SHANTI SINGH Vs. GOVERNOR OF PUNJAB

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India praying for quashing the order of the Governor of Punjab dated 17th of December 1957 or for other writ or direction has been filed on the following allegations: The petitioner asserts that she was born in village Markhai, Tehsil zira, District Ferozepore in India, on 2nd of February 1928, from parents who were and are still residents of the aforesaid village; she studied in the Nurse and Mission School at" Jagraon, district Ludhiana, till 1938 and from the year 1940 to 1942 she studied in the Government Girls high School, Ferozepore. Due to the death of her brother the petitioner went to village Markhai and in the year 1946 she proceeded to Lahore and joined the Lady Atchison Hospital for getting training as a nurse. While there she was awarded a stipend by the Government which she was getting at the time of the partition of the country. In the year 1947, according to the petitioner, the Government obtained option from the Government servants, and the prescribed form was issued to the petitioner whereupon she opted for coming to India. According to her, she waited for the Government orders, for a considerably long period for being deported to India but she did not receive any orders and as a last resort she approached the deputy High Commissioner, for India in Pakistan in the year 1950 and applied for being brought to India; to this again no reply was received by her. The petitioner also alleges to have approached the Camp Commandant of the abducted women's camp at Lahore to send her to India so as to join and look after her parents who are blind; she was on every occasion given a hope that she would be sent to India but this promise never matured. At last in 1953, according to her petition, the petitioner managed to obtain a valid passport dated 8th of June, 1953 from the Passport Officer, Government of Pakistan, indicating her place and date of birth to be Ferozepore and 2nd of February, 1928 respectively; she entered India on 19th of September, 1953 and afterwards visited Fezorepore several times, with long stays with her parents, till the date of the present petition. On 13th of January, 1958, she received the order of the Governor of Punjab dated 17th of december, 1957 directing her to leave India within 15 days of the receipt of the order, failing which she was liable to be prosecuted and deported under the Foreigners Act, 1946. The petitioner has challenged the legality of this order on the ground that she is a citizen of India having been born in village Markhi, Tehsil Zira, District Ferozepore, and having been in the service of the Government of India. In para 9 of the petition, she has asserted that one Shri Pritam Singh Head Constable was deputed to make an enquiry in connection with her application for permission to stay in India permanently, but he has reported against the petitioner by staring that she has been creating factions in the Christian society. According to the petitioner, this report is mala fide and has been inspired by the petitioner's refusal to treat some male patients whom the Head Constable desired her to treat.

(2.) IN the written statement filed by the respondents it is denied that she was in Government service at the time of the partition of the country, thus the question of option for service in India by her does not arise. The assertions with regard to her birth are neither admitted nor denied as the Government as stated to have no knowledge about them, it is, however, asserted that from the Pakistani passport obtained by the petitioner it is clear that she is a Pakistani national. Her status as an Indian citizen is specifically denied. It is also stated that she is a "foreigner" within the meaning of this word as defined in Section 2 (a) of the foreigners' Act, 3946. It is also stated that there is no report by any Head Constable Pritam singh on the record; on the other hand the reports against her are from the Senior Superintendent of Police and the Deputy Commissioner, Ferozepore. It may here be stated that the petitioner had also challenged the validity of the impugned order on the ground that the original order had not been communicated to the petitioner and that it was only the order of Shri Gurbux Singh respondent No. 2 which had been communicated and this order had no legal sanction behind it. This allegation is also denied in the written statement and it is maintained that the exit notice communicated to the petitioner is the original exit notice; this order as signed/by. Shri Gurbux Singh in the capacity of Deputy Secretary to Government, punjab Some Department, is perfectly valid and the officer is stated to be fully competent to sign and communicate; it is further alleged that it was not necessary to mention the reasons in the notice itself.

(3.) MR. Partap Singh, the learned counsel for the petitioner, has placed his principal reliance on article 5 of the Constitution and has submitted that the petitioner is a citizen of India because she was born in India and has her domicile in the territory of India. It is obvious that Articles 6 and 7 have nothing to do with the case of the petitioner. In order, however, to bring her case within the ambit of Article 5, it is necessary for her to prove two things : (1) that she has her domicile in the territory of India at the commencement of the constitution; and (2) that she was born in the territory of India. It is admitted that she fulfils the condition of her birth being in the territory of India. The question, however, remains whether it can be said that she has her domicile in the territory of India. In my opinion, the facts established on the record do not prove her case. Indisputably she left ferozepore for Lahore in the year 1946 and continued to stay on in Pakistan right up to 1953. By virtue of Article 394 of the Constitution, Article 5 came into force on 26th of November, 1949. No material has been placed on the record to show that the petitioner had, on 26th of November 1949 or even on 26th January, 1950, her domicile in the territory of India. Lahore, where she was residing since 1946, had gone to Pakistan and had thus become a foreign country. We do not find any documentary or other unimpeachable evidence suggesting that the petitioner had any animus to come to Ferozepore for permanent stay. She does not seem to have made a correct statement when she asserts that she was offered an option to opt for service in india. There is no proof even of her ever being in the service of the Government of India. Mr. Partap Singh wants me to infer that because the petitioner's parents are residing in ferozepore therefore she must be assumed to entertain an animus to retain her domicile of origin. It may in this connection be stated that as observed in Mrs. Rosetta Evelyn Attaullah v. Justin attaullah A. I. R. 1953 Cal. 530, it is not correct to say that although British India has ceased to exist, a person who had originally a domicile of British India will continue to have the same. As a result of the provisions contained in the Indian Independence Act a person who had originally the domicile of British India, unless he had subsequently acquired the domicile of some other country outside the ambit of the territories which were originally British India, would automatically acquire the domicil either of India or of Pakistan. Even if it were possible for a British Indian sub ject to retain (after 15th August 1947) the british Indian nationality, a person who was not one habitually resident within that portion of british India which became the Indian Dominion and was subsequently declared to be the indian; Republic, cannot, even on the principles, applied to cession of territories, acquire, after the 15th August 1947, the nationality of the Dominion of India or the Republic of India that is bharat. We have thus to see whether after the 15th of August 1947 it can be said that the petitioner had acquired the domicile of the Indian Dominion and the domicile of the Republic of India at the commencement of the Constitution, There is absolutely no reliable and trustworthy material which can show that the petitioner acquired such domicile. Mr. Partap Singh submits that the petitioner's statement that she wanted to acquire the domicile of the Indian Dominion in 1947 and of the Indian Republic should be considered to be sufficient and that it would then be for the government to establish that this is not the petitioner's intention or animus. I wholly disagree with this contention. No authority in support of his submission has been quoted by the learned counsel. He has, however, placed reliance on Rule 8 contained at page 97 of Dicey's Conflict of Laws, 6th edition, which says -