Smt. Shanno Devi vs Mangal Sain

Supreme Court7 September 1960K.C. Das Gupta · S.K. Das · M. Hidayatullah · J.C. Shah · N. Rajagopala Ayyangar

Neutral1960 INSC 144
AIRAIR 1961 SC 58
SCR[1961] 1 SCR 576

Ratio decidendi

The rule this decision rests on

1. 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." 2. The words "migrated to the territory of India" in Article 6 mean "come to the territory of India with the intention of residing there permanently"; the word "migrate" is used in the narrower sense requiring an intention of permanent residence, not merely physical movement to another place. 3. Where a person moves from one country to another with only a temporary intention of residence but later forms the intention of residing permanently, that person should be held in law to have migrated to that country at the later point of time when the intention of permanent residence is formed, not at the time of initial movement. 4. For the requirement in Article 6(b)(i) of being "ordinarily resident in the territory of India since the date of his migration," it is necessary to show that during the period from the date migration became complete until November 26, 1949, as a whole, the person has been ordinarily resident in the territory of India; it is not necessary that the person be in India on November 26, 1949, or immediately before that date. 5. The words "ordinarily resident" in the Constitution mean "resident during this period without any serious break"; it is not necessary that the person reside in India for every day of the relevant period.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

PETITIONER:SMT. SHANNO DEVI

Vs.

RESPONDENT:MANGAL SAIN

DATE OF JUDGMENT:07/09/1960

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

CITATION:1961 AIR 58 1961 SCR (1) 576CITATOR 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 theterritory of India ", " Ordinarily resident ", meaning ofConstitution of India, Art. 6.

HEADNOTE:The respondent was the successful candidate at the generalelection held in March, 1957, for the Punjab LegislativeAssembly. The appellant who was one of the unsuccessfulcandidates, filed an election petition and challenged thevalidity of the respondent's election on the grounds, interalia, that the latter was not a citizen of India and was,therefore, not qualified to stand for election. It wasfound that he was born of Indian parents sometime in 1927 inIndia as defined in the Government of India Act, 1935, in avillage which since August 15, 1947, became part ofPakistan, that in 1944 he had moved from his home districtto Jullunder in what is now the territory of India, and thatafter August 15, 1947, he definitely made up his mind tosettle in India with the intention of residing therepermanently. There was some evidence to show that he wentto Burma in January, 1950, and made unsuccessful attempts tosecure permission from the Government of Burma to stay therepermanently. The question was whether the respondent couldbe deemed to be a citizen of India within the meaning ofArt. 6 of the Constitution of India.Held:(1) that the expression " migrated to theterritory of India " in Art. 6 of the Constitution means "migrated at any time before the commencement of theConstitution to a place now in the territory of India ".(2)that in Art. 6 the words " migrated to the territory ofIndia " mean " come to the territory of India with theintention of residing there permanently ".(3)that where a person moves from one country to anotherand has, at the time of moving, a intention to remain in thecountry where he moved only temporarily, but later on formsthe intention of residing there permanently, he should beheld in law to have migrated to that country at the laterpoint of time.(4)that for applying the test of being " ordinarily resi-dent in the territory of India since the date of hismigration " in Art. 6(b)(i), what is necessary to be shownis that during the period beginning with the date on whichmigration became577complete and ending with November 26, 1949, as a whole, theperson has been " ordinarily resident in the territory ofIndia ". Whether he was not in India on January 26, 1950, orwhether he formed an intention of taking up his permanentresidence 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 anyserious break ". It is not necessary that for every day ofthis 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 acitizen 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, ofthe Punjab High Court in First Appeal from Order No. 131 of1958.

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 deliveredbyDAS GUPTA J.-What do the words " has migrated to theterritory 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 thegeneral election held in March 1957 for the PunjabLegislative Assembly. The respondent, Mangal Sain, was thesuccessful candidate. The nomination papers of these andother candidates which were scrutinised on February 1, 1957,were accepted on the same date. The voting took place onMarch 12, and after counting of votes on March 14, 1957, therespondent, Mangal Sain was declared duly elected. On March27, 1957, the appellant filed an election petition andchallenged the respondent's election on various grounds, theprincipal ground being that the Returning Officer hadimproperly accepted the nomination paper of the respondenton the ground that he was not a citizen of India and was notqualified to stand for election. With the other groundswhich578were taken in this petition we are no longer concerned asafter the Election Tribunal rejected these several groundsthey were not pressed before the High Court and have alsonot been raised before us. The Election Tribunal howeverheld that Mangal Sain was not an Indian citizen at the timehe was enrolled as a voter or at the time his nominationpapers were accepted and even at the time when he waselected. Accordingly the Tribunal allowed the electionpetition and declared the respondent's election to be void.On appeal by Mangal Sain to the High Court the only pointraised was whether the appellant was a citizen of India atthe commencement of the Constitution. If he was a citizenof India at the date of such commencement, it was notdisputed, he continued to be a citizen of India on allrelevant dates, viz., the date of his enrollment as a voter,the date of acceptance of his nomination and the date of hiselection. If however he was not a citizen of India at thecommencement of the _Constitution he had not since acquiredcitizenship and so his election would be void. Therespondent's case all along was that he was a citizen ofIndia at the commencement of the Constitution under Art. 5of the Constitution and apart from that he must be deemed tobe a citizen of India at such commencement under Art. 6 ofthe Constitution. The Election Tribunal as alreadyindicated rejected both these contentions. The learnedjudges of the High Court while indicating that they wereinclined to think that the respondent's claim to citizenshipof India under Art. 5 could not be sustained did notconsider that matter in detail, but held that his claim tobe deemed to be a citizen of India at the commencement ofthe Constitution under Art. 6 thereof must prevail. Theprimary facts as found by the Tribunal on the evidence ledby the parties before it, have been correctly summarised inthe judgment of the High Court in these words:

"On the evidence led by the parties thelearned Tribunal held that it was proved thatMangal Sain was born of Indian parentssometime in 1927 in village Jhawarian,District Sargodha, and that when he was onlytwo years old he was taken by his parents from579Jhawarian to Mandlay in Burma wherefrom theentire family returned to Jullunder (Punjab)in 1942 when Burma was occupied by theJapanese forces during the Second World War.After having stayed for a few days inJullunder, Mangal Sain, his parents and hisbrother went to their home district Sargodhawhere they stayed for about two or two and ahalf years. During this period Mangal Sainpassed Matriculation examination from thePunjab University and after having himselfmatriculated he again returned to Jullunder,where he was employed in the Field MilitaryAccounts Office from 8th December, 1944 to 7thAugust, 1946, when his services wereterminated because of his continuous absencefrom duty. Mangal Sain's parents and hisbrother according to the findings of thelearned Tribunal also returned from Sargodhato Jullunder and lived there for about two anda half years from some time in 1945 onwardsbefore they again went over to Burma whichcountry they had left in 1942 due to itsoccupation by the Japanese forces. WhileMangal Sain was in service in the FieldMilitary Accounts Office, he joined RastriyaSwayam Sewak Sangh movement and became itsactive worker. Sometime after his serviceswere terminated, he shifted the scene of hisactivities to Hissar and Rohtak districtswhere be moved from place to place to organisethe Rastriya Swayam Sevak Sangb movement.During this period apparently he had no fixedplace of residence and he used to reside inthe offices of the Jan Sangh and took hismeals at various Dhabas. For about 4 monthsfrom June to September in the year 1948 MangalSain served as a teacher in Arya Lower MiddleSchool, Rohtak. In July 1948 Mangal Sainsubmitted to the' Punjab University hisadmission form for the University Prabhakarexamination which form was duly attested byProf. Kanshi Ram Narang of the GovernmentCollege Rohtak. Sometime in January 1949 hewas arrested in connection with the RastriyaSwayam Sevak Sangh movement and was detained inRohtak District Jail from 10th January, 1949,till 30th May, 1949. In August 1949 he againappeared in Prabhakar580examination and was placed in compartment, healso appears to have organised Rastriya SwayamSevak Sangh in the districts of Rohtak andHissar during the years 1948-49 and he used tomove about from place to place without havingany fixed place of abode. The Tribunalfurther found that it was sometime in the endof 1949 or in January 1950 that Mangal Sainleft India and went to Burma where his parentsand other brothers were already residing. Inthat country he tried to secure permission tostay there permanently, but the Government ofBurma did not agree and directed him to leavethat country ; in this connection he appliedfor a writ to the Supreme Court of Burma buthis petition was disallowed. On the 29thOctober, 1951, Mangal Sain deposited with thecompetent authority in Burma the registrationcertificate granted to him under theRegistration of Foreigners Act, 1948, and afew days later he came back to India and sincethen he has been living in this country andhas been organising Rastriya Swayam SevakSangh movement in the districts of Hissar andRohtak. In 1953 he was again arrested anddetained in Rohtak jail as a detenue from the8th February to 8th May, 1953, when be wastransferred to Ambala jail ".

On these facts the Tribunal further held that it cannot besaid " that the respondent had an intention to settle inIndia permanently and that he had no intention of everleaving it ". Taking along with these facts the respondent'sdeclaration in the affidavit (Ex. 5) to which we shallpresently refer the Tribunal further held that " his owndeclaration in the affidavit (Ex. 5) and his conduct ingoing over to Burma and trying to settle there permanentlyfurnish convincing proof that all along he had the intentionto follow his parents and other relations to Burma and tosettle there permanently ". The Tribunal finally concludedby saying that ,it is also quite clear that in the case ofthis respondent it cannot be said that he had no other ideathan to continue to be in India without looking forward toany event certain or uncertain which might induce him tochange his residence581On these findings of fact the Tribunal held that therespondent could not be deemed to be a citizen of Indiaunder Art. 6 of the Constitution.

On these same primary facts mentioned above, Mr. Justice Duawho delivered the leading judgment of the High Courtrecorded his conclusion thus:-

"I can draw but only one conclusion from theevidence on the record, that the appellant whohad moved from his home district to Jullunderhad, after the 15th August, 1947, no otherintention than of making the Dominion of Indiaas his place of abode. On the 15th August,1947, therefore the appellant's migration fromJhawarian to the territory of India wasclearly complete, whatever doubts there mayhave been before that date, though I would beprepared even to hold that he had moved awayfrom his village in 1944 and had migrated tothe eastern districts of the Punjab"

Mr. Justice Falshaw agreed with this conclusion.On these conclusions the learned Judges held that therespondent's claim to be deemed a citizen of India at thecommencement of the Constitution must succeed.The main contention on behalf of the appellant is that theconclusion of the High Court, that when the respondent movedaway from his village in 1944 and that at any rate after the15th August, 1947, he had no other intention than of- makingthe Dominion of India his place of abode, was arbitrary. Itwas also contended that in any case the migration under Art.6 of the Constitution has to take place after "the territoryof India " as contemplated in the Constitution had come intoexistence. Lastly it was contended, though faintly, thatthe respondent had not in any case complied with therequirements of being ordinarily a resident in the territoryof India since the date of his migration. The respondent'scounsel besides challenging the correctness of the abovecontention further urged that the words " migrated to theterritory of India " in Art. 6 only means come to theterritory of India " and does not mean come to the582territory of India with the intention of permanentlyresiding there ".

The extreme contention raised by Mr. Sastri on behalf of theappellant that migration under Art. 6 must take place afterthe territory of India came into existence under theConstitution cannot be accepted. It has to be noticed thatArt. 6 deals with the question as to who shall be deemed tobe a citizen of India at the commencement of theConstitution. That itself suggests, in the absence ofanything to indicate a contrary intention, that themigration which is made an essential requirement for thispurpose must have taken place before such commencement. Itis also worth noticing that cl. (b) of Art. 6 which mentionstwo conditions, one of which must be satisfied in additionto birth as mentioned in el. (a) and " migration " asmentioned in the main portion of the Article being proved,speaks in its first sub-cl. of migration " before the 19thday of July 1948 " and in sub-cl. (ii) migration " after the19th day of July 1948 ". The second sub-cl requires that theperson must be registered as a citizen of India by anofficer appointed in that behalf by the Government of theDominion of India on an application made by him therefore tosuch officer before the commencement of the Constitution.The proviso to that Article says that no person shall be soregistered unless he has been resident in the territory ofIndia for at least six months immediately preceding the dateof his application. It is clear from this that the act ofmigration in Art. 6 must take place before the commencementof the Constitution. It is clear therefore that " migratedto the territory of India " means " migrated " at any timebefore the commencement of the Constitution to a place nowin the territory of India.

This brings us to the important question whether migrated tothe territory of India " means merely come to the territoryof India " or it means " come to the territory of India toremain here " or in other words, " come to the territory ofIndia with the intention of residing here permanently".There can be no doubt that the word migrate " taken byitself is583capable of the wider construction " come from one place toanother " whether or not with any intention of permanentresidence in the latter place. It is beyond controversythat the word " migrate " is often used also in the narrowerconnotation of " coming from one place to another with theintention of residing permanently in the latter place".Webster's Dictionary (Second Edition, 1937) gives thefollowing meaning of the word " migrate ":-" To go from oneplace to another; especially, to move from one country,region, or place of abode or sojourn to another, with a viewto residence; to move; as the Moors who migrated from Africato Spain ". The Corpus Juris Secundum published in 1948gives the same meaning except that it also gives " to changeone's place of residence " as one of the meanings. The word" Immigrate " which means " migrate into a country " and itsderivatives " Immigrant " and " Immigration " have receivedjudicial consideration in several Australian and Americancases, in connection with prosecutions for contravention ofImmigration laws.

The Courts in Australia, were of opinion, on a considerationof the scheme and subject-matter of their laws in questionthat the word " Immigrant " in the Immigrant RegistrationAct, 1901, and in s. 51 of the Australian Constitution meansa person who enters Australia whether or not with theintention of settling and residing there (Vide Chia Gee v.Martin (1)). The American courts however took the view inUnited States v. Burke (2), Moffitt v. United States (3) andUnited States v. Atlantic Fruit Co. (4) on a considerationof the purpose and scheme of the legislation, that"Immigrant" means a person who comes to the United Stateswith 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 wordmigrate" may have in some contexts the wider meaning " comeor 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.

75584place without an intention to reside permanently" and insome, context the narrower meaning " come or remove to aplace 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 ishowever no reason to think that the wider meaning wasintended. In deciding whether the word " migrate " was usedin the wider or the narrower sense, it is necessary toconsider carefully the purpose and scheme of thisconstitutional legislation. The Constitution after definingthe territory of India and making provisions as to how itcan be added to or altered, in the four articles containedin its first Chapter proceeds in the second Chapter to dealwith the subject of citizenship. of the seven articles inthis chapter the last Article, Art. 11, only saves expresslythe right of Parliament to make provisions as regardsacquisition and termination of citizenship and all othermatters relating to citizenship. Of the other six articles,the first, Art. 5, says who shall be citizens of India atthe commencement of the Constitution; while Arts. 6 and 8lay down who though not citizens under Art. 5 shall bedeemed to be citizens of India. Art. 10 provides thatonce a person is a citizen of India or is deemed to be acitizen of India he shall continue to be a citizen of India,subject of course to the provisions of any law that may bemade by Parliament. Art. 9 provides that if a person hasvoluntarily acquired citizenship of any foreign State heshall not be a citizen of India or deemed to be a citizen ofIndia. Art. 7 also denies the right of citizenship to somepersons who would have otherwise been citizens of Indiaunder Art. 5 or would be deemed to be citizens of Indiaunder Art. 6.

The primary provision for citizenship of India, in thisscheme is in Art. 5. That follows the usual practice ofinsisting on birth or domicile which shortly stated means "

residence with the intention of living and dying in thecountry " as an essential requirement for citizenship; andconfers citizenship on a person fulfilling this requirementif he also satisfied another requirement as regards hisbirth within what585is now the territory of India or birth of any of his parentswithin this area or ordinary residence in this area for acontinuous period of five years immediately preceding thecommencement of the Constitution'. If there had been nodivision of India and no portion of the old India had beenlost this would have been sufficient, as regards confermentof citizenship apart from the special provision for givingsuch rights to persons of Indian origin residing outsideIndia. But part of what was India as defined in theGovernment of India Act, 1935, had ceased to be India andhad become Pakistan. This gave rise to the serious problemwhether or not to treat as citizens of India the hundreds ofthousands of persons who were of Indian origin-in the sensethat they or any of their parents or any of their grand-parents had been born in India -but who, would not becomecitizens under Art. 5. The Constitution-makers by theprovisions of Art. 6 decided to treat as citizens some ofthese but not all. Those who had not come to the new Indiabefore the date of the commencement of the Constitution wereexcluded; those who had so come were divided into twocategories--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 ascitizens to satisfy the further requirement of " migration "

whatever that meant, and of ordinary residence in theterritory of India since they " migrated " to India; whilethose in the second category had, in addition to havingmigrated, to be residents for not less than six monthspreceding the date of the application for registration ascitizens which application had to be filed before the dateof the commencement of the Constitution. But while theprimary provisions in the Constitution as regards thecitizenship for people born at a place now included in Indiaand people whose parents were born at a place now in Indiainsist on the requirement of intention to reside herepermanently by using the word " domicile ", Art. 6 whichunder the scheme of the Constitution deals with what may becalled " secondary citizenship " and says about some personsthat586they will be deemed to be citizens of India, does notmention " domicile " as a requirement. Can it be that theConstitution-makers thought that though in the case ofpersons born in what has now become India or those any ofwhose parents was born in what is now India as also in thecase of person who had been residing here for not less thanfive years in what is now India, it was necessary to insiston domicile before conferring citizenship, that was notnecessary in the case of persons whose parents or any ofWhose grand-parents had been born in what was formerly Indiabut is not now India ? In our opinion the Constitution-makers could not have thought so. They were aware that thegeneral rule in almost all the countries of the world was toinsist on birth or domicile as an essential prerequisite forcitizenship. They knew that in dealing with a somewhatsimilar problem as regards citizenship of persons born outof what was then the territory of Irish Free State, theConstitution of the Irish Free State had also insisted ondomicile in the Irish Free State as a requirement forcitizenship. There can be no conceivable reason for theirnot making a similar insistence here as regards the personswho were born outside what is now India, or persons any ofwhose parents or grand-parents were born there. Mentionmust also be made of the curious consequences that wouldfollow from a view that an intention to reside permanentlyin the territory of India and is not necessarily in Art. 6.Take the case of two persons, one of whom was born in whatis now India and has all along lived there and anotherperson who though born in what is now India went to live inareas now Pakistan and then moved back to areas in what isnow India. The first named person would have to satisfy therequirement of domicile at the commencement of theConstitution before he is a citizen; but the second personwould not have to satisfy this condition. It would beunreasonable to think that such a curious result could havebeen intended by the Constitution-makers.For all these reasons it appears clear that when the framersof the Constitution used the words " migrated587to the territory of India " they meant " come to theterritory of India with the intention of residing therepermanently ". The only explanation of 'their not expresslymentioning " domicile " or the " intention to residepermanently " in Art. 6 seems to be that they were confidentthat in the scheme of this Constitution the word "Imigration " could only be interpreted to mean " come to thecountry with the intention of residing there permanently ".It is of interest to notice in this connection the provisoto Art. 7. That article provides in its first part that aperson who would be a citizen of India or would have beendeemed to be a citizen of India in Arts. 5 and 6 would notbe deemed to be a citizen if he has migrated from theterritory to Pakistan after March 1, 1947. The provisodeals with some of these persons who after such migration toPakistan have returned to India. It appears that when thisreturn is under a permit for resettlement or permanentreturn-that is, resettlement in India or return to Indiawith the intention to reside here permanently-the mainprovisions of Article 7 will not apply and for this underArt. 6 of the Constitution such a person would be deemed tohave migrated to India after the 19th July, 1948. That thereturn to India of such migrant has to be under a permit forresettlement or permanent return in order that he mightescape the loss of citizenship is a strong reason forthinking that in Art. 6 the intention to reside in Indiapermanently is implicit in the use of the phrase "Imigrated to the territory of India".

It may sometimes happen that when a person moves from oneplace to another or from one country to another he has, atthe point of time of moving, an intention to remain in thecountry where he moved only temporarily, but later on formsthe intention of residing there permanently. There can beno doubt that when this happens, the person should at thislater point of time be held to have " come to the countrywith the intention of residing there permanently ". In otherwords, though at the point of time he moved into the newplace or new country he cannot be said to have migrated tothis place or country588he should be held in law to have migrated to this laterplace or country at the later point of time when he formsthe intention of residing there permanently. This view oflaw was taken both by the Election Tribunal and the HighCourt and was not seriously disputed before us.The Election Tribunal and the High Court therefore rightlyaddressed themselves to the question whether in 1944 whenMangal Sain first came to Jullunder in what is now theterritory of India from his home in Jhawarian now inPakistan he had the intention of residing in Indiapermanently and even if he at that point of time had no suchintention, whether after he had come in 1944 to what is nowthe territory of India, he had at some later-point of timeformed the intention of residing here permanently. On thisquestion, as already indicated, the Election Tribunal andthe High Court came to different conclusions. While theElection Tribunal held that Mangal Sain had at no point oftime the intention of residing in India permanently, theHigh Court was prepared to hold that even when he moved fromhis home in 1944 to the eastern districts of Punjab he hadthe intention of residing there permanently, and held thatat least after August 15, 1947, he had no other intentionthan of making the Dominion of India his place of abode, andresiding here permanently. It has been strenuouslycontended before us that in coming to this conclusion theHigh Court has acted arbitrarily and has ignored importantevidence which, it is said, showed clearly that therespondent had no intention of residing permanently inIndia. In considering such an argument, it is proper for usto bear in mind the provisions of s. 116B of theRepresentation of the People Act which lays down that thedecision of the High Court on appeal from an order of theElection Tribunal in an election petition shall be " finaland conclusive ". It has been pointed out in more than onecase by this Court, that while these provisions do Dot standin the way of this Court's interfering with the High Court'sdecision in a589fit case, it would be proper for us to bear these provisionsof the Representation of the People Act in mind when thecorrectness of such a decision is challenged before thisCourt. It is unnecessary for us to consider whether theview of the High Court that even in 1944 Mangal Sain couldbe said to have been migrated to the eastern districts ofPunjab can be successfully challenged or not. Even assumingthat conclusion is out of the way, the further conclusionof the High Court that having moved from his home districtto Jullunder in 1944 Mangal Sain had after August 15, 1947,no other intention than of making the territory of India hisplace of abode would be sufficient to prove his migration tothe territory of India from what is now Pakistan. We havebeen taken through the materials on the record relevant tothis question and we can see nothing that would justify ourinterference with the High Court's conclusion on this point.Much stress was laid by the appellant's counsel on the factthat Mangal Sain left Indian shores for Burma in January,1950, and after his arrival there made an application unders. 7(1) of the Union Citizenship Act, 1948, (of Burma)giving notice of his intention to apply for a certificate ofnaturalization and his statement therein that he intended toreside permanently within the Union of Burma. Assuminghowever, that in October, 1950, or even in January' 1950,when he left for Burma, Mangal Sain had formed the intentionof taking up his permanent residence in Burma, that iswholly irrelevant to the question whether in 1947 he had theintention of residing permanently in India. Learned counselfor the appellant also drew our attention to a statementmade in this very application that Mangal Sain had returnedto Burma with his mother in 1947. The High Court has after'considering this statement held that he had not so returnedin 1947. We see no reason to differ with this finding ofthe High Court. In our opinion, there is nothing on therecord to justify any doubt as regards the correctness ofthe High Court's decision that after August 15, 1947, MangalSain who had earlier moved from a place now in Pakistan toJullunder in India definitely, made up590his mind to make India his permanent home. Whether or notin January, 1950, he changed that intention is irrelevantfor our purpose.

Our conclusion therefore is that the High Court is right inholding that Mangal Sain satisfies the first requirement ofArt. 6 of the Constitution of " migration to the territoryof India from the territory now included in Pakistan ". Itis not disputed and does not ever appear to have beendisputed that Mangal Sain was born in India as defined inthe Government of India Act, 1935, and thus satisfies therequirement 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 "

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.

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