SHANNO DEVI Vs. MANGAL SAIN
LAWS(SC)-1960-9-31
SUPREME COURT OF INDIA
Decided on September 07,1960

SHANNO DEVI Appellant
VERSUS
MANGAL SAIN Respondents


Cited Judgements :-

ABIDA KHATOON VS. STATE OF U P [LAWS(ALL)-1962-4-7] [REFERRED TO]
MASHKURUL HASAN VS. UNION OFINDIA [LAWS(ALL)-1966-5-11] [REFERRED TO]
MAN MOHAN SINGH VS. ELECTION COMMISSIONER OF INDIA [LAWS(GAU)-1996-1-19] [REFERRED TO]
ABDUL BARIK VS. UNION OF INDIA [LAWS(CAL)-1962-9-14] [REFERRED TO]
GOLAM RASUL VS. SUPDT OF POLICE [LAWS(CAL)-1964-9-11] [REFERRED TO]
YAR MOHAMMAD VS. SUPERINTENDENT OF POLICE MURSHIDABAD DISTRIC [LAWS(CAL)-1968-1-1] [REFERRED TO]
PREM SINGH VS. DULARI BAI [LAWS(CAL)-1973-2-16] [REFERRED TO]
GOLAM RASUL VS. SUPERINTENDENT OF POLICE BIRBHUM [LAWS(CAL)-1975-2-4] [REFERRED TO]
AFZAR ALI BAIG VS. STATE [LAWS(ORI)-1961-1-6] [REFERRED TO]
ABDULGAFOOR S/O RAMJAN VS. STATE OF M P [LAWS(MPH)-1967-1-5] [REFERRED TO]
ROHIT CHAUHAN VS. CHAIRMAN ADMISSION SUB COMMITTEE JOINT ENTRANCE EXAMINATION E AND M 2000 UNIVERSITY COLLEGE OF ENGINEERING SAMBALPUR [LAWS(ORI)-2001-1-2] [REFERRED TO]
KHAIR MOHAMED RAES MOHAMED VS. STATE OF MAHARASHTRA [LAWS(BOM)-1994-6-10] [REFERRED TO]
MOHAMMAD SADIQUE VS. G NARAIN [LAWS(PAT)-1965-11-4] [REFERRED TO]
MOHAMMAD YUSUF VS. UNION OF INDIA [LAWS(PAT)-1966-8-12] [REFERRED TO]
ABDUL SATTAR HAJI IBRAHIM PATEL VS. STATE OF GUJARAT [LAWS(SC)-1964-2-29] [REFERRED]
KULATHIL MAMMU VS. STATE OF KERALA [LAWS(SC)-1966-3-3] [OVERRULED]
DELHI ADMINISTRATION VS. MOHAMMAD IQBAL [LAWS(SC)-1970-11-6] [DISTINGUISHED]
STATE OF GUJARAT VS. YAKUB IBRAHIM [LAWS(SC)-1973-12-11] [REFERRED TO]
STATE OF ARUNACHAL PRADESH VS. KHUDIRAM CHAKMA:STATE OF ARUNACHAL PRADESH [LAWS(SC)-1993-4-81] [RELIED ON]
HARI SHANKER JAIN VS. SONIA GANDHI [LAWS(SC)-2001-9-128] [REFERRED]
STATE OF U P VS. WALI MOHAMMAD [LAWS(ALL)-1972-4-34] [REFERRED TO]
BABULAL VS. S [LAWS(MPH)-1988-12-14] [REFERRED TO]
MALIK ASTUR ALI VS. STATE OF BIHAR [LAWS(PAT)-2012-3-152] [REFERRED TO]
SAYED ABDUL HAQUE VS. STATE [LAWS(ORI)-1965-11-18] [REFERRED TO]
ISAQUE MIA VS. THE UNION OF INDIA (UOI) AND ORS. [LAWS(GAU)-1985-2-7] [REFERRED TO]
UNION OF INDIA AND OTHERS VS. KARAM ALI AND OTHERS [LAWS(GAU)-1969-1-3] [REFERRED TO]
MASHKURUL HASAN VS. UNION OF INDIA (UOI) AND ANR. [LAWS(ALL)-1966-9-31] [REFERRED TO]
PREM SINGH VS. SM. DULARI BAI AND ANOTHER [LAWS(CAL)-1973-2-35] [REFERRED TO]


JUDGEMENT

Das Gupta, J. - (1.)What do the words " has migrated to the territory 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 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 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 respondents' 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 Indian on all relevant dates, viz., the date of his enrolment 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 Art. 5 of the Constitution and apart from that he must be deemed to be a citizen of India at such commencement under Art. 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 Art. 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 Art. 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 Jhawarain, District Sargodha, and that when he was only two years old he was taken by his parents from Jhawarain 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 Rashtriya 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 he moved from place to place to organise the Rashtriya Swayam Sevak Sangh 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 Rashtriya Swayam Sevak Sangh movement and was detained in Rohtak District Jail from 10th January, 1949, till 30th May, 1949. In August 1949 he again appeared in Prabhakar examination and was placed in compartment, he also appears to have organised Rashtriya 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 detenu from the 8th February to 8th May, 1953, when he was transferred to Ambala jail."

(2.)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 (Ex. 5) to which we shall presently refer the Tribunal further held that
" his own declaration in the affidavit (Ex. 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".

(3.)On these findings of fact the Tribunal held that the respondent could not be deemed to be a citizen of India under Art. 6 of the Constitution.
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