Chaturvedi, J.:— This is an application under Article 226, Constitution of India praying for the issue of a writ of Mandamus or any other writ or order of a suitable nature commanding the State not to interfere with the applicant's rights to move freely and to reside and settle in Indore or any part of the territory of India recognising him to be an Indian national.
2. There is no doubt that the applicant was born and brought up in Indore City where he had his ancestral home and had immovable property. He obtained a no-objection certificate for going to Pakistan from the Collector, Indore on 10-3-1949. According to him, he was anxious to purchase cement in Pakistan and import it into India. He, therefore, obtained a temporary permit from Pakistan's Permit Officer, Bombay, on 18-4-1949. This permit was valid up to 14-7-1949. On receiving a message from a dealer in cement in Pakistan, the applicant left for Karachi via Bombay on 21-6-1949 with a draft of Rs. 7000/- from the Indore Bank. The applicant reached Karachi on 23-6-1949 by the plane of Air India. The bargain in cement having failed, he wanted to return to India, and, therefore, on 11-7-1949, the applicant states that he applied to the High Commissioner for India in Pakistan for a permit for permanent return.
3. Meanwhile, the no-objection-certificate which had been given by the Indian authorities prior to 15-5-1949, had been cancelled, and the High Commissioner for India informed the applicant that no permit for permanent return could be given to him. The applicant, therefore, was compelled to obtain extension of his permit till 17-9-1949. After several attempts, the applicant states that he obtained a temporary permit from the High Commissioner for India in Pakistan Karachi, on 20-9-1949. It was valid, only for one month.
4. With this permit the applicant returned to Indore and then applied to the Collector. Indore, for his permanent stay in Indore. The Collector recommended for grant of permit for permanent return. But the applicant did not succeed in getting a permit for permanent return to Indore. The applicant was thus compelled to go on or about 20-10-1949 to Karachi where he stayed for a month and a half. He enquired at the Indian High Commissioner's Office, but the office informed him that they had received no orders about his permit.
5. As the Karachi Police was instituting enquiries, the applicant states that he left Karachi for Dacca in December, 1949 and stayed in Khulna for nearly three years, and then shifted to Dacca. He returned back to Karachi in March 1953 and again enquired at the Indian High Commissioner's Office regarding the receipt of any order of the Government of India in his case. He was informed that no orders had been received.
6. On 12-1-1954, the applicant says that he filled form and sent it along with his application to the High Commissioner for India in Pakistan, Karachi, but he was not informed of the action taken upon his application. He then sought a passport from the Pakistan Government declaring himself to be a Pakistan national, and on the authority of passport No. 121224 dated 1-7-1953 and a visa he returned to Indore and could stay up to 23-3-1954.
7. The applicant also states that he is an Indian national, owes complete allegiance to the Constitution of India and has a right to move freely and to reside and settle in any part of the territory of India; that he never acquired the citizenship of Pakistan; that he never migrated to Pakistan and his forcible stay there was only temporary and was falsely made by him under the compelling circumstances. He, therefore, requests that his fundamental rights under Article 19(d)(e), Constitution of India should not be allowed to be assailed. He should be recognised an Indian national and a suitable writ may be issued to that the Government of India may not interfere with his rights to move freely and to reside and settle in Indore or in any part of the territory of India.
8. The applicant's application to the Suba of Indore on 5-10-1949, states that his last trip to Pakistan was intended merely to visit his maternal uncle's son who was not keeping good health. He reiterated that he had never left Madhya Bharat for communal considerations or for fear of communal trouble, and he never intended to live in Pakistan as a national of that country. He requested for a permit to enable him to stay at Indore without being guilty of any breach of rules.
9. The petition also mentioned that the provisions of Influx Prom Pakistan (Control) Act 1949 and the rules made thereunder and the Passport Act of 1920, and the rules made thereunder in so far as they are made applicable to Indian nationals are inconsistent with Article 19(d)(e) of the Constitution and, are, therefore, void.
10. On behalf of the Government, the application is opposed on several grounds. The first ground is that no writ can be issued in favour of the petitioner on the ground that the office of the High Commissioner for India in Pakistan is not within the jurisdiction of this Court. The second point is that the impugned order was made by the High Commissioner for India before the Constitution came into force and Article 226 of the Constitution cannot be invoked with a retrospective effect.
11. Then it is stated in the return that the petitioner had applied to the High Commissioner for India in Pakistan in September, 1949 for a temporary permit to visit India, as a Pakistan national and then he returned to Pakistan in October, 1949, where he admittedly resided for a period exceeding four years. The petitioner has now visited India on a passport granted to him by the Pakistan Government and the visa expired on 23-3-1954. So it must be assumed that the petitioner had accepted by his conduct the nationality of Pakistan. Consequently he cannot file the application for being recognised an Indian national.
12. The petitioner in his application before the Suba of Indore did not mention that lie was visiting Pakistan for his business, but stated that he was to go to see an ailing relation. Now he states that he had gone there for his business, and so he cannot call in aid the no-objection-certificate which used to be granted in the case of persons visiting Pakistan to see ailing relations or to escort back to this country their family. The petitioner appears to have failed to produce before the High Commissioner for India in Pakistan the no-objection certificate issued to him by the Suba, Indore, on 10-3-1949.
13. On 29-8-1949, one Jahangir on behalf of the petitioner, applied to the Suba, Indore, for a duplicate copy of the said no-objection-certificate on the ground that the petitioner had lost it in Pakistan. The petitioner admitted that the duplicate copy of this certificate could be of no assistance to him for want of copy of his photograph duly certified. Under the circumstances, the petitioner's complaint that the order of the High Commissioner for India in Pakistan was arbitrary and unjust was unwarranted.
14. It is also stated that the petitioner suppressed the circumstances under which the High Commissioner for India in Pakistan declined to grant petitioner the permit, & therefore the petitioner has forfeited his remedy in the exercise of the extra-ordinary jurisdiction of the High Court. It is further stated in the return that the omission to produce the no-objection-certificate before the High Commissioner for India in Pakistan, without satisfying that appropriate authority that the certificate was lost, coupled with the conduct of the petitioner in dealing with the situation as a Pakistan national places his case beyond the purview of Article 226 of the Constitution. Therefore his petition should be rejected. It was added that the petitioner's visit to India in 1949 and return to Pakistan as a Pakistan national argues against his being an Indian national.
15. The petitioner had been declared on 29-12-1949 an evacuee by the Custodian of Evacuee Property, Indore, and as such he lost all rights of Indian national. The fact that the Collector recommended the petitioner's case in October, 1949 is of no consequence as the ultimate decision in the matter rested with the Government of India, and as the petitioner returned to Pakistan on 20-10-1949, the case could not be carried further to the Government of India.
16. It was further remarked that the provisions of Influx from Pakistan (Control) Act of 1949 as saved by Act of 1952 are not ultra-vires the Constitution, in so far as they relate to Pakistan nationals. The provisions of the Passport Act and Rules are also valid and constitutional. It was denied that any Fundamental Right guaranteed under Article 19(d)(e) was infringed.
17. The main question that is to be determined in this case is whether the petitioner is an Indian National i.e a citizen of India, The petitioner, according to Mr. Khan, claims to be a citizen of India under Article 5 of the Constitution which runs as follows:
“At the commencement of this Constitution every person who has his domicile in the territory of India and—
(a) who was born in the Territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India. It will be obvious that the first condition for being a citizen of India is that a person must have had his domicile in India at the commencement of the Constitution. In D.P Joshi v. State of Madhya Bharat, 1955 SCR 1215 at p. 1223 : ((S) AIR 1955 SC 334 at p. 337) (A) the Supreme Court pointed out that citizenship and domicile represent two different conceptions. Citizenship has reference to the political status of a person, and domicile to his civil rights.
18. At p. 1223 (of SCR) (at p. 337 of AIR) it was observed that Article 5 which defined citizenship itself proceeds on the basis that it is different from-domicile and that in Article 5 domicile by itself is not sufficient to confer on a person the status of a citizen of this country. It may also be noticed here that the rights to freedom of speech etc. under Article 19 are guaranteed only to “citizens of India” and not to those who are merely domiciled in India.
19. The second question will arise: whether the petitioner had his domicile in the territory of India at the commencement of the Constitution? for, if he had he would be considered to be a citizen of India, within the meaning of Article 5. There is no doubt that the petitioner was born in India, that he had been a resident in India till 21-6-1949, when he left for Pakistan and that his mother, wife and children continued to remain in India. On this basis Mr. Khan contends that the petitioner had his domicile in the territory of India at the commencement of the Constitution.
20. Mr. Khan placed reliance on page 35 of Dr. Story's Conflict of Laws (7th Edn.) where it is observed that in a strict and legal sense that is properly the domicile of a person where he has his free, fixed, permanent house and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi).
21. At page 37 it is also pointed out that two things must concur to constituted domicile; first residence; and secondly, the intention of making it the home of the party. Learned counsel then cited Platt v. Attorney General, (1873) 3 AC 336 (B) for the proposition that it is always natural, in determining what is a man's domicile, to consider where his wife and children live and have their permanent place of residence and where his establishment is kept up.
22. In Aitchison v. Dixon, (1870) 10 Eq 589 (C) it was pointed out that the rule that a man will be considered as domiciled in a place where his wife permanently resides and in which has fixed his establishment, is not affected by the circumstances that the choice of residence has been made in deference to the wishes of the wife. Then in the Lauderdale Peerage case (1885) 10 AC 692 (D) the House of Lords laid it down that a change of domicile must lie a residence sine animo revertendi.
23. A temporary residence for the purpose of health, travel, or business does not change the domicile. Every presumption is to be made in favour of the original domicile and no domicile can be obtained without a clear intention of abandoning the old.
24. In ‘Central Bank Of India v. Ram Narain’, 1955 SCR 697 at pp. 403-404 : ((S) AIR 1955 SC 36 at p. 39) (E), it was observed by the Supreme Court that it is not possible to lay down an absolute definition of ‘domicile’ as the truth is that the term lends itself to illustrations but not to definition and that the two constituent elements that are necessary by English law for the existence of ‘domicile’ are: (1) residence of a particular kind, and (2) an intention of a particular kind. There must be the factum and there must be animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside forever in the country where the residence has been taken up.
25. The domicile of origin prevails until a new domicile has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again. Nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. It is also well-settled now that a person cannot have two domiciles and the domicile of origin prevails until a new domicile has been acquired — ‘Habeeb Ahmed Rizvi v. The Crown’, AIR 1950 Nag 161 (F).
26. Applying these principles to the facts of the case, we find that the petitioner went to Karachi on 21-6-1949 and then stayed there. Whatever the reasons may have been, he, then, obtained temporary permit for India declaring himself to be a Pakistan national and in September, 1949, came to India returning to Karachi on 20-10-1949 as a Pakistan national and then remained in Pakistan for more than three years. Meanwhile he had been in December, 1949 declared to be an evacuee by the Custodian of the Evacuee Property, Indore.
27. In June, 1953, the petitioner again sought a passport from Pakistan Government for coming to Indore declaring himself to be a Pakistan national. The petitioner contends that, in fact, he was not a Pakistan national at that time and that, on both occasions he had told lies but that he did not abandon his intention to come back to his home and that circumstances had compelled him to tell lies. For us, it is not possible to rely upon the statement or affidavit of a person who, according to his own admission, had told lies on two important occasions.
28. The fact remains that in September, 1949, the petitioner was in Pakistan and there had declared himself to be a Pakistan national, and after that resided there for more than three years. That should clearly indicate his state of mind. As Dr. Cheshire points out at page 160 of his Private International law, brevity of residence is not deterrent to the acquisition of a domicile if the necessary intention exists.
29. If a man clearly intends to live in another country permanently, as for example, where an emigrant, having wound up his affairs in the country of his origin, sets sail with his wife and family for Australia, his mere arrival there will satisfy the elements of residence. In the present case, it is of course true that the petitioner had not taken his family to Pakistan, but then the intention may I have been to take his family after some time when I the question of his property in Indore was settled. It may be noticed here that there is no evidence I here to show that when the petitioner had left for Pakistan he was in any immediate danger or apprehension.
30. According to his application to the Collector, Indore, he had gone there only to see an ailing I relation, and, then, in remaining there and settling there and declaring himself to be a Pakistan national I am of opinion that the petitioner was I exercising a preference or a choice and was not I acting upon a necessity. Under such circumstances, I am not prepared to hold that the petitioner adhered to the domicile of origin.
31. The circumstances are clear from which a contrary intention can be gathered and we can conclude that a new domicile had been acquired by the petitioner in September, 1949. The petitioner, therefore, cannot be considered to be a person who had his domicile in the territory of India on 26-1-1950 i.e, at the commencement of the Constitution. Consequently, he cannot be deemed to be a citizen of India within the meaning of Article 5 of the Constitution.
32. Moreover, as the learned Advocate General contends, it is a case where the provisions of Article 7 are attracted. Articles 6 and 7 considerably modify the definition of a citizen of India as given in Article 5 and are reproduced below:
“Article 6:—
Notwithstanding anything in Article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if—
(a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and
(b)(i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
(ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government;
Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.
“Article 7:—
Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:
Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of Cl. (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.”
33. The proviso of Article 7 does not apply in this case as the petitioner had not returned to India under a valid permit for resettlement or permanent return. Mr. Khan, again, strenuously argues that the petitioner had not migrated from the territory of India to the territory now included in Pakistan. In our opinion this contention is deviod of substance.
34. The word “migration” in Article 7 came up for interpretation in several cases. Three cases reported in (i) Badruzzaman v. The State’, AIR 1951 All 16 (G) : ‘(ii) Shabir Hussain v. The State of U.P’, AIR 1952 All 257 (H); and ‘(iii) S.M Zaki v. State Of Bihar*’, AIR 1953 Pat 112 (I), are important. In the first case Misra, J. (as he then was) observed that the expression “migration” in Article 7 of the Constitution embraces in its scope two conceptions: (1) going from one place to another, and (2) the intention to make the destination a place of abode or residence in future. In the context of the Constitution, it has the notion of transference of allegiance from the country of departure to the country of adoption.
35. With very great respect, I concur in this opinion. This interpretation was approved by a Division Bench ‘AIR 1952 All 257 (H)’, where it was pointed out that the expression “migration” has been used in Article 7 in the sense of departure from one country to another with the intention of residence or settlement in the other country. It was observed that a temporary visit to another country on business or otherwise cannot amount to migration.
36. A Division Bench of the Patna High Court in ‘AIR 1953 Pat 112 (I)’, concurred in the view taken by the Allahabad High Court and, with great respect, we have no doubt that it is the correct view. In our opinion, the petitioner in the present case had gone to Pakistan not on a temporary visit but for permanent residence and had also taken steps for the transference of his allegiance from India to that of Pakistan. He would, therefore, be considered to have ‘migrated’ to Pakistan within the meaning of Article 7 of the Constitution.
37. The facts of this case are, to a certain extent similar to that of the — ‘State of Bihar v. Kumar Amar Singh’, 1955 SCR 1259 : ((S) AIR 1955 SC 282 (J). In that case it was contended on behalf of the respondent Kumar Rani who had migrated from India to Pakistan in 1948 that she was, and continued to be, a citizen of India on the ground that she was born in India and her domicile continued to be that of her husband, who throughout continued to be in India, and that her case was covered by Article 5 of the Constitution.
38. The Supreme Court repelled that contention and held that Article 7 of the Constitution clearly overrides Article 5. It was pointed out that as the respondent had migrated from India to Pakistan after 1-3-1947, his case fell under Article 7 of the Constitution and the respondent could not be deemed to be a citizen of India. Following this decision we are of opinion that the petitioner in the present case cannot be regarded as a citizen of India and the fact that his wife remained throughout in India is not material.
39. Mr. Khan, in the end, placed reliance on — ‘Ebrahim Vazir Mavat v. State of Bombay’, 1954 SCR 933 : AIR 1954 SC 229 (K), for the proposition that the order of physical removal of the citizen from India is liable to be set aside as Section 7 of the Influx from Pakistan (Control) Act, 1949, is void under Article 13(1) of the Constitution. In our opinion, the petitioner cannot derive any help from this case as the said S. 7 was declared to be void, under Article 13(1)
“in so far as it conflicts with the fundamental right of a citizen of India under Article 19(1)(e) of the Constitution”.
40. At page 941 (of SCR) (at p. 232 of AIR), the Supreme Court made it quite clear that “the order I will operate only upon proof of the fact that the) appellants are citizens of India.”
41. In the present case, we have come to the conclusion that the petitioner is not a citizen of India and hence the principle enunciated in ‘1954 SCR 933 : (AIR 1954 SC 229 (K))’, can have no application to the present case.
42. In passing, we may observe that it is true that the High Commissioner for India is not, within our jurisdiction; but the petitioner has not asked any relief against him, and, therefore, the petition cannot be rejected merely on that ground. Whether a permit for resettlement or permanent return could have been granted or not is not for us to determine. If it had been granted, the Proviso to Article 7 would have applied; but as it had not been granted, the proviso to Article 7 does not apply. The petitioner not being a citizen of India, he cannot invoke the aid of Article 19 and his petition, is, therefore, dismissed with costs. We assess counsel's fee at Rs. 75/-.
Samvatsar, J.:— I agree.
43. Petition dismissed.
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