LexMOHD. RAZA DABSTANI versus STATE OF BOMBAY AND ORS.
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,_ B c D F E , F G H MOHD. RAZA DABSTANI v. STATE OF BOMBAY AND ORS. January 28, 1966 [A. K. SARKAR AND J. R. MUDHOLKAR, JJ.] Constitution of lnd1'a, Art. 5-Cltizenship claimed by foreign national on basis of Indian domicilt!--Onus to prove domicile-Residence ~·hether suf]icient proof-Foreign national whether can be Indian citizen. The appellant, an Iranian national by birth, came to India. in. 1938. In 1945 he obtained an Iranian passport and went to Iraq on p1lgnmage. On return to India he was registered under the Registeration of Foreigners Rules, 1939, as an Iranian national. On May 25 .. 1951 he obtained a re- sidential permit under the Foreigners Order, 1938 permitting him to reside in India up to a certain date. This permission was extended from time to time at his request. In his applications for this purpose, he described himself as an Iranian national. On December 2, 1957 his last request was refused and he was asked under the Foreigners' Act, 1946 to leave India. He then filed a suit in the City Civil Court Bom- bay, for a declaration that he was an Indian citizen and for an injunction restraining the authorities from taking action against him on the basis that he was a foreigner. The suit was dismissed by the City Civil Court and an appeal to the High Court failed. With special leave the appellant came to this Court, claiming citizenship of India under Art. S of the Constitution on the basis that he had acquired Indian domicile. HELD : (i) Residence alone is insufficient evidence to establish acquisition of a new domicile; there also has to be proof that the resi- dence in a country was with the intention of making it the person's home. [443 Al (ii) An Indian citizen cannot be the national of another State. [443 G-Hl State Trading Corporation v. Commercial Tax Officer, [1964] 4 S.C.R. 99 : A.I.R. 1963 S.C. 1611, relied on. When in his applications the appellant described himself as an Iranian national he was saying that be was not an Indian citizen. If he was not an Indian citizen he did not have an Indian domicile; for if he had such a domicile, he would be an Indian citizen. [444 A-BJ (iii) The onus of proving his change of domicile from Iran to India was on the appellont. The evidence produced by him did not discharge the onus. [445 Al CIVIL APPELLATE JURISDICTION : Civil Appeal No. 289 of 1964. Appeal by special leave ·from the judgment and order dated October 3, 1963 of the Bombay High Court in Appeal No. 295 of 1960 from Original Decree. S. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant. 442 SUPREME COURT REPORTS [1966] 3 S.C.R. C. K Daphtary, Allorney-General, B. R. L. Iyengar and A B. R. G. K. Achar for R. H. Dhebar, for respondents. The Judgment of the Court was delivered by Sarkar J. The appellant, an Iranian national by birth, came to India from Yezd in Iran with his maternal uncle, an Iranian national, in 1938 when he was about thirteen years old. The re- cord does not show on what passport he entered India. In January 1945 he obtained an Iranian passport and went to Iraq on pil- grimage. This passport showed that he held an identity card of the Iranian Government. On return from the pilgrimage he was on March 22, 19% registered under the Registration of Foreig- ners Rules, 1939 as an Iranian national. On May 25, 1951, he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India upto a certain di\te. This per- mission was extended from time to time at his request. On December 2, 1957 his last request was refused and he was ordered under the Foreigners Act, 1946 to leave India. On December 14, 1957, he filed a suit in the City Civil Court at Bombay for a declaration that he was a citizen of India and for an injunction restraining the State of Bombay, the Police of Bombay and the Union of India from taking action against him on the footing that he was a foreigner and not a citizen of India. This suit was dismissed by the City Civil Court and an appeal by the appellant to the High Court at Bombay also failed. He has now appealed to this Court with special leave. The appellant bases his claim to citizenship of India on Art. 5 of the Constitution. Under that article every person who had his domicile in the territory of India and had been ordinarily resi- dent there for not less than five years immediately preceding the commencement
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