile of choice. No domicile of choice can be acquired by entering a country illegally.     The domicile of choice is a combination of residence and intention. Residence which is a physical fact means  "bodily presence as an 674 inhabitant"  (Re Newcomb, 192 N.Y. 238; 84 N.E. 950  (1908). See  Dicey, op. cit). Such residence must be  combined  with intention to reside permanently or for an unlimited time  in a country. It is such intention coupled with residence  that acquires  him  a  new domicile. It is  immaterial  for  this purpose that the residence is for a short duration, provided it  is coupled with the requisite state of the mind,  namely the intention to reside there permanently. "If a man intends to  return to the land of his birth upon a clearly  foreseen and  reasonably anticipated contingency", Re  Fuld’s  Estate (No.  3) 1968 (P) 675. such as, the end of his  studies,  he

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lacks  the intention required by law. His  "tastes,  habits, conduct,  actions, ambitions, health, hopes,  and  projects" Casdagli  v.  Casdagli, [1919] AC 145, 178 are keys  to  his intention. "That place is properly the domicile of a  person in which he has voluntarily fixed the habitation of  himself and  his family, not for a mere special and  temporary  pur- pose,  but with a present intention of making it his  perma- nent  home, unless and until something (which is  unexpected or  the  happening  of which is uncertain)  shall  occur  to induce  him  to adopt some other permanent  home".  Lord  v. Colvin, [1859] 4 Drew 366 at 376.     We  must, in this connection, hasten to add that  ’domi- cile’, being a private international law concept, is inappo- site to the relevant provisions, having no foreign  element, i.e.,  having no contact with any system of law  other  than Indian,  unless  that  expression is understood  in  a  less technical  sense  (see observations to this  effect  in  Dr. Pradeep  Jain and Others etc. v. Union of India  and  Others etc.,  [1984] 3 SCC 654. 666-669). An expression  which  has acquired a special and technical connotation, and  developed as a rule of choice or connecting factor amongst the compet- ing diverse legal systems as to the choice of law or  forum, is,  when employed out of context, in situations  having  no contact  with  any foreign system of law, apt to  cloud  the intended import of the statutory instrument.     When a person is referred to as domiciled in a  country, the  expression ’country’ is used in  private  international law  as a term of art denoting, in the words of dicey,  "the whole of a territory subject under one sovereign to one body of  law". See Dicey & Morris, The Conflict of Laws, Vol.  1, page 24. But in a federation like the United States, Austra- lia,  or  Canada, or in a composite State  like  the  United Kingdom,  different systems of law may prevail in  different regions  in respect of certain matters. In such cases,  each of  the territories governed by a separate system of law  is treated, for the purpose of private international law, as  a ’country’, though in public international law or 675 constitutional law it is not a separate sovereign State.  As stated by Halsbury, "in federal states, some branches of law are within the competence of the federal authorities and for these  purposes  the whole federation will be subject  to  a single system of law, and an individual may be spoken of  as domiciled  in the federation as a whole; other  branches  of law are within the competence of the states or provinces  of the federation, and the individual will be domiciled in  one state or province only". Halsbury’s Laws of England Vol.  8, para  422; See D.P. Joshi v. The state of Madhya Bharat  and Another, [1955] 1 SCR 12 15.     This  is, however, not the position in India.  Though  a Union  of States, and a federation in that sense, the  whole country is governed by a single unified system of law,  with a unified system of judicial administration, notwithstanding the  constitutional distribution of legislative  powers  be- tween  the  Centre and the States. There  is  no  State-wise domicile  within the territory of India. A man who is  domi- ciled  in India is domiciled in every State in India and  is identified with a territorial system of legal rules  pervad- ing  throughout the country. He is ’domiciled’ in the  whole of  this  country,  even though his permanent  home  may  be located in a particular spot within it. Udny v. Udny, [1869] LR  1 Sc & Div 441, H.L.; Bell v. Kennedy, i18681 LR 1 Sc  & Div  307,  H.L.  The expression, as  understood  in  private international  law, makes no sense in the context of  Clause 4,  for Indian domicile cannot be limited to any  particular

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State within India. The full import of ’domicile’ is, there- fore, inapplicable to the construction of clause 4. We would in  this  connection recall the words of this Court  in  Dr. Pradeep  Jain & Ors. v. Union of India & Ors., [1984] 3  SCC 654  at  668,  See also D.P. Joshi v. The  State  of  Madhya Bharat and Another, [1955] 1 SCR 1215: "It would be absurd to suggest that the legal system  varies from  State to State or that the legal system of a State  is different  from  the  legal system of the  Union  of  India, merely  because  with respect to the subjects  within  their legislative competence, the States have power to make  laws. The  concept of ’domicile’ has no relevance to the  applica- bility of municipal laws, whether made by the Union of India or by the States. It would not, therefore, in our opinion be right  to  say that a citizen of India is domiciled  in  one State  or  another forming part of the Union of  India.  The domicile which he has is only one domicile, namely, domicile in the territory of India." 676     ’Domicile’  for the purpose of clause 4 must,  neverthe- less,  be understood and applied in a limited sense  and  in contradistinction to ’residence’, for that clause uses  both the  expressions and demands compliance with either of  them with reference to the State of Uttar Pradesh. Unlike  ’resi- dence’  which  is only bodily presence, ’domicile’  in  this context  must  necessarily mean physical  residence  coupled with  the  intention to settle down in  Uttar  Pradesh,  al- though,  being confined to a particular region  rather  than the whole area of operation of the territorial legal  system and  lacking in any foreign complexion or  unconcerned  with any  foreign  element, the animus manendi required  for  the purpose  of  clause 4 is much less in quality  and  contents than  what  is required in Private International  Law.  Sub- clause  (a)  of  Clause 4 prescribes no  minimum  length  of residence or minimum degree of intention, and, however short or insignificant the two elements may be, their combination, in  whatever proportion, is sufficient to constitute  ’domi- cile’ for the purpose of clause 4(a).     In the present case, the appellant came to the State  of Uttar Pradesh with a predetermined mind, namely, to complete the  chosen course of studies and return to the State  which had nominated him for the purpose. Having regard to the time and  duration, the object and obligation, and the  uncontro- verted  facts,  the appellant was undoubtedly  a  bona  fide student  who resided in Uttar Pradesh for over  five  years, but  whose  residence  did not  acquire  the  attributes  of ’domicile’  within the meaning of clause 4(a). The  question then  is whether the appellant is a ’bona fide  resident  of Uttar Pradesh’ within the meaning of clause 4(b).     Residence  is a physical fact. No volition is needed  to establish  it. Unlike in the case of a domicile  of  choice, animus manendi is not an essential requirement of residence. Any period of physical presence, however short, may  consti- tute  residence provided it is not transitory,  fleeting  or casual. Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is  not a  mere  fleeting or transitory existence To  insist  on  an element  of  volition is to confuse the features  of  ’resi- dence’ with those of ’domicile’. For an interesting  discus- sion on The Meaning of Residence, see J.D. McClean, Interna- tional  & Comparative Law Quarterly [1962] Vol. II PP.  1153 et seq.     A  person  is ordinarily resident in a  country  if  his residence  there is not casual or uncertain, but is  in  the ordinary course of his life. Per Viscount Cave, Commissioner

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of  Inland  Revenue  v. Lysaght, [1928] AC  234;  Levene  v. Commissioners of Inland Revenue, [1928] AC 217 677 at  p. 222. A man may be ordinarily resident  or  habitually resident  m more than one place. While ’ordinary  residence’ is  the physical residence in regard to which  intention  is irrelevant, except to show that the residence is not  merely fleeting,  ’habitual  residence’  may denote  a  quality  of endurance longer than ordinary residence, although duration, past  or prospective, is only one of the many relevant  fac- tors, and there is no requirement of any particular  minimum period. See Dicey & Morris; The Conflict of Laws, 10th  ed., PP.  143. 145 & 200-202. See also Cheshire & North;  Private International Law, 11th ed., PP. 171173; Halsbury’s Laws  of England, 4th ed., Vol. 8, PP. 3 18-330.     In Reg v. Barnet L.B.C., Ex p. Shah, [1983] 2 A.C.  309, the  House of Lords held that a person was ordinarily  resi- dent in the United Kingdom, if he normally resided  lawfully in that country from choice and for a settled purpose. If  a person resided there for the specific and limited purpose of education, he was ordinarily resident in that country,  even if  his  permanent residence or real home was  outside  that country  or his future intention or expectation was to  live outside that country.     Residence  must  be  voluntary.  "Enforced  presence  by reason  of kidnaping or imprisonment, or a Robins’on  Crusoe existence on a desert island with no opportunity of  escape, may  be so overwhelming a factor as to negative the will  to be  where one is". Per Lord Scarman, Reg v.  Barnet  L.B.C., Ex. p. Shah, [1983] 2 A.C. 309 at 344. Education,  business, profession,  employment, health, family, or merely  love  of the  place  are  some of the reasons  commonly  regarded  as sufficient for a choice of regular abode. It is only  lawful residence that can be taken into account. If a man stays  in a country in breach of immigration laws, his presence  there does not constitute ordinary residence.     While  residence  and intention are  the  two  essential elements constituting the ’domicile of choice’ residence  in its  own  right is a connecting factor in a  national  legal system  for purposes of taxation, jurisdiction,  service  of summons,  voting etc. To read into residence volition  as  a necessary element is, as stated above, to mistake  residence for domicile of choice, and that is the error which the High Court  appears  to have committed. Where residence  is  pre- scribed within a unified legal system as a qualifying condi- tion,  it is essential that the expression is so  understood as  to  have the widest room for the full enjoyment  of  the right  of  equality before the law. Any  construction  which works  to the disadvantage of the citizen  lawfully  seeking legitimate  avenues of progress within the country  will  be out of harmony 678 with the guaranteed rights under the Constitution, and  such a construction must necessarily be avoided.     Clause  2,  which  we have set out above,  refers  to  a ’bonafide’  resident  and  such a person  is  defined  under clause  4 to include a person who has resided in Uttar  Pra- desh for not less than five years at the time of making  his application. These two clauses indicate that a person should have  resided  in  Uttar Pradesh for  the  requisite  period lawfully and bona.fide. The converse of bona.fide being mala fide,  meaning  lack of good faith, in the  absence  of  any allegation that the appellant’s residence in that State  was in any manner opposed to the law of the land, or tainted  by lack of good faith, and in the light of the undisputed  fact

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that  his residence was neither casual nor fleeting, but  in excess  of  the minimum period of five years,  and  for  the definite  purpose of education, he satisfies the  definition of  a  ’bonafide resident’. Any other  construction  of  the clauses would, in our view, be unreasonably restrictive  and thus conflict with the appellant’s constitutional rights.     Viewed  in  this light, we have no doubt that  the  con- struction  placed by the High Court upon sub-clause  (b)  of clause 4 of the Notification is unsustainable. In our  opin- ion,  a  person, such as the appellant, who resided  in  the State  of  Uttar  Pradesh specifically for  the  purpose  of undergoing a course of studies for not less than five years, albeit  with the intention of finally returning to his  home State, also comes within the meaning of the expression ’bona fide resident’ as defined in the said clause.     In the circumstances, we set aside the impugned order of the  High Court, and allow the appeal with the costs of  the appellant here and in the High Court. N.V.K.                                                Appeal allowed. 679