Holding

A person who has resided in Uttar Pradesh for not less than five years for the purpose of education satisfies the definition of "bona fide resident" under clause 4(b) of the Notification, and domicile is irrelevant.

Summary

Dr. Yogesh Bhardwaj, nominated by Himachal Pradesh to study B.D.S. in Uttar Pradesh, completed the course and lived in the state for over five years. He later applied for an M.D.S. seat but was denied his preferred subject because the authorities held he was not a "bona fide resident" of Uttar Pradesh under the 1983 Notification issued under Section 28(5) of the U.P. State Universities Act, 1974. The High Court ruled that residence solely for education did not satisfy the "bona fide resident" requirement. On appeal, the Supreme Court held that the term "bona fide resident" under clause 4(b) includes a person who has resided in the state for at least five years for any lawful purpose, including education, and that the concept of domicile (a private international law notion) is irrelevant to the statutory provision. Consequently, the appellant was deemed a bona fide resident and the High Court order was set aside.

Issues considered

Whether a person who resides in Uttar Pradesh for five years solely for the purpose of education qualifies as a "bona fide resident" under clause 4(b) of the 1983 Notification.
Whether the concept of domicile, as a private international law concept, is applicable to the residence qualification in the Notification.
Whether the High Court's interpretation of clause 2 and clause 4 of the Notification was correct.

Legislation cited

U.P. State Universities Act, 1974s. 28(5)

Subjects

bona fide residentresidence qualificationdomicileU.P. State Universities Actmedical college admissionstatutory interpretationprivate international lawequal protection

Judgment

DR. YOGESH BHARDWAJ
A
V.
STATE OF U.P. AND ORS.

APRIL 24, 1990 •

B [LALIT MOHAN SHARMA AND T. KOCHU THOMMEN, JJ.]

Professional Colleges-Admission to.

U.P. State Universities Act, 1974-Section 28(5) and Notification
dated August 19, 1983-Clauses 2 and 4-Medical College-Admission
I
C to M.D.S. course-Residence qualificatitm-Residence of five years in
State of U.P. solely for purpose of pursuing B.D.S. course-Held
amounts to bona fide residence in the State and eligible for admission to
M. D.S. course-'Domicile' --Concept of in private international law-
Inapposite and inapplicable in the context.

D Private International Law: Domicial-Concept of-Where single
unified system of law prevails-Domicile is of the whole country-Not
Statewise domicile-Mere residence in a State does not comprehend
volition or intention to settle therein permanently-Residence should be
voluntary and lawful, not fleeting or transitory.

ll The appellant who was nominated by the State of Himachal
Pradesh to undergo the B.D.S. course in the State of Uttar Pradesh,
successfully completed his course and secured the 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 the M.D.S. course at King George
Medical College, Lucknow· and the subject of his choice was Oral
F Surgery. He secured admission but the subject that was offered to him
was Periodontics.

The reason for denying the appellant the subjectof his choice, viz.
Oral Surgery; was that he had to step down in favour of others who had
come within the rule of preference pro~ided for in the Notification
O dated August 19, 1983. issued under Section 28(5) of the U.P. State
Lniversities Act, 1974, providing for reservation of seats, and prescrib-
ing a residence qualification for selection to the M.D.S. course.

H
The High Court in its judgment in Writ Petition No. 5400 of 1989
following an earlier decision of the Court held that those candidates
who joined B.D.S. course on the basis of nominations made by the
--..
.

666
Y. BHARDWAJ v. STATE OF U.P. 667

Central Government or their own State will not be treated to be bona
A
fide residents of Uttar Pradesh merely because they have stayed in the
State for five years for completion of the course.

The appellant who was not a party to the proceedings in the writ
petition applied for clarification and modification on the said judgment
as it had adversely affected him. The High Court rejected the applica- B
tion, holding that clause 2 of Notification stipulates two conditions viz:
(i) institutional and (ii) residential: and that the appellant satisfies the
first requirement, namely, institutional but does not fnltil the second
requirement, viz 'bona fide resident'; that a 'bona fide resident' is one
who comes within the meaning of that expression in clause 4 of this
Notification, and that residence merely for the purpose of studies would
not satisfy the requirement of clause 4. c
In the appeal to this Court on the question: Whether the appellant
was a 'bona fide resident of Uttar Pradesh' within the meaning of
clause (b) of the Notification dated August 19, 1983.
D
Allowing the appeal, and setting aside the order of the High
Court, this Court,

HELD: 1. A person is treated as a 'bona fide resident of Uttar
Pradesh' in terms of sub-clauses (a) and (b) of Clause 4 hy reason of
either his 'domicile' or 'residence' in that State. While sub-clause (a) E
speaks of the domicile of the candidate and his father, sub-clause (b)
speaks of a person, whose father was not domiciled in the State and who

- himself has resided for not less than five years in the State. The concept
of domicile is irrelevant to the construction nf sub-clause (b) in respect
of the residence qualification of the candidate. All that it requires is his
requisite residence. [673A-BJ F

2. Clauses 2 and 4 indicate that a person should have resided in
Uttar Pradesh for the requisite period lawfully and bona fide. The
convers of bonafide being mala fide, meaning lack of good faith, in the
absence of any allegation that the appellant's residence in that State was
in any manner opposed to the law of the land, or tainted hy lack of good G
faith, and in the light of the undisputed fact that his residence was
neither casual nor fleeting, but in excess of the minimum period of five
years, and for the definite purpose of education, he satisfies the defini-
tion of a 'bona fide resident.' l678B-C]

3. The construction placed by the High Court upon sub-clause (b) H
668 SUPREME COURT REPORTS [ 1990) 2 S.C.R.

of clause 4 of the Notification is unsustainable. A person such as the
A (
appellant who resided in the State of Uttar Pradesh specifically for the
purpose of undergoing a course of studies for not less than five years
albeit with the intention of finally returning to his home State, also -
comes within the meaning of the expression 'bona fide resident' as
----- ~

defined in the said clause. [678D-EJ -
B
4. Domicile which is a private international law or conflict of laws
concept identifies a person, in cases having a foreign element, with a
territory subject to a single system of law, which is regarded as his
personal law. [673B-CJ

5. A person is domiciled in the country in which he is considered to
c have his permanenet 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. [673C-D]

Re Fu/d's Estate (No. 3) 1968 (P) 675; Casdagli v. Casdagli. 11919]
D AC 145, 178 and Dicey & Morris, The Conflict of Laws, Vol. 1page24,
referred to.

6. Domicile being a private international law concept, is inappo-
site to the relevant provsions, having no foreign element i.e. having no
contact with any system oflaw other than Indian. nnless that expression
E is understood in a less technical sense. [674D-E)

Dr. Pradeep Jain and Others etc. v. Union of India & Others etc.,
[1984] 3 sec 654, 666-669, referred to.

7. An expression which has acquired a special and technical con-
F notation and developed as a rule of choice or connecting factor amongst -Z
the competing diverse legal system as to the choice of law of forum is,
when employed out of context, in situations having no contact with any ~ -
foreign system of law. apt to cloud the intended import of the statutory
instrument. [674E-F]

G 8. India though a Union of States, and a federation in that sense,
the whole country is governed by a single unified system of law, with a
unified system of judicial administration, notwithstanding the constitu-
-
tional distribution of legislative powers between the Centre and the
States. [675B-C)

H 9. There is no State-wise domicile within the territory oflndia. A
Y. BHARDWAJ v. STATE OF U.P. 669

man who is domiciled in India is domiciled in every State in India and is
j A
identified with a territorial system of legal rules pervading throughout
.->--. the country. He is domiciled in the whole of this country even though his
permanent home may be located in a particular spot within it. [675C-D l

Halsbury's Laws of England, vol. 8 para 422; D.P. Joshi v. The
State of Madhya Bharat and Another, [I955] I SCR l2I5; Udny v. B
Udny, [I869] LR I Sc & Div 44I, H.L.; Bell v. Kennedy, [I868] LR I Sc
& Div 307, H.L. and D.P. Joshi v. The State of Madhya Bharat and
--~- Another, [I955] I SCR 12I5, referred to.

.,- IO. Education, business, profession, employment, health, family

- or merely love of the place are some of the reasons commonly regarded
as sufficient for a choice of regular abode. It is only lawful residence
that can be taken into account. If a man stays in a country in breach of
c

immigration laws, his presence there does not constitute ordinary
-~--
residence. [677E-F]

II. Residence is a physical fact. No volition is needed to establish D
it. Unlike in the case of a domicile of choice, animus manendi is not an
essential requirement of residence. Any period of physical presence,
however short, may constitute residence provided it is not transitory,
fleeting or casual. Intention is not relevant to prove the physical fact of
residence except to the extent of showing that it is not a mere fleeting or
-_:~x transitory existence. To insist on an element of volition is to confuse the E
feature of 'residence' with those of 'domicile'. l676E-F]

12. A person is ordinarily resident in a country if his residence
..... there is not casual or uncertain, but is in the ordinary course of his life .
A man may be ordinarily resident or habitually resident in more than
,.... one place. While 'ordinary residence' is the physical residence in regard f
to which intention is irrelevant, except to show that the residence is not
·}' merely, fleeting, 'habitual residence' may denote a quality of endurance
longer than ordinary residence, although duration, past or prospective,
is only one of the many relevant factors, and there is no requirement of
any particular minimum period. [676H; 677A-B]
c G
13. While residence and intention are the two essential elements
constituting the 'domicile of choice', residence in its own right is a
- --L connecting factor in a national legal system for purposes of taxation,
jurisdiction, service of summons, voting etc. To read into residence
volition as a necessary element is to mistake residence for domicile of
• choice. '[677F] H
670 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

A 14. Where residence is prescribed within a unified legal system as (
a qualifying condition, it is essential that the expression is so understood
as to have the widest room for the full enjoyment of the right of equality
before the law. Any construction which works to the disadvantage of
the citizen lawfully seeking legitimate avenues of prngtess within the country
will he out of harmony within the guaranteed rights under the Consitu-
B tion, and such a cunstruction must necessarily he avoided. [677G-H; 678A]

J.D. McClean, International & Comparative Law Quarterly, ' ~
[1962] Vol. II pp. 1153 et seq; Commissioner of Inland Revenue v.
Lysaght, [1928] AC 234; Levene v. Commissioner of Inland Revenu,
[1928] AC 217 at p. 222 and Dicey & Morris; The Conflict of Laws, ~
10th ed., pp. 143-145 & 200-202. Cheshire & North; Private Interna- •
C tional Law, 11th ed., pp. 171-173 and Ha/sbury's Laws of England, 4th
ed., vol. 8 pp. 318-330, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 62 of
1990.
D
From the Judgment and Order dated 2. 12.1989 of the Allahabad
High Court in C.M.Appn. No. 17984 (W) of 1989 in W.P. No. 5400 of
1989.

Mukul Mudgal for the Appellant.
E
Anil Dev Singh, G.L. Sanghi, Mrs. Shobha Dikshit, E.C.
Agrawala, Atul Sharma and V.K. Pandita for che Respondents.

The Judgment of the Court was delivered by

F TH OMMEN, J. This appeal by special leave is against the Order
of the Allahabad High Court, Lucknow Bench, in C.M. Application
No. 17984 (W) of 1989 in Writ Petition No. 5400 of 1989. The applica-
tion for clarification and modification of the judgment in the Writ
Petition was filed in the High Court by the appellant, though not a
party to that proceeding, on the ground that he was adversely affected
G by it. -,

The appellant was nominated by the State of Himachal Pradesh
to undergo the B.u.S. course in the State of Uttar Pradesh. The appel-
lant successfully completed his course of studies in Uttar Pradesh and
secured the B.D.S. degree. For that purpose he had stayed in that
H State for over a period of five years. He later applied for admission to
Y. BHARDWAJ v. STATE OF U.P. [THOMMEN. J.] 671

the M.D.S. course at King George Medical College, Lucknow. He A
)
..
----
secured admission to the course, but in a subject other than that of his
choice. The subject of his choice was Oral Surgery, but what was
offered to him was Periodontics. The reason for denying the appellant
the subject of his choice was that he had to step down .in favour of
others who had come within the rule of preference as per \he Notifica-
tion dated August 19, 1983 issued under section 28(5) of the U .P. State B
Universities Act, 1974 (U.P. Act No. 29 of 1974) providing for reser-
vation of seats and prescribing a residence qualification for selection to
the M.D.S. course.

By the impugned order, the High Court rejected the appellant's
prayer for clarification and modification of its judgment in Writ Peti- c
tion No. 5400 of 1989 and held that that judgment was rendered in
accordance with the principle laid down in its earlier decision in Writ
Petition No. 5325 of 1988 where the residence qualification prescribed
--~--- by the Notification was so construed as to be applicable only to a
person who was a resident in the State of Uttar Pradesh for reasons
other than that of merely completing a course of studies. In other D
words, the High Court refused to accept the appellant's contention
that the residence qualification should be so construed as to entitle to
admission a person, like the appellant, who had come from outside the
State strictly and solely for the purpose of undergoing a course of
studies and returning to his own State upon completion of the course.
The High Court held that residence strictly for studies without more E
did not bring a person within the ambit of the Notification. This is
what the High Court stated in its judgment in Writ Petition No. 5400 of
1989, clarification of which was sought by the appellant:

- "In other words those candidates who joined B.D.S.
Course on the basis of nominations made by the Central F
Government or their own State and were not bona fide
residents of the State of Uttar Pradesh prior to joining the
B.D.S. Course will not be treated to be bona fide residents
of Uttar Pradesh merely because they have stayed in the
State of Uttar Pradesh for five years or more for comple-
tion of the B.D.S. Course orhousemanship." G

The appellant does not challenge the validity of the notified pro-
·~ ~ visions. The sole question which arises for consideration is as regards
the construction of clause 4 of the said Notification. Before reading
tllat clause, it may be noticed that clause 1 of the Notification provides
for reservation of seats in favour of candidates belonging to the H
672 SUPREME COURT REPORTS (1990] 2 S.C.R.

A categories specified therein. Clause 2 then provides:

"2. The remaining seats shall be filled up on the basis of
merit by the candidates who have passed the B.D.S. exami-
--
~

nation from the K. G. Medical College, Lucknow, obtain-
ing a minimum of 55% marks in the aggregate and who are.
B bona fide residents of Uttar Pradesh.
(emphasis supplied)

The High Court notices that clause 2 stipulates two conditions,
namely (i) institutional; and (ii) residential. The High Court observes
that the appellant satisfies the first requirement-the institutional, but
C does not fulfil the second requirement, namely, bona fide residence. A
bona fide resident is one who comes within the meaning of that expres-
sion in clause 4, which reads:

"4. For the purpose of this order the expression 'bona fide
resident of Uttar Pradesh' shall mean-
D
(a) a citizen of India, the domicile of whose father is in
Uttar Pradesh and who himself is domiciled in Uttar
Pradesh; or

(b) a citizen of India, the domicile of whose father was not
E in Uttar Pradesh but who himself has resided in Uttar
Pradesh for not less than five years at the time of making
the application."
(emphasis supplied)

It is not disputed that the appellant is a citizen of India and is
f domiciled in India. The question is whether he is a 'bona fide resident
of Uttar Pradesh'. The contention of the appellant before the High
Court was that he had stayed in the State of Uttar Pradesh for more
than five years for the purpose of completing his studies and was,
therefore, fully qualfied as a bona fide resident of that State. The High
Court found that residence merely for the purpose of studies would not
G satisfy the requirement of clause 4.

The appellant was nominated by the State of Himachal Pradesh
to undergo a course of studies in the State of Uttar Pradesh and he·
stayed in Uttar Pradesh for over five years solely for that purpose.
There is no evidence that he had any other object for staying for that
H length of time, as he did, in Uttar Pradesh. There is no evidence that
Y. BHARDWAJ v. STATE OF U.P. [THOMMEN, J.l 673

) he had any intention of indefinitely residing in that State.
A
A person is treated as a 'bona fide resident of Uttar Pradesh' in
terms of sub-clauses (a) and (b) of Clause 4 by reason of either his
'domicile' or 'residence' in that State. While sub-clause (a) speaks of
the domicile of the candidate and his father, sub-clause (b) speaks of a
person, whose father was not domiciled in the State and who himself B
has resided for not less than five years in the State. The concept of
;.,,._, 'domicile' is irrelevant to the construction of sub-clause (b) in respect
-< of the residence qualification of the candidate. All that it requires is his
requisite residence.

- Domicile which is a private international law or conflict of laws
concept identifies a person, in cases having a foreign element, with a c
territory subject to a single system of law, which is regarded as his
~~- · personal law. A person is domiciled in the country in which he is
considered \o 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 D
domiciles.

A domicile of origin is attributed to every person at birth by
operation of law. This domicile is not decided by his place of birth, or
_ A by the place of residence of his father or mother, but by the domicile of
the appropriate parent at the time of his birth, according as he is E
legitimate or illegitimate. It is possible for the domicile of origin to be
"transmitted through several generations no member of which has
ever resided for any length of time in the country of the domicile of
origin." (See Dicey & Morris, The Conflict of Laws, 10th ed. Vol. I,
___ Rule 9, p. 108). Tlie domicile of origin continues until he acquires a
domicile of choice in another country. Upon abandonment of a F
-_\- domicile of choice, he may acquire a new domicile of choice, or his
domicile of origin, which remained in abeyance, revives. The burden
of proving a change of domicile is on him who asserts it. The domicile
of origin is more tenacious. "Its character is more enduring, its hold
stronger and less easily shaken off." Per Lord Macnaghten, Winans v.
A.G., [1904] AC 287, 290. The burden of proving that a domicile of G
origin is abandoned is needed much heavier than in the case of a
domicile of choice. No domicile of choice can be acquired by entering
-....:....._ a country illegally.

The domicile of choice is a combination of residence and inten-
tion. Residence which is a physical fact means "bodily presence as an H
674 SUPREME COURT REPORTS [1990] 2 S.C.R.

inhabitant" (Re Newcomb, 192 N.Y. 238; 84 N.E. 950 (1908). See
A Dicey, op. cit). Such residence must be combined with intention to
.
reside permanently or for an unlimited time in a country. It is such
intention coupled with residence that acquires him a new domicile. 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
B intention to reside there permanently. "If a man intends to return to the
land of his bifth upon a clearly foreseen and reasonably anticipated
contmgency", Re Fu/d'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, 178 are keys to his intention.
C ''That place is properly the domidle of a person in which he has volun-
tarily 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 unex-
pected or the happening of which is uncertain) shall occur to induce
him to adopt some other permanent home". Lord v. Colvin, [1859) 4
D Drew 366 at 376.

We must, in this connection, hasten to add that 'domicile', being
a private international law concept, is inapposite to the relevant provi-
sions, having no foreign element, i.e., having no contact with any
system of law other than Indian, unless that expression is understood
E in a less technical sense (see observations to this effect in Dr. Pradeep
Jain and Others etc. v. Union of India and Others etc., [1984) 3 SCC
654, 666-669). An expression which has acquired a special and technical
connotation, and developed as a rule of choice or connecting factor
amongst the competing diverse legal systems as to the choice of law or
forum, is, when employed out of context, in situations having no con-
F tact with any foreign system of law, apt to cloud the intended import of
the statutory instrument.

When a person is referred to as domiciled in a country, the
expression 'country' is used in private international law as a term of art
denoting, in the words of dicey, "the whole of a territory subject under
G one sovereign to one body of law". See Dicey & Morris, The Conflict
of Laws, Vol. 1, page 24. But in a federation like the United States,
Australia, or Canada, or in a composite State like the United King-
dom, different systems of law may prevail in different regions in
respect of certain matters. In such cases, each of the territories gover-
ned by a separate system of law is treated, for the purpose of private
H international law, as a 'country', though in public international law or
Y. BHARDWAJ v. STATE OF U.P. [THOMMEN, J.] 675

constitutional law it is not a separate sovereign State. As stated by
) Hals bury, "in federal states, some branches of law are within the
A
competence of the federal authorities and for these purposes the whole
federation will be subject to a single system of law, and an individual
may be spoken of as domiciled in the federation as a whole; other
branches of law are within the competence of the states or provinces of
the federation, and the individual will be domiciled in one state or B
province only". Halsbury's Laws of England Vol. 8, para 422; See D.P.
Joshi v. The ~tale of Madhya Bharat and Another, [1955] 1SCR1215.

This is, however, not the position in India. Though a Union of
States, and a federation in that sense, the whole country is governed

-- by a single unified system of law, with a unified system of judicial
administration, notwithstanding the constitutional distribution of
legislative powers between the Centre and the States. There is no
c

State-wise domicile within the territory of India. A man who is
domiciled in India is domiciled in every State in India and is identified
with ·a territorial system of legal rules pervading throughout the
country. He is 'domiciled' in the whole of this country, even though his D
permanent home may be located in a particular spot within it. Udny v.
Udny, [1869] LR l Sc & Div 441, H.L.; Bell v. Kennedy, [1868] LR I
Sc & Div 307, H.L. The expression, as understood in private interna-
tional 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, therefore, inapplicable to the construction E
of clause 4. We would in this connection recall the words of this Court
in Dr. Pradeep Jain & Ors. v. Union of India & Ors., [1984] 3 SCC 654
at 668, See also D.P. Joshi v. The State of Madhya Bharat and
An.other, [1955] 1SCR1215:

"It would be absurd to suggest that the legal system varies F
from State to State or that the legal system of a State is
different from the legal system of the Union of India,
merely because with respect to the subjects within their
legislative competence, the States have power to make
laws. The concept of 'domicile' has no relevance to the
applicability of municipal laws, whether made by the G
Union of India or by the States. It would not, therefore, in
our opinion be right to say that a citizen of India is
domiciled in one State or another forming part of the
Union of India. The domicile which he has is only one
domicile, namely, domicile in the territory of India."
H
676 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

'Domicile' for the purpose of clause 4 must, nevertheless, be
A
understood and applied in a limited sense and in contradistinction to
'residence', for that clause uses both tbe expressions and demands
compliance with either of tbem with reference to the State of Uttar
Pradesh. Unlike 'residence' which is only bodily presence, 'domicile'
in this context must necessarily mean physical residence coupled with
B the intention to settle down in Uttar Pradesh, although, being con-
fined to a particular region rather than the whole area of operation of
the territorial legal system and lacking in any foreign complexion or
unconcerned with any foreign element, the animus manendi required
for the purpose of clause 4 is much less in quality and contents than
what is required in Private International Law. Sub-clause (a) of Clause
c
4 prescribes no minimum length of residence or minimum degree of
intention, and, however short or insignificant the two elements may
-
be, their combination, in whatever proportion, is sufficient to consti-
tute 'domicile' for the purpose of clause 4(a).

In the present case, the appellant came to the State of Uttar
D Pradesh with a predetermined mind, namely, to complete the chosen
course of studies and return to tbe State which had nominated him for
the purpose. Having regard to the time and duration, the object and
obligaton, and the uncontroverted facts, the appellant was undoub-
tedly a bona fide student who resided in Uttar Pradesh for over five
years, but whose residence did not acquire the attributes of 'domicile'
E within the meaning of clause 4(a). The question then is whether the
appellant is a 'bona fide resident of Uttar Pradesh' within the meaning
of clause 4(b ).

Residence is a physical fact. No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an
F essential requirement of residence. Any period of physical presence,
however short, may constitute residence provided it is not transitory,
fleeting or casual. Intention is not relevant to prove the physical fact of
residence except to the extent of showing that it is not a mere fleeting
or transitory existence To insist on an element of volition is to confuse
the features of 'residence' with those of 'domicile'. For an interesting
G discussion on The Meaning of Residence, see J.D. McClean, Interna-
tional & Comparative Law Quarterly [ 1962] Vol. II PP. 1153 et seq.

A person is ordinarily resident in a country if his residence there
is not casual or uncertain, but is in the ordinary course of his life. Per
Viscount Cave, Commissioner of Inland Revenue v. Lysaght, [1928]
H AC 234; Levene v. Commissioners of Inland Revenue, [1928] AC 217
Y. BHARDWAJ v. STATE OF U.P. {THOMMEN, J.J 677

) at p. 222. A man may be ordinarily.resident or habitually resident in
A
more than one place. While 'ordinary residence' is the physical resi-
dence in regard to which intention is irrelevant, except to show that
the residence is not merely fleeting, 'habitual residence' may denote a
quality of endurance longer than ordinary residence, although dura-
tion, past or prospective, is only one of the many relevant factors, and
there is no requirement of any particular minimum period. See Dicey B
& Morris; The Conflict ofLaws, 10th ed., PP. 143.145 & 200-202. See
also Cheshire & North; Private International Law, 11th ed., PP. 171-
173; Halsbury's Laws of England, 4th ed., Vol. 8, PP. 318-330.

In Reg v. Barnet L.B.C., Exp. Shah, [1983] 2 A.C. 309, the
House of Lords held that a person was ordinarily resident in the
United Kingdom, if he normally resided lawfully in that country from
c
choice and for a settled purpose. If a person resided there for the
specific and limited purpose of education, he was ordinarily resident in

- that country, even if his permanent residence or real home was outside
that country or his future intention or expectation was to live outside
that country. D

Residence must be voluntary. "Enforced presence by reason of
kidnapping or imprisonment, or a Robinson Crusoe existence on a
desert island with no oportunity of escape, may be so overwhelming a
factor as to negative the will to be where one is". Per Lord Scarman,
Reg v. Barnet L.B.C., Ex. p. Shah, [1983] 2 A.C. 309 at 344. Educa- E,
tion, business, profession, employment, health, family, or merely love
of the place are some of the reasons commonly regarded as sufficient
for a choice of regular abode. It is only lawful residence th.at can be
taken into account. If a man stays in a country in breach of immigra-
tion laws, his presence there does not constitute ordinary residence.
F
While residence and intention are the two essential elements
constituting the 'domicile of choice' residence in its own right is a
connecting factor in a national legal system for purposes of taxation,
jurisdiction, service of summons, voting etc. To read into residence
volition as a necessary element is, as stated above, to mistake resi-
dence for domicile of choice, and that is the error which the High G
Court appears to have committed. Where residence is prescribed within
a unified legal system as a qualifying condition, it is essential that the
expression is so understood as to have the widest room for the full
enjoyment of the right of equality before the law. Any construction
which works to the disadv.antage of the citizen lawfully seeking legiti-
mate avenues of progress within the country will be out of harmony H
678 SUPREME COURT REPORTS [1990] 2 S.C.R.

A with the guaranteed rights under the Constitution, and such a con-
struction must necessarily be avoided.

Clause 2, which we have set out above, refers to a 'bona fide'
resident and such a person is defined under clause 4 to include a person
---
.>

who has resided in Uttar Pradesh for not less than five years at the time
B
of making his application. These two clauses indicate that a person
should have resided in Uttar Pradesh for the requisite period lawfully
and bona fide. The converse of bona fide being ma/a fide, meaning lack
of good faith, in the absence of any allegation that the appellant's
residence in that State was in any manner opposed to the law of the
land, or tainted by lack of good faith, and in the light of the undisputed
c fact that his residence was neither casual nor fleeting, but in excess of
the minimum period of five years, and for the definite purpose of
education, he satisfies the definition of a 'bona fide resident'. Any
other construction of the clauses would, in our view, be unreasonably

D
restrictive and thus conflict with the appellant's constitutional rights.

Viewed in this light, we have no doubt that the construction
placed by the High Court upon sub-clause (b) of clause 4 of the Notifi-
-
cation is unsustainable. In our opinion, a person, such as the appel-
lant, who resided in the State of Uttar Pradesh specifically for the
purpose of undergoing a course of studies for not less than five years,
albeit with the intention of finally returning to his home State, also
E comes within the meaning of the expression 'bona fide resident' as
defined in the said clause.

In the circumstances, we set aside the impugned order of the
High Court, and allow the appeal with the costs of the appellant here
and in the High Court.
F
N.V.K. Appeal allowed.