D. P. JOSHI v. The State ef

VENKATARAMA AYYAR J.-This is a petition under is at Indore ,a the Mahatma .. Gandhi Medical College known as 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' this institution discriminate in the . matter of fees bet students wh<;> are residents of Madhya :Sharat A and. those w,ho are not, and that the latter have to pay in addition. to 'the tuition fees <J.ild charges payable by all the studepts a sum of Rs. 1,5QO per annum as that this 'is in contravehti9n. of capitation articles 14 anq . 15(1) of the Constitution. ·The peti appropriate . writ tioner accordingly prays ' that respondent i~&ued prohibiting might .. pe (from the , .'current year, and directing a. refund of Rs. 3,000 colle~ted, Jrom · him as capitation fee for the first two years. ~ / collecting from . him capitation. fee . for fee, and iI1 ·force The re~pcmdent contests . the petition. : In' the affi davit filed on its behalf, it · is stated that the· in~titu­ tion in question ' had its origin in, private enterprise, and· was · µnd, er . the. management of a Committee; that it .was the, Committee that had made the ruJe. 'inipos ing cap~tation fee on students who did not belong to the College ·of. subject to the .. conditions seats under .which it was 'being run, and ·that the re quireme,~i: of a capitation, fee from n.ori-residdni:s did not offend either article 14 or ari:icle 15 ( 1) of the Con- stitution. relating to reservation ~ Madhya Bhar~t, that the , State took <>Ver ... ,' -'4 tions Off·either side. The beginnings of A brief narration of the history of the. institution will be useful .for· a correct appreciation of the conten institution · Beaumont go back· to the· year started a Medical School at Indore under the •name of a Dr. 1878, when - 1955 D. P.Joshi v. The State of Madhya Bharat and another V enkatarama Ayyar J. 1218 SUPREME COURT REPORTS [1955] It largely recruited In 1910 the name of the school was changed · it is claimed on its behalf Indore Medical School, as an adjunct . to a hospital called Indore Charity Dispensary. received considerable financial assistance rulers of Gwalior and other Indian States, and. became well established; and that the medical practitioners of Central India, Rajasthan and neighbouring States were alumni. 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 Medi cal College. request the Madhya Bharat Government to take. over the running of the institution, subject to the arrange institution and cer ments entered into between the tain States and donors for seat5 their nominees. The proposal was accepted by respondent, and by resolution dated 17-3-1951 it took over the administration of the College. In 1950 the College Council resolved reservation of ...... __ -~ 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 the institution on a pro mise that those who contributed Rs. 7,000 would be entitled to nominate one student each for admission in.to the . COilege, and that those students called nomi nees should pay, fees and charges, a capitation fee of Rs. 1,300 per annum. Ex cluding the seats which have to be reserved for the nominees, the remaining seats were thrown open to all .eligible applicants who came to be called self nominees, and the requisite number was selected 'from among them on the basis of merit. Then came the rl rule which is at the root of the present controversy. It "Madhya Bharat in addition the usual provided students .. .. .. S.C.R. SUPREME COURT REPORTS 1219 exempted from capitation fees". (Vide 1952 Calendar, page 5 and Exhibit G). After the State took over it introduced certain modifications the management, in the rules, and it is with the petitioner having 'present petition been admitted under them. In place of the rule that "Madhya Bharat students are exempted from capita runs as tion fees" a new rule was substituted, which follows: these new rules that IS concerned, ~·1955 ,.,~- D. P. Joshi v The State of Madhya Bharat and another Venkatarama AyyarJ. "For all students who are 'bona fide residents' of Madhya Bharat no capitation fee should be charged . the capi But for other non-Madhya Bharat students tation fee should be retained as at present at Rs. 1,300 for nominees and at Rs. 1,500 [Vide Exhibit 6/1 quoted in Rustam Mody v. State : Sumitra Devi v. State(1)J. 'Bona fide resident' for the purpose of defined as: this rule was for others". ., "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 domi cile 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 in Madhya September 30, 1948 and intends to reside Bharat permanently, or to Madhya Bharat or ( d) a person or class of persons or citizens of an area or territory adjacent India in respect of whom or which a Declaration of Eligibility has been made by the Madhya Bharat Gov ernment". 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 what ever ,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)T.L.R. 1953 Madhya Bharat 87, 99 ( 1955' D. P.Joshi v. The State of Madhya Bharat and another Venkatarama ' Ayyar J. ...,,._ .... .. 1220 SUPREME COURT REPORTS (1955] pet:ltioner is that · this nile is in contravention of .arti cles 14 and 15(1);. and must therefore be struck down as' unconstitutional and void. Article 15(1) enacts : students therefrom "The State the State of Madhya . Bharatc 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 Madhya )3harat, makes a discrimination based on the place of birth, and that it offends artide 15 ( 1). What ever . force there might have been · in this contention \f the question had arisen . with reference co' the . rule as it stood when the State took over , the administra tion, the rule was modified in 1952, and 'that, is , what we are' concerned with in this petition.· The •rule 'aS modified infringing is clearly not open to attaclc as article 15 ( 1). The ground for exemption from pay ment . of capitation fee as . laid down therein. is bona fide residence , Resi dence 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, . ii cannot be 'read as pri:ihibiting discrimination based on residence. , This · is nor · seri ously disputed .. The argument that is pressed' ·on us is that though the tule, purports ·w grant , exemption based 'on residenc·e within the State, , the definition of bona fide residence under the rule shows that' the ex emption' is te.ally based on the place of birth. , Con ,,iaerable emphasis' was laid on clauses (a) and '(b) of the . rule wherein . 'residence' . is ' defined .. in terms' 0£ domicile;. ~rid ' . it was arglled . 'that the otig'inal .. domi cile, as termed in the rules, could in substance mean only · {!lace of· birth, ·and' that' therefore the :ex emption based on domicil_e was, 'in effect, an_ exemp· tion based on place of birth under an alias. 'That, is· riot the true legal positio11'.: Domicile of however, a person , means his permanent · home; "D~tnicile meant · permanent home, ·and , if that was· not· under stood by itself no illustration could help to make· it it is - - S.C.R. SUPREME COURT REPORTS 1221 intelligible" observed Lord Cran worth 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 learn ed 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 : 1955 D. P. Joshi v. The State.of Madhya Bharat , ar.d arwther Venkatarama . AyyarJ. I find no authority which gives for "I speak of the domicile of odgin rather than of the pur birth. pose of succession any effect to the place of birth. If the sori of an Englishman is born upon a' journey, his domicile will follow that of his father". · to be noted Mr. N .. C. Ch~tt~rjee argued 'that do~icile of origin was often caUed domicile of . birth, arid · invited . our to certain observations of Lofd, Macnaghten attentio11 in Winans. v .. Attorney-General(3). But then, the noble Lord went onto add that. the. use of the words "domi cile of birth" was perhaps not accurate. But. that apart, what has that whether the ex is "domicile of origin" or' "domicile of pre~sion tised birth"' tjie conc~pt . involved in it . is something diff erent from what· the words "place· of birth" singnify. And if "domieile 'of birth" and "'place of· birth" can the prohibition mi;t be enacted in article 15(1) against discrimination based to a · discrimination on place of birth -cannot appiy based on domicile. · · . the . Constitution . there cail_ be only a single citizenship f<?r 'th2' whole of India, an(l. that it would run counter to that notion to . hold that the State could make laws bas~d on domicile their territory. But citizenship and domicile within two . ·different . conceptions. Citizenship has r;".present status . 9£ 'a person, and to . the political reference taken as synonymous,·· then It was argued that under " {I) [1859] 28 L.J. Ch. 396, 400. (2) [1801] 5 Ves. 750 at 786, 787, 31 E.R. 839, 858. . - (3) 1904 AC. 287, 290. 1955 D. P~ Joshi Vo The State of Madhya Bharal and another Venkatarama AyyarJ. 1222 SUPREME COURT REPORTS [1955) rights. A classic statem';'.nt of domicile to his civil the law on this subject is that of Lord Westbury m Udny v. Udny( '). He observes: "The law of England, and of almost all civilised · countries, ascribes to each individual at his birth distinct legal statuses or conditions : one by virtue of which he becomes the subject of some particular coun try binding him by the tie of national 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 certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political statuts. The political status may depend on different laws in different countries; whereas is governed universally by one single principle, namely, that of domicil, which is the criterion established by the purpose of determining civil status. For it is on this basis to say, the personal rights of the party, that is law which determines his majority or minority, his marnage, intestacy, must testacy depend". Dealing with this question Dicey says at page 94 : the civil status succession, law for ... "It was, for example, indeed, at one time hdd by a confusion of the ideas of domicile and nationality that a man could not change his domicile, England to California, wit.hout 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. England, Vol. VI the law is thus stated at page 198, para 242: Attorney-General(• ). In Halsbury's Laws in which "English law determines all questions it admits the operation of a personal law by the test of domicil. For this purpose it regards the organisa- 0) [1869) L.R. I Sc. & Div. 441, 457. (2) 1904 A.C. 287, 299. S.C.R. SUPREME COURT REPORTS 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 organisation in political societies or States, each of which may either be co-extensive with a single legal system or may unite several systems under own sovereignty". 1955 D· P-Joshi v. The Siate of Madhya Bharat and another Venkatarama AY.)'ar J· Under the Constitution, article 5, which defines c1tl zenship, itself proceeds on the basis that it is different that article, domicile from domicile, because under is not by itself sufficient to confer on a person status of a citizen of this country. - therein, whether A more serious question is that as the l:i.w knows only of domicile of a country as a whole and not of there . can be any particular place such a thing as Madhya Bharat domicile apart from Indian domicile. To answer this question we must examine what the word "domicile" 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 1s gov erned by the law of that country. Domicile has ref erence to the system of law by which a person is gov erned, and when we speak of the domicile of a country, that the same system of law prevails all we assume over that country. But it might well happen that laws relating to succession and marriage might not be same all over the country, and that different areas in the State might have different laws in respect of those In that case, each area having a distinct set matters. of laws would itself be regarded as a country for thus stated by purpose of domicile. The position Dicey at page 83 : · "The throughout contemplated is a the Rules relating to domicile 'country' or 'territory subject to one system of law'. The reason for this is that the object of this treaties, in so far as it is concerned with domicile,. is rights are to show how far a person's affected by his having his legal home or domicile with law, in a than within i.e. within a given country, territory governed by one system of rather 1224 SUPREME COURT REPORTS [1955] 1955 1). p. Joshi v. "The State of Madhya Bharat and another •Venkatarama .Ayyar J· If, indeed, it happened that one part of a another. country, governed generally . by one 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. Californi~ this case, such part would be pro tanto a separate country, in the sense in which that term is employed in these Rules". the United States; but in system of .. - The following · statement in f!:alsbury's ·of Laws of Eagland, Volume Vl, page 246,. para 249 may also be quotecl : the. "iaw · . . . . . . . . . . where that · State comprises more than · one system of law, a domicil is acquired" in that ··part of thi: State 'Yhere the individual:resides".' those . who An instructive d.~ci; iop bearing "on' thiS 'point . is Somervilk v, Som.erVille( '). There,' .the dispute related to the .i)ersonal . estate of Lord Somerville, who . 'had died intestate in · Lond9n, his domicile ·of origin ·being 'were Scotch. The. contest was between entitled to. inherit . if ' his domicile was Scotch;" and thos~ who were entitled to !nb, erlt 'if ,hi.s ddmi~i1e was English. It was urged . in support ·of . the claim of the latter that by reason · of the death of Lord Soi:netville at L~ndon,' suc~ession was gove~ned by ' English. dbrrii cile. learned' ' Master of t:he R.ou; ·re£etr~<l to the fact thar tlie law cif'succes siort in. the .. Pro'virice of. York was dlfferent from· that prevailirig _iii. othe~ p~ts' of Enghnd, , and was 'akip io the question whethe'r · if a Scotch . law', and posed Yorkshire ·man dlei:I 'succession intestate the. Law to his per~'onal estate would: be. govep;1ed of the Province' of ·York. or of England:'.' He observes: In ·discussing ·this question· tlfr in. Loridbil, ,by "lt is surprising that questions of this so;t_. ha~e not arisen· in this country when we · consider that till a very fate ' period and even now for some ptiropses a different succession prevails in the' Province of York. The custom' i's very analogous to the" law of Scotland. Till a ' very late period the inhabitants . of York were restrained from ·disposing of their· 'property 'by · · testa• ment ........ ·, ... And the question ·then would have been - ·(1) 11ao1rsn:.R. as9. · 1955 D. P. Joshi v. The State of Prfadhya Bharat 'utd another Venkatara1na Ayyar J. S.C.R. SUPREME COURT REPORTS 1225 whether during the time the custom and the restraint of disposing by testament were in full force, a gentle man 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 "succes sion to the personal estate of an intestate is to be regulated by the law of the country, in which he was a domiciled inhabitant atthe time of his death; with out 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 recognises 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 accepta tion, 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 commorancy, is some times called his domicile", 1955 · D. P.Joshi v. The State of Madhya Bharat arrd another Venkatara111a Ayyar J. 1226 SUPREME COURT REPORTS [1955] 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 pay ment 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 "bona fide resident". In Corpus Juris Secundum, Volume 28, page 5, it is stated: "The term 'bona fide residence' means the resi dence with domiciliary intent". There is therefore considerable force in the conten tion of the respondent that when the rule-making authorities referred to domicile in clauses (a) and (b) In this view they were thinking really of residence. 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 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 niust be discarded as based on no rational or intelligible princi ple. 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 advan tage to associate citizens of other countries with Indian citizens in educational institutions, and there fore reserved a few seats for them on the most-fa voured 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 classi fication based on domicile and residence, and are (1) [1889] 14 A.C. 631, -· 1955 D. P. Joshi v. The State of Madhya Bharat and another Venkatara1na Ayyar J. S.C.R. SUPREME COURT REPORTS 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 deci sion of the High Court of Madhya Bharat in Rusf, am Mody v. State: Sumitra Devi v. State('). 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 the allocation scheme admitted in accordance with and the rules of admission to the seats specifically the residents of Madhya Bharat are reserved for 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 tbis rule also, tlre 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 unneces sary to consider this matter further, as learned coun sel 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 im position of capitation fee on some of the students and not on others is discriminatory, and is in contraven tion of Article 14 of the Constitution, and therefore void. The impugned rule divides, as already stated, those who are bona self-nominees into two groups, 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 there of. It thus proceeds on a classification based on resi dence within the State, and the only point for deci sion 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 67, 1955 D. P.Joshi v. Tire State of JUadhya Bharat and another Venkatara111a Ayyar J, 1228 SUPREME COURT REPORTS [1955) The object of the classification underlying the im- , pugned rule was clea.rly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be dis puted 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 Con stitution is that the State should make effective provi sions for education within the limits of its economy. (Vide article 41). The State has to contribute for the upkeep and the running ofits educational institutions. We are in this petition concerned with a Medical College, and it is well-kuown that it requires consider able 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 enure for the benefit of the State? A concession given to the residents of the State in the matter o'f 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(') that a classification might validly be made on a geographical basis. Such a classi fication 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 contraven tion 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. Ifit 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 (! i ~1953) S.C.R. 254. . ... 1955 D. P.Joshi v. The State of Madhya Bharat and another Venkataratlla Ayyar J. S.C.R. SUPREME COURT REPORTS 1229 construed, it should be limited to what is an expres sion of the legislative power and cannot comprehend what is an executive order. In support of this conten tion he relied on the decision in Om Prakash v. The State('). 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 in stitution 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 im position of capitation fee. Whether if such an under taking 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 pay able 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 he is asked to pay is repugnant to the Constitution. The history of the (1) A.LR. 1953 Punjab 93. 1955 D. P. Joshi v. The State of Madhya Bharat and another J agannadhadas J. 1230 SUPREME COURT REPORTS [1955] 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 within 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 arti cle 15, no other article obviously having any direct bearing. Now, as has been pointed out in the majority judg ment, 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 fol lowing 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 capi tation 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 4"' -· ~ . )( - 1955 D; P. Joshi v, The State of Madhya Bharat and another , Jagannadhadas J.· S.C.R. SUPREME COl]RT REPORTS 1231 not in Madhya Bharat but who has acquired a domi cile in Madhya Bharat and has resided there for not less than 5 years, at the <;late on which he applies for admission, or territory adjacent ( c) a person who migrated from Pakistan before in Madhya September 30, 1948 and intends to reside Bharat permanently, or · ( d) a person or class of persons or citizens of an area or India in respect of whom or which a Declaration of Eligibility has been made by the Madhya Bharat Gov ernment". This, it is said, was the rule in force when the appli cant was admitted into the College. This rule is again said to have been modified as follows: to Madhya Bharat or recently and the same in accordance with "Only those students, who are bona fide residents of Madhya Bharat and have been selected for . being admitted the allocation scheme and the rules of admission to the seats specifically re served for the residents of Madhya Bharat are ex- · empted from the payment of capitation fees. All other to seats other than those reserved students admitted for the residents of Madhya Bharat shall be liable to pay capitation fees as prescribed". the Government of this Court by Shri H. L. In the affidavit the Government of Gupta, Assistant Secretary that this was meant to Madhya Bharat, it is stated be only a restatement by 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 therefore others cannot have been payable and that complain of any hostile action constituting discrimi nation. But a copy of the rules for admission to the regular M.B.B.S. from Mahatma Gandhi Memorial Medical College, Indore, Calendar of 1954) with which we have been furnished as one of the (copied courses 1955 fJ. p, Joshi v . . t'he State •f MaJhy• Bharat and anothet • ]agannaJhadas J. ' . 1232 SUPREME COURT REPORTS [1955] in general pay certain prescribed enclosures to the affidavit of the . petitioner, and which is at pages 34 to 3!! 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 payable only in respect of some students, while all the students 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, 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 discri character. The only question accordingly minatory the mis is whether this discrimination chief · 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. is clearly discrimination between falls within It has been stated that this rule has to be under stood with reference admission of students which is said to be as follows in the affidavit of Shri . H. L. Gupta, Assistant Secre tary to the Government of Madhya Bharat: t!J.e allocation scheme to. "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 'nominees' of· such States as also seats is reserved for of such individuals with whom there is a contract of reservation of seats, and a certain number of seats reserved for Madhya Bharat. The rest go to what are called (except Cen tral Government nominees) are, however, admitted by a competitive examination and are selected in order of merit for each category". 'self-nominees'. All candidates It has been stated by the applicant in his reply affi davit that, while· the competitive examination same for all, it is only the marks of the candidates in each separate group that · ate taken into consideration i'ttter se. However this may be, there appear to be, as· stated :by the Assistant Secretary to . the . Madhya (1) A three broad · categories : Bharat Government, 1955 · D.lP• Joshi v. The State of Madhya Bharat · and another Jagannadhadas J. .. - } _._.111" - S.C.R. SUPREME COURT REPORTS 1233 rules. reserved it may be, the students who have for "bona fide stu certain number of seats (2) A certain number of dents of Madhya Bharat". seats reserved for some specified States and the origi nal donors, who in respect of their nominees have to in amount, ·and pay capitation fees, somewhat (3) The rest of to pay the higher capitation fees. The second category above mentioned may be left oqt of consideration for , the present case, since · that depends on certain pre-exist ing contractual obligations and different considera tions may arise and the present. ·petitioner does not fall wihin this category. The question of discrimina tion in this case arises really with reference to cate gories 1 and 3 above and turns upon the exact ·mean ing of the· phrase "bona fide residents" as defined in If this definition was meant to convey residence fairly and substantially, the qualification of in Madhya Bharat and nothing else, :that this is not hit by article 15 and that it may also be a facts and circum reasonable classification, on for purposes of artide stances of a particular State, 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 . commit ted 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 truly speaking, is not on charging of capitation fee, the basis of residence. The restatement of by the Government is not also definite or clear about it inasmuch as it uses again the phrase "bona fide resi dents of Madhya Bharat". Bona 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 the .. definition of the four categories. comprised o~viously ( c) a1:1d ( d) have absolutely nothing to d~ with actual residence. to <liscover to which discrimination any principle with reference can be in favour of (1) a Pakistan migrant It is also difficult justified . 1955 :v,·p, Joshi .v. - TheStakOf Madhya Bhiual and another Jagannad/uulas J. " 1234 SUPREME COURT REPORTS [1955] India areas of areas of with the mere intention. to make Madhya Bharat his P=anent residence, and (2) a- person, belonging the contiglious areas of Madhya Bharat, or the. conti excluding citizens of (and the - non-contiguous India -Madhya Bharat, 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 cate that they -are based merely on residence, as gories .concerned. Category - ·(b) has such, · of the - person reference to "Domicile in · Madhya Bharat" plus resi dence 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 dearly in tended not to insist on any precedent residence. Even if it be assumed that ·"domicile" -means "permanent _home" as stated by Lord Cranworth in Whicker v. this has no necessary reference to the appli Hume( 1 ) cant's actual residence at the relevant 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 de nied 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 resi intelligible dence in Madhya Bharat. Nor can any 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 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 for "domi "domicile of Madhya Bharat"· substituted cile of _ India" and this raises the question of the con (tending to the growth of cept •of . regional domicile the idea of - regional citizenship) which will be dis- ..:-: - cussed. -pt:esently; . " (·1)'<(1859)28 L-;·J. Ch. 396;398 time. (b) It - 1955 D. P.Joshi v. Tht State of Madhya Bhflf'at and another Jagannadhat!as J. S.C.R. SUPREME COURT REPORTS 1235 thereby. the applicant likely framer of the following passage region within a country the permanent home of in Madhya Bharat" used · 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 the phrase therein "original domicile could not have been meant to indicate either the resi dence or then is the meaning intended Madhya. Bharat. . What to be conveyed the word "domicile" Is this phrase to be understood in the legalistic sense or as the the relevant rule-possibly a lay man like the Director of Public Instruction of the State-would have . understood it to mean. It is neces sary for this purpose to have a clear idea of the con cept of "domicile" and its applicability in relation to any particular India. Now the juristic concept of domicile is one which can be best gathered from classic judgment of Lord Westbury in Udny v. Udny(1). "The law of England, and of almost all civilized individual at his birth two countries, ascribes to each distinct legal statuses or conditions; one by virtue of which he becomes 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 charac ter 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 individual, and may be status or condition of quite differ~nt from his political status. The politi cal status may depend on different laws in different countries; whereas the civil status is governed univer sally by one ~ingle principle, namely, that of domicil, which is the criterion established by law for the pur pose of determining civil status. For it is on this basis that the personal rights of the party, is to say, the law which determines his majority or minority, his marriage, succession, intestacy, must depend". Thus domicile which according . to that attribute of a person's status International Law. deten~ines the subject of testacy, or , (1), [1869) L.R. I Sc. & Div. 441, 457. - 1955 .'D· p; Joshi v •. T Ill State of , Madhya Bharat and another Jagannadhadas J· '1236 SUPREME COURT REPORTS [1955] laws depend. The question in Madhya Bharat". Dicey is governed and on the personal 1aws ·by which he which his personal ·consideration is· whether this concept of domicile can apply to the word . "domicile" the· phrase "domi in his Conflict of Laws (6th Edn.), at pages 43 and 78 says as follows : . (meani_ng thereby the place of domicile) is the country which is considered by law to be his permanent home" and at 'page 82 he says '"A person's domicile to domicile 1s to one system of "the ·'counqy' or area contemplated· · relating 'territory subject a law'". Farnsworth in his book on the Residence and Domicil follows at of Corporations page 1: ( 1939 Edition) says as . "In any consideration of domicil, ·the area con taken to be . a 'country'· or in different areas templated has always been ·'a territory subject to one system of law'". there are countries which It is no doubt though politically one unit have different personal laws, 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 poli tical unit, the personal laws in· Scotlana 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 been no such concept of domicile of sub-units known or recognised by law, for the only · purpose for which it, viz. it is normally personal laws of the ·citizens of India. The personal in India, as is well known, depend mostly on religious 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 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. laws. · These · Acts their · · personal affiliations. This ·which attracts relevant and incorporated there has reference - - .:y- ' 1955 D. f'. Josh_i v. The State of Madhya Bharat and anot/¢r Jagannadha4as J. ·' • y .. S.C.R. SUPREME COURT REPORTS 1237 invariably a provision by way of a direction to the Courts concerned, more or less in the follow ing terms: question "To decide regarding succession, inheritance, marriage, or caste, or any religious usage or institution or the like by the Muhammadan law in the parties are Muhammadans and by cases where the parties are Hindus". in cases where Hindu law In respect of some of these matters as well as in res pect of other matters which properly fall within instance mino laws such as category of personal rity, succession, etc., there have been legislative modi fications. But it is noteworthy those modifica tions are almost entirely of an all-India character and not on any regional basis (viz. Indian Majority Act, far as I am aware Indian Succession Act). So are only a few instances of Provincial or State laws and lation on any matters relating to personal that too, to an extremely small and limited extent. Thus it will be seen the the Province or the State of India to which a Hindu or Muslim belongs has no relevance or relation to his personal laws. Indeed, contrary is emphasised by the fa.ct that, a Hindu at any rate, carries with him even his own school of Hindu law in spite of migration to a different Pro vince 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 gov erned by personal laws which are all~India in charac• ter and not r.egional, as for instance the Indian Suc cession Act. (It may be mentioned Europe until the middle ages, personal laws depended race and not on domicile. See Phillimore on International Law, page 36). this state of factual situation as regards the personal laws of the . bulk various categories of persons who comprise of the population of . India, to be clear that th~re 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 .reason the existing Indian regional domicile, there any thus no place it appears that even law. Nor to me In 1955 D.P.-Joshi v. TM Slate Of Madhya Bharat ·and atUJthw • Jagannadhadas J. 1238 SUPREME (;OURT REPORTS [1955}. It It is India". to personal .territory of relevant· in the exclusive the Constitution, that consistently with in any substantial measure. to think that such .a situation will arise in the future under the present Constitution. . For this purpose, may be noticed legislative power of the State does not extend laws. Per sonal laws are the subject matter of item No. 5 of the Concurrent Legislative . List. connection also t9 notice that article 44 of the Con stitution enjoins · that "the . State · shall endeavour to secure for the citizens a uniform civil code throughout extremely unlikely therefore that regional personal laws will be allowed It to become operative may. be also mentioned that there is single citizenship the whole of India and under · the Constitution for that "citizenship and naturalisation" have been listed within the exclusive competence of the Union Legis lat:Ure. Of course citizenship is different from domi cile. But I mention this here only to emphasize the view, 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. to the above considerations that It is with reference the phrase "domicile in Madhya Bharat" in the rele vant rule defining the phrase "bana fide resident of Madhya Bharat" has to be' considered and understood. is,. Since the concept of domicile in Madhya Bharat, in my view, unknown to the exiscing Indian law, I the phrase do not "domicile the relevant rule as having any thing to do with the regional domi cile 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 · otir country con ·we have trary to the intendment of the Constitution. got to consider 'the· meaning of the phrase "original d9inicile 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 think it permissible to in Madhya Bharat" construe · · ' .. ... ,• -~- ... · - ·1955 'D. P .. Joshi v. The State of .Madhya Bharat. ·and another .' Jagannadhadas J. S.C.R. SUPREME COURT REPORTS 1239 it appears the phrase to me "original 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 "domi In the cir cile in Madhya Bharat" used in clause (a). to be reasonably clear cumstances in Madhya domicile Bharat" is meant to convey the. "place of birth (of the applicant) in. Madhya Bharat". It it 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"· con veys no legal meaning, as I have pointed out above, and if any meaning has to be attached to it, then it could only have 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: reference "A person's domicile of origin is the domicile of It is generally but not necessarily the place his birth. of birth". In this connection it is to be that the relevant rule is a substinite for the pre-existing rule which was as follows: remembered "Madhya Bharat students are exempted capitation fees". The phrase "Madhya Bharat students" has no reference either to residence or domicile, and 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 origi nal domicile is in Madhya Bharat in the forefront of that definition; · they only attempted· ·to· camouflage the 1953 D. P.Jos!# v. Th.. Stat• ef Madhya. Bharat and another Jagannadhadas J. 1240 SUPREME COURT REPORTS [1955] from capitation to be interpreted implication· thereof so as to accord with the pre-exist ing 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 capita tion fees should · be borne by persons .not born in Madhya Bharat. In the view I take of the real mean ing and effect of the rule, which is , under discussion, an attempt at subsequent · clarification · nor neither the actual manner in which it is said to ·be adminis tered or intended to be administered, as stated by the the Madhya Bharat Govern AS5istant Secretary ment, · Shri H. L. Gupta, in ·his , affidavit, even 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 fee under be entitled to . exemption the rule as now sought is not reh vant so long as a student in the position of the appli exemption, the benefit of cant cannot have even if he got the competi the highest marks tion. In my view, therefore, the rule in question has to place of birth in Madhya Bharat pri reference marily, .a number of other miscellaneous though categories might also come in under other and diff erent heads. Hence the rule offends article 15 · of the Constitution. Even rule . has regional domicil ·reference to the juristic concept of and for that reason does not fall within the scope , of the inhibition of article 15, I 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 ho:w '.'original domicile in ·Madhya .. Bharat" is a reasonable ground for classifica the primary wntent tion. of the rule relating to capitation fees · which is con tained in clause (a) of .the definition of "bona fide resi to · the · dis dent of Madhya 'Bharat" does operate advantage · of the petitioner by way · of unconstitutional discrimination. Hence · the State Government' ·cannot validly seek to levy capitation fees on . the. peti, tiOner with reference· to that rule. in the view . that In my opinion, · I. would, th~efo~e, allow this applieation. therefore, · . · . . ... - ~ I S.C.R. SUPREl\IE COURT REPORTS 1241 1955 D. P.Joshi · 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 \vere not canvassed or suggested at the hearing ~Iadhya Bharat before us and that the Court has not had the benefit -;;;; a J of arguments on these and the connected matters. If, J " therefore, I have ventured to differ, notwithstanding a.anna a as • my respect for the views of the majority and potwith standing 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 ()f this Court would be contrary to the intendment of the· Constitution. v. The state of and another ··- '. ' BY CoURT.::.:..In accordance with the opinion of the majority, the Petition is dismissed without costs. Petition dismissed. THE AUTO~IOBILE PRODUCTS OF INDIA LTD. v . RUKl\IAJI BALA AND OTHERS (And connected Appeal) . 1955 February 3 [S. R. DAs, BnAGWATI and SYED JAFER I~tAM JJ.] Industrial Disputes (Appellate Tribunal) ti.ct, 1950 (XLVJII of 1950), s. 22-Whether Labour Appellate Tribunal has iurisdic· tion to impose conditions when granting pe1·mission-Industrial Di~ putes Act, 1947 (XIV of 1947), s. 83 and lndustrial Disputes (Ap· pellate Tribunal) Act, 19.50-S. 23-Jurisdiction of authority not only to decide whether there has been failure to· obtain permission but also to give decision on the merits of an industrial dispute-Indus ·trial Disputes Act, 1947 (as amended), s. 88 and s. 88·A-Ind1istrial Disputes ·(Appellate Tribunal) Act--Ss. 22 and 28-Meaning and scope of. Held, (i) that the ordinary and primary jurisdiction of the . Labour Appellate Tribunal constituted under the Industrial Disputes · (Appellate Tribunal) Act, 1950 is appellate; (ii) that s. 22 of the Act confers on the appellate tribunal a special jurisdiction which is in the nature of original (iii) that s. 23 also vests in the tribunal an additional jurisdiction to decide the complaint as if it were an appeal pending before it; and (iv) that s. 23 confers on the jurisdiction;