AUTHOR: VELAGADA MOUNIKA, DR. B. R.AMBEDKAR COLLEGE OF LAW [ ANDHRA UNIVERSITY]
ABSTRACT / HEADNOTE
In the present case the appellant was nominated by Himachal Pradesh to undergo B.D.S degree in Uttar Pradesh he stayed over 5 years for the completion of his course and successfully secured his degree later he applied for the M.D.S course at king George Medical College. Here his subject of choice is oral surgery but the subject they offered is periodontics denying due to providing of reservation of seats for residential qualifications. In the Notification dated August 19, 1983. Issued under section 28(5) of the U.P. State University Act , 1974.
The appellant though not a party to the proceedings,filed a writ petition in high court for clarification and modification on the earlier said judgement but the high court rejected the application holding that clause 2 of Notification Stipulates two conditions
i. Institutional and
ii. Residential
And that the appellant doesn’t fulfill the Second requirement ,viz bona fide resident within the meaning of clause(4) of notification. Mere purpose of study wouldn’t satisfy the requirement of bona fide resident. The supreme court said that the minimum period of five years and for the definite purpose of education then he satisfies the definition of bona fide resident and unreasonable restrictive thus conflict of constitutional right and the notification clause 4 sub clause (b) is unsustainable. Supreme court set aside the impunged order of High court and allow the appeal with costs of the appellant here and in High court.
Keywords: Section 28(5), Uttar Pradesh State University Act 1974, Subject of choice (oral surgery), Residential qualification, Subject offered (periodontics), Supreme court, High court
CASE DETAILS
| Judgement Cause Title | Dr Yogesh Bharadwaj v. State of Uttar Pradesh |
| Case Number | Civil Appeal No : 62 of 1990 |
| Judgement Date | 24.04.1990 |
| Court | Supreme court of India |
| Quorum | T.k. Thommen, (J) |
| Author | T.k.Thommen, (J) , L.M. Sharma (J) |
| Citation | AIR 1991 SC 365 |
| Legal Provisions Involved | Section 28(5), Uttar Pradesh State Act 1975and Private international law |
INTRODUCTION AND BACKGROUND OF JUDGEMENT:
In India there is no state wise domicile within the territory And people of all states recognised as Indian domicile. “Under the Constitution, India is a Union of States. Every part of every State is an integral and inseverable part of India” said Justice Banerjee
In this case was dealt with the interpretation of bona fide resident and analysed the Applicability of domicile. In general domicile meaning permanent home. A person is domiciled in the country in which he is considered to Have his permanent home. His domicile is of the whole country, being Governed by common rules of law, and not confined to a part of it. No one Can be without a domicile and no one can have two domiciles. Key elements of domicile are: intention ( to remain their indefinitely ) + residence (physical presence).Residence is the most significant connecting factor of the case.
KINDS OF DOMICILE
Domicile by origin
It is the domicile every person acquires at birth and the domicile is determined by the Domicile of Father ( Still alive while the birth of child ); Mother ( when father died or illegitimate child ); where the child is born.
Domicile by choice
It is the domicile where an individual choose or decides to live rather than the Domicile of origin or birth place.
Domicile by operation of law
Even though in this case the Supreme court said domicile is irrelevant for better understanding of residence first we should know about domicile and its difference from residence
Domicile of origin is more enduring, it hold stronger and less easily shaken off[1]. If Domicile of choice is abandonment then the person push back to domicile of origin until he attains a new Domicile of choice.
RESIDENCE
Residence means an act / a fact of dwelling in one place for some time. In simple way it was only a bodily presence and there is no intention of making that place has his Permanent home but resides or lives for a settled period
Habitual Residence: it is a place where a person resides for some span with an Intention to reside in that place.
Bona Fide Resident: the word bona fide means real or genuine or good faith. It is used to verify whether the person is genuinely associated with the place and for a definite purpose or not.
FACTS OF THE CASE
The appellant was nominated (permanent resident)by the state of Himachal Pradesh to undergo the B.D.S course in Uttar Pradesh , successfully completed and secured his B.D.S Degree. For this purpose he had stayed in that state for over a period of five years.
Later, he applied for admission to M.D.S course at king George Medical College, Lucknow and the Subject of his choice was oral surgery but the Subject that was offered to him was periodontics.
The denying of his subject of choice is due to the providing for reservation of seats and prescribing the residence qualification in the Notification dated August 19, 1983. Issued under section 28 (5) of Uttar Pradesh state university Act 1974.
LEGAL ISSUES RAISED
i.Whether the appellant fulfilled the requirement of bona fide resident of Uttar Pradesh ?
ii. Whether the domicile is relevant or irrelevant to the interpretation of clause 4 sub clause (b) of notification?
PETITIONER/ APPELLANT’S ARGUMENTS
- The Counsel for the Petitioner contended that a person should be treated as a bona fide resident of Uttar Pradesh in terms notification of clause 4 Sub-clause:
- a citizen of India, the domicile of whose father is in Uttar Pradesh and who himself is Domiciled in Uttar Pradesh; or
- a citizen of India, the do father was not domiciled in the state and who himself resided for not less than five years in the state. So the concept of domicile is irrelevant to the expression of sub-clause (b) and all that requires is his residence.
- The Counsel for the Petitioner further submitted that here the appellant satisfied the sub-clause (b) of clause 4 of the notification. The appellant resided in Uttar Pradesh for the requisite period lawfully and bona fide. While residence, absence of any allegations that the appellant manner was opposed to law of land, lack of good faith and his residence was neither casual nor fleeting but over a period of minimum five years and for definite purpose of education so he satisfies the definition of bona fide resident.
- The Counsel for the Petitioner submited that the construction placed by High court upon sub- clause (b) of clause 4 of the notification was unfeasible.
RESPONDENT’S ARGUMENTS
- It was contended by the Counsel for Respondents that the appellant came barely on purpose of education to Uttar Pradesh and after Completion of his course, he will return back to his own state so he is not bonafide resident of Uttar Pradesh.
- It was contended by the Counsel for Respondents that the High court in its judgement held that the residence barely for the purpose of studies without more did not bring a person within the ambit of the notification. Those candidates who joined the B.D.S course on basis of nominations made by the Central Government or their own state, They were not bona fide residents of Uttar Pradesh.
RELATED LEGAL PROVISION
Section 28(5) of U.P. State University Act 1974 states that:
“[ Notwithstanding anything contained in any other provision of this Act,-
(a)Reservation of seats for admission in any course of study in University, Institute, constituent college, affiliated college or associated college for the students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens may be made and regulated by such orders as the State Government may, by notification, make in that behalf;
Provided that reservation under this clause shall not exceed fifty percent of the total number of seats in any course of study :
Provided further that reservation under this clause shall not apply in the case of an institution established and administered by minorities referred to in clause (1) of Article 30 of the Constitution :
Provided also that the reservation under this clause shall not apply to the category of Other Backward Classes of citizens specified in Schedule II to the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994,
(b)Admission to medical and engineering colleges and to courses of instruction for degrees in education and Ayurvedic or Unani systems of medicine (including the number of students to be admitted), shall subject to clause (a), be regulated by such orders (which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may by notification, make in that behalf:
Provided that no order regulating admission under this clause shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice;
(C) In making an order under clause (a), the State Government may direct that any person who wilfully acts in a manner intended to contravene, or defeat the purposes of the order shall be punishable with imprisonment for a term not exceeding three months or with fine not exceeding one thousand rupees, or with both, as may be specified in the order”
JUDGEMENT (RATIO DECIDENDI)
The Honourable court has given the verdict in favour of appellant it stating that the domicile concept in private international law is irrelevant to the construction of clause 4 sub-clause (b)[3] All that it requires his residential qualification.
On the basis of facts the appellant’s subject of choice was denied due to residential preference but he stayed in Uttar Pradesh for over five years to complete his B.D.S. Degree. The high court in the writ petition filed for clarification and modification of the previous judgement by the appellant who is not party to the proceedings. But adversely affected by it. Mere purpose of study wouldn’t satisfy the requirement of the residential qualification in terms of notification for this supreme court rejected the petition.
Domicile of origin is more enduring, it hold stronger and less easily shaken off[4] If Domicile of choice is abandonment then the person push back to domicile of origin until he attains a new Domicile of choice.
It is immaterial for this purpose that the residence is for a short duration, provided it is
Coupled with the requisite state of the mind, namely the intention to reside there permanently. “If a Man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated Contingency”, Re Fuld’s Estate (No. 3) 1968 (P) 675. Such as, the end of his studies, he lacks the Intention required by law. His “tastes, habits, conduct, actions, ambitions, health, hopes, and Projects”,
Casdagli v. Casdagli, [1919] AC 145 [5], 178 are keys to his intention. “That place is Properly the domicile of a person in which he has voluntarily fixed the habitation of Himself and his family, not for a mere special and temporary purpose, but with a Present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home”.
Udny v. Udny, [1869] LR 1 Sc & Div 441,[6]
“He is ‘domiciled’ in the Whole of this country, even though his permanent home may be located in a Particular spot within it.”
H.L.; Bell v. Kennedy, [1868] LR 1 Sc & Div 307, H.L. [7]
“The expression, as understood in private International law, makes no sense in the context of Clause 4, for Indian domicile Cannot be limited to any particular State within India. The full import of ‘domicile’ is, There- fore, inapplicable to the construction of clause 4. We would in this connection Recall the words of this Court in [8]”
Where residence is prescribed as qualifying condition within the territory of India , the expression have a wider And capable of full enjoyment of the right of equality before the law, Any construction which cause to the disadvantage of the citizens lawfully seeking avenues of progress within the country will be out of harmony and that construction should be avoided .
Here the supreme court set aside the impunged order of High court and allow the appeal with the costs of the appellant here and in the High court.
CONCLUSION& COMMENTS
It is luculent that the appellant was bona fide resident of Uttar Pradesh the Bench ruled. The unreasonable restrictions can amount to the violation of constitutional rights of appellant. In my opinion the Supreme court correctly states that every one has a right of equality before the law, any construction which cause to the disadvantage of the citizens lawfully seeking avenues of progress within the country will be out of harmony and that construction should be avoided. REFERENCES
Important Cases Referred
Casdagli v. Casdagli, [1919] AC 145
Udny v. Udny, [1869] LR 1 Sc & Div 441
H.L.; Bell v. Kennedy, [1868] LR 1 Sc & Div 307, H.L
Important Statutes Referred
Uttar Pradesh State University Act 1974
Private International law
[1] Per Lord Macnaghten, Winans v.A.G., ..[1904] AC 287
[3] A citizen of India, the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pradesh for not less than five years at the time of making the application.
[4] Per Lord Macnaghten, Winans v.A.G., ..[1904] AC 287
[5] Indian kanoon
[6] Indian kanoon
[7] Indian kanoon
[8] Dr. Pradeep Jain & Ors. V. Union of India & Ors., [1984] 3 SCC 654 at 668, D.P. Joshi v. The State of Madhya Bharat and Another, [1955] 1 SCR 1215:
Nice, well explained.