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
AV Viswanatha Sastri and Naunit Lal for the appellant
UM Trivedi and Ganpat Rai for the respondent
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 article 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
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 article 5 of the Constitution and apart from that he must be deemed to be a citizen of India at such commencement under article 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 article 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 article 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 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 exhibit 5 to which we shall presently refer the Tribunal further held that  his own declaration in the affidavit exhibit 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 under article 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 article 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 article 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 article 6 must take place after the territory of India came into existence under the Constitution cannot be accepted
It has to be noticed that article 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 article 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 migration in article 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 section 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 vs Martin 1
The American courts however took the view in United States vs Burke 2 Moffitt vs United States 3 and United States vs 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  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 article 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 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 article 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 article 5 says who shall be citizens of India at the commencement of the Constitution while articles 6 and 8 lay down who though not citizens under article 5 shall be deemed to be citizens of India
article 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
article 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
article 7 also denies the right of citizenship to some persons who would have otherwise been citizens of India under article 5 or would be deemed to be citizens of India under article 6
The primary provision for citizenship of India in this scheme is in article 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 article 5
The Constitution makers by the provisions of article 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 permanently by using the word  domicile  article 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 article 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 article 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 article 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 articles 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 article 6 of the Constitution such a person would be deemed to 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 article 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 section 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 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 section 71 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 article 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 article 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 article 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  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 article 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 article 6 of the Constitution it is not necessary to consider whether his claim to citizenship under article 5 of the Constitution was also good
We therefore dismiss the appeal with costs
Appeal dismissed


Summary:
The appellant a limited company which was the lessee of a mining lease granted a sub lease in respect of two of the villages comprised in its grant
The secretary and two of the directors of the company were prosecuted for having contravened the provisions of the Mines and Minerals Regulation  Development Act 1948 and the Mineral Concession Rules 1949 which were framed under it
The appellant contended firstly that the sub lease was not covered by the definition of the term  Mining lease  of the Act and as such the Act and Rules did not apply to a sub lease at all  and secondly that as these rules were made under sections 5 and 6 of the Act and not under section 7 they have no application to a sub lease granted by a lessor even after the coming into force of the Act and the Rules where the lessor s own lease was of date anterior to the coming into force of the Act and the Rules
Held that the definition of  Mining lease  contained in section 3d of the Mines and Minerals Regulation and Development Act 1048 does not require that the lessor must be a proprietor and its plain language read with section 5 of the  makes it clear that a mining lease includes one executed by a proprietor as much as a lease executed by the lessee from such proprietor
The facts that the lessor is himself a lessee and the transaction between him and the person in whose favour he makes the transfer by way of lease is called a sub lease does not in any way change the nature of the transfer as between them
Held further that the Rules made under sections 5 and 6 of the Act would apply to a mining sub lease if it is made after the Act and the Rules came into force