# · D. P. JosJii v. The Stal• of Madhya Bharat and another

- **Citation:** [1955] 1 S.C.R. 1215
- **Court:** Supreme Court of India
- **Decided:** 1955-01-27
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-p-josjii-v-the-stal-of-madhya-bharat-and-another-328
- **Pages:** 27

## Headnote

S.C.R.
SUPREME COURT REPORTS
D. P. JOSHI
ti.
THE STATE OF MADHYA BHARAT AND
ANOTHER.
1215
[ MuKHERJEA
C. J.,
VIVIAN
BosE,
JAGANNADHADAS,
\. -/
]
_
VENKATARAMA AYYAR and SINHA JJ.
-
>- /
Constitution of India, Arts. 14 and 15-Rule laying down that
no capitation fee should be charged from students-Bona fides residents
of Madhya Bharat-But capitation fee should be charged from nonMadhya Bharat students-Whether infringes the Constitution.
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
Bhara-t 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".
The question for determination was whether the rule infringed
the fundamental rights guaranteed by Arts. 14 and 15(1) of the Constitution.
Held, per VENKATARAMA AYYAR J.
(MuKHERJEA C.J., VrvrAN
BosE and SrNHA JJ. concurring, JAGANNADHADAS J. dissenting) that
the rule did not infringe the fundamental rights 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
h
Art. 15(1) prohibits discrimination based on the place of birth, it
cannot be read as prohibiting discrimination based on residence.
1955
January 27
1955
· D. P. JosJii
v
The Stal• of
Madhya Bharat
and another
1216
SUPREME COURT REPORTS
[1955]
Domicile of a person means· his 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 w.as not discrimin,atory 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 ill 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 ~o place for regional domicile in the existing I.ndian 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 "domi· ~
cile 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 "place of birth".
Therefore, the rule in question has reference to place of birth in
Madhya Bharat primarily, and offends Art. 15 of the Const

## Text

_Characters 0–39,607 of 61,183. This is a partial read: ask again with offset=39607 for what follows._

S.C.R.
SUPREME COURT REPORTS
D. P. JOSHI
ti.
THE STATE OF MADHYA BHARAT AND
ANOTHER.
1215
[ MuKHERJEA
C. J.,
VIVIAN
BosE,
JAGANNADHADAS,
\. -/
]
_
VENKATARAMA AYYAR and SINHA JJ.
-
>- /
Constitution of India, Arts. 14 and 15-Rule laying down that
no capitation fee should be charged from students-Bona fides residents
of Madhya Bharat-But capitation fee should be charged from nonMadhya Bharat students-Whether infringes the Constitution.
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
Bhara-t 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".
The question for determination was whether the rule infringed
the fundamental rights guaranteed by Arts. 14 and 15(1) of the Constitution.
Held, per VENKATARAMA AYYAR J.
(MuKHERJEA C.J., VrvrAN
BosE and SrNHA JJ. concurring, JAGANNADHADAS J. dissenting) that
the rule did not infringe the fundamental rights 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
h
Art. 15(1) prohibits discrimination based on the place of birth, it
cannot be read as prohibiting discrimination based on residence.
1955
January 27
1955
· D. P. JosJii
v
The Stal• of
Madhya Bharat
and another
1216
SUPREME COURT REPORTS
[1955]
Domicile of a person means· his 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 w.as not discrimin,atory 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 ill 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 ~o place for regional domicile in the existing I.ndian 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 "domi· ~
cile 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 "place of birth".
Therefore, the rule in question has reference to place of birth in
Madhya Bharat primarily, and offends Art. 15 of the Constitution.
EvCn in l~e view that the rule has ieference to thf: juristic concept-··.,/ ""
of regional domicle and for that reason does not fall
within the
scope of the inhibition of Art. 15, a distinction baSed on such domi-
.-cile cannot, in any way, be considered reasonable with reference to
Art. 14 of the Constitution.
Rustam 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. 1 Se. & 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 Pra- ~
kash v. The State (A.LR. 1953 Punjab 93), referred to.
ORIGINAL Ju&1smCTION : Petition No .. "3fi7 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,
Attorn~y-Gen_eral of India "(Shiv rl..
Dyal and P. G. Gokhale, with him), for
respondent
No. 1.
-
S.C.R.
SUPREME COURT REPORTS
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 Constitiition. 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' iI1 ·force in
this institution discriminate in the . matter of fees between 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
capitation fee,
and that this 'is in contravehti9n. of
articles 14 anq . 15(1) of the Constitution. ·The petitioner accordingly prays ' that
an
appropriate . writ
might .. pe
i~&ued prohibiting ilie
respondent
(from
~ / collecting from . him capitation. fee . for the , .'current
year, and directing a. refund of Rs. 3,000 colle~ted, Jrom ·
him as capitation fee for the first two years.
The
re~pcmdent contests . the petition. : In' the affidavit 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. 'iniposing cap~tation fee on students who did not belong to
~ Madhya Bhar~t, that the , State took <>Ver the College
subject to the .. conditions
relating to
reservation ·of.
seats under .which it was 'being run, and ·that the requireme,~i: of a capitation, fee from n.ori-residdni:s did
not offend either article 14 or ari:icle 15 ( 1) of the Constitution.
... ,'
A brief narration of the history of the. institution
will be useful .for· a correct appreciation of the conten-
-'4 tions Off·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
1955
D. P.]oshi
v.
The State ef
Madhya Bharat
and another
1955
D. P.Joshi
v.
The State of
Madhya Bharat
and another
V enkatarama
Ayyar J.
1218
SUPREME COURT REPORTS
[1955]
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 take. over
the running of the institution, subject to the arrangements entered into between the
institution and
certain States and
donors for
reservation
of seat5
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
in.to the . COilege, 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 rl
rule which is at the root of the present controversy.
It
provided
that
"Madhya
Bharat
students
are
..
..
..
.,
S.C.R.
SUPREME COURT REPORTS
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 new rule was substituted, which runs as
follows:
"For all students who are 'bona fide residents' of
Madhya Bharat no capitation fee should be charged .
But for other non-Madhya Bharat students the capitation fee should be retained as at present at Rs. 1,300
for
nominees and at Rs.
1,500 for others".
[Vide
Exhibit 6/1 quoted in Rustam Mody v. State : Sumitra
Devi v. State(1)J.
'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 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)T.L.R. 1953 Madhya Bharat 87, 99
~·1955
,.,~-
D. P. Joshi
v
The State of
Madhya Bharat
and another
Venkatarama
AyyarJ.
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 .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 )3harat, makes a discrimination based on the
place of birth, and that it offends artide 15 ( 1). Whatever . 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 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 attaclc 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 . Bharatc , 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, . ii cannot be 'read as pri:ihibiting
discrimination based on residence. , This · is nor · seriously 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 exemption' 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 .. domicile, as it is termed in the rules, could in substance
mean only · {!lace of· birth, ·and' that' therefore the :exemption based on domicil_e was, 'in effect, an_ exemp·
tion based on place of birth under an alias. 'That,
however, is· riot the true legal positio11'.: Domicile of
a
person , means
his
permanent · home;
"D~tnicile
meant · permanent home, ·and , if that was· not· understood by itself no illustration could help to make· it
...,,._
....
..
-
-
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 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 odgin rather than of
birth. I find no authority which gives for the purpose 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".
·
Mr. N .. C. Ch~tt~rjee argued 'that do~icile of origin
was often caUed domicile of . birth, arid · invited . our
attentio11 to certain observations of Lofd, Macnaghten
in Winans. v .. Attorney-General(3). But then, the noble
Lord went onto 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 expre~sion tised is "domicile of origin" or' "domicile of
birth"' tjie
conc~pt . involved in it . is something different from what· the words "place· of birth" singnify.
And if "domieile 'of birth" and "'place of· birth" canmi;t be taken as synonymous,·· then
the prohibition
enacted in article 15(1) against discrimination
based
on place of birth -cannot appiy to a · discrimination
based on domicile.
· ·
"
.
It was argued that under 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
within their territory.
But citizenship and domicile
r;".present
two . ·different . conceptions.
Citizenship
has
reference
to . the
political status . 9£ 'a person,
and
{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
v.
The State.of
Madhya Bharat ,
ar.d arwther
Venkatarama .
AyyarJ.
1955
D. P~ Joshi
Vo
The State of
Madhya Bharal
and another
Venkatarama
AyyarJ.
1222
SUPREME COURT REPORTS
[1955)
domicile to his
civil rights. A classic statem';'.nt of
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 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 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 to
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 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
marnage,
succession,
testacy
or
intestacy,
must
depend".
Dealing with this question Dicey says at page 94 :
"It was, indeed, at one time hdd by a confusion
of the ideas of domicile and nationality that a man
could not change his domicile, for example,
from
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.
Attorney-General(• ).
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 domicil. For this purpose it regards the organisa0) [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 its
own sovereignty".
Under the Constitution, article 5, which defines
c1tlzenship, 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 l:i.w 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 1s 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 treaties, 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
1955
D· P-Joshi
v.
The Siate of
Madhya Bharat
and another
Venkatarama
AY.)'ar J·
1955
1). p. Joshi
v.
"The State of
Madhya Bharat
and another
•Venkatarama
.Ayyar J·
1224
SUPREME COURT REPORTS
[1955]
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.
Californi~
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. "iaw in f!:alsbury's
Laws of Eagland, Volume Vl, page 246,. para 249 may
also be quotecl :
·
. . . . . . . . . . where that · State comprises more than · one
system of law, a domicil is acquired" in that ··part of
thi: State 'Yhere the individual:resides".'
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
Scotch. The. contest was
between
those . who 'were
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. dbrriicile.
In ·discussing ·this question· tlfr learned' ' Master
of t:he R.ou; ·re£etr~<l to the fact thar tlie law cif'successiort in. the .. Pro'virice of.York was dlfferent from· that
prevailirig _iii.
othe~ p~ts' of Enghnd, , and was 'akip io
Scotch . law', and posed
the question whethe'r · if a
Yorkshire ·man dlei:I
intestate in. Loridbil, 'succession
to his per~'onal estate would: be. govep;1ed ,by the. Law
of the Province' of ·York. or of England:'.' He observes:
"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.
-
·
..
-
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 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 he was
a domiciled inhabitant atthe 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 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 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 commorancy, is
some times called his domicile",
1955
D. P. Joshi
v.
The State of
Prfadhya Bharat
'utd another
Venkatara1na
Ayyar J.
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 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 "bona fide resident". In Corpus
Juris Secundum, Volume 28, page 5, it is stated:
"The term 'bona fide 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 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 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,
-·
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 decision 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
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 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 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 67,
1955
D. P. Joshi
v.
The State of
Madhya Bharat
and another
Venkatara1na
Ayyar J.
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 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 ofits educational institutions.
We are in this petition concerned with a Medical
College, and it is well-kuown 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
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 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.
Ifit is not that, article 14 would have no application.
It was indeed contended by the learned AttorneyGeneral 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.
. .
S.C.R.
SUPREME COURT REPORTS
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('). 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 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
Venkataratlla
Ayyar J.
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 AttorneyGeneral 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 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
4"' -·
~ . )(
-
S.C.R.
SUPREME COl]RT REPORTS
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 <;late 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".
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 ex- ·
empted 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
1955
D; P. Joshi
v,
The State of
Madhya Bharat
and another
, Jagannadhadas J.·
1955
fJ. p, Joshi
v ..
t'he State •f
MaJhy• Bharat
and anothet
• ]agannaJhadas J.
1232
SUPREME COURT REPORTS
[1955]
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 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. t!J.e
allocation scheme for
admission of students which is said to be as follows
in the affidavit of Shri . H. L.