DAWOOD MAHOMED PATHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal under Clause 15 of the Letters Patent arises out of the decision of this Court (Divan, J.) in First Appeal No. 163 of 1964 which was filed against the decision of Mr. R.C. Shelat, Principal Judge, City Civil Court (as he then was), in City Civil Suit No. 2239 of 1961. The facts giving rise to this appeal are as under: The original plaintiff who is the appellant before us as well as in the First Appeal before Divan, J., brought this suit against the Union of India and the State of Gujarat, the two respondents before us, on August 17, 1961 for a declaration that he is a citizen of India and that he has not lost or abandoned his Indian citizenship and for a permanent injunction restraining the defendants or their servants from prosecuting and/or deporting him from India. The plaintiff's father was born at the village of Tanda in Hazara District. This District of Hazara was a part of British India upto the coming into operation of the Independence Act of 1947. That Independence Act created two sovereign territories out of the territory of British India; namely the dominion of India and the dominion of Pakistan and this District of Hazara has, since the creation of the dominion of Pakistan formed part of the territory of that dominion. The plaintiff's father came down to Delhi with his wife and two children in October 1938. In December, 1939, his wife gave birth to the plaintiff. In February 1940 the plaintiff's mother fell ill in Delhi and she was taken back to their native place, that is, the village of Tanda and there she died in April 1940. The plaintiff, who was then an infant, was brought up at the village of Tanda by the wife of the elder brother of his father. In October 1940 the plaintiff's father came to Ahmedabad for service. He got service in some mills in 1943 and since then he has been living and serving in Ahmedabad. The plaintiff himself lived at the village of Tanda with his uncle upto the year 1954. In 1954 he went with his uncle to Karachi and he was doing some labour work there. In 1953 he obtained a pass-port and applied for obtaining a visa for coming to Ahmedabad from the office of the High Commissioner for India in Karachi. He came to India on that Pass-port. He thereafter applied for a permit for permanent resettlement in India, but he came to know in August 1960 that his application has been rejected. He, therefore, filed the suit for the reliefs stated above.

(2.) The trial Court dismissed the suit of the plaintiff on the ground that the plaintiff was not proved to be a citizen of India on January 26, 1950. In the first appeal before Diwan, J. the plaintiff sought to make out his case of Indian citizenship on the basis of Article 5 of the Constitution of India. The case before Diwan J. was that his domicile at the commencement of the Constitution was that of his father, as he was a minor then. His further case was that his father having been resident in Ahmedabad since 1940 to 1949, his father had before commencement of Constitution acquired the domicile of India. It was therefore contended before Diwan J. that the plaintiff had a domicile in the territory of India and he was born in India and therefore under Article 5 of the Constitution, he was an Indian citizen at the commencement of the Constitution. Diwan J. rejected this contention and came to the conclusion that the learned trial Judge was right when he held that the plaintiff has not established his claim of being the citizen of India under Article 5 of the Constitution. Diwan J. accordingly dismissed the appeal of the plaintiff. It is against that decision of Diwan J. that this Letters Patent Appeal has been filed by the plaintiff.

(3.) At the hearing of this appeal before us the only point that was pressed on behalf of the appellant was that he has become an Indian citizen at the commencement of Constitution under Article 5 of the Constitution. The plaintiff can bring his case within Article 5 of the Constitution, if he is able to prove that at the commencement of the Constitution he had his domicile in the territory of India and further prove any one of the three alternative facts mentioned in Clause (a), (b) and (c) of that Article. Clause (a) requires that the person claiming the benefit of Article 5 should be one born in the territory of India. It is not disputed that the plaintiff was born at Delhi in December 1939. Therefore, if the plaintiff proves that he had his domicile in the territory of India at the commencement of the Constitution, then he is entitled to succeed in his plea.