27 January 1955
Supreme Court


Case number: Writ Petition (Civil) 367 of 1954






DATE OF JUDGMENT: 27/01/1955


CITATION:  1955 AIR  334            1955 SCR  (1)1215

ACT: Constitution of India, Arts. 44 and 15-Rule laying down that no capitation fee should be charged from students-Bona  fide residents  of  Madhya Bharat-But capitation  fee  should  be charged  from non-Madhya Bharat  students-Whether  infringes the Constitution.

HEADNOTE: The Government of the State of Madhya Bharat substituted the following  new  rule for the old rule for admission  to  the Mahatma Gandhi Memorial Medical College Indore, when it took over  the  administration  of the  College  from  a  private committee.  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". Bona fide resident’ for the purpose of this rule was defined as: one who is-  (a) a citizen of India whose original domicile is in Madhya Bharat,provided he has not acquired a domicile elsewhere, or (b)  a  citizen of India, whose original domicile is not  in Madhya  Bharat  but who has acquired a  domicile  in  Madhya Bharat  and has resided there for not less than 5  years  at the date, on which he applies for admission, or (c)a person who migrated from Pakistan before September  30, 1948 intends to reside in Madhya Bharat permanently, or   (d) a person or class of persons or citizens of an area or territory adjacent to Madhya -Bharat or to India in  respect of whom or which a Declaration of Eligibility has been  made by the Madhya Bharat Government". The   question  for  determination  was  whether  the   rule infringed the fundamental rights guaranteed by Arts. 14  and 15(1) of the Constitution. Held, per VFNKATARAMA AYYAR J. (MUKHERJEA C.J., VIVIAN  BosE and SINHA JJ. concurring, JAGANNADHADAS J. dissenting)  that the  rule did not infringe the fundamental right  guaranteed by  Art. 15(1) because residence and place of birth are  two



distinct conceptions with different connotations both in law and  in fact, and when Art. 15(1)  prohibits  discrimination based  on  the  place  of  birth,  it  cannot  be  read   as prohibiting discrimination based on residence. 156 1216 Domicile  of a person means big permanent home and is  some- times used in the sense of residence. Held further, that the imposition of capitation fee on  some of the students and not on others was not discriminatory  as being  in  contravention  of Art. 14  of  the  Constitution, because the classification was based on a ground which had a reasonable relation to the subject matter of the legislation as the object of the classification underlying the  impugned rule  was  clearly to help to some extent students  who  are residents  of  Madhya  Bharat in the  prosecution  of  their studies  and it was quite a laudable object for a  State  to encourage education - within its borders.  A  classification made  on  a geographical basis would be eminently  just  and reasonable when it relates to education which is the concern primarily of the State.      Per  JAGANNADHADAS  J.-There is no place  for  regional domicile  in the existing Indian Law.  In the  circumstances the phrase     original domicile in Madhya Bharat" is  meant to  convey the "Place of birth (of the applicant) in  Madhya Bharat".  It is true that "domicile of origin" and "place of birth"  are  two different, matters.  But that  is  so  only where  the use of the phrase "domicile of origin" conveys  a definite  legal meaning.  In the present case  however,  the phrase  "domicile  of origin in Madhya  Bharat"  conveys  no legal meaning, and if any meaning has to be attached to  it, then it could only have reference to the,"places of birth". Therefore,  the rule in question has reference to  place  of birth in Madhya Bharat primarily, and offends Art. 15 of the Constitution.  Even in the view that the rule has  reference to  the juristic concept of regional domicile and  for  that reason  does not fall within the scope of the inhibition  of Art. 15, a distinction based on such domicile cannot, in any way,  be considered reasonable with reference to Art. 14  of the Constitution. Bitstam  Mody v. State: Sumitra Devi v. State  (I.L.R.  1953 Madhya  Bharat  87), Whicker v. Hume ([1859] 28  L.  J.  Ch. 396), Somerville v. Somerville ([1801] 5 Ves. 750),  -Winans v.  Attorney General (1904 A.C. 287), Udny v.  Udny  ([1869] L.R.  I  Sc. & Div. 441), Mcmullen v. Wadsworth  ([1889]  14 A.C.  631), The State of Punjab v. Ajaib Singh  and  another ([1953] S.C.R. 254) and Om Prakash v. The State (A.I.R. 1953 Punjab 93), referred to.

JUDGMENT: ORIGINAL JURISDICTION-: Petition No. 367 of 1954. Under  Article  32  of the Constitution  of  India  for  the enforcement of Fundamental Rights. N.   C. Chatterjee and Veda Vyas, (S.  K. Kapur and Ganpat    Rai, with them), for the petitioner. M.   C. Setalvad, Attorney-General of India (Shiv Dyal and P. G. -Gokhale, with him), for respondent No. 1.                             1217 1955.  January 27.  The judgment of Mukherjea C. J.,  Vivian Bose,  Venkatarama  Ayyar  and Sinha JJ.  was  delivered  by Venkatarama  Ayyar J.Jagannadhadas J. delivered  a  separate judgment. VENKATARAMA AYYAR J.-This is a petition under article 32  of



the  Constitution.   There is at  Indore  a  Medical-College known as the Mahatma Gandhi Memorial Medical College run  by the  State  of  Madhya  Bharat.  The  petitioner  who  is  a resident of Delhi was admitted as a student of this  College in July. 1952, and is now studying in the third year  class, M.B.B.S.  Course.  His complaint is that the rules in  force in this institution discriminate in the matter of fees  bet- ween  students who are residents of Madhya Bharat and  those who are not, and that the latter have to pay in addition  to the  tuition fees and charges payable by all the students  a sum of Rs. 1,500 per annum as capitation fee, and that  this is  in  contravention  of  articles  14  and  15(1)  of  the Constitution.   The  petitioner accordingly  prays  that  an appropriate writ might be issued prohibiting the  respondent from  collecting  from him capitation fee  for  the  current year, and directing a refund of Rs. 3,000 collected from him as capitation fee for the first two years. The  respondent  contests the petition.   In  the  affidavit filed  on its behalf, it is stated that the  institution  in question had its origin in private enterprise, and was under the  management  of a Committee; that it was  the  Committee that  had made the rule imposing capitation fee on  students who  did  not belong to Madhya Bharat, that the  State  took over  the  College  subject to the  conditions  relating  to reservation of seats under which it was being run, and  that the  requirement of a capitation fee from non-residents  did not  offend either article 14 or article 15(1) of  the  Con- stitution. A brief narration of the history of the institution will  be useful  for  a correct appreciation of  the  contentions  on either  side.  The beginnings of the institution go back  to the year 1878, when a Dr. Beaumont started a Medical  School at Indore under the name of 1218 Indore  Medical School, as an adjunct to a  hospital  called the  Indore  Charity Dispensary.  It  received  considerable financial  assistance from the rulers of Gwalior  and  other Indian  States,  and became well established;  and  it.  is. claimed  on  its behalf that the  medical  practitioners  of Central  India,  Rajasthan  and  neighbouring  States   were largely recruited from its alumni.  In 1910 the name of  the school  was changed to King Edward Memorial School,  Indore, and  it was thereafter under the management of a  Committee. In  1940 the Committee decided to improve the status of  the School, and started collecting funds for equipping ,it as  a first-class   Medical   College.   The   arrangements   were completed   in  1947,  and  in  1948  the  institution   was affiliated  to the University of Agra.  It then came  to  be known  as the Mahatma Gandhi Memorial Medical  College.   In 1950  the  College Council resolved to  request  the  Madhya Bharat   Government   to  takeover  -the  running   of   the institution,  subject  to  the  arrangements  entered   into between  the institution and certain States and  donors  for reservation  of seats for their nominees.  The proposal  was accepted  by the respondent, and by resolution  dated  17-3- 1951 it took over the administration of the College. According to the rules relating to admission to the  College which  were  in force at that time, the  maximum  number  of students who could be admitted in any year was 50, and  they were   classed  into  two  groups,  nominees  and   ordinary students.  The Committee had arranged to raise funds for the institution  on  a promise that those  who  contributed  Rs. 7,000  would  be entitled to nominate one student  each  for admission  into the College, and that those students  called nominees  should  pay,  in addition to the  usual  fees  and



charges, a capitation fee of Rs. 1,300 per annum.  Excluding the  seats which have thus to be reserved for the  nominees, the  remaining  seats  were  thrown  open  to  all  eligible applicants  who  came  to be called  selfnominees,  and  the requisite  number was selected from among them on the  basis of  merit.  Then came the rule which is at the root  of  the present  controversy.   It  provided  that  "Madhya   Bharat students are                             1219 exempted from capitation fees". (Vide 1952 Calendar, page  5 and  Exhibit G).  After the State took over the  management, it introduced certain modifications in the rules, and it  is with these new rules that the present petition is concerned, the petitioner having been admitted under them.  In place of the  rule  that "Madhya Bharat students  are  exempted  from capitation  fees" a Dew rule was substituted, which runs  as follows: "For  all  students who are ‘bonafide 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(1)]. ’Bona  fide  resident’  for the purpose  of  this  rule  was defined as: "one who is- (a)a  citizen of India whose original domicile is in  Madhya Bharat,  provided be has not acquired a domicile  elsewhere, or (b)a  citizen  of India, whose original domicile is  not  in Madhya  Bharat  but who has acquired a  domicile  in  Madhya Bharat  and has resided there for not less than 5  years  at the date, on which he applies for admission, or (c)a person who migrated from Pakistan before September  30, 1948 and intends to reside in Madhya Bharat permanently, or (d)a  person or class of persons or citizens of an  area  or territory  adjacent to Madhya Bharat or to India in  respect of whom or which a Declaration of Eligibility has been  made by the Madhya Bharat Government". 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. Now the contention of Mr. N. C. Chatterjee for the (1)  I.L.R. 1953 Madhya Bharat 87, 99, 1220 petitioner is that this rule is in contravention of articles 14  and  15(1),  and  must  therefore  be  struck  down   as unconstitutional and void.  Article 15(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  capitation  fee  on students who do not belong to Madhya Bharat while  providing an exemption therefrom to students of Madhya Bharat, makes a discrimination  based  on the place of birth,  and  that  it offends  article  15 (1).  Whatever force there  might  have been  in  this contention if the question  had  arisen  with reference  to the rule as it stood when the State took  over the administration, the rule was modified in 1952, and  that is what we are concerned with in this petition.  The rule as modified is clearly not open to attack as infringing article 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 discrimination based on residence.  This is  not seriously  disputed.  The argument that is pressed on us  is that  though the rule purports to grant. exemption based  on residence  within  the  State, the  definition  of  bonafide residence under the rule shows 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 argued  that  the original  domicile, as it is termed in the rules,  could  in substance  mean only place of birth, and that therefore  the exemption  based  on domicile was, in effect,  an  exemption based  on place of birth under an alia8.  That, however,  is not the true legal position.  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 1221 intelligible" observed Lord Cranworth in Whicker v. Hume(1). Domicile of origin of a person means "the domicile  received by  him at his birth". (Vide Dicey on Conflict of Laws,  6th Edition,  page  87).  The learned author  then  proceeds  to observe at page 88: "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(2), Arden, Master of the  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". 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(1).   But then, the noble Lord went  on  to add  that  the  use of the words  "domicile  of  birth"  was perhaps not accurate.  But that apart, what has to be  noted is that whether the 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 prohibition  enacted in  article 15(1) against discrimination based on  place  of birth cannot apply to a discrimination based on domicile. It  was  argued that -under the Constitution there  -can  be only  a single citizenship for the whole of India, and  that it  would run counter to that notion to hold that the  State could  make laws based on domicile within their  territory,. But   citizenship  and  domicile  represent  two   different conceptions.   Citizenship  has reference to  the  political status of a person, and (1)  [1859] 28 L.J. Ch. 396, 400. (2)  [1801] 5 Ves. 750 at 786, 787; 31 E.R. 839, 858. (3)  1901 A.C. 287, 290. 1222 domicile  to his civil rights.  A classic statement  of  the law  on  this subject is that of Lord Westbury  in  Udny  v.



Udny(1).  He observes: "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 co untry binding him by  the tie  of  national allegiance, and which may  be  called  his political status, another by virtue of which be has ascribed to him the character of a citizen of some particular country and  as such is possessed of certain municipal  rights,  and subject  to certain obligations, which latter  character  is the civil status or condition of the individual, and may  be quite  different from his political status.   The  political status may depend on different laws in different  countries; whereas  the  civil status is governed universally  by  -one single  principle,  namely, that of domicil,  which  is  the criterion established by law for the purpose of  determining civil  status.   For it is on this basis that  the  personal rights  of  the  party,  that  is  to  say,  the  law  which determines   his   majority  or  minority,   his   marriage, succession, testacy or intestacy, must depend". Dealing with this question Dicey says at page 94: "It  was,  indeed, at one time held by a  confusion  of  the ideas  of  domicile  and nationality that a  man  could  not change   his   domicile,  for  example,  from   England   to California, without doing 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  Winans  v. Attorney-General(1). In Halsbury’s Laws of England, Vol.  VI the law is thus stated at page 198, para 242: "English law determines all questions in which it admits the operation of a personal law by the test of domicile For this purpose it regards the organisa- (1)  [1869] L.R. I Sc. & Div. 441, 457. (2)  1904 A.C. 287, 299.                             1223 tion  of  the civilised world in civil  societies,  each  of which  consists  of  all  those  persons  who  live  in  any territorial area which is subject to one system of law,  and not its Organization in political societies or States, ,each of  which  may either be co-extensive with  a  single  legal system   or  may  unite  several  systems  under   its   own sovereignty". Under  the  Constitution,  article 5,  which  defines  citi- zenship,  itself proceeds on the basis that it is  different from  domicile, because under that article, domicile is  not by  itself sufficient to confer on a person the status of  a citizen of this country. 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 speak of a person as having a domicile  of a  particular country, we mean that in certain matters  such as  succession minority and marriage he is governed  by  the law  of that country.  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 same all over the country, and  that  different areas  in the State might have different laws in respect  of those  matters.  In that case, each area having  a  distinct



set  of laws would itself be regarded as a country  for  the purpose  of domicile.  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 within 157 1224 another.   If,  indeed,  it  happened that  one  part  of  a country,  governed  generally by one system of law,  was  in many respects subject to special rules of law, then it would be  essential  to determine whether 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 these Rules". The  following  statement of the law in Halsbury’s  Laws  of England, Volume VI, page 246, para 249 may also be quoted: law,  a domicil is acquired in that part of the State  where the individual resides". An instructive decision bearing on this point is  Somerville v.  Somerville(1).   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 Somerville  at  London, succession was governed  by  English domicile.  In discussing this question the learned Master of the Rolls referred to the fact that the law of succession in the  Province of York was different from that prevailing  in 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  would  be governed  by the Law of the Province of York or of  England. He observes: "It  is  surprising  that questions of this  sort  have  not arisen  in  this country when we consider that till  a  very late  period  and  even now for some  purposes  a  different succession prevails in the Province of York.  The custom  is very  analogous  to the law of Scotland.  Till a  very  late period   the  inhabitants  of  York  were  restrained   from disposing of their property by testament................ And the question then would have been (1)  [1801] 31 E.R. 839. 1225 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 there  intestate,  the disposition of  his  personal  estate should be according to the custom or the general law". The principle that was laid down was that "succession to the personal  estate of an intestate is to be regulated  by  the law  of the country, in which be was a domiciled  inhabitant at  the time of his death; without any regard whatsoever  to the place either of the birth or the death or the  situation of  the property at that time".  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 within one political unit, as many domiciles as there are systems of law, and that there can be a Scotch domicile,  an English  domicile  and  even a York  domicile  within  Great Britain. 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 therefore  quite  conceivable that  until the Centre intervenes and enacts a uniform  code 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 there cannot be a  domicile of Madhya Bharat under the Constitution. It was also urged on behalf of 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 following passage  in  Wharton’s  Law Lexicon,  14th  Edition, page 344 was quoted  as  supporting such a construction: "By  the  term ’domicile’, in its ordinary  acceptation,  is meant  the place where a person lives or has his  home.   In this  sense  the  place  where  a  person  has  his   actual residence,  inhabitancy, or commoraney, is sometimes  called his domicile", 1226 In Mcmullen v. Wadsworth(1), it was observed by the Judicial Committee  that  "the word ‘domicil’ in article 63  (of  the Civil  Code  of  Lower  Canada) was used  in  the  sense  of 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  therefrom  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) refer to domicile, and they occur as part of the definition   of  "bonafide  resident".   In   Corpus   Juris Secundum, Volume 28, page 5, it is stated: "The  term  ‘bonafide residence’ means  the  residence  with domiciliary intent". There  is therefore considerable force in the contention  of the   respondent  that  when  the  rule-making   authorities referred  to  domicile  in clauses (a)  and  (b)  they  were thinking  really  of  residence.  In  this  view  also,  the contention that the rule is repugnant to article 15(1)  must fail. There was a good deal of argument before us on the  validity of  clause  (d)  of  the rule.   It  was  contended  by  the petitioner that clause introduced a new element  unconnected with  domicile  or residence which formed the basis  of  the previous  clause,  that it put foreign nationals on  a  more advantageous  footing  than Indian citizens,  and  that  the entire  rule  must be discarded as based on no  rational  or intelligible principle.  No doubt, clause (d) strikes a  new note.   And  it  may  be that as  a  matter  of  policy  the management  of the institution decided that it would  be  an advantage  to  associate citizens of  other  countries  with Indian  citizens in educational institutions, and  therefore reserved  a few seats for them on the  most-favoured  nation treatment basis.  The validity of this reservation, however, does not arise for decision in this petition, and as clauses (a)  to (c) rest on a classification based on  domicile  and residence, and are



(1)  [1889] 14 A.C. 631,                             1227 distinct and severable from clause (d), they would be  valid even if clause (d) were to be held bad. It  must be mentioned that the rule relating to the  payment of capitation fee discussed above was again modified by  the management as a result of the decision of the High Court  of Madhya  Bharat  in  Rustam Mody v. State:  Sumitra  Devi  v. State(1).   The rule as amended-and that is what is  now  in force-runs as follows: "Only those students, who are bona fide residents of  Madhya Bharat  and  have  been  selected  for  being  admitted   in accordance  with  the  allocation scheme and  the  rules  of admission  to  the  seats  specifically  reserved  for   the residents of Madhya Bharat are exempted from the payment  of Capitation Fees.  All other students admitted to seats other than those reserved for the residents of Madhya Bharat shall be liable to pay Capitation Fees as prescribed". Under  this  rule also, the exemption is in favour  of  bona fide  residents  of  Madhya  Bharat",  and  therefore   with reference  to  the  points  now  under  consideration,   the position under the present rule would appear to be the  same as  under the previous one.  It is unnecessary  to  consider this matter further, as learned counsel on either side  were agreed that the rights of the petitioner must be  determined in  accordance with the rule which was in force when he  was admitted. It is next contended for the petitioner that the  imposition of capitation fee on some of the students and not on  others is discriminatory, and is in contravention of Article 14  of the  Constitution,  and therefore void.  The  impugned  rule divides,  as already stated, Self-nominees into two  groups, those who are bona fide residents of Madhya Bharat and those who  are not, and while it imposes a capitation fee  on  the latter,  it exempts the former from the payment thereof.  It thus proceeds on a classification based on residence  within the  State, and the only point for decision is  whether  the ground of classification has a fair and substantial relation to the purpose of the law, or whether it is purely arbitrary and fanciful,, (1)  I.L.R. 1953 Madhya Bharat 87, 1228 The  object  of the classification underlying  the  impugned rule  was  clearly to help to some extent students  who  are residents  of  Madhya  Bharat in the  prosecution  of  their studies,  and  it  cannot be disputed that  it  is  quite  a legitimate  and laudable objective for a State to  encourage education within its borders.  Education is a State subject, and  one of the directive principles declared in Part IV  of the  Constitution  is that the State should  make  effective provisions  for education within the limits of its  economy. (Vide  article  41).  The State has to  contribute  for  the upkeep and the running of its educational institutions.   We are  in this petition concerned with a Medical College,  and it  is well-known that it requires considerable  finance  to maintain  such  an institution.  If the State has  to  spend money on it, is it unreasonable that it should so order  the educational  system that the advantage of it would  to  some extent  at  least  inure for the benefit of  the  State?   A concession given to the residents of the State in the matter of  fees  is  obviously calculated to  serve  that  end,  as presumably  some  of them might, after passing  out  of  the College,  settle down as doctors and serve the needs of  the locality.   The  classification is thus based  on  a  ground which has a reasonable relation to the subject-matter of the



legislation,  and is in consequence not open to attack.   It has  been  held in The State of Punjab v.  Ajaib  Singh  and another(1) that a classification might validly be made on  a geographical   basis.   Such  a  classification   would   be eminently just and reasonable, where it relates to education which   is  the  concern  primarily  of  the   State.    The contention, therefore, that the rule imposing capitation fee is in contravention of article 14 must be rejected. We have proceeded so far on the assumption that the impugned rule  is  a "law" as defined in article 13.  If  it  is  not that,  article 14 would have no application.  It was  indeed contended  by the learned Attorney General on behalf of  the respondent   that   the   rule  in  question   is   a   mere administrative   or  executive  order,  and   that   however liberally the word "law" might be (1)  [1953] S.C.R. 254. 1229 construed, it should be limited to what is an expression  of the  legislative  power  and cannot comprehend  what  is  an executive order.  In support of this contention he relied on the  decision  in Om Prakash v. The State(1).  In  the  view which  we have taken that even on the footing that it  is  a law, the rule does not offend article 14, we do not consider it necessary to express any opinion on this question. One  other contention put forward by the respondent  remains to  be  noticed.  It was urged that as the  institution  was originally  under private management and the State  took  it over  subject to the conditions under which it was  run,  it was  bound  to enforce the rule relating to the  payment  of capitation  fee which was previously in operation.  But  the terms under which the State took over expressly reserve only the  agreement  for  reserving seats  for  the  nominees  of participating  States  and donors, and do  not  contain  any undertaking  to maintain the rule relating to imposition  of capitation  fee.   Whether if such an undertaking  had  been given  it could have been set up in answer to a  fundamental right, does not therefore arise for decision. In  the result, the petition fails and is dismissed; but  in the circumstances there will be no order as to costs. JAGANNADHADAS J.-I regret that I feel obliged to differ. The question that arises is whether the petitioner who is  a resident  of Delhi and has been admitted in July,  1952,  by the  State  of  Madhya Bharat as a student  in  the  Mahatma Gandhi  Memorial Medical College at Indore and who has  been called  upon  to  pay  a  sum of  Rs.  1,500  per  annum  as capitation  fee, in addition to the tuition fees  and  other charges  payable  by  all the students  of  the  college  in general,  is entitled to a writ restraining the  authorities concerned  from  levying that capitation fee on  the  ground that the rule under which be is asked to pay is repugnant to the Constitution.  The history of the (1)  A.I.R. 1953 Punjab 93. 1230 institution and the relevant rules have been set out in  the judgment   of  the  majority  just  delivered  and   it   is unnecessary  to repeat them.  It is desirable,  however,  to mention, at the outset two matters.  The exact authority for these  rules, that is to say, the question whether they  are rules  made under a rule-making power having  a  legislative basis, or whether they are merely executive orders, which it is  open to the State Government to change as  they  please, has  not  been  clearly  elucidated.   Though  the   learned Attorney General suggested, in -the course of his arguments, that  these  were merely executive orders and that  as  such they  did  not come within the scope of article  14  of  the



Constitution, the material placed before us throws no  light thereon.  Nor has the question as to whether these executive orders  which  are issued by the State and  are  general  in their  application within the ambit of their subject  matter constitute  laws  falling with in the scope of  article  14, been  sufficiently canvassed before us.  The discussion  has proceeded on the assumption that the validity of these rules may  be  judged with reference both to the  article  14  and article 15, no other article obviously having any direct bearing. Now,  as has been pointed out in the majority judgment,  the relevant  original  rule by the date when  the  College  was taken  over  by the State from private management  was  that "Madhya Bharat students are exempted from capitation  fees". On  the  State  taking  over  the  College,  this  rule  was substituted by the following, new rule: "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". "Bona fide resident" for the purposes of the above rule  was defined as "(a)  a  citizen  of India, whose original  domicile  is  in Madhya  Bharat,  provided  he has not  acquired  a  domicile elsewhere, or (b)  a  citizen of India, whose original domicile  is 1231 not  in  Madhya Bharat but who has acquired  a  domicile  in Madhya  Bharat  and has resided there for not  less  than  5 years, at the date on which he applies for admission, or (c)  a person who migrated from Pakistan before A. September 30, 1948 and intends to reside in Madhya Bharat permanently, or (d)  a person or class of persons or citizens of an area  or territory  adjacent to Madhya Bharat or to India in  respect of whom or which a Declaration of Eligibility has been  made by the Madhya Bharat Government". This,  it is said, was the rule in force when the  applicant was  admitted into the College.  This rule is again said  to have been modified recently and the same is as follows: "Only those students, who are bona fide residents of  Madhya Bharat  and  have  been  selected  for  being  admitted   in accordance  with  the  allocation scheme and  the  rules  of admission  to  the  seats  specifically  reserved  for   the residents of Madhya Bharat are exempted from the payment  of capitation fees.  All other students admitted to seats other than those reserved for the residents of Madhya Bharat shall be liable to pay capitation fees as prescribed". In  the affidavit filed in this Court by Shri H.  L.  Gupta, Assistant  Secretary to the Government of Madhya Bharat,  it is  stated that this was meant to be only a  restatement  by the  Government of their real intention in order to  clarify what  the  prior  rule  was  meant  to  convey.   Now,  with reference  to  these rules, it is necessary  to  notice  the suggestion made in the course of the argument that the rules by  the  use  of the word  "exemption"  indicate  that  some students get the benefit of not paying what would  otherwise have been payable and that therefore others cannot  complain of  any hostile action constituting discrimination.   But  a copy  of  the rules for admission to  the  regular  M.B.B.S. courses   (copied  from  Mahatma  Gandhi  Memorial   Medical College,  Indore, Calendar of 1954) with which we have  been furnished as one of the 1232



enclosures to the affidavit of the petitioner, and which  is at  pages 34 to 38 of the paper-book, on a perusal  thereof, clearly  shows  at  page 37 that the capitation  fee  is  in addition to the normal fees and that this is payable only in respect of some students, while all the students in  general pay certain prescribed fees.  But whether the rule is in the nature of an exemption for some students or is by way of  an addition  for  the others, there is  clearly  discrimination between the two groups which affects the one adversely.  The very use of the phrase "capitation fees" for this additional amount levied from some, is indicative of its discriminatory character.   The only question accordingly is  whether  this discrimination  falls within the mischief of either  article 14 or article 15.  It is desirable for this purpose to  have a  clear understanding of what exactly the relevant rule  at the date of the admission of the applicant into the  College signifies. It has been stated that this rule has to be understood  with reference to the allocation scheme for admission of students which  is said to be as follows in the affidavit of Shri  H. L.  Gupta, Assistant Secretary to the Government  of  Madhya Bharat. "The  basis of allocation of seats at the time of  admission each  year is that out of the total number of candidates  to be newly admitted a certain number of seats is reserved  for ’nominees’  of such States as also of such individuals  with whom  there  is a contract of reservation of  seats,  and  a certain number of seats is reserved for Madhya Bharat.   The rest go to what are called ’self-nominees’.  All  candidates (except Central Government nominees) are, however,  admitted by  a competitive examination and are selected in  order  of merit for each category". It  has been stated by the applicant in his reply  affidavit that, while the competitive examination is the same for all, it  is  only the marks of the candidates  in  each  separate group  that are taken into consideration inter se.   However this may be, there appear to be, as stated by the  Assistant Secretary  to  the  Madhya Bharat  Government,  three  broad categories: (1) A 1233 certain number of seats reserved for "bona fide students  of Madhya  Bharat". (2) A certain number of seats reserved  for some  specified  States  and the  original  donors,  who  in respect  of  their  nominees have to  pay  capitation  fees, somewhat lower in amount, and (3)  The rest of the  students who  have  to pay the higher capitation  fees.   The  second category  above mentioned may be left out  of  consideration for  the  present case, since that depends on  certain  pre- existing  contractual obligations and  different  considera- tions  may  arise and the present petitioner does  not  fall within  this  category.  The question of  discrimination  in this case arises really with reference to categories I and 3 above  and  turns  upon  the exact  meaning  of  the  phrase "bonafide,  residents"  as  defined in the  rules.  If  this definition was meant to convey fairly andsubstantially,  the qualification  of  residence in Madhya  Bharat  and  nothing else,  it  may be, that this is not hit. by article  15  and that  it  may also be a reasonable  classification,  on  the facts and circumstances of a particular State, for  purposes -of  article 14. The learned Attorney-General himself  based his arguments, at one stage, on this view of the  definition of "bona fide resident" in the rules.  But the difficulty is that the learned Attorney-General has not committed himself, on behalf of the State, as to this being the only reasonable meaning  of  the  definition.   He  put  it  as  a  kind  of



alternative.   The Assistant Secretary to the Madhya  Bharat Government,  Shri H. L. Gupta, in his affidavit clearly  and categorically  says  that the charging  of  capitation  fee, truly  speaking,  is  not on the basis  of  residence.   The restatement  of  the  rule by the  Government  is  not  also definite  or  clear about it inasmuch as it uses  again  the phrase  "bona fide residents of Madhya Bharat".   Bona  fide residents of Madhya Bharat, as defined, is clearly something quite different from the class which can be designated ordi- narily as "residents of Madhya Bharat".  Now out of the four categories  comprised in the definition, obviously  (c)  and (d) have absolutely nothing to do with actual residence.  It is  also difficult to discover any principle with  reference to which discrimination can be justified in favour of (1)  a Pakistani migrant 1234 with the mere intention to make Madhya Bharat his  permanent residence,  and (2) a person, belonging to  the   contiguous areas  of  Madhya Bharat, or the contiguous areas  of  India (and  excluding  citizens of India from  the  non-contiguous areas  of  Madhya  Bharat, like the  applicant).   The  main categories, however, are those which fall within (a) and (b) of the definition.  But it is difficult to say even of these categories  that  they  are based merely  on  residence,  as such., of the person concerned.  Category (b) has  reference to  "Domicile  in Madhya Bharat" plus  residence  in  Madhya Bharat  for  the  preceding five years.   Category  (a)  has reference  only to "original domicile in Madhya Bharat"  and by  contrast  with  category (b)  which  requires  precedent residence,  is  clearly  intended  not  to  insist  on   any precedent residence.  Even if it be assumed that  "domicile" means "permanent home" as stated by Lord Cranston in Whicker v.  Hume(1)  this has no necessary reference to  the  appli- cant’s  actual  residence  at  the  relevant  time.   It  is difficult  to  see why the fact of  the  applicant’s  father having  had his permanent home in Madhya Bharat at the  time of applicant’s birth should be a ground of preference or why a  person who has made Madhya Bharat his permanent home  but left  it  for  a  time  and  returned  only,  say,  an  year previously  should  be denied it.  Thus  the  definition  of "bona  fide resident" taken as a whole or even confining  it to  categories (a), (b) and (c) cannot be said to  be  based merely   on  residence  in  Madhya  Bharat.   Nor  can   any intelligible  basis  of grouping be  gathered  therefrom  by imputing  to the word "domicile" the meaning "residence"  or (.permanent  home".   It is interesting to notice,  in  this connection,  that  category (b) in requiring  Madhya  Bharat domicile  and  precedent residence for  five  years  follows closely the pattern of Indian citizenship based on  category (c)  of  article  5 of the Constitution  with  "domicile  of Madhya Bharat" substituted for "domicile of India" and  this raises  the  question of the concept  of  regional  domicile (tending to the growth of the idea of regional  citizenship) which will be discussed presently. (1)  [1859] 28 L.J. Ch. 396, 398.                             1235 Now  confining our attention to the category (a)  which  has given rise to the main controversy in this case, it  appears to  me  quite clear that the phrase ’.original  domicile  in Madhya  Bharat"  used therein could not have been  meant  to indicate  either the residence or the permanent home of  the applicant  in  Madhya  Bharat.  What  then  is  the  meaning intended to be conveyed thereby.  Is the word "domicile"  in this  phrase to be understood in the legalistic sense or  as the  likely  framer of the relvant rule-possibly a  lay  man



like  the Director of Public Instruction of the  State-would have  understood  it  to mean.  It  is  necessary  for  this purpose  to have a clear idea of the concept  of  "domicile" and  its applicability in relation to any particular  region within  a  country like India.  Now the jurists  concept  of domicile  is  one  which  can  be  best  gathered  from  the following  passage in the classic judgment of Lord  Westbury in Udny v. Udny(1). "The law of England, and of almost all civilized  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 country, binding him by  the tie  of  natural  allegiance and which  may  be  called  his political status; another by virtue of which he has ascribed to  him  the  character  of a  citizen  of  some  particular country,  and  as  such is possessed  of  certain  municipal rights,  and  subject to certain obligations,  which  latter character   is  the  civil  status  or  condition   of   the individual,  and may be quite different from  his  political status.   The political status may depend on different  laws in different countries; whereas the civil status is governed universally  by  one  single  principle,  namely,  that   of domicil,  which is the criterion established by law for  the purpose  of  determining civil status.  For it  is  on  this basis that the personal rights of the party, that is to say, the  law  which  determines his majority  or  minority,  his marriage, succession, testacy, or intestacy, must depend". Thus  domicile is that attribute of a person’s status  which according to International Law determines (1)  [1869] L.R 1 Sc. & Div. 441, 457, 1236 the  personal laws by which he is governed and on which  his personal  laws  depend.  The question for  consideration  is whether  this  concept  of domicile can apply  to  the  word "domicile" in the phrase "domicile in Madhya Bharat".  Dicey in his Conflict of Laws (6th Edn.), at pages 43 and 78  says as follows: "A person’s domicile (meaning thereby the place of domicile) is  the  country  which  is considered  by  law  to  be  his permanent home" and at page 82 he says "the  area contemplated relating to domicile is a  ‘country’ or ’territory subject to one system of law’ Farnsworth  in  his  book on the Residence  and  Domicil  of Corporations (1939 Edition) says as follows at page 1: "In any consideration of domicile the area contemplated  has always been taken to be a ’country’ or Ca territory  subject to one system of law"’. It  is no doubt true that there are countries  which  though politically  one  unit  have  different  personal  laws,  in different areas thereof.  In such a case the sub-unit  which is  governed by one system of law is the area  of  domicile. Thus  for  instance, as has been pointed out,  though  Great Britain  is one single political unit, the personal laws  in Scotland  are  different and therefore  Scotch  domicile  is recognised.   But  this is a matter  of  historical  growth. Now,  so  far as India is concerned it appears  to  me  that there  has so far been no such concept of domicile  of  sub- units  known or recognised by law, for the only purpose  for which  it is normally relevant and which attracts  it,  viz. personal  laws of the citizens of India.  The personal  laws in  India,  as  is well known, depend  mostly  on  religious affiliations.   This  has been so from pre  British  period. The  earliest British regulations have recognised  this  and the  same has been continued by a specific  provision  being incorporated  in the Civil Courts Act or analogous  Acts  of



the  various  Provinces  or States to the  effect  that  the Courts  are  to  decide  matters  relating  to  Hindus   and Muhammadans,  etc.  with reference to their  personal  laws, These Acts 1237 have  invariably  a provision by way of a direction  to  the Courts concerned, more or less in the following terms: "To  decide any question regarding succession,  inheritance, marriage, or caste, or any religious usage or institution or the  like by the Muhammadan law in cases where  the  parties are Muhammadans and by Hindu law in cases where the  parties are Hindus". In respect of some of these matters as well as in respect of other  matters  which properly fall within the  category  of personal  laws  such as for instance  minority,  succession, etc., there have been legislative modifications.  But it  is noteworthy  that those modifications are almost entirely  of an  all-India character and not on anv regional basis  (viz. Indian Majority Act, Indian Succession Act).  So far as I am aware there are only a few instances of Provincial or  State legislation  on  any matters relating to personal  laws  and that too, to an extremely small and limited extent.  Thus it will  be  seen that the Province or the State  of  India  to which a Hindu or Muslim belongs has no relevance or relation to his personal laws.  Indeed, the contrary is emphasised by the  fact that, a Hindu at any rate, carries with. him  even his  own  school  of Hindu law in spite of  migration  to  a different Province or State.  Now, so far as Indian citizens who  are neither Hindus nor Muslims are concerned, such  as, Indian  Christians  or Anglo-Indians, they are  governed  by personal  laws  which are all-India %in  character  and  not regional, as for instance the Indian Succession Act. (It may be  mentioned  that even in Europe until  the  middle  ages, personal  laws  depended on race and not on  domicile.   See Philippine on International Law, page 36).  In this state of the  factual situation as regards the personal laws  of  the various  categories of persons who comprise the bulk of  the population of India, it appears to me to be clear that there has  been  in India up to the present moment  no  scope  for growth  of  any concept of State or Provincial  domicile  as distinct  from Indian domicile.  There is thus no place  for regional domicile, in the existing Indian law.  Nor is there any reason 1238 to  think  that such a situation will arise  in  the  future under the present Constitution.  For this purpose, it may be noticed  that the exclusive legislative power of  the  State does  not  extend to personal laws.  Personal laws  are  the subject  matter of item No. 5 of the Concurrent  Legislative List.  It is relevant in this connection also to notice that article 44 of the Constitution enjoins that "the State shall endeavour  to secure for the citizens a uniform  civil  code throughout  the  territory  of  India".   It  is   extremely unlikely  therefore  that regional personal  laws  will  be, allowed to become operative in any substantial measure.   It may be also mentioned that there is single citizenship under the   Constitution   for  the  whole  of  India   and   that "citizenship and naturalisation" have been listed within the exclusive  competence of the Union Legislature.   Of  course citizenship is different from domicile.  But I mention  this here only to emphasize the view, that consistently with  the Constitution,  the concept of regional domicile  which  does not  exist at the present day and which if recognised  would tend to the growth of claims of regional citizenship (as for instance in the United States of America) would be  entirely



foreign  to the intendment of the Constitution.  It is  with reference  to  the  above  considerations  that  the  phrase "domicile  in Madhya Bharat" in the relevant  rule  defining the  phrase "bona fide resident of Madhya Bharat" has to  be considered and understood.  Since the concept of domicile in Madhya  Bharat,  is,  in my view, unknown  to  the  existing Indian  law, I do not think it permissible to  construe  the phrase "domicile in Madhya Bharat" used in the relevant rule as  having anything to do with the regional domicile of  the kind known to the English system of law.  The recognition of such  a concept of regional domicile in English or  American law does not necessitate that we should import the same idea into   our  country  contrary  to  the  intendment  of   the Constitution.   We have got to consider the meaning  of  the phrase  "original  domicile in Madhya Bharat"  used  in  the relevant rule with reference to the existing state of law in India, which, I conceive, does not recognise such a regional domicile. 1239 I  have  already  given my reasons  for  thinking  that  the meaning of "residence" or "permanent home" of the  applicant cannot  be read into the phrase "domicile in Madhya  Bharat" used  in clause (a).  In the circumstances it appears to  me to be reasonably clear that the phrase "original domicile in Madhya  Bharat" is meant to convey the "place of  birth  (of the applicant) in Madhya Bharat".  It is perfectly true that "domicile of origin" and "place of birth" are two  different matters.   But that is so only where the use of  the  phrase "domicile of origin" conveys a definite legal meaning.   But where,  as  in  the present case, the  phrase  "domicile  of origin in Madhya Bharat" conveys no legal meaning, as I have pointed out above, and if any meaning has to be attached  to it,  then  it  could only have reference to  the  "place  of birth".  This would accord with what was likely to have been contemplated by the framer of the rule.  Normally a person’s domicile of origin is the place of his birth except in a few and  exceptional  cases.   In  this  context  the  following passage from Corpus Juris Secundum, Vol. 28 at page 1095 may be noticed: "A person’s domicil of origin is the domicile of his  birth. It is generally but not necessarily the place of birth". In this connection it is to be remembered that the  relevant rule is a substitute for the pre-existing rule which was  as follows: "Madhya Bharat students are exempted from capitation fees". The phrase "Madhya Bharat students" has no reference  either to residence or domicile, and there can be no doubt that  it normally connoted students who were born in Madhya Bharat. In  my  opinion  when the State authorities  took  over  the management of the institution from private hands and made  a change  in  the rule by coining a hybrid definition  of  the phrase  "bona fide residents of Madhya Bharat"  placing  the category  of citizens whose original domicile is  in  Madhya Bharat  in  the  forefront of  that  definition,  they  only attempted to camouflage the 1240 implication  thereof so as to accord with  the  pre-existing rule,   viz.  that  the  benefits  of  the  exemption   from capitation fees should be available only to persons born  in Madhya  Bharat and the burden of the capitation fees  should be borne by persons not born in Madhya Bharat.  In the  view I take of the real meaning and effect of the rule, which  is under   discussion,   neither  an  attempt   at   subsequent clarification  nor the actual manner in which it is said  to be administered or intended to be administered, as stated by



the  Assistant Secretary to the Madhya  Bharat  Government,, Shri  H.  L. Gupta, in his affidavit, even  if  accepted  as correct,  can have any bearing.  The fact that some  of  the admitted  students of the Medical College who are  residents of  Madhya  Bharat  may not be entitled  to  exemption  from capitation   fee  under  the  rule  as  now  sought  to   be interpreted  is  not relevant so long as a  student  in  the position  of  the applicant cannot have the benefit  of  the exemption, even if he got the highest marks in the  competi- tion.   In  my  view, therefore, the rule  in  question  has reference  to  place of birth in  Madhya  Bharat  primarily, though a number of other miscellaneous categories might also come  in  under other and different heads.  Hence  the  rule offends  article 15 of the Constitution.  Even in  the  view that  the  rule  has reference to the  juristic  concept  of regional  domicil and for that reason does not  fall  within the  scope of the inhibition of article 15, 1 am  unable  to see how, with reference to article 14, the distinction based on  such domicile can be considered reasonable.  No  sugges- tion  has been put forward how "original domicile in  Madhya Bharat"  is a reasonable ground for classification.   In  my opinion, therefore, the primary content of the rule relating to  capitation fees which is contained in clause (a) of  the definition  of  "bona fide resident of Madhya  Bharat"  does operate  to  the disadvantage of the petitioner  by  way  of unconstitutional discrimination.  Hence the State Government cannot   validly  seek  to  levy  capitation  fees  on   the petitioner with reference to that rule. I would, therefore, allow this application. 1241 I  think  it  right  to add that  the  question  as  to  the existence  or  admissibility  of  the  concept  of  regional domicile as distinguished from Indian domicile and as to the bearing  of this on the meaning of the concerned. rule  were not  canvassed or suggested at the hearing A before  us  and that the Court has not bad the benefit of arguments on these and the connected matters. if, therefore, I have ventured to differ,  notwithstanding  my respect for the  views  of  the majority and notwithstanding the absence of assistance  from the  Bar, it is out of the conviction that the  recognition, express  or implied, of regional domicile by a  decision  of this  Court  would  be contrary to  the  intendment  of  the Constitution. By  COURT.-In accordance with the opinion of  the  majority, the Petition is dismissed without costs.              Petition dismissed.