Decided on February 01,1985

Isaque Mia Appellant


B.L. Hansaria, J. - (1.)THIS appeal is against the judgment of reversal rendered by the learned Assistant District Judge No. 1, Gauhati by which he held that the Plaintiff -Appellant had failed to establish the case of his being an Indian citizen, which he claimed to have acquired under Article 5(c) of the Constitution of India, as stated in para 3 of the plaint.
(2.)AT one stage a preliminary objection was taken by the Respondents about the maintainability of the appeal in view of certain provisions in the illegal Migrants (Determination by Tribunals) Act, 1983, The assistance of the learned Advocate General was, therefore, felt necessary, Learned Advocate General accordingly appeared and submitted that on the facts of the present case the provisions of the aforesaid Act are not attracted inasmuch as the expression "illegal migrant" as defined in Section 3(1)(c) of the Act covers only those persons who had entered into India on or after 25th day of March, 1971. As in the present case the assertion of the Plaintiff is that he has been ordinarily residing in the territory of India, that is 'Bharat', ever since 1942, it is apparent that the Appellant cannot be an "illegal migrant" within the meaning of the aforesaid Act. In this view of the matter, Section 24 of the Act, which required transfer of any suit or other legal proceeding relating to the question whether a person is or is not an illegal migrant to the Tribunal set up under the Act, has no operation,
There being no bar in entertaining the appeal, the parties were heard on merits. To establish his case, the Plaintiff -Appellant examined, apart from himself, two witnesses, they being' P.Ws. 1 and 2, who were believed by the learned trial Court. P.W. 1, who is a businessman of Athgaon, has deposed that he met the Plaintiff at the time of the World War and asked him to -manage his business. Plaintiff was then aged around 11/12 years and stayed with him for about 8 years, whereafter he married and stayed for years more, and thereafter went to Lakhtokia and hired a house and started his tyre business. P.W. 2, a contractor of Lakhtokia, 'testified that be knew the Plaintiff from 1942 -43 when the latter was working with P.W. 1 with whom the Plaintiff stayed for about 8 years and afterwards started his own business in Lakhtokia which he had been doing. for 25/26 years by the time evidence was -given (1974) P.W. 3 is the Plaintiff himself and he laid his claim for Indian Citizenship on the above facts.

(3.)THE learned Assistant District Judge, however, did not feel inclined to accept their evidence for the reason that though P.W. 1 stated in his deposition that he bad met the Plaintiff during the Great World War, he did not know whether the Plaintiff had gone to Pakistan and had come back to India 8 years ago (of his giving deposition in 1974) with a Pakistani Passport. This is not material for the case at hand inasmuch as even if the Plaintiff had gone for sometime to the territory comprised in Pakistan before our Constitution came into force, the same could not have stood in the way of the Appellant in his acquiring Indian citizenship under Article 5(c) of the Constitution. Shri Bari has referred in this connection to Central Bank of India Ltd. v. Ram Narain : AIR 1955 SC 36, wherein it has been stated that residence to acquire "domicile" need not he continuous; of course, the same cannot be fleeting also. If the visit was after the Constitution came into force, that would not have mattered at all. So far as acquisition of citizenship under Article 5(c) is concerned, I have said about visit to Pakistan both before or after the coming into force of the Constitution, as from the materials on record in is not clear what is the case of the Defendant la this regard. As to the assertion of the Defendant in coming back on Pakistani passport, it may be stated, as would be noted later that it is of no significance for the Courts seized with the question of determining citizenship of a person under Article 5(c) of the Constitution.

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