MANU/SC/0422/1991

Equivalent Citation: AIR1991SC 1886, 1991(2)BLJR1187, JT1991(3)SC 306, 1991(2)SC ALE127, (1991)3SC C 554, [1991]3SC R149

IN THE SUPREME COURT OF INDIA

Writ Petn. (Civil) No. 1410 of 1987 with Writ Petn. (Criminal) No. 528 of 1987 with
Writ Petn. (Civil) No. 1372 of 1987
Decided On: 24.07.1991
Appellants:Louis De Raedt and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
L.M. Sharma and J.S. Verma, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: J.P. Verghese, Aby T. Varkey and N.N. Sharma, Advs
For Respondents/Defendant: Altaf Ahmed, ASG, U.N. Bachawat, R.B. Misra, A.
Subhashini and Uma Nath Singh, Advs.
ORDER
L.M. Sharma, J.
1 . By these three petitions under Article 32 of the Constitution, the petitioners who
are foreign nationals, have challenged the order dated 8.7.1987 whereby their prayer
for further extension of the period of their stay in India was rejected and they were
asked to leave the country by the 31st July, 1987. Mr. Louis De Raedt, petitioner in
W.P. (C) No. 1410 of 1987, came to India in 1937 on a Belgium passport with British
visa and Mr. B.E. Getter, the petitioner in W.P. (Crl.) No. 528 of 1987 in 1948 on an
American passport and both have been engaged in Christian missionary work. The
petitioner in W.P. (C) No. 1372 of 1987, Mrs. S.J. Getter is Mr. B.E. Getter's wife. Mr.
Verghese, the learned Counsel, who appeared for the three petitioners, referred to the
facts in W.P. (C) No. 1410 of 1987 and stated that the cases of the other two
petitioners are similar and they are entitled to the same relief as Mr. Louis De Raedt.
2. According to his case, Mr. louis De Raedt has been staying in India continuously
since 1937 excepting on two occasions when he went to Belgium for short periods in
1966 and 1973. It has been con tended that by virtue of the provisions of Article 5(c)
of the Constitution of India the petitioner became a citizen of this country on
26.11.1949, and he cannot, therefore, be expelled on the assumption that he is a
foreigner. Referring to the Foreigners Act it was urged that power under Section 3(2)
(c) could not be exercised because the Rules under the Act have not been framed so
far. Alternatively, it has been argued that the power to expel an alien also has to be
exercised only in accordance with the principles of natural justice and a foreigner is
also entitled to be heard before he is expelled. For all these reasons it is claimed that
the impugned order dated 8.7.1987 being arbitrary should be quashed and the
authorities should be directed to permit the petitioners to stay on.
3 . It has been contended by Mr. Verghese that after the independence of India,
appropriate orders were passed permitting many foreign Christian missionaries to

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 stay on permanently in the country but, as in 1950 petitioner Mr. Louis De Raedt was
working in certain remote area of the Adivasi belt in Bihar, he could not obtain the
necessary order in this regard. Later, however, he had also filed applications for the
purpose which have remained undisposed of till today. In 1985 an order was passed
asking him to leave the country, and he made a representation to the authorities on
20.9.1985, a true copy whereof is Annexure I to the writ petition. On 1.3.1986 he
filed another application for naturalisation, a copy whereof has been marked as
Annexure II. A copy of his third application dated 15.3.1986 is Annexure III. The
impugned order Annexure IV was passed in this background.
4 . The main ground urged by the learned Counsel is based on Article 5 of the
Constitution, which reads as follows:
5 . Citizenship at the commencement of the Constitution -At the
commencement of this Constitution every person who has his domicile in the
territory of India and
(a) who was born in the territory of India, or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than
five years immediately preceding such commencement,
shall be a citizen of India.
The argument is that since Mr. Louis De Raedt was staying in this country since 1937,
that is, for a period of more than five years immediately preceding the
commencement of the Constitution, he must be held to have duly acquired Indian
citizenship.
5. One of the necessary conditions mentioned in Article 5 of the Constitution is that
the person concerned must be having his domicile in the territory of India at the
commencement of the Constitution. The question is as to whether the petitioner
fulfils this condition? The facts stated by the petitioner himself do not leave any room
for doubt that he did not have his domicile here. In his application dated 20.9.1985
addressed to the Home Minister, Government of Madhya Pradesh, Bhopal, Annexure I,
the petitioner stated that he had been staying in this country on the basis of
residential permit renewed from time to time and when he had gone to Belgium, "No
Objection to Return" Certificate was issued without difficulty. He asserted that since
he was working in education and social work for a long period he was "more Indian
than Belgium". Towards the end of his application he stated thus:
Therefore, I plead for a cancellation of the above order on compassionate
ground.
I would request Your Honour to kindly allow me to stay in India till the end
of my life by extending my residential permit. For this act of kindness I will
be ever grateful to you.
(emphasis added)
In his application dated 1.3.1986 addressed to the Collector, Surguja (Madhya
Pradesh), which is Annexure II, he mentioned the subject as "request for
naturalisation". In this application he referred to the provisions of Article 5 of the

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 Constitution as a basis of his claim but concluded his prayer thus:
If however Government decides that I have LOST my citizenship (sic) would
be grateful to be informed about it. So that I can apply under one of the
naturalisation Act. (Sic)
He reiterated his stand in Annexure III dated 15.3.1986.
6. The entire relevant official records were available with the learned Counsel for the
respondents during the hearing of the case, which indicated that the impugned order
(Annexure IV) was passed on the basis of another application of the petitioner filed
earlier on 25.1.1980. Photostat copies of the said application were filed and kept on
the records of the case. It was stated therein that the authorised period for his stay in
India was going to expire on 3.3.1980. It contained a prayer for the extension of the
period of stay by one year. The petitioner mentioned the reason for extension of this
stay thus: "to do further social work as a missionary". The purpose of his visit to
India was also similarly mentioned: "to do social work as a missionary". There was
no indication whatsoever in the said application that he intended to stay in this
country on a permanent basis. The period for which the extension was asked for
being one year only indicated that by 1980 he had not decided to reside here
permanently.
7 . Mr. Verghese has contended that the fact that the petitioner has been staying in
this country since 1937 and visited Belgium only twice is sufficient by itself to
establish his case of domicile in India. It was argued that the petitioner's case cannot
be rejected merely for the reason that he has been holding a foreign passport.
Reliance was placed on Mohd. Ayub Khan v. Commissioner of Police, Madras and Anr
MANU/SC/0048/1965 : [1965]2SCR884 and Kedar Pandey v. Narain Bikram Sah
MANU/SC/0215/1965 : [1965]3SCR793 . Reference was also made to Union of India
v. Ghaus Mohammed MANU/SC/0072/1961 : 1961CriL J703 , and it was argued that a
proceeding ought to have been started against, the petitioner under Section 9 of the
Foreigners Act where he should have been allowed to defend. The learned Counsel
submitted that even a foreigner who comes on the strength of a foreign passport, in
case of his overstaying has to be heard before he can be thrown out, and this has
been denied to the petitioners.
8. Lastly, Mr. Verghese contended that in no event the Superintendent of Police who
signed the impugned order, i.e. Annexure, IV, is authorised to direct deportation of
the petitioner.
9. There is no force in the argument of Mr. Verghese that for the sole reason that the
petitioner has been staying in this country for more than a decade before the
commencement of the Constitution, he must be deemed to have acquired his domicile
in this country and consequently the Indian citizenship. Although it is impossible to
lay down an absolute definition of domicile, as was stated in Central Bank of India v.
Ram Narain MANU/SC/0066/1954 : 1955CriL J152 it is fully established that an
intention to reside for ever in a country where one has taken up his residence is an
essential constituent element for the existence of domicile in that country. Domicile
has been described in Halsbury's Laws of England, 4th edition, Volume 8, Paragraph
421) as the legal relationship between individual and a territory with a distinctive
legal system which invokes that system as his personal law. Every person must have
a personal law, and accordingly every one must have a domicile. He receives at birth
a domicile of origin which remains his domicile, wherever he goes, unless and until

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 he acquires a new domicile. The new domicile, acquired subsequently, is generally
called a domicile of choice. The domicile of origin is received by operation of law at
birth and for acquisition of a domicile of choice one of the necessary conditions is the
intention to remain there permanently. The domicile of origin is retained and cannot
be divested until the acquisition of the domicile of choice. By merely leaving his
country, even permanently, one will not, in the eye of law, lose his domicile until he
acquires a new one. This aspect was discussed in Central Bank of India v. Ram Narain
(supra) where it was pointed out that if a person leaves the country of his origin with
undoubted intention of never returning to it again, nevertheless his domicile of origin
adheres to him until he actually settles with the requisite intention in some other
country. The position was summed in Halsbury thus:
He may have his home in one country, but be deemed to be domiciled in
another.
Thus the proposition that the domicile of origin is retained until the acquisition of a
domicile of choice is well established and does not admit of any exception.
10. For the acquisition of a domicile of choice, it must he shown that the person
concerned had a certain state of mind, the animus manendi. If he claims that he
acquired a new domicile at a particular time, he must prove that he had formed the
intention of making his permanent home in the country of residence and of
continuing to reside there permanently. Residence alone, unaccompanied by this state
of mind, is insufficient.
11. Coming to the facts of the present cases the question which has to be answered
is whether at the commencement of the Constitution of India the petitioners had an
intention of staying here permanently. The burden to prove such an intention lies on
them. Far from establishing the case which is now pressed before us, the available
materials on the record leave no room for doubt that the petitioners did not have
such intention. At best it can be said that they were uncertain about their permanent
home. During the relevant period very significant and vital political and social
changes were taking place in this country, and those who were able to make up their
mind to adopt this country as their own, took appropriate legal steps. So far the three
petitioners are concerned, they preferred to stay on, on the basis of their passports
issued by other countries, and obtained from time to time permission of the Indian
authorities for their further stay for specific periods. None of the applications filed by
the petitioners in this connection even remotely suggests that they had formed any
intention of permanently residing here.
12. None of the cases relied upon on behalf of the petitioners is of any help to them.
The case of Mohd. Ayub Khan was one where the appellant had made an application
to the Central Government under Section 9(2) of the Indian Citizenship Act, 1955 for
the determination of his citizenship. Section 9(1) says that if any citizen of India
acquired the citizenship of another country between 26.1.1950 and the
commencement of the Citizenship Act, he ceased to be a citizen of India and Sub-
section (2) directs that if any question arises as to whether, when or how any person
has acquired the citizenship of another country, he shall be determined by the
prescribed authority. Mohd. Ayub Khan was a citizen of this country at the
commencement of the Constitution of India and was asked to leave the country for
the reason that he had obtained a Pakistani Passport. The question which thus arose
in that case was entirely different. The case of Kedar Pandey v. Narain Bikram Sah,
(supra), does not help the petitioners at all. On a consideration of the entire facts and

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 circumstances this Court concluded that "the requisite animus manendi as has been
proved in the finding of the High Court is correct". The Respondent Narain Bikram
Sah, who claimed to have acquired Indian citizenship, had extensive properties at
large number of different places in India and had produced many judgments showing
that he was earlier involved in litigations relating to title, going upto the High Courts
in India and some time the Privy Council stage. He was born at Banaras and his
marriage with a girl from Himachal Pradesh also took place at Banaras and his
children were born and brought up in India. Besides his other activities supporting
his case, he also produced his Indian passport. In the cases before us the learned
Counsel could not point out a single piece of evidence or circumstance which can
support the petitioners' case, and on the other hand they have chosen to remain here
on foreign passports with permission of Indian authorities to stay, on the basis of the
said passports. Their claim, as pressed must, therefore, be rejected.
13. The next point taken on behalf of the petitioners, that the foreigners also enjoy
some fundamental right under the Constitution of this country, is also of not much
help to them. The fundamental right of the foreigner is confined to Article 21 for life
and liberty and does not include the right to reside and settle in this country, as
mentioned in Article 19(1)(e), which is applicable only to the citizens of this country.
It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent,
Presidency Jail, Calcutta and Ors. MANU/SC/0074/1955 : 1955CriL J876 that the
power of the Government in India to expel foreigners is absolute and unlimited and
there is no provision in the Constitution fettering this discretion. It was pointed out
that the legal position on this aspect is not uniform in all the countries but so far the
law which operates in India is concerned, the Executive Government has unrestricted
right to expel a foreigner. So far the right to be heard is concerned, there cannot be
any hard and fast rule about the manner in which a person concerned has to be given
an opportunity to place his case and it is not claimed that if the authority concerned
had served a notice before passing the impugned order, the petitioners could have
produced some relevant material in support of their claim of acquisition of
citizenship, which they failed to do in the absence of a notice.
1 4 . The last point that the impugned order (Annexure IV) was passed by the
Superintendent of Police, who was not authorised to do so, is also devoid of any
merit. The order was not passed by the Superintendent of Police; the decision was of
the Central Government which was being executed by the Superintendent, as is clear
from the order itself.
1 5 . For the reasons mentioned above, we do not find any merit in the petitions,
which are accordingly dismissed, but without costs.

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