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Mr. Louis De Raedt & Ors Vs. Union of India & Ors [1991] INSC 163 (24 July 1991)

Sharma, L.M. (J) Sharma, L.M. (J) Verma, Jagdish Saran (J)

CITATION: 1991 AIR 1886 1991 SCR (3) 149 1991 SCC (3) 554 JT 1991 (3) 306 1991 SCALE (2)127

ACT:

Constitution of india, 1950: Article 5--`domicile'--Meaning of-Domicile of origin and domicile of choice--difference between-Domicile of choice--How acquired--Intention to stay permanently-Burden of proof.

Articles 19(1)(e) and 21---Foreigner not acquiring Indian citizenship-Not entitled to fundamental right under Article 19(1)(e)--Fundamendal right under Article 21 avail- able--Right of Government to expel persons--Whether absolute and unrestricted.

Foreigners Act, 1946: Section 3--expulsion of foreigner from India on his failure to acquire Indian citizenship---Right of Government of India--Whether absolute and unrestricted--Decision to deport taken by the competent authority, the Central Government--Superintendent of Police merely executed the order--Hence not vitiated.

Citizenship Act, 1955: Section 6 and third Schedule---Citizenship--Acquiring of--Domicile by choice--Intention to permanently stay in India--Burden of proof--Staying in India with foreign passports with residen- tial permits renewed from time to time--Whether establishes animus manendi--Whether entitled to citizenship.

Private International Law: Foreigner staying in India on Residential permits renewed from time to time--Indian citi- zenship not acquired --Right of Central Government to expel.

Administrative Law: Principles of Natural Justice--Hearing-Expulsion of foreigner not acquiring Indian citizenship--Opportunity of caring--No hard and fast rule--Absence of material in support of his claim--Non affording of opportunity before passing the expulsion order--Whether vitiated.

HEAD NOTE:

The Petitioners, foreign nationals engaged in Christian missionary work have been staying in India continuously for a long time since pre-independence period. They continued to stay on the basis of resi- 149 150 dential permits renewed from time to time. In 1985 an order was passed asking them to leave the country and they made representations to the authorities, followed by further representations in 1986 for naturalisation further extension of stay. However by order dated 8.7.1987 their request was rejected and they were asked to leave the country by 31st July, 1987. The petitioners challenged the said order in the writ petitions filed before this Court.

It was contended by the petitioners that since they were staying in this country for a period of more than five years immediately preceding the commencement of the Consti- tution, they should be held to have duly acquired Indian citizenship on the basis of Article 5(e) of the Constitution of India; that their continuous stay in India has estab- lished their case of domicile in India which cannot be rejected merely because were holding foreign passports; that proceedings against them have been initiated under section 9 of the Foreigners Act enabling them to defend their case; that they were denied hearing; and that in no event the Superintendent of Police who had signed the deportation order was authorised to do so.

Dismissing the Writ Petitions, this Court,

HELD: 1. Every person must have a personal law, and accord- ingly every one must have a domicile. He receives at birth a domicile of origin which remains his domicile, wherever he goes, unless and until he acquires a new domicile. The new domicile, acquired subsequently, is generally called a domicile of choice. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice one of the necessary conditions is the intention to remain there permanently. The domicile of origin is retained and cannot be divested until the acquisition of the domicile of choice. By merely leaving his country, even permanently, one will not, in the eye of law, lose his domicile until he acquires a new one. This proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well established and does not admit of any exception. [156D-F] Central Bank of India v. Ram Narain, [1955] 1 SCR 697, relied on.

Halsbury's Laws of England, 4th Edn., Vol. 8, para 421, referred to.

2. One of the necessary conditions mentioned in Article 5 of the 151 Constitution is that the person concerned must be having his domicile in the territory of India at the commencement of the Constitution. It is not established that they had such an intention for the sole reason that the Petitioners'have been staying in India for more than a decade before the commencement of the Constitution, and it cannot be deemed that they acquired domicile in India and consequently Indian citizenship. [154E]

3.1. For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain State of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient. [156H; 157A]

3.2. The burden to prove that the petitioners had an intention to stay permanently in India lies on them. The available materials on the record leave no room for doubt that the petitioners did not have such intention. At best it can be said that they were uncertain about their permanent home. During the relevant period very significant and vital political and social changes were taking place in this country, and those who were able to make up their mind to adopt this country as their own, took appropriate legal steps. The petitioners preferred to stay on, on the basis of their passports issued by other countries, and obtained from time to time permission of the Indian authorities for their further stay for specific periods. None of the applications filed by the petitioners in this connection even remotely suggested that they had formed an intention of permanently residing here. [157B-D] Mohd. Ayub Khan v. Commissioner of Police, Madras, [1965] 2 SCR 884 and Kedar Pandey v. Narain Bikram Sah, [1965] 3 SCR 793, distinguished.

Union of India v. Ghaus Mohammed, [1962] 1 SCR 744, referred to.

4. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. The power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. The legal position on this aspect is not uniform in all the countries but so far the law which 152 operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner. [158C-E] Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors., [1955] 1 SCR 1284, relied on.

5. So far the right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing the impugned order, the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship, which they failed to do in the absence of a notice. [158E-F]

6. The contention that the Superintendent of Police was not authorised to direct deportation of the petitioners, is devoid of merit. Actually the order was not passed by the Superintendent of Police. It was the decision of the Central Government, which was being executed by the Superintendent of Police. This is clear from the order. [158G]

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1410 of 1987.

(Under Article 32 of the Constitution of India).

WITH Writ Petition (Criminal) No. 528 of 1987.

AND Writ Petition (Civil) No. 1372 of 1987.

J.P. Verghese, Aby T. Varkey and N.N. Sharma for the Petitioners.

Altar Ahmed, ASG. U.N. Bachawat, R.B. Mishra, Ms. A. Subhashini and Uma Nath Singh for the Respondents.

The Judgment of the Court was delivered by SHARMA, J. By these three petitions under Article 32 of the Constitution, the petitioners who are foreign nationals, have challenged the order dated 8.7.1987 whereby their prayer for further extension of the period of their stay in India was rejected and they were 153 asked to leave the country by the 3 1st July, 1987. Mr. Louis De Raedt, petitioner in W.P. (C) No. 1410 of 1987, came to India in 1937 on a Belgium passport with British visa and Mr. B.E. Getter the petitioner in W.P. (Crl.) No. 528 of 1987 in 1948 on an American passport and both have been engaged in Christian missionary work. The petitioner in W.P. (C) No. 1372 of 1987, Mrs. S.J. Getter is Mr. B.E. Getter's wife. Mr. Verghese, the learned counsel, who ap- peared for the three petitioners, referred to the facts in W.P. (C) No. 1410 of 1987 and stated that the cases of the other two petitioners are similar and they are entitled to the same relief as Mr. Louis De Raedt.

2. According to his case, Mr. Louis De Raedt has been staying in India continuously since 1937 excepting on two occasions when he went to Belgium for short periods in 1966 and 1973. It has been contended that by virtue of the provi- sions of Article 5(c) of the Constitution of India the petitioner became a citizen of this country on 26.11.1949, and he cannot, therefore, be expelled on the assumption that he is a foreigner. Referring to the Foreigners Act it was urged that power under Section 3(2)(c) could not be exer- cised because the Rules under the Act have not been framed so far. Alternatively, it has been argued that the power to expel an alien also has to be exercised only in accordance with the principles of natural justice and a foreigner is also entitled to be heard before he is expelled. For all these reasons it is claimed that the impugned order dated 8.7.1987 being arbitrary should be quashed and the authori- ties should be directed to permit the petitioners to stay on.

3. It has been contended by Mr. Verghese that after the independence of India, appropriate orders were passed per- mitting many foreign Christian missionaries to stay on permanently in the country but, as in 1950 petitioner Mr. Louis De Raedt was working in certain remote area of the Adivasi belt in Bihar, he could not obtain the necessary order in this regard. Later, however, he had also filed applications for the purpose which have remained undisposed of till today. 1985 an order was passed asking him to leave the country, and he made a representation to the authorities on 20.9. 1985, a true copy Whereof is Annexure I to the writ petition. On 1.3.1986 he filed another application for naturalisation, a copy whereof has been marked as Annexure II. A copy of his third application dated 15.3.1986 is Annexure III. The impugned order Annexure IV was passed in this background.

4. The main ground urged by the learned counsel is based on 154 Article 5 of the Constitution, which reads as follows:

"5. Citizenship at the commencement of the Constitution --At the commencement of this Constitution every person who has his domicile in the territory of India and (a) who was born in the territory of India, or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India." The argument is that since Mr. Louis De Raedt was staying in this country since 1937, that is, for a period of more than five years immediately preceding the commencement of the Constitution, he must be held to have duly acquired Indian citizenship.

5. One of the necessary conditions mentioned in Article 5 of the Constitution is that the person concerned must be having his domicile in the territory of India at the com- mencement of the Constitution. The question is as to whether the petitioner fulfils this condition? The facts stated by the petitioner himself do not leave any room for doubt that he did not have his domicile here. In his application dated 20.9.1985 addressed to the Home Minister, Government of Madhya Pradesh, Bhopal, Annexure I, the petitioner stated that he had been staying in this country on the basis of residential permit renewed from time to time and when he had gone to Belgium, "No Objection to Return" Certificate was issued without difficulty. He asserted that since he was working in education and social work for a long period he was "more Indian than Belgium". Towards the end of his application he stated thus:

"Therefore, I plead for a cancellation of the above order on compassionate ground.

I would request Your Honour to kindly allow me to stay in India till the end of my life by extending my residential permit.

For this act of kindness I will be ever grate- ful to (emphasis added) 155 In his application dated 1.3. 1986 addressed to the Collec- tor, Surguja (Madhya Pradesh), which is Annexure II, he mentioned the subject as "request for naturalisation". In this application he referred to the provisions of Article 5 of the Constitution as a basis of his claim but concluded his prayer thus:

"If however Government decides that I have LOST my citizenship (sic) would be grateful to be informed about it. So that I can apply under one of the naturalisation Act. (Sic)" He reiterated his stand in Annexure III dated 15.3. 1986.

6. The entire relevant official records were available with the learned counsel for the respondents during the hearing of the case, which indicated that the impugned order (Annexure IV) was passed on the basis of another application of the petitioner filed earlier on 25.1. 1980. Photostat copies of the said application were filed and kept on the records of the case. It was stated therein that the autho- rised period for his stay in India was going to expire on 3.3. 1980. It contained a prayer for the extension of the period of stay by one year. The petitioner mentioned the reason for extension of this stay thus: "to do further social work as a missionary". The purpose of his visit to India was also similarly mentioned: "to do social work as a missionary". There was no indication whatsoever in the said application that he intended to stay in this country on a permanent basis. The period for which the extension was asked for being one year only indicated that by 1980 he had not decided to reside here permanently.

7. Mr. Verghese has contended that the fact that the petitioner has been staying in this country since 1937 and visited Belgium only twice is sufficient by itself to estab- lish his case of domicile in India. It was argued that the petitioner's case cannot be rejected merely for the reason that he has been holding a foreign passport. Reliance was placed on Mohd. Ayub Khan v. Commissioner of Police, Madras and Another, [1965] 2 SCR 884 and Kedar Pandey v. Narain Bikram Sah, [1965] 3 SCR 793. Reference was also made to Union of India v. Ghaus Mohammed, [1962] 1 SCR 744, and it was argued that 'a proceeding ought to have been started against the petitioner under Section 9 of the Foreigners Act where he should have been allowed to defend. The learned counsel submitted that even a foreigner who comes on the strength of a foreign passport, in case of his overstaying has to be heard before he can be thrown out, and this has been denied to the petitioners.

156

8. Lastly, Mr. Verghese contended that in no event the Superintendent of Police who signed the impugned order, i.e. Annexure, IV, is authorised to direct deportation of the petitioner.

9. There is no force in the argument of Mr. Verghese thai for the sole reason that the petitioner has been stay- ing in this country for more than a decade before the com- mencement of the Constitution, he must be deemed to have acquired his domicile in this country and consequently the Indian citizenship. Although it is impossible to lay down an absolute definition of domicile, as was stated in Central Bank of India v. Ram Narain, [1955] 1 SCR 697 it is fully established that an intention to reside for ever in a coun- try where one has taken up his residence is an essential constituent element for the existence of domicile in that country. Domicile has been described in Halsbury's Laws of England, 4th edition, Volume 8, Paragraph 42 1) as the legal relationship between individual and a territory with a distinctive legal system which invokes that system as his personal law. Every person must have a personal law, and accordingly every one must have a domicile. He receives at birth a domicile of origin which remains his domicile, wherever he goes, unless and until he acquires a new domi- cile. The new domicile, acquired subsequently, is generally called a domicile of choice. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice one of the necessary conditions is the intention to remain there permanently. The domicile of origin is retained and cannot be divested until the acquisi- tion of the domicile of choice. By merely leaving his coun- try, even permanently, one will not, in the eye of law, lose his domicile until he acquires a new one. This aspect was discussed in Central Bank of India v. Ram Narain (supra) where it was pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. The position was summed in Halsbury thus:

"He may have his home in one country, but be deemed to be domiciled in another." Thus the proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well estab- lished and does not admit of any exception.

10. For the acquisition of a domicile of choice, it must he shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the inten- tion of making his permanent home in the country of resi- dence and of continuing to reside there permanently. Resi- dence alone, unaccompanied by this state of mind, is insuf- ficient.

11. Coming to the facts of the present cases the ques- tion which has to be answered is whether at the commencement of the Constitution of India the petitioners had an inten- tion of staying here permanently. The burden to prove such an intention lies on them. Far from establishing the case which is now pressed before us, the available materials on the record leave no room for doubt that the petitioners did not have such intention. At best it can be said that they were incertain about their permanent home. During the rele- vant period very significant and vital political and social changes were taking place in this country, and those who were able to make up their mind to adopt this country as their own, took appropriate legal steps. So far the three petitioners are concerned, they preferred to stay on, on the basis of their passports issued by other countries, and obtained from time to time permission of the Indian authorities for their further stay for specific periods.

None of the applications filed by the petitioners in this connection even remotely suggests that they had formed any intention of permanently residing here.

12. None of the cases relied upon on behalf of the petitioners is of any help to them. The case of Mohd. Ayub Khan was one where the appellant had made an application to the Central Government under Section 9(2) of the Indian Citizenship Act, 1955 for the determination of his citizen- ship. Section 9(1) says that if any citizen of India ac- quired the citizenship of another country between 26.1. 1950 and the commencement of the Citizenship Act, he ceased to be a citizen of India and sub-section (2) directs that if any question arises as to whether, when or how any person has acquired the citizenship of another country, he shall be determined by the prescribed authority. Mohd. Ayub Khan was a citizen of this country at the commencement of the constitution of India and was asked to leave the country for the reason that he had obtained a Pakistani Passport. The question which thus arose in that case was entirely differ- ent. The case of Kedar Pandey v. Narain Bikram Sah, (supra), does not help the petitioners at all. On a consideration of the entire facts and circumstances this Court concluded that "the requisite animus manendi as has been proved in the finding of the High Court is correct". The Respondent Narain Bikram Sah, who claimed to have acquired Indian citizenship, had extensive properties at large number of different places in India and had pro- 158 duced many judgments showing that he was earlier involved in litigations relating to title, going upto the High Courts in India and some time the Privy Council stage. He was born at Banaras and his marriage with a girl from Himachal Pradesh also took place at Banaras and his children were born and brought up in India. Besides his other activities supporting his case, he also produced his Indian passport. In the cases before us the learned counsel could not point out a single piece of evidence or circumstance which can support the petitioners' case, and on the other hand they have chosen to remain here on foreign passports with permission of Indian authorities to stay, on the basis of the said passports.

Their claim, as pressed must, therefore, be rejected.

13. The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental right under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors, [1955] 1 SCR 1284 that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution lettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner. So far the right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing the impugned order, the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship, which they failed to do in the absence of a notice.

14. The last point that the impugned order (Annexure IV) passed. by the Superintendent of Police, who was not autho- rised to so, is also devoid of any merit. The order was not passed by the Superintendent of Police; the decision was of the Central Government which was being executed by the Superintendent, as is clear from the order itself.

15. For the reasons mentioned above, we do not find any merit in the petitions, which are accordingly dismissed, but without costs.

G.N. Petitions dismissed.

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