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IN THE HIGH COURT OF BOMBAY
Kotval, C.J. and G.N.Vaidya, J.
Appellants: Kekhasarao Sorabji Irani
Vs.
Respondent: The State of Maharashtra and Ors.
Special Civil Appln. No. 1554 of 1968 Decided On: 30.07.1971
Counsels:
For Appellant/Petitioner/Plaintiff: A.A. Peerbhoy and A.N. Salik, Advs.
For Respondents/Defendant: S.N. Naik, Adv., i/b., Little and Co. Attorneys
CITIZENSHIP - ARTICLE 5 - DOMICILE - REGISTRATION OF FOREIGNERS RULES - CITIZENSHIP ACT, 1955 - SECTION 6 (1) - INTERPRETATION - FACTS AND CIRCUMSTANCES OF THE CASE - HELD, PETITIONER WAS A CITIZEN OF INDIA AT THE COMMENCEMENT OF THE CONSTITUTION OF INDIA AND CONTINUES TO BE SO.
Fact of the Case:
The petitioner, born in India in 1922, claimed to be a citizen of India under Article 5 of the Constitution of India. He had been harassed by police officers and government authorities since 1960, who claimed that he was an Iranian national and should register himself and his wife as foreigners. The petitioner had filled up forms under the Registration of Foreigners Rules and the Citizenship Act, 1955, but had stated that he was an Indian citizen. He had also obtained a certificate of nationality and domicile from the Taluka Magistrate, which was later sought to be cancelled by the government.
Finding of the Court:
The court found that the petitioner was domiciled in India at the commencement of the Constitution of India, having been born in India, brought up in India, educated in India, and carrying on business permanently in India. The court also found that the petitioner had been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution. The court held that the petitioner was a citizen of India under Article 5 of the Constitution of India.
Issues: 1. Whether the petitioner was a citizen of India at the commencement of the Constitution of India? 2. Whether the petitioner had been harassed by police officers and government authorities? 3. Whether the petitioner had filled up forms under the Registration of Foreigners Rules and the Citizenship Act, 1955? 4. Whether the petitioner had obtained a certificate of nationality and domicile from the Taluka Magistrate? 5. Whether the government had sought to cancel the certificate of nationality and domicile issued to the petitioner?
Ratio Decidendi: The court held that the petitioner was a citizen of India under Article 5 of the Constitution of India because he was domiciled in India at the commencement of the Constitution of India and had been ordinarily resident in India for not less than five years immediately preceding the commencement of the Constitution. The court also held that the petitioner had been harassed by police officers and government authorities, and that the government had sought to cancel the certificate of nationality and domicile issued to the petitioner. The court found that the petitioner had filled up forms under the Registration of Foreigners Rules and the Citizenship Act, 1955, but had stated that he was an Indian citizen.
Final Decision: The court declared that the petitioner was a citizen of India at the commencement of the Constitution of India and continues to be so, and is entitled to all the protection and rights guaranteed to a citizen of India under the Constitution of India. The court also prohibited the respondents from deporting the petitioner out of India, forcing him to take a passport of any foreign country, or taking any action which may be inconsistent with the constitutional status of the petitioner as a citizen of India.
1. The petitioner Kekhasarao Sorabji Irani was born in Bombay in the year 1922. His father Sorabji Kekonad Irani came to India from Persia in the year 1902 to assist his sister in the business of running a restaurant in Bombay. Sorabji married in 1913 the petitioners mother Goharbai in Bombay. He continued his business in Bombay and settled down in India and never went back to his country of origin or went out to any other country till his death in the Sassoon Hospital at Poona. When Sorabji died, the petitioner was 7 months old. The petitioner was educated at Poona and passed his Matriculation examination in the year 1940. After passing the Matriculation examination he studied for a diploma course in Engineering in the Poona Engineering College. In 1944, he obtained a diploma in Mechanical Engineering from the College of Engineering at Poona. Thereafter the petitioner worked in a ammunition factory at Kirkhee, first as a supervisor trainee from May 1944 to November 1944, and then as supervisor B grade in Material Estimate Office from December 1944 to March 1946.
2. In 1947 the petitioner settled down in Sholapur. He has been running a general store and restaurant at Sholapur since that date till now. On October 19, 1949, he married one Banu Rashid. Banu Rashid is an Indian citizen born in India in 1932 and her parents were also domiciled in India. The petitioner resided in India since his birth. He never went out of India. The petitioner, therefore, claims to be a citizen of India under Article 5 of the Constitution of India. He continued to enjoy all the rights of the citizens of India including the right to vote.
3. However, the petitioner is being harassed from the year 1960 by police officers in the office of the District Superintendent of Police at Sholapur and other authorities of the Government of Maharashtra. The harassment began in the year 1960 when one Sub - Inspector Joshi approached him and told him that as he was Irani, he should register himself and his wife as foreigners. The petitioner protested. He told S. I. Joshi that he was not an Iranian national but an Indian citizen by birth. He also told him that his wife was also an Indian citizen, that his name "Irani" was only a surname and had nothing to do with his nationality or domicile. The Sub - Inspector, however, told him that he and his wife must fill in the forms of registration under Registration of Foreigners Rules and that if he did not do so he would be prosecuted and expelled from India. He also assured him that if he filled in the forms, nothing would happen to him. The petitioner, therefore, filled up from A under the Registration of Foreigners Rules, 1939. Even in that form, against the column "present nationality", he mentioned "Indian". Against the column "previous nationality", if any" he mentioned "Nil". This form was filled in by him on January 5, 1960; and similar forms were also filled in at that time by the wife of the petitioner and his mother Goharbai. In the form filled in by Goharbai, her nationality was mentioned as Iranian because she wrongly believed that as she was born in Iran, she was Iranian national and had also obtained as Iranian passport.
4. Nothing happened till April 10, 1961 when in pursuance of a letter addressed by the District Superintendent of Police, Sholapur a residential permit was issued to the petitioner stating :-
"As you are not in possession of valid national passport, you have been permitted to stay in India for three months, i.e. until 10-7-1961."
It was also stated in the letter that the petitioner should get a valid passport from his Consul in India before the above date. A similar letter and residential permit were received by the petitioners wife. The petitioner then approached the office of the District Superintendent of Police and met one Sub - Inspector of Padgaonkar and told him that the said residential permits were illegally and wrongly issued to the petitioner and his wife notwith
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