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VENKATARAMA AYYAR J.-This is a petition under article 32 of the Constitution. 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 in force in this institution discriminate in the matter of fees bet- ween students who are residents of Madhya Bharat and those who are not, and that the latter have to pay in addition to the tuition fees and charges payable by all the students a sum of Rs. 1,500 per annum as capitation fee, and that this is in contravention of articles 14 and 15(1) of the Constitution. The petitioner accordingly prays that an appropriate writ might be issued prohibiting the respondent from collecting from him capitation fee for the current year, and directing a refund of Rs. 3,000 collected from him as capitation fee for the first two years.

A brief narration of the history of the institution will be useful for a correct appreciation of the contentions on 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 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 takeover -the running of the institution, subject to the arrangements entered into between the institution and certain States and donors for reservation of seats 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 into the College, 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 rule which is at the root of the present controversy. It provided that "Madhya Bharat students are 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 Dew rule was substituted, which runs as follows:

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(1). 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 be is asked to pay is repugnant to the Constitution. The history of the (1) A.I.R. 1953 Punjab 93.

"A person's domicil of origin is the domicile of his birth. It is generally but not necessarily the place of birth".

In this connection it is to be remembered that the relevant rule is a substitute for the pre-existing rule which was as follows:

"Madhya Bharat students are exempted from capitation fees".

The phrase "Madhya Bharat students" has no reference either to residence or domicile, and there can be no doubt that it normally connoted students who were born in Madhya Bharat. In my opinion when the State authorities took over the management of the institution from private hands and made a change in the rule by coining a hybrid definition of the phrase "bona fide residents of Madhya Bharat" placing the category of citizens whose original domicile is in Madhya Bharat in the forefront of that definition, they only attempted to camouflage the implication thereof so as to accord with the pre-existing rule, viz. that the benefits of the exemption from capitation fees should be available only to persons born in Madhya Bharat and the burden of the capitation fees should be borne by persons not born in Madhya Bharat. In the view I take of the real meaning and effect of the rule, which is under discussion, neither an attempt at subsequent clarification nor the actual manner in which it is said to be administered or intended to be administered, as stated by the Assistant Secretary to the Madhya Bharat Government,, Shri H. L. Gupta, in his affidavit, even if accepted as correct, can have any bearing. The fact that some of the admitted students of the Medical College who are residents of Madhya Bharat may not be entitled to exemption from capitation fee under the rule as now sought to be interpreted is not relevant so long as a student in the position of the applicant cannot have the benefit of the exemption, even if he got the highest marks in the competi- tion. In my view, therefore, the rule in question has reference to place of birth in Madhya Bharat primarily, though a number of other miscellaneous categories might also come in under other and different heads. Hence the rule offends article 15 of the Constitution. Even in the view that the rule has reference to the juristic concept of regional domicil and for that reason does not fall within the scope of the inhibition of article 15, 1 am unable to see how, with reference to article 14, the distinction based on such domicile can be considered reasonable. No sugges- tion has been put forward how "original domicile in Madhya Bharat" is a reasonable ground for classification. In my opinion, therefore, the primary content of the rule relating to capitation fees which is contained in clause (a) of the definition of "bona fide resident of Madhya Bharat" does operate to the disadvantage of the petitioner by way of unconstitutional discrimination. Hence the State Government cannot validly seek to levy capitation fees on the petitioner with reference to that rule.