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PETITIONER: MOHD.  RAZA DABSTANI

       Vs.

RESPONDENT: STATE OF BOMBAY AND ORS.

DATE OF JUDGMENT: 28/01/1966

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. MUDHOLKAR, J.R.

CITATION:  1966 AIR 1436            1966 SCR  (3) 441

ACT: Constitution of India Art. 5-Citizenship claimed by  foreign national on basis of Indian domicile-Onus to prove domicile- Residence whether sufficient proof-Foreign national  whether can be Indian citizen.

HEADNOTE: The  appellant,  an Iranian national by birth, to  India  in 1938.   In 1945 he obtained an Iranian passport and went  to Iraq  on pilgrimage.  On return to India he  was  registered under  the  Registration of Foreigners 1939, as  an  Iranian national.  On May 25. 1951 he obtained a retail permit under the  Foreigners  Order, ’1938 permitting him  to  reside  in India  up to a certain date,.  This permission was  extended from  time to time at his request.  In his applications  for this’ purpose. he described himself as an Iranian  national. On December 2, 1957- his last request was refused and he was asked  under the Foreigners’ Act, 1946 to leave  India.   He then  filed  a suit in the City Civil Court  Bombay,  for  a declaration  that  he  was  an Indian  citizen  and  for  an injunction  n  restraining the authorities from taking  -action against him on the basis that he was a foreigner.  The  suit was  dismissed by the City Civil Court and an appeal to  the High Court failed.  With special leave-the appellant came to this  Court, claiming citizenship of India under Art.  5  of the  Constitution  on the basis at he  had  acquired  Indian domicile. HELD  :  (i)  Residence alone is  insufficient  evidence  to establish  acquisition of a new domicile; there also has  to be  proof  that  the residence in a  country  was  with  the intention of making it the person’s home. [443 A] (ii) An  Indian  citizen cannot be the national  of  another State. [443 G-H] State Trading Corporation v. Commercial Tax Officer,  [19641 4 S.C.R. 99 : A.I.R. 1963 S.C. 161 1, relied on. When in his applications the appellant described himself  as an Iranian national 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  be an Indian citizen. [444 A-B] (iii)     The  onus of proving his change of  domicile  from Iran  to India was on the appellant.  The evidence  produced

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by him did not discharge the onus. [445 Al

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 289 of 1964. Appeal  by special leave from the judgment and  order  dated October  3, 1963 of the Bombay High Court in Appeal No.  295 of 1960 from Original Decree. S.   J.  Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S.  Patel and H. K. Puri, for the appellant. 442 C.   K Daphtary, Attorney-General, B. A. L. lyengar and B.   R. G. K. Achar for R. H. Dhebar, for respondents. The Judgment of the Court was delivered by Sarkar J. The appellant,.an Iranian national by birth,  came to  India  from  Yezd in Iran with his  maternal  uncle,  an Iranian  national, in 1938 when he was about thirteen  years old.   The record does not show on what passport he  entered India.  In January 1945 he obtained an Iranian passport  and went to Iraq on pilgrimage This passport showed that he held an identity card ,of the Iranian Government.  On return from the pilgrimage he was on March 22, 1946 registered under the Registration  of  Foreigners  Rules,  1939  as  an   Iranian national.  On May 25, 1951, he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India’  upto a certain date.  This permission  was  extended from  time to time at his request.  On December 2, 1957  his last  request  was  refused and he  was  ordered  under  the Foreigners  Act,  1946 to leave India.  On   December  14, 1957, he filed a suit in the City Civil Court at Bombay  for a  ,declaration that he was a citizen’ of India and  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 a foreigner and not a citizen  of India.  This suit was dismissed by the City Civil Court  and an appeal by the appellant ’to the High Court at Bombay also failed.   He  has now appealed to this  Court  with  special leave. The  appellant  bases his claim to citizenship of  India  on Art. 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.  Article 5  of  the Constitution  came into force on November 21, 1949.   It  is not  in  dispute  that the  appellant  had  been  ordinarily resident  in  the  territory of India for  over  five  years before November 21, 1949.  The only question in this  appeal is whether he had his domicile in the territory of India on- that date. When  the  appellant arrived in India he was a  minor.   His domicile  was,  therefore,  that of  his  father  which  was Iranian.  This is not disputed.  The appellant contends that he had changed his Iranian domicile into an Indian  domicile prior to November 21, 1949.  The onus of proving the  change of  domicile is, of course entirely on the appellant.   Such change can be proved if it is established that the appellant had made up his mind to make India his home, that is to say, remain in India permanently.  The facts established are that since  1938  excepting for a visit to Iraq lasting  about  a year he has all along been a resident of Bombay.  It is 443 well  established  that  residence  alone  is   insufficient evidence  to establish acquisition of a new domicile;  there

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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, there is very little evidence.  The evidence shows that after his arrival in India the appellant was  put in  a school but before he attained majority he took up  the job  of  a cashier in a restaurant in Bombay.   He  attained majority  sometime  in  1943.   Prior to  that  he  was  not entitled  under the law to change his domicile.  He  has  to establish the change in domicile by proving that after  1943 and before November 21, 1949 he had formed the intention  of making  India  his home.  There is very little  during  this short  period from which one can draw an inference  that  he had  intended  to change his domicile.  He  was  then  quite young.   During,  this period he left India  on  an  Iranian passport  declaring himself to be an Iranian  national.   On his return he was registered as an Iranian national on March 23, 1946.  These facts do not support the appellant.  It  is said  that he had done all these because under the law  then obtaining  he had no option.  It has however to  be  pointed out that it was open to him then, if he wished to change his Nationality, to get 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.  We do not even  know  whether during this period he  was  economically independent or had his own residential establishment. The  conduct  of the appellant subsequent to 1949  does  not help  to establish that he had earlier formed the  intention to  live in India for good.  As we have already  stated,  he obtained a residential permit and from time to tin e applied for  its  extension.   In these  applications  he  described himself as an Iranian national.  It was contended that  this description  on  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 1 of  domicile  arises because on the basis of it the appellant claims  citizenship of  India.   We are not aware that it is possible  to  be  a citizen  of  India and a national of another  country.   The decision  of  this Court in tie ate Trading  Corporation  of India Ltd. v. Commercial tax Officer(1) would indicate  that that  cannot  be done.  It was there said at  p.  114,  "All citizens  are  nationals  of a  particular  State  but  all nationals may not be citizens of the State." It would follow from (1) [1964] 4 S.C.R. 99; A.I.R., 1963 S.C. 1811. 444 that that an Indian citizen cannot be a national of  another State.   Therefore, when the appellant described himself  as an  Iranian national in has 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. These  applications, therefore, furnish evidence  that  even after  1950’he  was  not of Indian domicile.   We  may  also mention  that  after  1950 he obtained a  duplicate  of  his registration certificate under the Foreigners’ Rules as  the original  had  been lost and in the application  for  it  he described himself as an Iranian national.  Then we find that in  one  of the applications for  extension  of  residential

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permit  he  had stated that he was desirous  of  staying  in India  for business and so, not for making it his  home.  as late  as 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.  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 that in 1950 he first entered into a  partnership to  run a restaurant of which he became the sole  proprietor in  March 1953.  This by itself is not enough  to  establish the  necessary intention.  In any case it cannot  show  that prior to November 1949 he had acquired Indian domicile.   It has  to be remembered that notwithstanding the  commencement of  a business of his own, the appellant went on  describing himself  as an Iranian national indicating thereby  that  he had  not acquired an Indian domicile though he was  carrying on  a business in this country.  We may also point out  that his  father had carried on a similar business in  India  for thirty  years and had gone back with the money  earned  here and settled down in his village Yezd in Iran.  Then we  find that  the appellant had on more than one occasion asked  his father to come over to India to look after his business  and that  he was keeping contact with his mother and sisters  in Iran and had taken steps to go over to meet them.   Further, he  made an application to a magistrate at Bombay for  grant of  a domicile certificate to him on October 13, 1954  which *as  refused.  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. 445 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 is that the appeal fails and is dismissed with costs. Appeal dismissed. 446