# SUPRE:\IE COURT REPORTS [1961] SMT. SHANNO DEVI v. MANGAL SAIK

- **Citation:** [1961] 1 S.C.R. 576
- **Court:** Supreme Court of India
- **Decided:** 1958-10-03
- **Bench:** S. K. Das, M. Hjdayatullah, K. c. DAS GUPTA, J.C. SHAH an<l :;'\, R.Ajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supre-ie-court-reports-1961-smt-shanno-devi-v-mangal-saik-2193
- **Pages:** 16

## Headnote

Migration to India--Citizenship, claim for-fotention of residi11g pmnanently-Eleclion dispute-" Migrated lo the territory of
India",
"Ordi11arily resident", meaning of -
Co'lstitution of
India, Art. 6.
The respondent was the successful candidate at the general
election held tn ~larch, 1957, for the Punjab Legislative Assembly.
The appellant who was one of the unsuccessful candiclatcs,
filed an election petition and challeng"d the validity of the respondent's election on the grounds, inter alia, that the latter was
not a citizen of India an<l was, therefore, not qualified to stand
for election.
It was fouw) that he was born of Indian parents
sometime in 1927 in India as defined in the Government of India
Act, l9J5, in a village which since August 15, 1947, became part
of Pakistan, that in 1944 he had moved from his home district
to Jullunder in what is now the territory of India, and that
after August 15, 1947, he definitely mad" up his mind to settle
in India \\'ith the intr!nlion of residing thPre permanently. There
was sornc evidence to shO\\' that he \Vent to Burma in January,
1950, and made un!'uccessful atten1pts to secure permission from
the Government of Ilurma to stay there permanently. The
question was whether the respondent could be deemed to be a
citizen of India within the meaning of Art. 6 of the Constitution
of India.
Held: (1) that the expression "migrated to the territory of
India" in Art. 6 of the Constitution means " migrated at any
time before the commencement of the Constitution to a place
now in the territory of India",
(2)
that in Art. 6 the words "migrated to the territory
of India" mean" come to the territory of India with the intention of residing there permanently ".
(3)
that where a person moves from one country lo another and has, at the time of mo\·ing, a intention to remain in
the country where he moved only temporarily, but later on
forms the intention of residing there permanently, he should be
held in Jaw to have migrated to that country at the later point
of time.
'
(4)
that for applying the test of being "ordmarily resident in the territory of India since the date of his migration"
in Art. 6(b)(i), what is necessary to be st:own is that during the
period begmning with the date on which migration became
•
._,
I S.C.R. SUPREME COURT REPORTS
577
complete and ending with November i6, 1949, as a whole, . the
person has been "ordinarily resident in the territory of India "
Whether he was not in India on January 26, 1950, or whether
he formed an intention of taking up his permanent residence
in Burma when he left for that place in January, 1950, was not
relevant.
·
(5) That the words "ordinarily resident" in the Constitution mean "resident during this period without any serious
break ". It is not n.ecessary that for every day of this period
the person should have resided in Ind\a.
(6)
that the respondent satisfied the requirements of
Art. 6 of the Constitution and that his claim to be deemed a
citizen of India must be upheld.
CIVIL APPELLATE ·JURISDICTION: Civil
Appeal
No. 247 of 1960.
Appeal from the judgment and oraer dated October
3, 1958, of the Punjab High Court in First Appeal
from Order No. 131 of 1958.
A: V. Viswanatha Sastri and Naunit Lal, fot the
appellant ..
U. M. Trivedi and Ganpat Rai, for the_ respondent.
1960. ·September 7.
The Judgment of the Court
was delivered by
Shanno D~Vi
v.
M angal Sain
DAS GUPTA J.-Wbat do the words "has migrated
D4s Gwpta J.
to the territory of India " in Art. 6 of the Constitution mean? That is the main question in this appeal.
The appellant, Shanno Devi, was one o( the unsuccessful candidates at the general election held in March
1957 for the Punjab Legislative Assembly. The respondent, Mangal Sain, was the successful candidate. The
nomination papers of these and other candidates
which were scrutinised on February 1, 1957, were
·accepted on the same date. The voting took place on
March 12, and after counting of votes on March 14, .
1957, the respondent, M

## Text

576
SUPRE:\IE COURT REPORTS
[1961]
SMT. SHANNO DEVI
v.
MANGAL SAIK
(S. K. DAS, M. HJDAYATULLAH, K. c. DAS GUPTA,
J.C. SHAH an<l :;'\, R.AJAGOPALA AYYANGAR, JJ.)
Migration to India--Citizenship, claim for-fotention of residi11g pmnanently-Eleclion dispute-" Migrated lo the territory of
India",
"Ordi11arily resident", meaning of -
Co'lstitution of
India, Art. 6.
The respondent was the successful candidate at the general
election held tn ~larch, 1957, for the Punjab Legislative Assembly.
The appellant who was one of the unsuccessful candiclatcs,
filed an election petition and challeng"d the validity of the respondent's election on the grounds, inter alia, that the latter was
not a citizen of India an<l was, therefore, not qualified to stand
for election.
It was fouw) that he was born of Indian parents
sometime in 1927 in India as defined in the Government of India
Act, l9J5, in a village which since August 15, 1947, became part
of Pakistan, that in 1944 he had moved from his home district
to Jullunder in what is now the territory of India, and that
after August 15, 1947, he definitely mad" up his mind to settle
in India \\'ith the intr!nlion of residing thPre permanently. There
was sornc evidence to shO\\' that he \Vent to Burma in January,
1950, and made un!'uccessful atten1pts to secure permission from
the Government of Ilurma to stay there permanently. The
question was whether the respondent could be deemed to be a
citizen of India within the meaning of Art. 6 of the Constitution
of India.
Held: (1) that the expression "migrated to the territory of
India" in Art. 6 of the Constitution means " migrated at any
time before the commencement of the Constitution to a place
now in the territory of India",
(2)
that in Art. 6 the words "migrated to the territory
of India" mean" come to the territory of India with the intention of residing there permanently ".
(3)
that where a person moves from one country lo another and has, at the time of mo\·ing, a intention to remain in
the country where he moved only temporarily, but later on
forms the intention of residing there permanently, he should be
held in Jaw to have migrated to that country at the later point
of time.
'
(4)
that for applying the test of being "ordmarily resident in the territory of India since the date of his migration"
in Art. 6(b)(i), what is necessary to be st:own is that during the
period begmning with the date on which migration became
•
._,
I S.C.R. SUPREME COURT REPORTS
577
complete and ending with November i6, 1949, as a whole, . the
person has been "ordinarily resident in the territory of India "
Whether he was not in India on January 26, 1950, or whether
he formed an intention of taking up his permanent residence
in Burma when he left for that place in January, 1950, was not
relevant.
·
(5) That the words "ordinarily resident" in the Constitution mean "resident during this period without any serious
break ". It is not n.ecessary that for every day of this period
the person should have resided in Ind\a.
(6)
that the respondent satisfied the requirements of
Art. 6 of the Constitution and that his claim to be deemed a
citizen of India must be upheld.
CIVIL APPELLATE ·JURISDICTION: Civil
Appeal
No. 247 of 1960.
Appeal from the judgment and oraer dated October
3, 1958, of the Punjab High Court in First Appeal
from Order No. 131 of 1958.
A: V. Viswanatha Sastri and Naunit Lal, fot the
appellant ..
U. M. Trivedi and Ganpat Rai, for the_ respondent.
1960. ·September 7.
The Judgment of the Court
was delivered by
Shanno D~Vi
v.
M angal Sain
DAS GUPTA J.-Wbat do the words "has migrated
D4s Gwpta J.
to the territory of India " in Art. 6 of the Constitution mean? That is the main question in this appeal.
The appellant, Shanno Devi, was one o( the unsuccessful candidates at the general election held in March
1957 for the Punjab Legislative Assembly. The respondent, Mangal Sain, was the successful candidate. The
nomination papers of these and other candidates
which were scrutinised on February 1, 1957, were
·accepted on the same date. The voting took place on
March 12, and after counting of votes on March 14, .
1957, the respondent, Mangal Sain was declared duly
elected. On March 27, 1957, the appellant filed an
election petition and challenged the respondent's elec- .
tion on various g'.ounds, the prin.cipal groun4 . being
that the Returnmg Officer had improperly accepted
the nomination paper of the respondent on the ground
that he was not a citizen of India ii.nd was not {}Ualified to stand for election. With the other grounds ~hi ch
Shanno Dt1:1
v.
Mangal Sain
Das Gupta ].
578
SUPREME COURT REPORTS
[Hl61]
were taken in this petition we are no longer concerned
as after the Election Tribunal rejected these several
grounds they were not pressed before the High Court
and have also not been raised before us. The Election
Tribunal however held that Mangal Sain was not an
Indian citizen at, the time he was onrolled as a voter
or at the time his nominal ion papers were accepted
and even at the time when he was elected.
Accord.
ingly the Tribunal allowed the election petition and
declared the respondent's election to be void. On
appeal by Mangal Sain to the High Court the only
point raised was whether the appellant was a citizen
of India at the commencement of the Constitution. If
he was a citizen oflndia at the date of such commence.
ment, it was not disputed, he continued to be a citizen
of India on all relevant dates, viz., the de.to of his
enrolment as a voter, the date of acceptance of bis
nomination and the date of his alection. If however
he was not a citizen of India at the commencement of
the Constitution he had not since acquired citizenship
and so his election would be void.
The respondent's
ca.so all a.long was that he was a citizen of India at
the commencement of the Constitution under Art. 5
of the Constitution and apart from that he must be
deemed to be a citizen of India at such commencement
under Art. 6 of the Constitution. The Election Tribu.
nal as already indicated rejectoo both these conten.
tions. The learned judges of the High Court whill'
indicating that they were inclined to think that tho
respondent's claim to citizenRhip of India under Art.
5 could not be sustained did not consider that matter
in detail, but held that his claim t-0 be deemed to be a
citizen of India at the commencement of the Constitution under Art. 6 thereof must prevail. The primary
facts as found by the Tribunal on the evidence led by
the parties beforo it, have been correctly summarised
in the judgment of the High Court in these words :-
" On the evidence led by the parties the learned
Tribunal held that it was proved that Man gal Sain was
born of Indian parents sometime in 1927 in village
Jhawarian, District Sargodha, and that when he was
only two years old he was taken by his parents from
1·
•
1 S.C.R. SUPREME COURT REPORTS
579
Jhawarian to Mandlay in Burma wherefrom the entire
family returned to Jullunder (Punjab) in 1942 when
Burma was occupied by the Japanese forces during
the Second \Vorld War. After having stayed for a
few days in Jullunder, l\Iangal Sain, his parents and
his brother went to their home district Sargodha
where they stayed for about two or two and a half
years. During this period llfangal Sain passed Matricu· .
lation examination from the Punjab University and
after having himself matriculated he again returned
to J ullunder, where he was employed in the Field
Military Accounts Office from 8th December, 1944 to
7th August, 1946, when his services were terminated
because of his continuous absence from duty. Mangal
Sain's parents and his brother according to the find·
ings of the learned Tribunal also :r:eturned from
Sargodha to Jullunder and lived there for about two
and a half years from some time in 1945 onwards
before they again went over to Burma which country.
they had left in 1942 due to its occupa_tion by the
Japanese forces. While Mangal Sain was in service in
the Field Military Accounts Office, he joined Rastriya
Swayam Sewak Sangh movement and became its
active worker. Sometime after his services were
terminated, he shifted the scene of his activities to
Hissar and Rohtak districts where he moved from
place to place to organise the Rastriya Sway am ,Sevak
Sangh movement. During this period apparently he
had no fixed place of residence and he used to reside
in the offices of the Jan Sangh and took his meals at
various Dhabas. For about 4 months from June to ·
September in the year 1948 Mangal Sain served afl a
teacher in Arya Lower Middle School, Rohtak. fn
July 1948 Mangal Sain submitted to the Punjab
University his admission form for the University
Prabhakar examination which form was duly attested
by Prof. Kanshi Ram Narang of the Government
College, Rohtak. · Sometime in January 1949 he was
arrested in connection with the Rastriya Swayam
Sevak Sangh movement and was detained in Rohtak
District Jail from 10th January, 1949, till 30th May,
1949. In August 1949 he again appeared in Prabhakar
Shanno Devi
v.
Matigal Sain
Das Gupta ]. ·
Shantto Devi
v.
MtJngal Sain
DtJs Gupta J.
580
SUPRE:\IE COURT REPORTS
[1961]
eira.mina.tion a.nd wa.s plitced in compa.rtmont, h
0
e a.lso
a.ppea.rs to have orga.niRed Rastriya. Swayam Seva.k
Sangh in the districtA of· l{ohta.k and Hissar during
tho years 1948-49 and he Used to move about from
place to place without having any fixed pla:!e of a.bode.
Tho Tribune.I further found that it was sometime in
the encl of 1949 or in .fanua.ry 1950 that illangal S1<in
left India. and went to Burma whPro his parents and
other brothers were already residing. In that country
he tried to secure permission to stay there permanently, but the Government of Burma did not agree a.pd
directed him lo leave that country; in this connection
he applied for a writ to the Supreme Court of Burma.
but his petition was disallowed. On the 29th October,
1951, :lfangal Sain deposited with the competent authority in Burma the registration certificate grankd to
him under the Begistration of Foreigm,rs Act, 1948,
a.ud a few days later he came ba·ck 11> India and since
then he has been living in this country and has been
organising RaRtriya. Swa.yam Sevak Sangh movement
in the di8lrict.s of Hissar 11.nd llohtak. In 1953 he was
a.gain arrested a.nd detained in
J{oht.a.k jail a.s a
deteuue from the 8th Fohruary to 8th May, 1953,
when he was transferred to Ambala. jail".
On these facts the Tribunal further held tha.t it
cannot be said " that the respondnnt hail a.n intention
to srttlP in India permanently and that he had no
intention of'ever lcavmg it". Taking along with
these facts the respondent's drclara.tion in the a.ffida.-
vit (Ex. 5) to which we shall prrsently refer the
Tribunal fort.her lwld that " his own declaration in
the aftidavit (Ex. 5) and his conduct in going over to
Burma. r.nd trying to settle there permanent·!Y furnish
convincing proof that all along ho had the intention
to follow hi~ pa.rents and other relations to Burma.
and to settle there penna.nently ".
The Tribune.I
finally concluded by saying that "it is also quite
clear that in the cas<J of this respondent it cannot be
sa.id that he had no otber idea than t-0 continue to be
in India. without looking forward to a.ny event certain
or uncrrta.in which might induce him to ch~nge his
residence".
1 S.C.R. SUPREME COURT REPORTS
581
On these findings of fact the Tribunal held that the
respondent could not be deemed to be a citizen of
India under Art. 6 of the Constitution.
On these same primary facts mentioned above, Mr.
Justice Dua who delivered the leading judgment of
the High Court recorded his conclusion thus:-
" I can draw but only one conclusion from the
evidence on the record, that the appellant who had
moved from his home district to J ullunder had, after .
the 15th August, 1947,. no other intention than of
making the. Dominion of India as his place of abode.
On the 15th August, 1947, therefore the appellant's
migration from Jhawarian to the territory of India
was clearly complete, whatever doubts there may have
been before that date, though I would be prepared
even to hold that he had moved away from his village
in 1944 and had migrated to the eastern districts of
the Punjab ".
Mr. Justice Falshaw agreed with this conclusion.
On these conclusions the learned Judges held that
the respondent's claim to be deemed a citizen of India
at the commencement of the Constitution must succeed.
The main contention on' behalf of the appellant is .
that the conclusion of the High Court, that when the
respondent moved away from his viJ!age in 1944 and
that at 1J.ny rate after the 15th August, 1947, he had
no otbf•; intention than of making the Dominion of
India h.is place of abode, was arbitrary. It was also
contended that in any case the migration under Art. 6
of the Constitution has .to take place after "the
territory of India" as contemplated in the Constitution had come into existence. Lastly· it was contended,
though faii;itly, .that the respondent had not in any
case complied with the requirements of beirig ordinarily a resident in the .territory of India since the date
of his migration. The respondent's counsel besides
challenging the correctness of the above contention
further urged that the words " migrated to the territory of India " in. Art. 6 only means "come to the
territory of India " and does not inean " come to the
z960
Shanno Devi
v.
Mangal Sain
Das Gupta ].
Shanno Devi
v.
M angal Saiti
Das Gupta }.
582
SGPREME COURT REPORTS
(1961]
territory of India. with the intention of permanently
residing there".
The extreme contention raised bv
'.\Ir. Sa.stri on
behalf of the appellant that migration under Art. 6
must take place after the territory of India came into
existence undor the Constitution cannot be accepted.
It has to be noticed that Art. 6 dcal8 with the question as to who ~hall be deemed to be a citizen of India
at the commencement of the Constitution.
That
itself suggests, in the absence of anything to indicate
a contrary intontion, that the migration which is
made an essential requirement for this purpose must
have taken place before such commencement. It is
also worth noticing that cl. (b) of Art. 6 which mentions two conditions, one of which must be sati,ticd in
addition to birth as mentioned in cl. (a) and "migration" a.s ment.ionod in the Dia.in portion of the Article
being proved, speaks in it8 first sub-cl. of mi!!ration
"before the 19th day of July 1948" and in sulJ.cl. (ii)
migration "after the 19th day of July 1948 ". Thti
second sub-cl. requires that the person must be registered as a citizen of India. by an officer appointed in
that behalf by the Government of the Dominion of
India on an application ml).de by him therefor to such
officer before the commencement of the Constitution.
The proviso to that Article sa.3 s that no person shall
be so registered unless he has been resident iu the
territory of India for at least ~ix mouths immediately
preceding the date of his application. lt is clear from
this that the a.ct of migration in Art. 6 must take
pla.ce before the commencement of tho Constitution.
It is clear therefore that " migrated to the territory of
India." means "migrated " at any time before the
commencement of the Constitution to a. place now in
the territory of India.
This brings us to the important question whether
" migrated to the territory of India. " means merely
" come to the territory of India " or it means "come
to the territory of India to remain hero " or in other
words," come to the territor:• of India with the intention of residing here permanently". There can be no.
doubt that the word "migrate" ta.ken b.v itAAlf ;.
1 S.C.R. SUPREME COURT REPORTS
583
capable of the wider construction "come from one
place to another" whether or not with any intention
of permanent residence in the latter place. It is beyond controversy that the word " migrate " is often
used also in the narrower connotatior! of " coming
from one place to another with the intention of residing permanently in the latter place". Webster's Dictionary (Second Edition, 1937) ,gives the following
meaning of the word "migrate":-" To go from one
place to another ; especially, to move from one country, region, or place of abode or sojourn to another,
with a view to residence; to move; as the Moors who
migrated from Africa to Spain". The Corpus Juris
Secundum published in 1948 gives the same meaning
except that it also gives "to change one's place of
residence " as one of the meanings. The word " Immigrate" which means "migrate into a country" and
its derivatives " Immigrant " and " Immigration "
have received judicial consideration in several Australian and American cases, in connection with prosecutions for contravention of Immigration laws.
The Courts in Australia, were of opinion, on a
consideration of the scheme and subject.matter of
their laws in question that the word "Immigrant" in
the Immigrant Registration Act, 1901, and in s. 51 of
the Australian Constitution means a person who enters
Australia whether or not with the intention of settling
and residing there (Vide Ghia Gee v. Martin (1) ). The
American courts however took the view in United
States v. Burke('), Moffitt v. United States(') and
United States v. Atlantic Fruit Oo. (') on a consideration of the purpose and scheme of the legislation, that
" Immigrant" means a person who comes to the
United States with a view to reside there permanently.
We have referred to these cases on the meaning of
the word " Immigration " to show that there can be
no doubt that the word "migrate" may have in some
contexts the wider meaning " come or remove to a
(1) (1905) 3 C.L.R. 649.
(2) (1899) 99 Federal Reports 895.
(3) (1904) 128 Federal Reports 375. (4) (1914) 212 Federal Reports 711.
75
Shanno Devi
v.
Mangal Sain
Das Gupta ].
S}uusno Devi
v.
Mangal Sain
D•s Gupta].
584
SUPREME COURT REPORTS
[1961]
place without an intention to reside permanently"
and in some context the narrower meaning "coml' or
remove to a place with the intention of residing there
permanently". The fact that the Constitution-makers
did not use the words " with the intention to reside
·permanently" in Art. 6 is however no reason to think
that the wider meaning was intended.
In deciding
whether the word "migrate" was used in the wider
or the narrower sense, it is necessary t.o consider carefully the purpose and scheme of this constitutional
legislation. The Constitution after defining the territory of India and making provisions as to how it can
be added to or altered, in the four articlos contained
in its first Chapter proceeds in the second Chapter to
deal with the subject of citizenship. Of the seven
articles in this chapter the last Article, Art. 11, only
saves expressly the right of Parliament to make provisions as regards acquisition and termination of
citizenship and all other matters relating to citizenship. Of the other six articles, the first, Art.. 5, says
who shall be citizens of India at the commencement
of the Constitution ; while Arts. 6 and 8 lay down who
though not citizens under Art. 5 shall be deemed to
be citizens of India.
Art. IO provides that once a
person is a citizen of India. or is deemed to be a citizen of India he shall continue to be a citizen of India,
subject of course to the provisions of any law that
may be made by Parliament. Art. 9 provides that if
a person has voluntarily acquired citizenship of any
foreign State be shall not be a. citizen of India or
deemed to be a citizen of India. Art. 7 also denies
the right of citizenship to some persons who would
. have otherwise been citizens of India under Art. 5 or
would be deemed to be citizens of India under Art. 6.
The primary provision for citizenship of India, in
this scheme is in Art. 5.
That follows the usual practice of insisting on birth or domicile which shortly
stated means "residence with the intention of living
and dying in the country" as an essential require-
. ment for citizenship; and confers citizenship on a
person fulfilling this requirement if ho also satisfied
another requirement as regards his birth within what
I
~
• J
I
I
~
'
~·
•
1 S.C.R.
SUPREME COURT REPORTS
585
is now the territory of India or birth of any of his
parent8 within this area or ordinary residence in this
area for a continuous period of five years immediately
preceding the commencement of the Constitution. If
there had been no division of India and no portion of.
the old India had been lost this would have been
sufficient, as regards conferment of citizenship apart
from the special provision for giving such rights to
persons of Indian origin residing outside India. But
pa.rt of what was India as defined in the Government
of India Act,. 1935, had ceased to be India and had
become Pakistan. This gave rise to the serious problem whether or not to .treat as citizens of India the
hundreds of thousands of persons who were of Indian
origin-in the sense that they or any of their parents
or any of their grand-parents had been born in India
-but who would not become citizens under Art. 5.
The Constitution-makers by the provisions of Art. 6
decided to treat as citizens some of these but not all.
Those who had not come to the new India before the
date of the commencement of the Constitution were
excluded; those who had so come were divided into
two categories-those who had come before the 19th
July, 1948, and those who had come on or after the
19th July, 1948.
Persons in the first category had in
order to be treated as citizens t_<J satisfy the further
requirement of" migration" whatever that meant, and
of ordinary residence in the territory of India since
they "migrated" to India; while those in the second
category had, in addition to having migrated, to be
residents for not less than six months preceding the
date of the application for registration . as citizens
which application had to be filed before the date of
the commencement of the Constitution. But while ·
the primary provisions in the Constitution as regards
the citizenship for people born at a place now included in India and people whose parents were born at a
place now in India insist on the requirement of intention to reside here· permanently by using the word
" domicile ", Art. 6 which under the scheme of the
Constitution deals with what may be called "secondary citizenship " and says about some persons that
Shanno Devi
v.
.l\:Jangf!l Sain
Das Gupta J.
T'j60
Sh(11'.110 J)r·.,1
Y.
;1.Jcu1;.-,l Sain
Das Ci11p1a J.
/
586
SCPREJIE COURT REPORTS
[ 1961]
they will be deemed to be citizens of India, does not
mPntion "domicile" as a requirement. Can it be
that the Constitution-makers thought that though in
the ca.so of persons born in what has now become
India or those any of whose parents was born in what
is now India as also in the case of person who had
been residing here for not less than five yea.rs in what
is now India, it was necessary to insist on domicile
before confor~ing citizenship, that was not necessary
in the case of persons whose parents or any of whose
grand-parents had been born in what was formerly
India but is not now India? In our opinion t.he Constitution-makers could not have thought so.
They
were aware that the general rule in almost a.JI the
countries of the world was to insist on birth or domicile as an essential pre-requisite for citizenship. They
know that in dealing with a somewhat similar problem
as regards citizenship of persons born out of what was
then the territory of Irish Free Sta.to, tho Constitution
of t.he Irish Free State had also insisted on domicile
in the Irish Free State as a. requirement for citizenship. There can be no conceivable reason for their
not making a similar insistence here as regards the
persons who were born outside what is now India, or
persons any of whose parents or grand-parents were
born there. Mention must also be made of the curious
consequences that would follow from a view that an
intention to rosido permanently in the territory of
India and is not necessarily in Art. 6. Take tho case of
two persons, one of whom was born in what is now
India and has all along lived there and another person
who though born in what is now India went to live in
areas now Pakistan and then moved back to areas in
what is now India. The first named person would
have to satisfy the requirement of domicile at the
commencement of the Constitution before he is a
citizen; but the second person would not have to
satisfy this condition. It would be unreasonable to
think that such a curious result could have been
intended by the Constitution-makers.
For all these reasons it appears clear that when the
framers of the Constitution used the words " migrated
1 S.C.R. SUPREME COURT REPORTS
587
to the territory of India" they meant "come to the
territory of India with the intention of residing there
permanently ". The only explanation of their not
expressly mentioning "domicile " or the " intention
to reside permanently " in Art. 6 seems to be that
they were confident that in the scheme of this Constitution the word " migration " could only be interpreted to mean "come to the country with the intention
of residing there permanently". It is of interest to
notice in this connection the proviso to Art. 7.
That
article provides in its first part that a person who
would be a citizen of India or would have been deemed
to be a citizen of India in Arts. 5 and 6 would not be
deemed to be a citizen if he has migrated from the
territory to Pakistan after March 1, 1947. The proviso
deals with some of these persons who after such migration to Pakistan have returned to India. It appears
that when this return is under a permit for re-settlement or permanent return-that is, re-settlement in
India or return to India with the intention to reside
here permanently-the main provisions of Article 7
will not apply and for this under Art. 6 of the Constitution such a person would be de.emed to have migrated to India after the 19th July, 1948. That the
return to India of such migrant has to be under a permit for re.settlement or permanent return in order
that he might escape the loss of citizenship is a strong
reason for thinking that in Art. 6 the intention to
· reside in India permanently is implicit in the use of
the phrase " migrated to the territory of India".
It may sometimes happen that when a person
moves from one place to another or from one country
to another he has, at the point of time of moving, an
intention to remain in the country where he moved
only temporarily, but later on forms the intention of
residing there permanently. There can be no doubt
that when this happens, the person should at this
later point of time be held to have "come to the
country with the intention of residing there permanently ". In other words, though at the point of time
he.moved into the new place or new country he cannot be said to have migrated to this place or country
Shanno J)evi
v.
.. ~fan gal Sain
Das Gupta].
Sl:a,11:0 Dn.i
}fa11gal Sain
Das Gupta].
588
SL'PHEllIE COl:RT REPORTS
I
[I 961]
he shoul<l be held in law to have migrated to this
later place or country at tho later point of time when
he fornrn the intention of residing there permanently.
This view of law w11.s taken both by the Election Tribuna.1 and the High Court and was not seriously disputed before us.
The Election Tribunal and the High Court therefore rightly addr!'ssed themselves to the <JUPstion
whether in 1944 whon :lfangal. Sain tirnt came to
Jullunder in what is now the territory of India from
his home in J ha warian now in Pakistan he had the
intention of residing in Iudia pcrmanc11tly and even if
he at that point of time had no such intention, whether after h0 had come in 1944 to what is now the
territory of India, he had at some lat er point of time
formed tho intention of residing here perma.nently.
On this llucstion, as already i11dicated, the Election
Tribunal and tho High Court came to different eonclusio11s.
While the Election Tribunal held that
~\Iangal Sain had at. 110 point of time the intention of
rPsiding in India permanently, the High Court was
prepared to hold th11t even whPn he moved from his
home in 1944 to the <>astern districts of Punjab he had
the intention of n·siding tlwre permanently, and held
that at least aftc.r August 15, 1947, he had no other
intent.ion than of making the Dominion of India his
pbre of abode, ancl residing here permanently. It has
heen strenuously contended before us Lbat in coming
to this conclusion the High Court. has acted arbitrarily (l.nd has ignored importaut evidence which, it is
said, showed clearly that the respondent. had no
intention of residing ptirmanently in India.
In
considning such an argument, it is ]Jroper for us
to bear in mind the pro,·isions of R. 116B of tho
Representation of the People Act which lays down
that. the decision of the High Court on appeal from an
order of the Elect ion Tribunal in an election petition
sball be" fiual and conclusive".
It. has been pointed
out in more than one case hv this Court that while
these provisions do not stanrl in the way of this
Court's interfering with tbe High Court's decision in a.
I
1 S.C.R.
SUPREME COURT REPORTS
589
fit case, it would be proper for us to bear these provi·
sions of the Representation of the People Act in mind
when the correctness of such a decision is challenged
before this Court. It is unnecessary for us to consider
whether the view of the High Court that even in 1944
Mangal Sain could be said to have been migrated to
the eastern districts of Punjab can be successfully
challenged or aot. Even assuming that that conclusion is out of the way, the further conclusion of the
High Coμrt that having moved from his home district
to Jullunder in 1944 Mangal Sain had after August 15,
1947, no other intention than of making.the territory
of India his place of abode would be sufficient to prove
his migration to the territory of India from what is
now Pakistan.
We have been taken through the
materials on the record relevant to this question and
we can see nothing that would justify our interference
with the High Court's conclusion on this point. Much
stress was laid by the appellant's counsel on the fact
that Mangal Sain left Indian shores for Burma in
January, 1950, and after his arrival there made an
application under s. 7(1) of the Union Citizenship
Act, 1948, (of Burma) giving notice of bis intention to
apply for a_certificate of naturalization and his statement therein that he intended to reside permanently
within the Union of Burma. Assuming however, that
in October, 1950, or everi in January, 1950, when he
left for Burma, Mangal Sain had formed the intention
of taking up his permanent residence in Burma, that
is wholly irrelevant to the question whether in 194 7
he had the intention of residing permanently in India.
Lea~ned counsel for the appellant also drew our attention to a statement made in this very application that
Mangal Sa.in had returned to Burma with his mother
in 1947. The High Court has after considering this
statement held that he had not so returned in 1947.
We see no reason to differ with this finding of the
·High Court. In our opinion, there is nothing on the
record to justify any doubt as regards the correctness
of the High Court's decision that aft;er August 15, 1947,
Mangal Sain who had earlier moved from a place now
in Pakistan to J ullunder in India definitely made up
1960
Shanno Devi
v.
Mangal Sain
Das Gupta].
Shanno Devi
v.
I'll a11 gal Sain
590
SUPREME COURT REPORTS
[1961]
~is mind to nrnice India. his permanent home.
Whether or not in Ja.nua.ry, 1950, he changed tha.t intention is irrelevant for our purpose.
· Our conclusion therefore is that the High Court is
right in holding that :\fangal Sain satisfies the first
requirement of Art. 6 of the Constitution of " migration to the territory of India from the territory now
included in Pakistan''. It is not disputed and does
not ever appear to ha.ve been disputed that Mangal
Sain was born in India. as defined in the Government
of India. Act, 1935, and thus satisfies the requirement
of cl. (a) of Art. 6.
There can be no doubt also tha.t since the date of
his migration which has for the present purpose to be
taken as August 15, 1947, Mange.I Sain has been
"ordinarily residing in the territory of India". Mr.
Sastri contended that to satisfy the test of being
"ordinarily resident in the territory of India. since the
date of his migration " it had to be shown that Mange.I Sain was in India on January 26, 1950.
We do
not think that is required. It is first to be noticed
that Art. 6 of the Constitution is one of tho Articles
which came into force on N ovembor 26, 1949. For
applying the test of being" ordinarily resident in the
territory of India since the date of his migration", it
is necessary therefore to consider the period up to the
26th day of November, 1949, from the de.to of migration. It is not however even necessary tha.t on the
26th day of November, 1949, or immediately before
that da.te he must have beon residing in the territory
of India.. What is necessary is tha.t ta.king the period
beginning with the date on which migration became
complete 1rnd ending with the da.te November 26, 1949,
as a whole, the person ha.s been " ordinarily resident
in the territory of India". It is not necessary that
for every day of this period he should have resided in
India.
In the absence of the definition of the words
"ordinarily resident" in the Constitution it is rea.sonablo to take the words to mean "resident during this
period without any serious break". The materials
on the rocord leave no doubt tha.t there wa.s no brea~
worth the na.me in Mange.I Sain's residence in the
I
1 S.C.R. SUPREME COURT REPORTS
591 '.
territory of India from at least August 15, 1947, till.the
26th November, 1949.
We have therefore come to the conclusion that the
High Court was right in sustaining Man gal Sain 's .
claim to be deemed a citizen of India under Art. 6 of
the Constitution and, in that view was also right in
allowing his appeal and ordering the dismissal of the
Election Petition.
In the view we have taken as regards Mangal Sain's
claim to citizenship under Art. 6 of the Constitution
it is not necessary to consider whether his claim
to citizenship under Art. 5 of the Constitution was
also good.
We therefore dismiss the appeal with costs.
Appeal dismissed.
B. V. PATANKAR AND OTHERS
v.
C. G. SASTRY
(B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRA·
GADKAR, K. SuBBA RAO and K. N. WANCHOO, JJ.)
Rent Control-Restrictions agaiiist eviction of tenants-Decree
for possession of house-Delivery given in the absence of tenantExecuting Court ignoring restrictions-Legality-RepugnanceMysore House Rent and Accommodation Control Order, z948, ss. 9
and z6 and Transfer of Property Act, z882 (Act IV of z882),-
Code of Civil Proce~ure (Act V of z908) ss. 47, z5z.
The appellants in execution of a decree passed in their
favour for possession over a house obtained possession thereof
on July 22, r95r. The order for delivery of possession was made
without notice to and in the absence of the respondent. The
respondent made an application in the Executing Court under
ss. 47, 144 and r5r, Code of Civil Procedure for setting aside the
ex-parte or.}er of delivery and for redelivery of possession of the
house to him or in the alternative, for an order to the appellants
for giving facilities for removing the moveables from the house.
The Executing Court upheld the contention of the appellant that
76
Ig6o
Shanno Devi
v.
Mangal Sain
Das Gupta ].
1960
Septetnber _8.