USMAN ALI Vs. STATE

JUDGEMENT

(1.) L . This is an application under Article 226 of the Constitution for the issue of a writ of certiorari for quashing an order made by the State Government on 20th February 1962 under section 3 (2) (c) of the Foreigners Act, 1946, directing the petitioner, Usman Ali to leave India within seven days of the receipt of the order.

(2.) THE petitioner was born in Umaria on 15th July 1938. His father, Ishtiaque Ali, is a petition -writer at Umaria. In April 1952 he went with his maternal grand -father, one Mohammad Ibrahim, to Karachi. After a stay of nearly two years he returned to India on a Pakistani passport issued on 12th February 1954. Since then he has been residing with his father at Umaria. The petitioner contends that he and his father as also this brothers and sisters all had their domicile in the territory of India at the time of the commencement of the Constitution and are citizens of India by virtue of article 5 that his father never migrated to Pakistan; that he was a minor when he went with his maternal -grandfather to Karachi in 1952; that this visit to Pakistan did not constitute any voluntary migration to Pakistan so as to destroy his Indian citizenship acquired by virtue of article 5 and that he was a minor when he applied for a passport in Pakistan, and that being so, the fact that he returned to India on a Pakistani passport or made a declaration of his being a Pakistani citizen for obtaining a passport can in no way be regarded as showing that he had voluntarily acquired the citizenship of Pakistan. The petitioner says that he is and has always been an Indian citizen and not a foreigner, and consequently the order made under section 3 (2) (c) of the Foreigners Act asking him to leave India is illegal.

(3.) THIS petition must be granted. When an order under section 3 (2) (c) of the Foreigners Act directing a person to leave India is made and that order is challenged, the question to be determined is whether the person is a foreigner or an Indian citizen. Under section 9 of the Act, the onus of showing that he is not a foreigner is upon the person against whom the order has been made. In the present case, on the admitted facts it is abundantly clear that the petitioner is an Indian citizen the applicant and his father had their domicile in India at the commencement of the Constitution. They have, therefore, the status of Indian citizens by virtue of article 5 of the Constitution. The petitioner's father never migrated to Pakistan and has all along been living at Umaria. It was during his minority that the applicant want to Karachi not with his father but with his maternal grand -father. He was a minor at the time when be obtained a Pakistani passport and returned to India on the basis of it in 1954. It is well settled that in the case of a dependant his domicile "is the same as, and changes (if at all) with the domicile of the person on whom he is, as regards his domicile, legally dependent" (see Rule - 11 in Dicey's Conflict of Laws. 7th edn., at p. 113). Thus a dependant person has domicile of the person on whom he is considered by law to be dependant. A dependant person cannot acquire a domicile of choice by his own act. Again, it has been stated in Dicey's Conflict of Laws, at p. 122, that "the last domicile which a person receives while he is a dependant person continues, on his becoming an independent person. unchanged until it is changed by his own act". It follows from these principles that when the petitioner's father, a citizen of India, has all along remained in the territory of India, the petitioner could not change his domicile at his will and during his minority, and notwithstanding his visit to Pakistan with his maternal grand father he continues to be an Indian citizen. In this connection, it is sufficient to refer to Karimun Nisa Vs. M.P. State Govt. AIR 1955 Nag. 6, where, on the basis of the rules enunciated in Dicey's Conflict of Laws, it has been held that the domicile of a minor is determined by and changes with, that of his father, and that a minor loses his domicile in India if he leaves with the person who is his legal guardian. When the petitioner's father did not at any time migrate to Pakistan and the petitioner, who is a minor, continues to have the domicile of his father, the fact that he returned to India on a Pakistani passport and made a declaration there of his being a Pakistani citizen for the purpose of obtaining a passport can be of no consequence. Being unable to acquire during his minority a domicile of his choice by his own act the petitioner cannot be regarded as having become a Pakistani citizen by going to Karachi in 1952 and obtaining a passport there by making a declaration that he was a Pakistani citizen. Even if the petitioner's father consented to his going to Pakistan with his maternal grandfather, that cannot change the applicant's domicile. In our opinion, on the undisputed facts, the applicant is clearly an Indian citizen. That being so, the order made under section 3 (2) (c) of the Foreigners Act, 1945, treating the petitioner as a foreigner and asking him to leave India cannot be sustained.