Appeals Nos
401 to 403 of 1960
Appeals by special leave from the judgment and orders dated March 1 1960 of the Punjab High Court 601 Circuit Bench at Delhi in Civil Revision Cases Nos
166 D 167 D and 168 D of 1958
A V Viswanatha Sastri section section Chadha and R section Narula for the appellants in all the appeals
C B Aggarwala and B Kishore for the respondents in C A No 401 of 60
C B Aggarwala R M Gupta and G O Mathur for the respondents In C As
402  403 of 60
September 8
The Judgment of the Court was delivered by KAPUR J
These appeals are directed against three judgments and orders of the Punjab High Court in three Civil Revisions Nos
166 D 167 D and 168 D which were brought by the appellants against three of their tenants under section 35 of the Delhi  Ajmer Rent Control Act XXXVIII of 1952 hereinafter termed the Act
The appellants in all the three appeals are the landlords and the respondents in the three appeals are three different tenants
The appellants filed three separate suits for the eviction of their three tenants under cl
g of proviso to section 131 of the Act on the ground that the premises were bona fide required for purposes of rebuilding
On February 27 1953 the parties in all the three suits entered into a compromise in the following terms  We have compromised the case with the plaintiff
A decree may be passed for Rs 828 on account of rent in suit and for ejectment in respect of the shop in suit in favour of the plaintiff against the defendants  The defendants will vacate the shop by 4 3 53 and hand over possession to the plaintiff and the plaintiff will hand over its possession again second time to the defendants within six months from 4 3 53 after constructing it afresh
We shall pay such rent as this court will fix 
Thereupon the court passed the following order and a decree followed thereon  In terms of the statements of the plaintiff defendant and counsel for defendants a decree for Rs 828 on account of rent in suit be passed in favour 602 of the plaintiff against the defendants
Also decree for ejectment be passed in respect of the shop in suit in favour of the plaintiff against the defendants and that the defendants do give possession of the shop in suit by 4 3 53 to the plaintiff and that the plaintiff after constructing it afresh within six months from 4 3 53 give it to the defendants
From out of the money deposited a sum of Rs 828 be paid to the plaintiff and the balance returned to the defendants
The defendants shall be responsible to pay the rent fixed by the court 
According to the decree the possession was to be given to the appellants on March 4 1953 but it was actually delivered by the three respondents between March 7 and 15 1953
On the completion of the building the three respondents filed three separate applications under section 15 of the Act for their being put into possession
These applications were filed on October 7 1953
The High Court held that the compromise did not comprise any matter which was not the subject matter of the suit  that the respondents could enforce the terms of the decree in the proceedings which they took i e under section 15 of the Act that time was not of the essence of the compromise and therefore of the decree and consequently in spite of the possession of the premises having been given by the respondents after the date specified in the decree i e March 4 1953 the respondents were entitled to enforce the decree by execution and apply for possession being restored to them  at any rate they could apply for restitution under the inherent powers of the Court
Thus the High Court was of the opinion that though section 152 of the Act was not applicable to the proceedings they could be treated as Execution proceedings
Against this judgment and order the appellants have come in appeal to this court by special leave
Under section 13 of the Act the respondents are protected against eviction excepting for the reasons given in the proviso
The appellants had filed the original suits for eviction under section 13 proviso g which was as under 603 Section 13  Notwithstanding anything to the contrary contained in any other law or any contract no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant including a tenant whose tenancy is terminated Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied g that the premises are bona fide required by the landlord for the purpose of rebuilding the premises or for the replacement of the premises by any building or for the erection of other building and that such building or rebuilding cannot be carried out without the premises being vacated  
Thus when the suits were brought the provisions of the Act were invoked
The decrees passed were on the basis that the premises were required by the landlord for rebuilding which falls under section 13 and the decrees also incorporated the requirements of section 15 which provides The Court shall when passing any decree or order on the grounds specified in clause f or clause g of the proviso to sub
section 1 of section 13 ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant so elects shall record the fact of the election in the decree or order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or rebuilding as the case may be
2 If the tenant delivers possession on or before the date specified in the decree or order the landlord shall on the completion of the work of repairs or building or rebuilding place the tenant in occupation of the premises or part thereof
3 If after the tenant has delivered possession on or before the date specified in the decree or order the landlord fails to commence the work of repairs or building or rebuilding within one month of the specified date or fails to complete the work in a reasonable 604 time or having completed the work fails to place the tenant in occupation of the premises in accordance with sub section 2 the Court may on the application of the tenant made within one year from the specified date order the landlord to place the tenant in occupation of the premises or part thereof on the original terms and conditions or to pay to such tenant such compensation as may be fixed by the Court
The compromise the order and the decree provided 1 that the respondents will vacate their respective shops on March 4 1953 and hand over possession to the appellants 2 they elected to get back possession after rebuildingwhich the appellants agreed to hand back on September 4 1953 3 the rent after such possession was to be determined by the court
It was contended on behalf of the appellants that the above facts taken with the circumstances that the decree was passed in a suit under section 131 proviso g show that this was an order passed and a decree made in accordance with the terms of section 15 of the Act
It is significant that the respondents themselves made the applications to the court under section 15 of the Act
For the respondents it was argued that the decree was not one under section 15 of the Act because the decree was based on a compromise whereby the parties fixed the date of delivery of possession to the appellants fixed the date for completion of the rebuilding and agreed between themselves as to repossession by the respondents
It was submitted that although the time for giving delivery to the appellants was fixed in the compromise it was not of the essence of the contract
In our opinion the contentions raised by the appellants are well founded and the appellants must succeed
The suits for eviction were brought within the framework of the Act and were based on the provisions of section 13 proviso g
No eviction would have been possible excepting when conditions laid down in section 13 were satisfied
The decrees which were passed were substantially in accordance with the provisions of section 15 of the Act and as was contended by the appellants they were decrees under which the premises had to be vacated by the respondents on a specified day
605 Under that section they had the right to elect and did elect to get possession after rebuilding this possession was to be given by the landlords to the tenants within a reasonable time and six months  period was fixed by Consent between the parties and the rent if the respondents were not put into possession on the same terms as before was to be settled by court and that is what was done under the terms of the consent decree
The applications for being put into possession which were filed by the respondents were really under section 153 of the Act
As the respondents did not deli ver possession to the appellants on or before the dates specified in the decree the provisions of section 15 contained in sub section
3 of that Act were not available to them and they were not entitled to be put into possession as prayed by them
It was argued that the appellants had taken possession of the premises after the specified date without protest and had even accepted rent upto then and were therefore estopped from raising that defence
The appellants had conceded in the court below that plea could be raised in a suit if it was brought
In the view we have taken we think it unnecessary to express any opinion oil this point
The High Court was in our opinion in error in ordering possession to be delivered to the respondents
The appeals must therefore be allowed and the judgments and orders of the High Court set aside
The appellants will have their costs in this Court
One set of hearing Costs
Appeal allowed


Summary:
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 article 6 of the Constitution of India
Held1 that the expression  migrated to the territory of India  in article 6 of the Constitution means  migrated at any time before the commencement of the Constitution to a place now in the territory of India 
2that in article 6 the words  migrated to the territory of India  mean  come to the territory of India with the intention of residing there permanently 
3that 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
4that for applying the test of being  ordinarily resi dent in the territory of India since the date of his migration  in article 6bi 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
5That 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
6that the respondent satisfied the requirements of article 6 ofthe Constitution and that his claim to be deemed a citizen of India must be upheld