CASE BRIEF
Appellants: Mohamed Reza Debstani
Respondent: The State Of Bombay
Decided On: 28th January, 1966.
Statutes Referred- Registration of Foreigners Rules, 1939,
Foreigners Act, 1946, Naturalisation Act of 1926, Constitution of India
Facts:
The appellant was of Iranian nationallity by birth and he had come to India from Yezd in Iran along his maternal uncle, who himself was an Iranian national, in 1938, when he was about thirteen years old making him a minor.
There was no record of him entering India on his passport. In January 1945 he obtained an Iranian passport and went to Iraq on pilgrimage. He had an identity card of the Iranian government.
On March 22, 1946 he was registered under the Registration of Foreigners Rules, 1939, as an Iranian national. On May 25, 1951, he obtained a residential permic under the Foreigners Order, 1938 permitting him to reside in India upto a certain date.
On his request the permission was extended time to time. However, his last request on December 2, 1957, was refused and he was ordered under the Foreigners Act, 1946, to leave India.
He had obtained a duplicate of his registration certificate under the Foreigners Rules as the original had been lost by him after the 1950 and in the application for it he had described himself as an Iranian national.
Even on March 30 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused
On December 14 1957 a suit was filed by him in the City Civil Court at Bombay for a declaration that he was a citizen of India along with request for an injunction restraining the State of Bombay the Police of Bombay and the Union of India from taking action against him on the footing that he was not an Indian citizen but a foreigner.
Issue
Whether he had domiciled in the territory of India
Contentions by Parties-
Appellant’s Arguments
The appellant based his claim to citizenship of India on Article 5 of the Constitution.
Under that Article every person who had his domicile in the territory of India and had been ordinarily resident there for not less than five years immediately preceding the commencement of the Constitution was declared to be a citizen of India.
The appellant contended that he had changed his Iranian domicile into an Indian domicile prior to November 21, 1949.
Respondent’s Arguments
The suit was dismissed by the City Civil Court and an appeal by the appellant to the High Court at Bombay also failed. He then now appealed to this Court with special leave.
Judgment
The Court’s bench comprising of A. K. SARKAR AND J. R. MUDHOLKAR, JJ. Held the following:
It is well established that residence alone is insufficient evidence to establish acquisition of a new domicile; there has also to be proof that the residence in a country was with the intention of making it the person’s home.
Now, on the question of intention of the appellant to make India his home,
if he wished to change his nationality, should’ve got himself naturalised as a British Indian subject under the Naturalisation Act of 1926. The only other fact which happened between 1943 and 1949 to which our attention was drawn was that in 1947 he took over a restaurant business on royalty basis for a period of three years. From this fact alone it is impossible to hold that the appellant had decided to make India his home.
He obtained a residential permit and from time to time applied for its extension. In these applications he described himself as an Iranian national. It was contended that this description does not militate against his claim to an Indian domicile.
It was said that a person may be a national of one country and have his domicile in another country. Here, however, the question of domicile arises because on the basis of it the appellant claims citizenship of India.
An Indian citizen cannot be a national of another State. Therefore, when the appellant described himself as an Iranian national in his applications for a residential permit and for extensions thereof after 1950, he was saying that he was not an Indian citizen.
If he was not an Indian citizen, he did not have an Indian domicile, for if he had such a domicile, he would have been a citizen of India.
He could have all along claimed Indian citizenship on the basis of Indian domicile if he had one. Instead of making such a claim or any effort in that regard he continued proceeding on the basis that he was an Iranian national.
It appears from a letter that the appellant wrote to the police on September 24, 1955, in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensions of permits were no longer necessary for him.
This would indicate that the appellant’s real object of applying for domicile was to avoid the botheration of having to apply constantly for extension of the residential permit and not that he had intended to make India his home.
In this state of the evidence it cannot be held that the appellant has been able to prove his intention to settle in India or make India his home.
The result was that the appeal failed and was dismissed with costs.
Rule of Law-
All citizens are nationals of a particular State but all nationals may not be citizens of the State.
Conclusion-
The apex court made it clear what constitutes as a citizen of India along with interpreting the intention of the appellant behind his contention. Mere residing without the intent does not amount to being a citizen is evident from the judgement