Topic: Malkiat Singh vs State Of Punjab And Ors - FIR
Malkiat Singh vs State Of Punjab And Ors
Equivalent citations: AIR 1969 P H 250 - Bench: R Narula, S Sandhawalia - Date of Judgment: 3 October, 1968
1. This petition under Article 226 of the Constitution of India was admitted to hearing by a Division Bench as on the averments made therein important issues pertaining to the nationality and the domicile of the petitioner fell for determination.
2. The facts averred by the petitioner Malkiat Singh are that the parents and the grand-parents of the petitioner were born in the territory of India and are Indian citizens. The family owns immovable property in the State of Punjab and the family home is in the town of Nakodar where they owned an ancestral dwelling house in Mohalla Bahadurpur. The father of the petitioner in the year 1942 left for Kenya but on the termination of the Second World War in 1945 he returned to India and it was on the 10th of October, 1946, that the petitioner was born to his parents at Nakodar. In the year 1947, the parents of the petitioner again went to Kenya taking the petitioner along with them. The petitioner had his education in Kenya during his stay there till May, 1965, and passed the Senior Cambridge Examination in December, 1964, in Kenya. It has been averred that for the last three years ever since his return from Kenya, the petitioner is residing in the family house at Mohalla Bahadurpur in Nakodar and a certificate to the said effect granted by the Sub-Divisional Magistrate, Nakodar, has been annexed as annexure 'A' to the petition. The petitioner has bee pursuing his studies in India and in the year 1968 he passed his first year B. Sc. (TDC) Examination by obtaining 67% of the aggregate marks thus becoming eligible for admission to the 1st year M.B.B.S. Course, 1968. It has been admitted in the petition that the petitioner travelled from Kenya to India on a British Passport but it has been expressly averred that at no stage he ever renounced or revoked his citizenship nor has he any such intention and on the principles of Dual citizenship, Indian citizens are entitled to take British passports for the purpose of travel.
3. In pursuance of a notice for admission to the 1st Year M.B.B.S. Course in the Government Medical College at Patiala and Amritsar, the petitioner had submitted his admission form to the Principal, Government College, Patiala, respondent No. 3 in his office on the 29th June, 1968. The petitioner, however, had opted his preference for admission to both the colleges was held jointly by the Selection Committee at Patiala. The petitioner was duly interviewed on the 19th July, 1968, and has averred that he was placed at serial No. 146 out of the 200 selected candidates against the seats reserved for open merit under rule 5 (viii) of the Brochure for admission to the 1st Year M.B.B.S. course 1968. Respondent No. 3, vide his letter dated the 23rd July, 1968, annexure 'C' to the petition directed the petitioner to submit his passport to the Principal, Medical College, Amristar, by the 27th of July, 1968, and the petitioner in compliance therewith submitted the same to the said Principal, Medical College, Amritsar, on seeing the Passport informed the petitioner that his admission had been cancelled as he was not a citizen of India and is in India only on a British Passport. He was further told that he was not eligible for admission against the seats reserved for open merit in accordance with rule 5 (viii) of the Brochure. Respondent No. 2, however, referred this matter to respondent No. 1. The Secretary, Health Department, Punjab, Civil Secretariat, chandigarh, for further clarification and the petitioner was directed to appear before him. In compliance therewith it has been averred that the petitioner on the 6th of August, 1968, met respondent No. 1 but the latter without applying his mind to the facts or affording any proper or reasonable opportunity to him declined to interfere in the matter. Aggrieved by the above-said, the petitioner has thus come by way of a writ petition before this Court.
4. It may be noticed forthwith respondents Nos. 2 and 3 the Principles of the Government Medical Colleges , Amristsar and Patiala, respectively who are infact the contesting respondents have neither filed a written statement to this petition not have they put in an appearance despite service , in this Court The reply on behalf of respondent No. 1 has also been filed in the shape of an affidavit by Shri Sada Nand, I I. A. S. who is the deputy Secretary to the Government, Punjab Medical and Health Department and respondent No. 1 has not personally filed any affidavit in reply to this petition. In the affidavit of Shri Sada Nand it has been stated that the petitioner has been a student of the Nehru Memorial College, Hanumangarh, in Rajasthan since July, 1967, and thus Annexure 'A' filed by th petitioner to the effect that he has been a resident in Nakodar for the last 3 years is not in further denied expressly that the petitioner was ever selected or placed at serial No. 146 of the list of the admitted candidates for the M.B.B.S Course and the said list has been annexed as Annexure R II to the affidavit. It has been further stated that the rules for admission in the State Medical Colleges enumerated in the Brouchure for admission provide that only the students domiciled in the Punjab will be admitted against the open merit seats and the petitioner was not an Indian Student domiciled in the Punjab. It has then been denied that the petitioner ever met respondent No. 1 or that the case of th petitioner was specifically referred to respondent NO. 1 It has been stated that only the advice was sought by respondent No. 2 with regard to the elaboration of Government policy pertaining to the admission according to rules only.
5. Mr. Manmohan Singh, the learned counsel for the petitioner at the very outset submitted that the petitioner is clearly an Indian Citizen having been born in India at Nakodar to parents both of whom were citizens of India. It is contended by the petitioner that it has never been suggested by the respondents that he abandoned this right of Indian Citizenship in favour of any other nationality. As a matter of fact it is pointed out that all indicia point to the fact hat the petitioner jealously wanted to retain his original Indian Nationality . Be that as it may, the learned counsel for the petitioner submits that for the purpose of this case the nationality to the citizenship of the petitioner is not of any great significance because even students having non-Indian Nationality are entitled to be considered against the open seats for admission to the Medical Colleges on the basis of merit ,. The learned counsel relies in Fact on Annexure R. III which has been put on the record by the respondent No. 1 and places particular reliance on paragraph 2 of the same which is in the following terms.
"It has come to the notice of the Government of India that foreign students/Indian students domiciled abroad also apply directly to the Medical Colleges in India for admission outside the approved Scholar ship schemes or similar programs. Such applications for admission from foreign students /Indian Students domiciled abroad that apply directly to the Institutions may kindly be considered against open seats on merit basis and their admissions made according to the rules and regulations of the Institution. In such cases prior permission from/consultation with the Government of India is not necessary, However, names of such students along with details, such as the country from which they are coming, their home address, local reference and the course to which they are admitted should be supplied to the ministry of External Affairs , New Delhi."
Relying on the above contention raised on behalf of the petitioner is that, whilst it is strenuously maintained that he is an Indian citizen, even if it be had otherwise he is nevertheless entitled to be considered on the basis of merit for admission to the medical Colleges. Mr. G. S. Chawla the learned counsel appearing on behalf of respondent No. 1 has not controverted this proposition and has in fact conceded that apart from students of Indian nationality as regards the open merit seats even foreign students are eligible to be considered and therefore in this context the position taken on behalf of respondents regarding annexure R-IV, that the petitioner is a foreign student would in no way affect the right of th petitioner to be considered.
6. The issue that, therefore, now deserves consideration pertains to the domicile of the petitioner at the relevant time when he had sought admission to the Medical Colleges in Punjab . That Nationality and domicile are two different concepts in private international law is now a well settled proposition . Professor Cheshire in his authoritative book on Private International Law, 6th edition at page 194 whilst discussing these two concepts states as follows:
"These are two different conceptions. Nationality represents a man's political status, by virtue of which eh owes allegiance to some particular country, domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined."
The classic statement of the law pertaining to domicile and citizenship is that of Lord Westbury in Udny v. Udny , (1869) LR 1 Sc. & Div. 441 (HL) wherein it has been observed as follows:
"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 domicile, which is the criterion established bylaw for the purpose of determining civil status, For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority , his marriage, succession, testacy or intestacy, must depend."
This enunciation of the law has been noticed with approval by the Supreme Court in D. P. Joshi v. State of Madhya Bharat, AIR 1955 SC
The learned counsel for the petitioner in order to substantiate his contention that the petitioner is domiciled in Punjab has pointed out to four salient facts. He submits that at the time of his birth in India both his parents were Indian citizens being domiciled in the State of Punjab in India. His domicile of origin, therefore, followed that of his parents, It is then pointed out that permanent home of the petitioner and his family is at Nakodar where he has been resident ever since his return to India and lastly it has been argued that it was always the intention of the petitioner to return to the country of his birth and as soon as he attained majority he has returned with the necessary animus and as an admitted fact is resident at Nakador with the said intention. Relying upon these facts the learned counsel contends that the only irresistible inference that arises is that the petitioner is clearly domiciled swith in the State of Punjab and even if it be admitted for th sake of argument that he had gone to Rajasthan for a limited purpose and a temporary residence for the purpose of higher education, that would not denude him of his domicile within the State of Punjab.
7. It has been very aptly remarked that even authoritative writers on Private International Law are agreed that it is impossible to lay down an absolute definition of the word 'domicile' Even as early as 1878 Sir George Jessel in Doucet v. Geoghegam (1878) LR 9 Ch. D. 441 had warned that an absolute definition of this concept if impossible. One of the earliest and yet the simplest definitions of this expression was attempted by Chitty J. in Craignish v. Craignish, (1892) 3 Ch. 180, at p. 192 (a) in the following terms:
"That place is properly the domicile of a person in which hs habitation is fixed without any present intention of removing therefrom".
However even this definition has never been held to be an absolute one. The fact, of the matter is that the term 'domicile' lends itself to illustrations but not to definition. Nevertheless it is now established that two constituent elements are necessary in law for the existence of domicile. Firstly there should be residence of a particular kind. This residence however, need not be continuos but it must be in definite not purely fleeting. Secondly there should be an intention of a particular kind of intention must be a present intention to reside for ever in the country where the residence has been taken up. It is thus a syntheses of the factum and the animus which lies at th e root of the concept of domicile. Dicey in his authoritative treatise on the conflict of laws has enunciated as follows at page 85 of his book, 7 th edition:
"A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home."
That this notion of the permanent home is the corner stone of the concept of domicile is evidence from the earliest statements of the English Law on the subject. In Whicker v. Hume, (1858) 7 H. L. C. 124 Lord Cranworth had observed as follows:
"'By domicile' we mean home, the permanent home, and if you do not understand your permanent home I am afraid that no illustrations drawn from foreign writers will very much help you to it."
This statement of the law has been virtually reaffirmed by the House of Lords in Winans v. Attorney General, (1904) A. C. 287.
8. Applying this well settled test to the facts of the present case it has been averred and has not been specifically controverted that the permanent dwelling house of the petitioner and his ancestors before him is in the town of Nakodar. This is averred to be his permanent home and the petitioner is said to be resident therein. The counsel points out that almost simultaneously with the attainment of majority the petitioner had returned from Kenya with the requisite intention and commenced dwelling in this permanent home and continues to be so resident therein. This crucial test, therefore, stands amply satisfied in the case of the petitioner. Regarding the contention pertaining to the domicile of origin itself, Dicey in the treatise referred to above states the rule in the following terms:
"A legitimate child born during the subsistence of the marriage of his parents has his domicile of origin in th country in which his father was domiciled at the time of his birth."
In the case of the petitioner, therefore, he was born at Nakodar to parents who were domiciled within the State of Punjab. His domicile, therefore, clearly followed that of his parents. Once this is established as it has been in this case the burden is very heavy on the person contesting it to show that this domicile of origin has been abandoned in favour of another domicile of choice. In determining such cases the rule laid down by Diecy is that there is a strong presumption that a domicile once established is presumed to continue. In Winans's case, 1904 AC 287 Lord Macnaghen while contrasting the domicile os origin with a domicile of choice has laid down that there is the strongest possible presumption in favour of the continuance of domicile of origin. Further it has been said regarding this domicile of origin that:
"Its character is more enduring, its hold stronger and less easily shaken off".
In fact the case law on this point warrants the conclusion that almost overwhelming evidence is required to shake it off. Two authorities cited by the learned counsel for the petitioner deserve notice in this context. In Sankaran Govindan v. Lakshmi Bharathi, AIR 1964 Ker 244, a Division Bench of the said High Court was considering a case where one Dr. Krishnan had left for England in 1920 for higher studies in medicine. He belonged originally to Travancore state. While in England he qualified himself in medicine and built up a considerable practice at Sheffield where he purchased a building and housed his evening surgery therein. He was in England for about 30 years and died there in October 1950, and during this period of 30 years he never came to India. Only from some letters received from him it could be gathered that he wanted to come back to India after insurance policy matured and after he had made enough money to lead a comfortable life in India . Even on these fact the learned Judges held that Dr. Krishnan did not lost his domicile of origin , namely that of India and had not acquired a domicile of choice in England Similarily in Micheal Anthony Rodrigues v. State of Bombay , AIR 1956 Bom 729 a Division Bench of the said Court consisting of Chagla C. J. and Dixity J had observed as follows:
"IT has been said that the character of the domicile of origin is of enduring character and the ties that bind you to your country of origin are extremely strong, and therefore the authorities require that the intention to acquire a new domicile must be manifest and carried into execution. The authorities also require that the person acquiring the domicile of choice must show a fixed and settled purpose of residing permanently or for an indefinite time in the country where he seeks to acquire the new domicile. It is equally true that the burden cannot be discharged by merely proving residence however long the duration of the residence may be".
The above being virtually the settled view of law it is not necessary to multiply authorities or to dilate further on this aspect of the case.
9. Mr. Manmohan Singh has then submitted that the petitioner was thus clearly domiciled within the State of Punjab. It is noticeable that whilst in certain authorities doubt has been cast whether it is possible to have a domicile in a Province or a State in India. The matter seems to have been set at rest by the authoritative pronouncement in D. P. Joshis case. AIR 1955 SC 334 . In this case the learned Judges of the supreme Court were considering the question of discrimination on account of the place of birth in violation of Article 15(1) of the Constitution in the light of the rules relating to the admissions to the Medical College at Indore which required a capitation fee from non-Madhya Bharat student. On a consideration of the case law and the statement of law in Halsbury's laws of England and interpreting the leading authority in (1801) 31 ER 839 (c) it was observed as follows:
"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 recognise that for purposes of succession there can be within one political unit, as many domiciles as there are systems of law. And that there ca be a Scotch, domicile , and 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."
The Learned counsel for the petitioner has, therefore , in substance submitted that the case of the petitioner satisfied every conceivable test laid down by law for the determination and ascertainment fo domicile and the petitioner falls clearly within the ambit of a person domiciled within Punjab.
10. The last argument advanced by Mr. Manmohan Singh is that rule 5 of the Brochure for admission to the first year M. B. B. S. class 1968 (annexure 'B) lays down the qualification of the Punjab domicile as regards th Schedule Castes and Tribes Backward classes only. It does not apply to the seats which are to be filled on the basis of open merit. As the petitioner is competing only for the seats on the open merit it is submitted that even this qualification of Punjab domicile would not apply to him. It has been pointed out that N. B. 3 to rule 5 is applicable only to the Scheduled Castes, Tribes and Backward Classes as is apparent from the subsequent sub heard given in the Brocheure which relates to Scheduled Castes/Tribes candidates only who are rejoined further to file a certificate of their belonging to a recognized Schedule Caste or Tribe from the Deputy Commissioner or other authorities concerned.
11. Mr. G. S. Chawla, the learned counsel appearing on behalf of respondents No. 1 has been unable to cite any authority contrary to those cited by the petitioner in support in his case. Infact Mr. Chawla has conceded that in the absence of an express and specific denial of the averments made in the petition it cannot be controverted that the petitioner is indeed domiciled in Punjab. Mr. Chawla very fairly conceded that merely by goint for a short period to Rajasthan for the purpose of prosecuting his study the petitioner would not lose his domicile of origin in the Punjab . As regards the last argument advanced on behalf of the petitioner also Mr. Chawla has clearly stated that the qualification of having the domicile in the Punjab is required only in the case of the Scheduled Caste/Tribes and Backward Classes. In any case as regards the seats which have to be filled on the basis of open merit no such qualification of domicile is at all necessary. In view of this position taken up on behalf of respondent No. 1 the issue is thus clearly in favour of the petitioner and he is wholly eligible for consideration on the basis of merit for admission to the medical Colleges in the Punjab.
12. As already noticed in the earlier part of this judgment, respondents Nos. 2 and 3 have not chosen to put in any appearance or to file an affidavit in reply, They are infact the contesting respondents in this case and in default of the appearance the averments in the petition pertaining to them must be deemed to be true,. On that basis the petitioner is clearly being denied the right to be considered and to secure admission to the Medical Colleges on the wholly extraneous ground that he had traveled on British passport and was thus ineligible. This view of respondents Nos. 2 and 3 is patently erroneous and no rule or provision of law has been pointed out to us to warrant the same.
13. We, therefore, allow this petition and restrain the respondents from refusing to admit Malkiat Singh petitioner to the 1st Year Class of the M. B. B. S. course at Amristsar or Patiala on the ground that the domicile certificate produced by him is not valid or on the ground that he is holding a British Passports. Consequently we further direct that the petitioner be admitted to the present 1 st year class of the M. B. B. S. in the Medical Colleges at Amristsar if he is not disentitled to be so admitted on the ground of the particular percentage of marks obtained by him in the first year of B.sc . (T. D. C. ).
14. In the circumstances of the case, however, we make no order as to costs.
15. Narula, J.
15. Petition allowed.