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1965 Supreme(Pat) 124
PATNA HIGH COURT
R.K.Choudhary and Tarkeshwar Nath JJ.
Mohammad Sadique
Versus
G.Narain
Civil Writ Jurisdiction Case No. 877 of 1965 ;
Decided On : NOVEMBER 25, 1965
A person who is not a citizen of India is a foreigner.
Headnote:
FOREIGNERS ACT - Sec. 3(2)(c) - Order directing petitioner to leave India - Petitioner claiming to be citizen of India - Whether petitioner is a citizen of India - Whether petitioner acquired domicile of choice in India - Whether petitioner migrated to India before 19th July, 1948 and was ordinarily resident in India since the date of migration - Whether petitioner had intention of permanently residing in India - Whether petitioner severed ties with his domicile of origin - Whether petitioner acquired a new domicile in India - Whether petitioner is a foreigner.
Fact of the Case:
Petitioner, born in Chiniaut, Pakistan, claimed to be a citizen of India and challenged the order directing him to leave India under the Foreigners Act. He asserted that he had settled down in Ranchi in 1930, had a business there, and was a permanent resident of Ranchi since 1930. He also claimed to have visited Pakistan only twice, in 1949 and 1954, on an Indian passport.
Finding of the Court:
The Court found that the petitioner had not acquired a domicile of choice in India, had not migrated to India before 19th July 1948, and had not been ordinarily resident in India since the date of migration. The Court also found that the petitioner did not have the intention of permanently residing in India and had not severed ties with his domicile of origin. Therefore, the Court held that the petitioner had not acquired a new domicile in India and was a foreigner.
Issues: 1. Whether the petitioner is a citizen of India? 2. Whether the petitioner acquired domicile of choice in India? 3. Whether the petitioner migrated to India before 19th July, 1948 and was ordinarily resident in India since the date of migration? 4. Whether the petitioner had intention of permanently residing in India? 5. Whether the petitioner severed ties with his domicile of origin? 6. Whether the petitioner acquired a new domicile in India? 7. Whether the petitioner is a foreigner?
Ratio Decidendi: 1. To determine whether a person is a citizen of India, the Court must examine the relevant provisions of the Constitution of India, including Articles 5 and 6. 2. To acquire a domicile of choice in India, a person must have the factum of residence in India and the intention of permanent residence in India. 3. To determine whether a person has migrated to India before 19th July 1948 and has been ordinarily resident in India since the date of migration, the Court must consider the purpose and scheme of the Constitutional legislation. 4. The intention of permanently residing in India is a crucial factor in determining whether a person has acquired a domicile of choice in India. 5. To sever ties with one's domicile of origin, a person must have no intention of returning to that domicile and must have formed a deliberate intention of making a new domicile their permanent home. 6. To acquire a new domicile, a person must have the factum of residence in the new domicile and the intention of permanent residence in that domicile. 7. A person who is not a citizen of India is a foreigner.
Final Decision: The petition was dismissed, and the order directing the petitioner to leave India was upheld.
Tarkeshwar Nath, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for quashing the order (Annexure A) dated the 15th July, 1965, passed by the Superintendent of Police and Registration Officer, Ranchi (opposite party No. 1) under Clause (c) of Sub-section (2) of Sec.3 of the Foreigners Act (Act XXXI of 1946) directing the petitioner to leave India within a period of 16 days from the date of service of that order, failing which the petitioner would make himself liable for action under the said Act.
2. The case of the petitioner, in short, was that the parents of the petitioner belonged to village Chiniaut in district Jhung, West Pakistan, and that the petitioner was born at Chiniaut in 1914, but shortly after his birth he was taken by his father Maula Bux to Calcutta and he was brought up at Calcutta. Maula Bux had settled down in Calcutta in 1900 and he had a house on the Eden Hospital Road in the town of Calcutta. The petitioner settled down at Ranchi in the year 1930 and started a hide and skin business in the town of Ranchi. The business flourished for a few years bul later on the petitioner sustained serious loss and ultimately he sought employment. He was employed as Manager of the Ranchi Hide and Skin Company since 1950. The petitioner resided permanently at Ranchi since 1930 and be was a citizen of India at the time of partition of India in the vear 1947 and also at the time of the passing of the Constitution of India in the vear 1950. The petitioner opened an account in the savings bank of the Ranchi Post Office in the year 1933 and the pass book thereof has been mark ed Annexure B. Similarly, he opened an account in the Chotanagpur Banking Association Ltd., Ranchi, in the year 1934 and that is evident from Annexure B1. The petitioner got a motor driving license in the year 1947 (vide Annexure B2). The petitioner went to village Chiniaut in West Pakistan in 1949 for a short time to see his relatives on a permit granted by the Deputy Commissioner. Ranchi, and he returned to India after a period of two months only on a permit issued by the Deputy High Commissioner for India at Lahore. The petitioner again visited Chiniaut in the year 1954 on an Indian passport dated 23rd November, 1954, and returned to India after two months. The petitioner had visited Chiniaut only on those two occasions as a citizen of India. His name is entered in electoral roll of the Ranchi Municipality as well as that of the State Legislature and Central Parliament and a copy of the relevant entries in the electoral roll has been marked Annexure D. The petitioner neither migrated from India nor did he ever leave India and as such he never lost his Indian Nationality. He had acquired valuable properties in India such as, lands purchased in Ranchi. He alleged that he being a citizen of India, the provisions of the Foreigners Act were not applicable and the order directing him to leave India was mala file, arbitrary and unreasonable.
3. This application has been opposed on behalf of the opposite party and Ravindra Kumar Sinha, Inspector of Police, Criminal Investigation Department, attached to the Foreigners section, Police Office, Ranchi, has sworn a counter affidavit stating that the permanent home of the petitioner was in village Chiniaut where his wife, his children and his father were residing. According to him, the petitioner never settled down in Ranchi, although he has been often residing at Ranchi. The petitioner has constantly been in touch with his family members and relations and he often went to live with them. Since the creation of India and Pakistan as separate States the petitioner had still continued his home in village Chiniaut as before where his family members were residing. The petitioner has been visiting West Pakistan clandestinely on some occasions. The petitioner gave his address from time to time at different places, such as (i) Fiars Lane, Calcutta, (ii) 32, Eden Hospital Road, Cal
