Case: Parbat S/O Namdeo Naikwadi Vs. The Indian Oil Corporation Limited,

find it relevant to refer to two Judgments of the Apex Court. In the case of Yogesh Bhardwaj vs. State of U.P. and others, reported in (1990) 3 Supreme Court Cases, Page 355, the Apex Court in Para 17 and 21 observed thus:"17. 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 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.21. 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 residence for domicile of choice, and that is the error which the High 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 disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided."21. In the case of Union of India and others vs. Dudh Nath Prasad, reported in (2000) 2 Supreme Court Cases, Page 20, the Apex Court in Para 19 to 18 21 observed thus:"19. Learned counsel for the appellants then attempted to import the concept of domicile as understood in Private International law, in his arguments and contended that before a person can be said to be "Ordinarily residing" at a particular place, he must satisfy all the requirements which go to constitute domicile. He further contended that since the respondent was born in a village in the State of Bihar, he shall be treated to have his domicile of nativity in that State. We are not prepared to accept this contention.20. In Tomlins Law Dictionary, "domicile" has been defined as "the place where a man has his home."21. In Whicker v. Hume it was held that a persons domicile means, generally speaking, the place where he has his permanent home.22. In McMullen v. Wadsworth it was observed that the Roman law still holds good that it is not by naked assertion but by deeds and acts that a domicil is established.23. Lord Macnaghten in Winans v. A.G. observed that: "Domicil of origin, or, as it is sometimes called, perhaps less accurately, domicil of birth, differs from domicil of choice mainly in this that its character is more enduring, its hold stronger and less easily shaken off."24. In Ross v. Ross, Lord Buckmaster while dealing with a case relating to change of domicile observed that:"Declarations of intention are rightly regarded as determining the question of a change of domicil, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made, and they must further be fortified and carried into effect by conduct and action consistent with the declared expression".25. In another case, namely, Ramsay v. Liverpool Royal Infirmary Lord Dunedin observed at p. 594 that: "The animus of changing domicil may be inferred from the factum of residence."26. Etymologically, "residence" and "domicile" carry the same meaning, inasmuch as both refer to the permanent home, but under Private International Law, "domicile" carries a little different sense and exhibits many facets. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. Domicile may also take many colours; it may be the domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. In Private International Law, "domicile" jurisprudentially has a different concept altogether. It plays an important role in the Conflict of Laws. The subject has been elaborately considered by Dicey in his book "Conflict of Laws" (6th Edn.) as also in another book by Phillimore on Domicil. An equally valuable discussion is to be found in Private International jurisprudence by Foote and by Westlake on Private International Law."22. Considering the definitions of term "domicile" and "residence" as dealt with in the dictionaries and the Judgments cited supra, it is noted that the domicile and residence are different and yet related concepts. They have to be understood in the context in which they are used having regard to the nature and purpose. The purpose for which clause 2.2 in the advertisement is framed by the Respondent No.1 Oil Company, is to obtain proof of residence of a person at which place the Company decided to offer and run the retail outlet. The retail outlet is to be sanctioned at village Khanapur, TalukaAkole, District-Ahmednagar and therefore, rightfully the Respondent No.1 company demanded a Residence Certificate issued by Talathi or Tahsildar. It is true that the other candidates did file Residence Certificates issued by the respective Talathis but the Petitioner submitted a Domicile Certificate.23. In the facts of the case, we find that the Petitioners Domicile Certificate and even Residence Certificate annexed to the Petition refers to his residence at village Gardani, Taluka-Akole, whereas the Respondent No.1 was to sanction retail outlet at village Khanapur, which is reflected at sr. no.183 of the advertisement. The explanation of the Petitioner on that ground does not satisfy condition of proof of residence of village Khanapur. We therefore, find that the Petitioner has failed to make out any case for getting the impugned communication quashed and set aside.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. After reading clause 2.2 of the advertisement, we are of the view that the said clause in respect of submission of Residence Certificate could have been clearly drafted and worded by the Respondent No.1 company. We had even verified from some of the disposed matters, the clauses in respect of Residence proof framed, by the Company and it is noticed that the same are not worded in identical fashion in which present clause 2.2 is worded. But at the same time, we could gather that the thrust of the clause is in respect of demand of Residence Certificate from the candidate. The Company had even mentioned that the said Residence Certificate issued by Talathi or Taluka Tahsildar is required.We had probed the matter little more because it was informed to the Court that the requirement of Residence Certificate of the present nature was part of advertisement in several cases and therefore the Respondent No.1 Company was keen to have final word on the said issue so that the Company could properly frame the clauses in future in the advertisement in respect of submission of Residence Certificate and the candidates properly and clearly understand the same.We have noticed that the Respondent No.1 in the present advertisement, had prescribed the proforma of applications to be submitted by the partners of the firm, cooperative societies etc. We noticed that time and again on rejection of application on the ground of want of Residence Certificate, Petitions have been filed in this Court. To avoid litigation on the issue and to have clarity on the issue, we find that it would be appropriate that if the Respondent No.1 Company drafts necessary clauses in more clear words if necessary by providing a proforma of the Residence Certificate which is required by theconcept of domicile has no relevance to the applicability of municipal laws, whether made by the 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.It is true and there we agree with the argument advanced on behalf of the State Governments, that the word domicile in the Rules of some of the State Governments prescribing domiciliary requirement for admission to medical colleges situate within their territories, is used not in its technical legal sense but in a popular sense as meaning residence and is intended to convey the idea of intention to reside permanently or indefinitely.The concept of domicile if used for a purpose other than its legitimate purpose may give rise to lethal radiations which may in the long run tend to break up the unity and integrity of the country. We would, therefore, strongly urge upon the State Governments to exercise this wrong use of the expression domicile from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.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 residence for domicile of choice, and that is the error which the High 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 disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided.Considering the definitions of term "domicile" and "residence" as dealt with in the dictionaries and the Judgments cited supra, it is noted that the domicile and residence are different and yet related concepts. They have to be understood in the context in which they are used having regard to the nature and purpose. The purpose for which clause 2.2 in the advertisement is framed by the Respondent No.1 Oil Company, is to obtain proof of residence of a person at which place the Company decided to offer and run the retail outlet. The retail outlet is to be sanctioned at village Khanapur, TalukaAkole,and therefore, rightfully the Respondent No.1 company demanded a Residence Certificate issued by Talathi or Tahsildar. It is true that the other candidates did file Residence Certificates issued by the respective Talathis but the Petitioner submitted a Domicile Certificate.23. In the facts of the case, we find that the Petitioners Domicile Certificate and even Residence Certificate annexed to the Petition refers to his residence at village Gardani,whereas the Respondent No.1 was to sanction retail outlet at village Khanapur, which is reflected at sr. no.183 of the advertisement. The explanation of the Petitioner on that ground does not satisfy condition of proof of residence of village Khanapur. We therefore, find that the Petitioner has failed to make out any case for getting the impugned communication quashed and set aside.