| SooperKanoon Citation | sooperkanoon.com/861738 |
| Subject | Constitution |
| Court | Kolkata High Court |
| Decided On | Aug-19-1960 |
| Case Number | Matter No. 28 of 1960 |
| Judge | P.B. Mukharji, J. |
| Reported in | AIR1961Cal408 |
| Acts | Constitution of India - Article 5 |
| Appellant | Golam Khan |
| Respondent | State of West Bengal and anr. |
| Cases Referred | Winans v. Attorney |
P.B. Mukharji, J.
1. This is an application by Golam Khan under Article 226 of the Constitution asking for a Writ of Certiorari and Mandamus to quash and restrain the order dated 12th January, 1960 under section 3(2)(c) of the Foreigners Act, 1940 (Act XXXI of 1946).
2. The order is by the Governor and reads as follows :
'In exercise of the powers conferred by subsection (2) of section 3 of the Foreigners Act, 1946 (XXXI of 1946) as amended by the Foreigners Laws (Amendment) Act, 1957 (XI of 1957), and delegated to the State Government in Notification No. 4/3-56-F. 1 dated the 19th April, 1958, of the Government of India, Ministry of Home Affairs, the State Government is pleased to direct that the foreigner known as Mr. Gulam Khan s/o Shariff Khan an Afgan national
(i) shall not remain in India after the expiry of 30 days from the date on which this order is served on him; and
(ii) shall not thereafter re-enter India'.
2a. Admittedly the petitioner is an Afgan National. Admittedly he was born in village Mazar, District Jalalabad in the foreign territory of Afga-nistan. Admittedly he came to India without any visa, permit or passport. Admittedly when the formal and regular method of passport system between India and Afganistan was introduced on the 18th February, 1948, the petitioner availed of such system. In fact, the petitioner admittedly applied, for and obtained on the 17th August, 1948 passport issued by the Royal Afgan Embassy, New Delhi No. 800/22278 of 17-8-48 with visa granted by the Government of India. This fact establishes that in 1948 he regarded himself as a foreigner, an Afgan national under the protection of the Afgan Embassy. Admittedly also the registration report dated the 15th September, 1948 under rules 5, 6i and 7 of the Registration of Foreigners Rules 1939 shows that the petitioner described himself as an Afgan National. The petitioner himself had all theofficial records of the Security Police brought out under this rule. According to the petitioner he left Afganistan in 1938. Therefore, between 1938 and 1948, a period covering ten years, he regarded himself as an Afgan and not as an Indian citizen or as an Indian national.
3. Subsequent history of the petitioner does not help him. Thereafter under rule 7 of the Foreigners Order the first residential permit was issued to the petitioner which was valid upto 31st March, 1949. Under that rule the permit is given on an application made by the foreigner himself and a copy is given to him and a copy is kept on the file. On the 16th December, 1948 the first visa granted by the Government of West Bengal for one year was issued. The visa was numbered 953. After the expiry of that first visa no further visa was required because then residential permits were issued under paragraph 7 of the Foreigners Order.
4. The crucial dates are that even in 1951 and 1952 the petitioner regarded himself as a foreigner of Afgan nationality. In fact, the records-show that he applied for residential permit on the 2nd March, 1951. He also renewed his Afgan-passport on the 25th January, 1951 upto 24th January, 1952. These dates between 1948 and 1952 show that immediately before, at and immediately after the commencement of the Constitution the petitioner regarded himself as an Afgan national. These dates are crucial, as I shall presently show.
5. The grounds on which the petitioner seeks to set aside the order are three and set out in paragraph 17 of the petition. His main and only ground really is that he is a citizen of India under Article 5 of the Constitution. That is the very basis arid foundation of his application. It is only a citizen whose fundamental right to reside and settle in any part of the territory of India is guaranteed by Article 19(1)(c) of the Constitution. Two other grounds are that the order is mala fide and arbitrary. These two latter questions will not arise if the petitioner is not a citizen of India.
6. Now in order to be a citizen of India, Article 5 of the Constitution requires inter alia that at the commencement of the Constitution the person concerned has his domicile in the territory of India and has ordinarily been resident in the territory of India for not less than 5 years immediately preceding such commencement of the Constitution. Two things, therefore, are essential. One is that the petitioner must have his domicile in India at the commencement of the Constitution and the second is five years' residence immediately before such commencement.
7. I am satisfied on the facts in this case that the petitioner must fail on the ground that he did not have his domicile in India at the commencement of the Constitution. Article 5 of the Constitution uses the expression 'at the commencement of this Constitution every person who has his domicile in the territory of India' etc. The expression 'at the commencement' and the present tense 'has' show that the time is important. The crucial time is the commencement of the Constitution. The commencement of the Constitution isthe 26th January, 1950. I have shown from the facts as stated above that on the 26th January, 1950 the petitioner was describing himself as an Afgan national. Just immediately before the Constitution he was registered as a foreignerunder residential permit and a visa granted by the Government of West Bengal and was under the protection of the passport issued by the Royal Afgan Embassy, New Delhi. Even after the Constitution came into force on the 26th January, 1950, the petitioner is found to renew his residential permit and his passport which could only be on the basis that he was a foreigner and not an Indian national.
8. On this short point this petition in my judgment must fail, because the petitioner did not have his domicil in India at the relevant time within the meaning of Article 5 of the Constitution.
9. The other two grounds of complaint against the order are mala fides and arbitrariness. There is hardly any proof to establish either mala fides or arbitrariness in this case. In fact the Government of India as well as the Government ot West Bengal in this particular case have been very patient and long suffering in spite of the serious report against him as an agent of a foreign Government and carrying on subversive activities against India. On the other hand, I find it is the petitioner who has somehow or other avoided the processes of law ever since 1952. In support of the charges of mala fides and arbitrariness reliance has been placed on some remarks of the Magistrate acquitting the petitioner who was involved in a criminal case in 1950 relating to a charge of illegal possession of arms, to wit, six rounds of live cartridges. On the strength of those remarks an attempt was made on behalf of the petitioner to say that the police even after eight or more years bears a grudge against him and therefore all these proceedings have taken place. I have no hesitation in rejecting that contention first on the ground that those remarks have nothing to do with the present proceedings under the Foreigners Act and secondly, there is nothing to establish or satisfy the Court that responsible Ministers, Secretaries and the Governor were all bluffed by the police. In fact it is on record here that the petitioner had moved up and down the country with his case. He wrote to the Prime Minister on the 2nd September, 1952 and also to the Home Minister. It is, therefore, idle to think or even suggest that the policewas doing all this because it was supposed to bear some imaginary grievance against the petitioner. I overrule this objection as being of no substance at all.
10. Although this petition must fail under Article 5 of the Constitution which is the very foundation of this application, I shall refer to some facts on which an attempt was made at one stage of the argument to prove the petitioner's domicile in India. The first fact relied on is the alleged marriage of the petitioner with an Indian lady in 1950. The petition gives no particulars of the marriage, the date of the marriage, the place of the marriage, the witnesses of the marriage or even the name of the wife. In fact the affidavitsof the Government and the police record show something very drastic and it is disputed that there was any marriage at all and in fact it is solemnly stated that the petitioner lives with a public woman. If there was any valid marriage I have no doubt in my mind that there would be marriage records and register, it being remembered that the petitioner in this case is a Mahomedan. No witnesses have either made any affidavit or proved any such marriage with any Indian. There is also no affidavit by the alleged wife herself. The second fact on which domicile was intended to be based was that the petitioner got himself enlisted as a voter in the final electoral roll in 1959 for the Burra Bazar Assembly Constituency. Apart from the fact that there the father's name of the voter is different from the father's name of the petitioner, which he tried unsuccessfully to correct, the point is that this was done after proceedings had been started against him as a foreigner. Already a prosecution had been launched for violation of the deportation order under Section 14 of the Foreigners Act, 1946, against the petitioner on the 7th November, 1958, long before he gets himself enlisted as voter in 1959. While that was pending the petitioner tried to make an application for naturalisation under Section 6 of the Citizenship Act on the 12th November, 1958. The entry, therefore, as a voter does not establish his domicile. In any event, that was taking place in 1959, nine years after the commencement of the Constitution, and not 'at the commencement of this Constitution' as required in Article 5 of the Constitution. The third fact on which the domicile was claimed was the application for naturalisation which I have already mentioned. That application was rejected by the Government on the 28th September, 1959. If anything here again the fact far from helping the petitioner is very much against him because it shows that even in 1958 he regarded himself as a foreigner and wanted to change his nationality. That was even as late as 1958.
11. I am, therefore, satisfied in this case on the facts that domicile has not been proved or all all established under Article 5 of the Constitution. There is not a single affidavit from the place where he resides to show that he is known to his neighbours. No neighbour has made any affidavit. He says that he works for a living by acting as night guard for different companies. No single employer has either certified him or made any affidavit to show that he had employed the petitioner. It is inconceivable that a person claiming to have lived about 20 years in India cannot produce any single independent witness or record to prove the fact of his residence and the fact of his earning livelihood and the fact of his intention to make India his home. As I have said he has failed to prove even his marriage. No landlord, no tenancy agreement, no rent receipt have been produced in his favour.
12. Domicile depends on the intention of a person to make a particular place his permanent home and therefore depends on certain facts. The onus of proving his domicile is upon the petitioner. It is unnecessary to go through the longline of cases on this point except perhaps to refer to the well-known decision of the House of Lords in Ramsay v. Liverpool Royal Infirmary, 1930 AC 588 where it is laid down that a change of domicile must be made animo et facto, the animus may be inferred by the factum of residence within the new domicile, but in order to warrant that inference the quality of the residence must be taken (into account and mere length of residence is not of itself sufficient. Then again the House of Lords in Winans v. Attorney-General, 1904 AC 287 lays down the rule that the onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon those who assert that the domicile of origin has been lost. A fixed and settled purpose, a final and deliberate intention have to be established before a change of domicile can be proved. At page 291 Lord Macnaghten formulated the rule in this way:
'Such an intention, I think, is not to be inferred from an attitude of indifference or a disinclination to move increasing with increasing years, least of all from the absence of any manifestation of intention one way or the other. It must be, to quote Lord Westbury again, a 'fixed and settled purpose'. 'And', says his Lordship, 'unless you are able to show that with perfect clearness and satisfaction to yourselves, it follows that a domicile of origin continues'. So heavy is the burden cast upon those who seek' to show that the domi-cil of origin has been superseded by a domicil of choice. And rightly, I think. A change of domicil is a serious matter--serious enough when the competition is between two domicils both within the ambit of one and the same kingdom or country -- more serious still when one of the two is altogether foreign. The change may involve far-reaching consequences in regard to succession and distribution and other things which depend on domicil'.
Applying these tests laid down by the House of Lords, I am of the opinion that, the domicile required under Article 5 of the Constitution has not been established in this case by the petitioner.
13. Before I conclude, I shall only refer to one fact, namely, petitioner's declaration of domicile. Personal declaration about domicile is supposed to have been made by the petitioner on the 9th May, 1952. The date, again, therefore, does not satisfy the requirement of Article 5 of the Constitution. Even apart from the date the actual declaration of domicile is not forthcoming. The weight to be given to such personal declaration is never great under the law. This law is summarised in the Third Edition (Simonds Edition) of 7 Hals-bury's Laws of England, Article 36 at p. 20 in the following terms:
'Direct evidence of intention is often not available, but a person whose domicile is in question may himself give evidence of his intentions, present or past. Evidence of this nature is to be accepted with considerable reserve, even though no suspicion may be entertained of the truthfulness of the witness.
Expressions of intention, written or oral, may be given in evidence, but such evidence must be carefully weighed in connection with the circumstances in which it occurred, and even if the expressions are clear and consistent, they cannot prevail against a course of conduct leading to an opposite inference'.
14. For these reasons, the Rule must be discharged, and the petition must be dismissed. Interim order, if any, is vacated. There will be no order as to costs.