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PETITIONER: SMT.  SHANNO DEVI

       Vs.

RESPONDENT: MANGAL SAIN

DATE OF JUDGMENT: 07/09/1960

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS DAS, S.K. HIDAYATULLAH, M. SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR   58            1961 SCR  (1) 576  CITATOR INFO :  F          1965 SC 810  (8)  O          1966 SC1614  (4,5,12)  RF         1971 SC 472  (2,7,8)  O          1974 SC 645  (4)

ACT: Migration to India-Citizenship, claim for-Intention of resi- ding   permanently-Election   dispute-"  Migrated   to   the territory  of India ", " Ordinarily resident ", meaning of Constitution of India, Art. 6.

HEADNOTE: The  respondent was the successful candidate at the  general election  held  in March, 1957, for the  Punjab  Legislative Assembly.   The  appellant who was one of  the  unsuccessful candidates,  filed an election petition and  challenged  the validity of the respondent’s election on the grounds,  inter alia,  that the latter was not a citizen of India  and  was, therefore,  not  qualified to stand for  election.   It  was found that he was born of Indian parents sometime in 1927 in India as defined in the Government of India Act, 1935, in  a village  which  since  August  15,  1947,  became  part   of Pakistan,  that in 1944 he had moved from his home  district to Jullunder in what is now the territory of India, and that after  August  15, 1947, he definitely made up his  mind  to settle  in  India  with  the  intention  of  residing  there permanently.   There was some evidence to show that he  went to Burma in January, 1950, and made unsuccessful attempts to secure permission from the Government of Burma to stay there permanently.  The question was whether the respondent  could be  deemed  to be a citizen of India within the  meaning  of Art. 6 of the Constitution of India. Held:(1)   that  the  expression  "  migrated  to   the territory  of India " in Art. 6 of the Constitution means  " migrated  at  any  time  before  the  commencement  of   the Constitution to a place now in the territory of India ". (2)that in Art. 6 the words " migrated to the territory of India  "  mean  " come to the territory of  India  with  the intention of residing there permanently ".

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(3)that  where a person moves from one country to  another and has, at the time of moving, a intention to remain in the country where he moved only temporarily, but later on  forms the  intention of residing there permanently, he  should  be held  in law to have migrated to that country at  the  later point of time. (4)that for applying the test of being " ordinarily  resi- dent  in  the  territory  of India since  the  date  of  his migration  " in Art. 6(b)(i), what is necessary to be  shown is  that during the period beginning with the date on  which migration became 577 complete and ending with November 26, 1949, as a whole,  the person  has been " ordinarily resident in the  territory  of India ". Whether he was not in India on January 26, 1950, or whether  he formed an intention of taking up  his  permanent residence  in Burma when he left for that place in  January, 1950, was not relevant. (5)That  the words " ordinarily resident " in the  Consti- tution  mean  "  resident during  this  period  without  any serious  break ". It is not necessary that for every day  of this period the person should have resided in India. (6)that the respondent satisfied the requirements of  Art. 6 ofthe  Constitution  and that his claim to  be  deemed  a citizen of India must be upheld.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 247 of 1960. Appeal from the judgment and order dated October 3, 1958, of the Punjab High Court in First Appeal from Order No. 131  of 1958. A.V. Viswanatha Sastri and Naunit Lal, for the appellant. U.M. Trivedi and Ganpat Rai, for the respondent. 1960.  September 7. The Judgment of the Court was  delivered by DAS  GUPTA  J.-What  do  the words "  has  migrated  to  the territory  of India " in Art. 6 of the Constitution  mean  ? That  is the main question in this appeal.   The  appellant, Shanno  Devi, was one of the unsuccessful candidates at  the general   election  held  in  March  1957  for  the   Punjab Legislative Assembly.  The respondent, Mangal Sain, was  the successful  candidate.  The nomination papers of  these  and other candidates which were scrutinised on February 1, 1957, were  accepted on the same date.  The voting took  place  on March 12, and after counting of votes on March 14, 1957, the respondent, Mangal Sain was declared duly elected.  On March 27,  1957,  the  appellant filed an  election  petition  and challenged the respondent’s election on various grounds, the principal  ground  being  that  the  Returning  Officer  had improperly  accepted the nomination paper of the  respondent on the ground that he was not a citizen of India and was not qualified  to  stand for election.  With the  other  grounds which 578 were  taken in this petition we are no longer  concerned  as after  the Election Tribunal rejected these several  grounds they  were not pressed before the High Court and  have  also not  been raised before us.  The Election  Tribunal  however held that Mangal Sain was not an Indian citizen at the  time he  was  enrolled as a voter or at the time  his  nomination papers  were  accepted  and even at the  time  when  he  was elected.   Accordingly  the Tribunal  allowed  the  election petition and declared the respondent’s election to be  void.

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On  appeal by Mangal Sain to the High Court the  only  point raised  was whether the appellant was a citizen of India  at the commencement of the Constitution.  If he was a  citizen of  India  at  the date of such  commencement,  it  was  not disputed,  he  continued  to be a citizen of  India  on  all relevant dates, viz., the date of his enrollment as a voter, the date of acceptance of his nomination and the date of his election.   If however he was not a citizen of India at  the commencement of the _Constitution he had not since  acquired citizenship  and  so  his  election  would  be  void.    The respondent’s  case  all along was that he was a  citizen  of India  at the commencement of the Constitution under Art.  5 of the Constitution and apart from that he must be deemed to be  a citizen of India at such commencement under Art. 6  of the   Constitution.   The  Election  Tribunal   as   already indicated  rejected  both these  contentions.   The  learned judges  of  the High Court while indicating that  they  were inclined to think that the respondent’s claim to citizenship of  India  under  Art.  5 could not  be  sustained  did  not consider  that matter in detail, but held that his claim  to be  deemed to be a citizen of India at the  commencement  of the  Constitution  under Art. 6 thereof must  prevail.   The primary  facts as found by the Tribunal on the evidence  led by the parties before it, have been correctly summarised  in the judgment of the High Court in these words:               "On  the  evidence  led  by  the  parties  the               learned Tribunal held that it was proved  that               Mangal   Sain  was  born  of  Indian   parents               sometime   in  1927  in   village   Jhawarian,               District  Sargodha, and that when he was  only               two years old he was taken by his parents from               579                Jhawarian  to Mandlay in Burma wherefrom  the               entire  family returned to Jullunder  (Punjab)               in  1942  when  Burma  was  occupied  by   the               Japanese  forces during the Second World  War.               After   having  stayed  for  a  few  days   in               Jullunder,  Mangal Sain, his parents  and  his               brother  went to their home district  Sargodha               where  they stayed for about two or two and  a               half  years.  During this period  Mangal  Sain               passed  Matriculation  examination  from   the               Punjab  University  and after  having  himself               matriculated  he again returned to  Jullunder,               where  he was employed in the  Field  Military               Accounts Office from 8th December, 1944 to 7th               August,   1946,   when   his   services   were               terminated  because of his continuous  absence               from  duty.   Mangal Sain’s  parents  and  his               brother  according  to  the  findings  of  the               learned  Tribunal also returned from  Sargodha               to Jullunder and lived there for about two and               a  half years from some time in  1945  onwards               before  they  again went over to  Burma  which               country  they  had  left in 1942  due  to  its               occupation  by  the  Japanese  forces.   While               Mangal  Sain  was  in  service  in  the  Field               Military  Accounts Office, he joined  Rastriya               Swayam  Sewak  Sangh movement and  became  its               active  worker.  Sometime after  his  services               were  terminated, he shifted the scene of  his               activities  to  Hissar  and  Rohtak  districts               where be moved from place to place to organise               the  Rastriya  Swayam  Sevak  Sangb  movement.               During this period apparently he had no  fixed

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             place  of residence and he used to  reside  in               the  offices  of the Jan Sangh  and  took  his               meals  at various Dhabas.  For about 4  months               from June to September in the year 1948 Mangal               Sain served as a teacher in Arya Lower  Middle               School,  Rohtak.   In July  1948  Mangal  Sain               submitted   to  the’  Punjab  University   his               admission  form for the  University  Prabhakar               examination  which form was duly  attested  by               Prof.   Kanshi  Ram Narang of  the  Government               College  Rohtak.  Sometime in January 1949  he               was  arrested in connection with the  Rastriya                             Swayam Sevak Sangh movement and was detained i n               Rohtak District Jail from 10th January,  1949,               till 30th May, 1949.  In August 1949 he  again               appeared in Prabhakar               580               examination and was placed in compartment,  he               also appears to have organised Rastriya Swayam               Sevak  Sangh  in the districts of  Rohtak  and               Hissar during the years 1948-49 and he used to               move about from place to place without  having               any  fixed  place  of  abode.   The   Tribunal               further found that it was sometime in the  end               of  1949 or in January 1950 that  Mangal  Sain               left India and went to Burma where his parents               and other brothers were already residing.   In               that country he tried to secure permission  to               stay there permanently, but the Government  of               Burma did not agree and directed him to  leave               that  country ; in this connection he  applied               for  a writ to the Supreme Court of Burma  but               his  petition  was disallowed.   On  the  29th               October, 1951, Mangal Sain deposited with  the               competent authority in Burma the  registration               certificate   granted   to   him   under   the               Registration  of Foreigners Act, 1948,  and  a               few days later he came back to India and since               then  he has been living in this  country  and               has  been  organising  Rastriya  Swayam  Sevak               Sangh movement in the districts of Hissar  and               Rohtak.   In  1953 he was again  arrested  and               detained in Rohtak jail as a detenue from  the               8th  February  to 8th May, 1953, when  be  was               transferred to Ambala jail ". On  these facts the Tribunal further held that it cannot  be said  "  that the respondent had an intention to  settle  in India  permanently  and  that he had no  intention  of  ever leaving it ". Taking along with these facts the respondent’s declaration  in  the  affidavit (Ex. 5) to  which  we  shall presently  refer  the Tribunal further held that "  his  own declaration  in  the affidavit (Ex. 5) and  his  conduct  in going  over to Burma and trying to settle there  permanently furnish convincing proof that all along he had the intention to  follow his parents and other relations to Burma  and  to settle  there permanently ". The Tribunal finally  concluded by  saying that ,it is also quite clear that in the case  of this respondent it cannot be said that he had no other  idea than  to continue to be in India without looking forward  to any  event  certain or uncertain which might induce  him  to change his residence 581 On  these  findings  of  fact the  Tribunal  held  that  the respondent  could  not be deemed to be a  citizen  of  India

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under Art. 6 of the Constitution. On these same primary facts mentioned above, Mr. Justice Dua who  delivered  the  leading  judgment  of  the  High  Court recorded his conclusion thus:-               "I  can draw but only one conclusion from  the               evidence on the record, that the appellant who               had moved from his home district to  Jullunder               had,  after  the 15th August, 1947,  no  other               intention than of making the Dominion of India               as  his place of abode.  On the  15th  August,               1947, therefore the appellant’s migration from               Jhawarian  to  the  territory  of  India   was               clearly  complete, whatever doubts  there  may               have been before that date, though I would  be               prepared  even to hold that he had moved  away               from  his village in 1944 and had migrated  to               the eastern districts of the Punjab" Mr. Justice Falshaw agreed with this conclusion. On  these  conclusions  the learned  Judges  held  that  the respondent’s  claim to be deemed a citizen of India  at  the commencement of the Constitution must succeed. The  main contention on behalf of the appellant is that  the conclusion of the High Court, that when the respondent moved away from his village in 1944 and that at any rate after the 15th August, 1947, he had no other intention than of- making the Dominion of India his place of abode, was arbitrary.  It was also contended that in any case the migration under Art. 6 of the Constitution has to take place after "the territory of India " as contemplated in the Constitution had come into existence. Lastly it was contended, though  faintly,  that the  respondent  had  not  in any  case  complied  with  the requirements of being ordinarily a resident in the territory of India since the date of his migration.  The  respondent’s counsel  besides  challenging the correctness of  the  above contention  further urged that the words " migrated  to  the territory  of  India  " in Art. 6 only  means  come  to  the territory of India " and does not mean come to the 582 territory  of  India  with  the  intention  of   permanently residing there ". The extreme contention raised by Mr. Sastri on behalf of the appellant that migration under Art. 6 must take place  after the  territory  of  India  came  into  existence  under  the Constitution cannot be accepted.  It has to be noticed  that Art. 6 deals with the question as to who shall be deemed  to be   a  citizen  of  India  at  the  commencement   of   the Constitution.   That  itself  suggests, in  the  absence  of anything   to  indicate  a  contrary  intention,  that   the migration  which is made an essential requirement  for  this purpose must have taken place before such commencement.   It is also worth noticing that cl. (b) of Art. 6 which mentions two  conditions, one of which must be satisfied in  addition to  birth  as  mentioned in el. (a) and  "  migration  "  as mentioned  in the main portion of the Article being  proved, speaks  in its first sub-cl. of migration " before the  19th day of July 1948 " and in sub-cl. (ii) migration " after the 19th day of July 1948 ". The second sub-cl requires that the person  must  be  registered as a citizen  of  India  by  an officer  appointed in that behalf by the Government  of  the Dominion of India on an application made by him therefore to such  officer before the commencement of  the  Constitution. The proviso to that Article says that no person shall be  so registered  unless he has been resident in the territory  of India for at least six months immediately preceding the date of  his application.  It is clear from this that the act  of

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migration in Art. 6 must take place before the  commencement of the Constitution.  It is clear therefore that "  migrated to  the territory of India " means " migrated " at any  time before  the commencement of the Constitution to a place  now in the territory of India. This brings us to the important question whether migrated to the territory of India " means merely come to the  territory of  India " or it means " come to the territory of India  to remain here " or in other words, " come to the territory  of India  with  the intention of  residing  here  permanently". There  can  be  no doubt that the word migrate  "  taken  by itself is 583 capable  of the wider construction " come from one place  to another  "  whether or not with any intention  of  permanent residence  in  the latter place.  It is  beyond  controversy that the word " migrate " is often used also in the narrower connotation  of " coming from one place to another with  the intention  of  residing permanently in  the  latter  place". Webster’s  Dictionary  (Second  Edition,  1937)  gives   the following meaning of the word " migrate ":-" To go from  one place  to  another; especially, to move  from  one  country, region, or place of abode or sojourn to another, with a view to residence; to move; as the Moors who migrated from Africa to  Spain  ". The Corpus Juris Secundum  published  in  1948 gives the same meaning except that it also gives " to change one’s place of residence " as one of the meanings.  The word " Immigrate " which means " migrate into a country " and its derivatives " Immigrant " and " Immigration " have  received judicial  consideration in several Australian  and  American cases, in connection with prosecutions for contravention  of Immigration laws. The Courts in Australia, were of opinion, on a consideration of  the scheme and subject-matter of their laws in  question that  the word " Immigrant " in the  Immigrant  Registration Act, 1901, and in s. 51 of the Australian Constitution means a  person  who  enters Australia whether  or  not  with  the intention  of settling and residing there (Vide Chia Gee  v. Martin  (1)).  The American courts however took the view  in United States v. Burke (2), Moffitt v. United States (3) and United  States v. Atlantic Fruit Co. (4) on a  consideration of   the  purpose  and  scheme  of  the  legislation,   that "Immigrant"  means a person who comes to the  United  States with a view to reside there permanently. We have referred to these cases on the meaning of the word " Immigration to show that there can be no doubt that the word migrate" may have in some contexts the wider meaning "  come or remove to a (1) (1905) 3 C.L.R. 649. (2) (1899) 99 Federal Reports 895. (3)  (1904) 128 Federal Reports 375. (4) (1914) 212 Federal Reports 711. 75 584 place  without  an intention to reside permanently"  and  in some,  context  the narrower meaning " come or remove  to  a place  with  the intention of residing  there  permanently". The fact that the Constitution-makers did not use the  words "  with the intention to reside permanently " in Art.  6  is however  no  reason  to think that  the  wider  meaning  was intended.  In deciding whether the word " migrate " was used in  the  wider  or the narrower sense, it  is  necessary  to consider   carefully   the  purpose  and  scheme   of   this constitutional legislation.  The Constitution after defining the  territory of India and making provisions as to  how  it

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can  be added to or altered, in the four articles  contained in its first Chapter proceeds in the second Chapter to  deal with  the subject of citizenship.  of the seven articles  in this chapter the last Article, Art. 11, only saves expressly the  right  of  Parliament to  make  provisions  as  regards acquisition  and  termination of citizenship and  all  other matters relating to citizenship.  Of the other six articles, the  first, Art. 5, says who shall be citizens of  India  at the  commencement of the Constitution; while Arts. 6  and  8 lay  down  who  though not citizens under Art.  5  shall  be deemed  to  be  citizens of India.  Art.  10  provides  that once  a  person is a citizen of India or is deemed to  be  a citizen of India he shall continue to be a citizen of India, subject  of course to the provisions of any law that may  be made  by Parliament.  Art. 9 provides that if a  person  has voluntarily  acquired  citizenship of any foreign  State  he shall not be a citizen of India or deemed to be a citizen of India.  Art. 7 also denies the right of citizenship to  some persons  who  would have otherwise been  citizens  of  India under  Art.  5 or would be deemed to be  citizens  of  India under Art. 6. The  primary  provision for citizenship of  India,  in  this scheme  is  in Art. 5. That follows the  usual  practice  of insisting on birth or domicile which shortly stated means  " residence  with  the intention of living and  dying  in  the country  " as an essential requirement for citizenship;  and confers citizenship on a person fulfilling this  requirement if  he  also satisfied another requirement  as  regards  his birth within what 585 is now the territory of India or birth of any of his parents within  this area or ordinary residence in this area  for  a continuous  period of five years immediately  preceding  the commencement  of  the Constitution’.  If there had  been  no division  of India and no portion of the old India had  been lost this would have been sufficient, as regards  conferment of  citizenship apart from the special provision for  giving such  rights  to persons of Indian origin  residing  outside India.   But  part  of  what was India  as  defined  in  the Government  of India Act, 1935, had ceased to be  India  and had become Pakistan.  This gave rise to the serious  problem whether or not to treat as citizens of India the hundreds of thousands of persons who were of Indian origin-in the  sense that  they  or any of their parents or any of  their  grand- parents  had been born in India -but who, would not  become citizens  under  Art.  5.  The  Constitution-makers  by  the provisions  of Art. 6 decided to treat as citizens  some  of these but not all.  Those who had not come to the new  India before the date of the commencement of the Constitution were excluded;  those  who  had so come  were  divided  into  two categories--those  who had come before the 19th July,  1948, and  those  who had come on or after the  19th  July,  1948. Persons in the first category had in order to be treated  as citizens to satisfy the further requirement of " migration " whatever  that  meant,  and of  ordinary  residence  in  the territory  of India since they " migrated " to India;  while those  in  the second category had, in  addition  to  having migrated,  to  be  residents for not less  than  six  months preceding  the date of the application for  registration  as citizens  which application had to be filed before the  date of  the  commencement of the Constitution.   But  while  the primary  provisions  in  the  Constitution  as  regards  the citizenship for people born at a place now included in India and  people whose parents were born at a place now in  India insist  on  the  requirement of  intention  to  reside  here

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permanently  by  using the word " domicile ", Art.  6  which under the scheme of the Constitution deals with what may  be called " secondary citizenship " and says about some persons that 586 they  will  be  deemed to be citizens  of  India,  does  not mention  " domicile " as a requirement.  Can it be that  the Constitution-makers  thought  that  though in  the  case  of persons  born in what has now become India or those  any  of whose  parents was born in what is now India as also in  the case of person who had been residing here for not less  than five years in what is now India, it was necessary to  insist on  domicile  before conferring citizenship,  that  was  not necessary  in  the case of persons whose parents or  any  of Whose grand-parents had been born in what was formerly India but  is  not now India ? In our  opinion  the  Constitution- makers could not have thought so.  They were aware that  the general rule in almost all the countries of the world was to insist on birth or domicile as an essential prerequisite for citizenship.   They  knew that in dealing  with  a  somewhat similar  problem as regards citizenship of persons born  out of  what  was then the territory of Irish  Free  State,  the Constitution  of the Irish Free State had also  insisted  on domicile  in  the  Irish Free State  as  a  requirement  for citizenship.   There can be no conceivable reason for  their not making a similar insistence here as regards the  persons who  were born outside what is now India, or persons any  of whose  parents  or grand-parents were born  there.   Mention must  also  be made of the curious consequences  that  would follow  from a view that an intention to reside  permanently in the territory of India and is not necessarily in Art.  6. Take  the case of two persons, one of whom was born in  what is  now  India  and has all along lived  there  and  another person who though born in what is now India went to live  in areas  now Pakistan and then moved back to areas in what  is now India.  The first named person would have to satisfy the requirement   of  domicile  at  the  commencement   of   the Constitution  before he is a citizen; but the second  person would  not  have  to satisfy this condition.   It  would  be unreasonable to think that such a curious result could  have been intended by the Constitution-makers. For all these reasons it appears clear that when the framers of the Constitution used the words " migrated 587 to  the  territory  of  India " they meant  "  come  to  the territory  of  India with the intention  of  residing  there permanently ". The only explanation of ’their not  expressly mentioning  "  domicile  "  or the  "  intention  to  reside permanently " in Art. 6 seems to be that they were confident that  in  the  scheme  of  this  Constitution  the  word  "I migration " could only be interpreted to mean " come to  the country with the intention of residing there permanently  ". It  is of interest to notice in this connection the  proviso to  Art. 7. That article provides in its first part  that  a person  who would be a citizen of India or would  have  been deemed  to be a citizen of India in Arts. 5 and 6 would  not be  deemed  to  be a citizen if he  has  migrated  from  the territory  to  Pakistan after March 1,  1947.   The  proviso deals with some of these persons who after such migration to Pakistan have returned to India.  It appears that when  this return  is  under  a permit for  resettlement  or  permanent return-that  is,  resettlement in India or return  to  India with  the  intention  to reside  here  permanently-the  main provisions  of Article 7 will not apply and for  this  under Art. 6 of the Constitution such a person would be deemed  to

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have migrated to India after the 19th July, 1948.  That  the return to India of such migrant has to be under a permit for resettlement  or  permanent return in order  that  he  might escape  the  loss  of citizenship is  a  strong  reason  for thinking  that  in Art. 6 the intention to reside  in  India permanently  is  implicit  in  the use  of the  phrase  "I migrated to the territory of India". It  may sometimes happen that when a person moves  from  one place  to another or from one country to another he has,  at the  point of time of moving, an intention to remain in  the country where he moved only temporarily, but later on  forms the  intention of residing there permanently.  There can  be no  doubt that when this happens, the person should at  this later  point of time be held to have " come to  the  country with the intention of residing there permanently ". In other words,  though  at the point of time he moved into  the  new place  or new country he cannot be said to have migrated  to this place or country 588 he  should  be held in law to have migrated  to  this  later place  or country at the later point of time when  he  forms the  intention of residing there permanently.  This view  of law  was  taken both by the Election Tribunal and  the  High Court and was not seriously disputed before us. The  Election Tribunal and the High Court therefore  rightly addressed  themselves to the question whether in  1944  when Mangal  Sain  first  came to Jullunder in what  is  now  the territory  of  India  from  his home  in  Jhawarian  now  in Pakistan   he  had  the  intention  of  residing  in   India permanently and even if he at that point of time had no such intention, whether after he had come in 1944 to what is  now the  territory of India, he had at some later-point of  time formed the intention of residing here permanently.  On  this question,  as already indicated, the Election  Tribunal  and the  High  Court came to different conclusions.   While  the Election  Tribunal held that Mangal Sain had at no point  of time  the  intention of residing in India  permanently,  the High Court was prepared to hold that even when he moved from his  home in 1944 to the eastern districts of Punjab he  had the  intention of residing there permanently, and held  that at  least after August 15, 1947, he had no  other  intention than of making the Dominion of India his place of abode, and residing   here  permanently.   It  has   been   strenuously contended  before us that in coming to this  conclusion  the High  Court has acted arbitrarily and has ignored  important evidence  which,  it  is  said,  showed  clearly  that   the respondent  had  no  intention of  residing  permanently  in India.  In considering such an argument, it is proper for us to   bear  in  mind  the  provisions  of  s.  116B  of   the Representation  of the People Act which lays down  that  the decision  of the High Court on appeal from an order  of  the Election  Tribunal in an election petition shall be "  final and  conclusive ". It has been pointed out in more than  one case by this Court, that while these provisions do Dot stand in the way of this Court’s interfering with the High Court’s decision in a 589 fit case, it would be proper for us to bear these provisions of  the  Representation of the People Act in mind  when  the correctness  of such a decision is challenged  before  this Court.   It  is unnecessary for us to consider  whether  the view  of the High Court that even in 1944 Mangal Sain  could be  said to have been migrated to the eastern  districts  of Punjab can be successfully challenged or not.  Even assuming that    conclusion is out of the way, the further  conclusion

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of  the High Court that having moved from his home  district to Jullunder in 1944 Mangal Sain had after August 15,  1947, no other intention than of making the territory of India his place of abode would be sufficient to prove his migration to the  territory of India from what is now Pakistan.  We  have been  taken through the materials on the record relevant  to this question and we can see nothing that would justify  our interference with the High Court’s conclusion on this point. Much stress was laid by the appellant’s counsel on the  fact that  Mangal Sain left Indian shores for Burma  in  January, 1950, and after his arrival there made an application  under s.  7(1)  of  the Union Citizenship Act,  1948,  (of  Burma) giving notice of his intention to apply for a certificate of naturalization and his statement therein that he intended to reside  permanently  within the Union  of  Burma.   Assuming however,  that in October, 1950, or even in  January’  1950, when he left for Burma, Mangal Sain had formed the intention of  taking  up  his permanent residence in  Burma,  that  is wholly irrelevant to the question whether in 1947 he had the intention of residing permanently in India.  Learned counsel for  the  appellant also drew our attention to  a  statement made in this very application that Mangal Sain had  returned to Burma with his mother in 1947.  The High Court has after’ considering this statement held that he had not so  returned in  1947.  We see no reason to differ with this  finding  of the  High  Court.  In our opinion, there is nothing  on  the record  to justify any doubt as regards the  correctness  of the High Court’s decision that after August 15, 1947, Mangal Sain  who had earlier moved from a place now in Pakistan  to Jullunder in India definitely, made up 590 his  mind to make India his permanent home.  Whether or  not in  January, 1950, he changed that intention  is  irrelevant for our purpose. Our conclusion therefore is that the High Court is right  in holding that Mangal Sain satisfies the first requirement  of Art.  6 of the Constitution of " migration to the  territory of  India from the territory now included in Pakistan ".  It is  not  disputed  and does not ever  appear  to  have  been disputed  that Mangal Sain was born in India as  defined  in the  Government of India Act, 1935, and thus  satisfies  the requirement of cl. (a) of Art. 6. There  can  be  no doubt also that since  the  date  of  his migration  which has for the present purpose to be taken  as August  15,  1947,  Mangal  Spain  has  been  St  ordinarily residing  in the territory of India ". Mr. Sastri  contended that  to satisfy the test of being " ordinarily resident  in the territory of India since the date of his migration "  it had to be shown that Mangal Sain was in India on January 26, 1950.  We do not think that is required.  It is first to  be noticed  that   Art.  6 of the Constitution is  one  of  the Articles  which came into force on November 26,  1949.   For applying.  the  test of being "ordinarily  resident  in  the territory of India since the date of his migration ", it  is necessary  therefore to consider the period up to  the  26th day  of November, 1949, from the date of migration.   It  is not however even necessary that on the 26th day of November, 1949,  or  immediately before that date he  must  have  been residing  in the territory of India.  What is  necessary  is that  taking  the period beginning with the  date  on  which migration became complete and ending with the date  November 26,  1949,  as  a whole, the person has  been  "  ordinarily resident  in the territory of India ". It is  not  necessary that for every day of this period he should have resided  in India.   In  the absence of the definition of  the  words  "

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ordinarily  resident " in the Constitution it is  reasonable to  take  the words to mean " resident  during  this  period without  any  serious break ". The materials on  the  record leave  no doubt that there was no break worth the.  name  in Mangal Sain’s residence in the 591 territory  of India from at least August 15, 1947, till  the 26th November, 1949. We have therefore come to the conclusion that the High Court was  right in sustaining Mangal Sain’s claim to be deemed  a citizen  of India under Art. 6 of the Constitution  and,  in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition. In the view we have taken as regards Mangal Sain’s claim  to citizenship  under  Art.  6 of the Constitution  it  is  not necessary to consider whether his claim to citizenship under Art. 5 of the Constitution was also good. We therefore dismiss the appeal with costs. Appeal dismissed.