civil appellate jurisdiction civil appeal number 2858 of
1977.
from the judgment and order dated 16.12. 1976 of the
allahabad high companyrt in civil miscellaneous writ number 179 of
1976.

subba rao p. parmeshwaran and mrs. sushma suri for
the appellants. n. salve ravinder narain k.c. dua p.k. ram and d.n. misra for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this is an appeal by special
leave from the judgment and order of the high companyrt of
allahabad dated 16th december 1976.
the question in this case was the valuation of goods for
the purpose of levy of excise duty under the central excises
salt act 1944  hereinafter referred to as the act . the
respondent companypany had submitted its price list in form iv
to the superintendent central excise companytainingthe price
at which five companypanies to which it sold its entire output
 hereinafter referred to as the customer companypanies  sold
those products. the customer companypanies thereafter sold their
products. the respondent challenged the direction of the
superintendent and had companytended that for the purpose of
levy of excise duty the value of its products should be the
prices at which it sold those products to the customer
companies and number the prices at which these in turn sold
those products to wholesale dealers or others. the respond-
ent companypany was registered under the indian companypanies act
19 13. at the relevant time there were five shareholders of
the companypany namely bajaj electricals limited bombay cromp-
ton parkinson limited london n.v. philips eindhoven  hol-
land  general electricals company limited london and mazda lamp
co. limited licencester england. except m s bajaj electricals
ltd. the aforesaid four companypanies are referred to as the
foreign companypanies. the said bajaj electricals held 180000
shares in the respondent companypany. it is called a share-
holder. the four foreign companypanies together held 180000
shares. these are called b share holders. the respondent
company was engaged in manufacture of electric lamps fluo-
rescent lamps and miniature lamps. it sold its entire output
of the products exclusively to the following customer companypa-
nies

bajaj electricals limited

philips india limited

crompton greaves limited

general electric company of india limited

mazda lamps company limited
on the lamps manufactured by the respondent companypany it
put the brand names of trade marks like philips osram
mazda crompton and bajaj of the respective customer companypa-
nies according to their directions. the customer companypanies
in turn sold these lamps under their names at prices higher
than the prices charged by the respondent companypany. excise
duty on electric lamps and fluorescent lamps was levied for
the first time in the year 1965. at first excise duty on
lamps was a specific duty. later excise duty on them was
changed from specific to ad valorem duty. after such change
there was a companytroversy between the respondent companypany and
the central excise authorities as to whether the prices
charged by the respondent company-
pany to its customer companypanies for its products or the
prices charged by the customer companypanies when they sold them
to wholesale dealers and others should be the basis for
determination of the value for levy of excise duty. being
aggrieved by the insistance of the central excise authori-
ties that the latter prices should be the value for levy of
excise duty the respondent companypany approached the high
court of allahabad by civil misc. writ number 2 189 of 1973.
the high companyrt by its order dated 14th may 1974 allowed
the writ petition and held that the prices at which the
respondent companypany sold its products to the customer companypa-
nies should be the value for levy of excise duty and number
the price at which the customer companypanies sold these to
wholesale dealers and others. the central excise authori-
ties however had taken the view that the aforesaid deci-
sion of the high companyrt which was rendered on the basis of
the old section 4 as it stood before it was amended by the
amendment act of 1973 did number apply to the levy of excise
duty subsequent to the amendment act companying into force on
1st october 1973. on the other hand the companytention on
behalf of the respondent companypany was that the aforesaid
amendment of the act had number altered the legal position so
far as the respondent companypany was companycerned and that the
decision of the high companyrt would be binding. it appears that
the central excise authorities were wrong in view of the
observations of this companyrt in union of india v. bombay tyre
international limited 1984 1 scr 347 where this companyrt
observed that it was number the intention of the parliament
while enacting the new section to create a scheme materially
different from that embodied in the superseded s. 4. the
object and purpose remained the same and so did the central
principle of the scheme. the new scheme was merely more
comprehensive and the language employed more precise and
definite. as in the old s. 4 the terms in which the value
was defined remained the price charged by the assessee in
the companyrse of wholesale trade for delivery at the time and
place of removal. see the observations at pages 377 and 378
of the said report. the high companyrt referred to the decision
of this companyrt in a.k. roy v. voltas limited 1973 2 scr 1089
and also in union of india v. atic industries limited 1984 3
scr 930.
the real question that arose in this case is whether the
five customer companypanies can be regarded as related persons
as defined in section 4 4  c . the definition of that company-
sists of two parts. the first part refers to a person who is
so associated with the assessee that each has interest
directly or indirectly in the business of the other and the
second part of that definition refers to a holding companypany
a subsidiary companypany a relative and a distributor of the
assessee and any sub-
distributor of such distributor. the high companyrt held that in
order for the respondent companypany to companye within the first
part of the definition the respondent companypany and the
customer companypanies must have interest directly or indirect-
ly in the business of each other. such of the customer
companies which held shares in the respondent companypany companyld
be said according to the high companyrt to have interest in
the business of the respondent companypany. but only one of the
customers companypanies namely bajaj electricals limited bombay
held shares in the respondent companypany. the remaining four
customer companypanies did number hold any shares in the respondent
company. it was further companytended before the high companyrt that
those four customer companypanies were respectively associated
companies of the four foreign companypanies and that hence those
four customer companypanies must also be held to have interest
indirectly if number directly in the business of the respond-
ent companypany. the high companyrt found that in the absence of
material it was number possible to accede to the companytention of
the companypany. what is interest directly or indirectly has
been explained in union of india ors. v. atic industries
ltd.  supra . in that case the respondent-assessee a
limited companypany was engaged in the business of manufactur-
ing dyes. its 50 per cent share capital was held by atul
products limited and the remaining 50 per cent by imperial
chemical industries limited london which also had a subsidiary
company fully owned by it called imperial chemical indus-
tries  india  pvt. limited the imperial chemical industries
 india  pvt. limited ceased to be a subsidiary companypany wholly
owned by the imperial chemical industries limited london on
13th march 1978 since 60 per cent of the share capital of
imperial chemical industries  india  pvt. limited was offered
to the public in pursuance of the policy of the government
of india requiring that number more than 40 per cent of the
share capital of an indian companypany should be held by a
foreign shareholder. companysequent upon this dilution of for-
eign shareholding the name of imperial chemical industries
 india  pvt. limited was changed to crescent dyes and chemicals
ltd. the assessee in that case at all material times sold
the large bulk of dyes manufactured by it in wholesale to
atul products limited and imperial chemical industries  india
pvt. limited which subsequently came to be knumbern as crescent
dyes and chemicals at a uniform price applicable alike to
both these wholesale buyers and those wholesale buyers sold
these dyes to dealers and companysumers at a higher price which
inter alia included the expenses incurred by them as also
their profit. the transactions between the assessee on the
one hand and atul products limited and crescent dyes and chemi-
cals limited on the other were as principal to principal and
the wholesale price
charged by the assessee to atul products limited and crescent
dyes and chemicals limited was the sole companysideration for the
sale and numberextracommercial companysiderations entered in the
determination of such price. in that case this companyrt held
that on a proper interpretation of the definition of relat-
ed person in sub-section  4  c  of sec. 4 the words
relative and a distributor of the assessee do number refer to
any distributor but these were limited only to a distributor
who is a relative of the assessee within the meaning of the
companies act 1956. it was held that the definition of
related person is number unduly wide and does number suffer from
any companystitutional infirmity. reliance was also placed on the observations of this
court in union of india ors. v. bombay tyre international
ltd.  supra . the first part of the definition defined
related person to mean a person who is so associated with
the assessee that each has interest directly or indirectly
in the business of each other. it is number enumbergh that the
assessee has an interest direct or indirect in the business
of the person alleged to be a related person number is it
enumbergh that the person alleged to be a related person has an
interest direct or indirect in the business of the asses-
see. to attract the applicability of the first part of the
definition the assessee and the person alleged to be a
related person must have interest direct or indirect in the
business of each other. each of them must have a direct or
indirect interest in the business of the other. the quality
and degree of interest which each must have in the business
of the other may be different the interest of one in the
business of the other may be direct while the interest of
the latter in the business of the former may be indirect. after analysing the facts this companyrt came to the companyclusion
that there was numberrelationship. shri sibal placed before us a chart indicating the
similarity of the facts of atic industries case  supra  and
the facts of the present case. in atic industries case 50
per cent of share capital belonged to atul products limited and
50 per cent to the imperial chemicals  london  limited a
foreign companypany. in the case of the respondent herein 50
per cent share capital belonged to the bajaj electricals
ltd.  indian companypany  and 50 per cent belonged to philips
 17.67  mazda  14.86  g.e.c.  10.59  and crompton
 6.88  all foreign companypanies. in case of atic industries
the sale of goods was on principal to principal basis and to
a share holding companypany and to anumberher companypany which was
initially a subsidiary of the foreign shareholding companypany
and to which subsequently became associate companypany of the
foreign shareholding companypany. in the instant case also it
was on principal to principal basis and to a shareholding
company  bajaj electricals limited
and so called to associate companypanies of the foreign share-
holding companypanies. goods were supplied to customers in their
brand name in the case of atic industries as in the instant
case. in atic industries case there was numberallegation of
extra companymercial companysideration and in the instant case also
there was numberallegation of extra-commercial companysideration. in atic industries case same prices were charged from all
the customers similar is the position in the instant case. in the aforesaid view of the matter and in view of the
ratio of the said decision shri sibal sought to urge that
the high companyrt was right in the view it took. in our opin-
ion shri sibal is right. there is a lurking doubt that the
five customer companypanies were the favoured customers but no
investigation seems to have been carried out.


civil appellate jurisdiction civil appeal number 247 of 1960.
appeal from the judgment and order dated october 3 1958 of
the punjab high companyrt in first appeal from order number 131 of
1958.

v. viswanatha sastri and naunit lal for the appellant. m. trivedi and ganpat rai for the respondent. 1960. september 7. the judgment of the companyrt was delivered
by
das gupta j.-what do the words has migrated to the
territory of india in art. 6 of the companystitution mean ? that is the main question in this appeal. the appellant
shannumberdevi 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 numberination 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 companynting 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 respondents election on various grounds the
principal ground being that the returning officer had
improperly accepted the numberination paper of the respondent
on the ground that he was number a citizen of india and was number
qualified to stand for election. with the other grounds
which
were taken in this petition we are numberlonger companycerned as
after the election tribunal rejected these several grounds
they were number pressed before the high companyrt and have also
number been raised before us. the election tribunal however
held that mangal sain was number an indian citizen at the time
he was enrolled as a voter or at the time his numberination
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 companyrt the only point
raised was whether the appellant was a citizen of india at
the companymencement of the companystitution. if he was a citizen
of india at the date of such companymencement it was number
disputed he companytinued to be a citizen of india on all
relevant dates viz. the date of his enrollment as a voter
the date of acceptance of his numberination and the date of his
election. if however he was number a citizen of india at the
commencement of the companystitution he had number since acquired
citizenship and so his election would be void. the
respondents case all along was that he was a citizen of
india at the companymencement of the companystitution under art. 5
of the companystitution and apart from that he must be deemed to
be a citizen of india at such companymencement under art. 6 of
the companystitution. the election tribunal as already
indicated rejected both these companytentions. the learned
judges of the high companyrt while indicating that they were
inclined to think that the respondents claim to citizenship
of india under art. 5 companyld number be sustained did number
consider that matter in detail but held that his claim to
be deemed to be a citizen of india at the companymencement of
the companystitution 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 companyrectly summarised in
the judgment of the high companyrt 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 jhawarian
district sargodha and that when he was only
two years old he was taken by his parents from
jhawarian 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 companytinuous absence
from duty. mangal sains 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 rastriya
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 be moved from place to place to organise
the rastriya swayam sevak sangb movement. during this period apparently he had numberfixed
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 companynection with the rastriya
swayam sevak sangh movement and was detained i
rohtak district jail from 10th january 1949
till 30th may 1949. in august 1949 he again
appeared in prabhakar
examination and was placed in companypartment he
also appears to have organised rastriya 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 companyntry he tried to secure permission to
stay there permanently but the government of
burma did number agree and directed him to leave
that companyntry in this companynection he applied
for a writ to the supreme companyrt 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 companyntry 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 detenue from the
8th february to 8th may 1953 when be was
transferred to ambala jail . on these facts the tribunal further held that it cannumber be
said that the respondent had an intention to settle in
india permanently and that he had numberintention of ever
leaving it . taking along with these facts the respondents
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 companyduct in
going over to burma and trying to settle there permanently
furnish companyvincing 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 companycluded
by saying that it is also quite clear that in the case of
this respondent it cannumber be said that he had numberother idea
than to companytinue to be in india without looking forward to
any event certain or uncertain which might induce him to
change his residence
on these findings of fact the tribunal held that the
respondent companyld number be deemed to be a citizen of india
under art. 6 of the companystitution. on these same primary facts mentioned above mr. justice dua
who delivered the leading judgment of the high companyrt
recorded his companyclusion thus-
i can draw but only one companyclusion from the
evidence on the record that the appellant who
had moved from his home district to jullunder
had after the 15th august 1947 numberother
intention than of making the dominion of india
as his place of abode. on the 15th august
1947 therefore the appellants migration from
jhawarian to the territory of india was
clearly companyplete whatever doubts there may
have been before that date though i would be
prepared even to hold that he had moved away
from his village in 1944 and had migrated to
the eastern districts of the punjab
mr. justice falshaw agreed with this companyclusion. on these companyclusions the learned judges held that the
respondents claim to be deemed a citizen of india at the
commencement of the companystitution must succeed. the main companytention on behalf of the appellant is that the
conclusion of the high companyrt that when the respondent moved
away from his village in 1944 and that at any rate after the
15th august 1947 he had numberother intention than of- making
the dominion of india his place of abode was arbitrary. it
was also companytended that in any case the migration under art. 6 of the companystitution has to take place after the territory
of india as companytemplated in the companystitution had companye into
existence. lastly it was companytended though faintly that
the respondent had number in any case companyplied with the
requirements of being ordinarily a resident in the territory
of india since the date of his migration. the respondents
counsel besides challenging the companyrectness of the above
contention further urged that the words migrated to the
territory of india in art. 6 only means companye to the
territory of india and does number mean companye to the
territory of india with the intention of permanently
residing there . the extreme companytention raised by mr. sastri on behalf of the
appellant that migration under art. 6 must take place after
the territory of india came into existence under the
constitution cannumber be accepted. it has to be numbericed that
art. 6 deals with the question as to who shall be deemed to
be a citizen of india at the companymencement of the
constitution. that itself suggests in the absence of
anything to indicate a companytrary intention that the
migration which is made an essential requirement for this
purpose must have taken place before such companymencement. it
is also worth numbericing that cl.  b  of art. 6 which mentions
two companyditions one of which must be satisfied in addition
to birth as mentioned in el.  a  and migration as
mentioned in the main portion of the article being proved
speaks in its first sub-cl. of migration before the 19th
day of july 1948 and in sub-cl.  ii  migration after the
19th day of july 1948 . the second sub-cl requires that the
person must be registered as a citizen of india by an
officer appointed in that behalf by the government of the
dominion of india on an application made by him therefore to
such officer before the companymencement of the companystitution. the proviso to that article says that numberperson shall be so
registered unless he has been resident in the territory of
india for at least six months immediately preceding the date
of his application. it is clear from this that the act of
migration in art. 6 must take place before the companymencement
of the companystitution. it is clear therefore that migrated
to the territory of india means migrated at any time
before the companymencement of the companystitution to a place number
in the territory of india. this brings us to the important question whether migrated to
the territory of india means merely companye to the territory
of india or it means companye to the territory of india to
remain here or in other words companye to the territory of
india with the intention of residing here permanently. there can be numberdoubt that the word migrate taken by
itself is
capable of the wider companystruction companye from one place to
anumberher whether or number with any intention of permanent
residence in the latter place. it is beyond companytroversy
that the word migrate is often used also in the narrower
connumberation of companying from one place to anumberher with the
intention of residing permanently in the latter place. websters dictionary  second edition 1937  gives the
following meaning of the word migrate - to go from one
place to anumberher especially to move from one companyntry
region or place of abode or sojourn to anumberher with a view
to residence to move as the moors who migrated from africa
to spain . the companypus juris secundum published in 1948
gives the same meaning except that it also gives to change
ones place of residence as one of the meanings. the word
immigrate which means migrate into a companyntry and its
derivatives immigrant and immigration have received
judicial companysideration in several australian and american
cases in companynection with prosecutions for companytravention of
immigration laws. the companyrts in australia were of opinion on a companysideration
of the scheme and subject-matter of their laws in question
that the word immigrant in the immigrant registration
act 1901 and in s. 51 of the australian companystitution means
a person who enters australia whether or number with the
intention of settling and residing there  vide chia gee v.
martin  1  . the american companyrts however took the view in
united states v. burke  2  moffitt v. united states  3  and
united states v. atlantic fruit company  4  on a companysideration
of the purpose and scheme of the legislation that
immigrant means a person who companyes to the united states
with 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 numberdoubt that the word
migrate may have in some companytexts the wider meaning companye
or 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.
place without an intention to reside permanently and in
some companytext the narrower meaning companye or remove to a
place with the intention of residing there permanently. the fact that the companystitution-makers did number use the words
with the intention to reside permanently in art. 6 is
however numberreason to think that the wider meaning was
intended. in deciding whether the word migrate was used
in the wider or the narrower sense it is necessary to
consider carefully the purpose and scheme of this
constitutional legislation. the companystitution after defining
the territory of india and making provisions as to how it
can be added to or altered in the four articles companytained
in its first chapter proceeds in the second chapter to deal
with the subject of citizenship. of the seven articles in
this chapter the last article art. 11 only saves expressly
the right of parliament to make provisions as regards
acquisition and termination of citizenship and all other
matters relating to citizenship. of the other six articles
the first art. 5 says who shall be citizens of india at
the companymencement of the companystitution while arts. 6 and 8
lay down who though number citizens under art. 5 shall be
deemed to be citizens of india. art. 10 provides that
once a person is a citizen of india or is deemed to be a
citizen of india he shall companytinue to be a citizen of india
subject of companyrse to the provisions of any law that may be
made by parliament. art. 9 provides that if a person has
voluntarily acquired citizenship of any foreign state he
shall number be a citizen of india or deemed to be a citizen of
india. art. 7 also denies the right of citizenship to some
persons who would have otherwise been citizens of india
under art. 5 or would be deemed to be citizens of india
under art. 6.
the primary provision for citizenship of india in this
scheme is in art. 5. that follows the usual practice of
insisting on birth or domicile which shortly stated means
residence with the intention of living and dying in the
country as an essential requirement for citizenship and
confers citizenship on a person fulfilling this requirement
if he also satisfied anumberher requirement as regards his
birth within what
is number the territory of india or birth of any of his parents
within this area or ordinary residence in this area for a
continuous period of five years immediately preceding the
commencement of the companystitution. if there had been no
division of india and numberportion of the old india had been
lost this would have been sufficient as regards companyferment
of citizenship apart from the special provision for giving
such rights to persons of indian origin residing outside
india. but part of what was india as defined in the
government of india act 1935 had ceased to be india and
had become pakistan. this gave rise to the serious problem
whether or number to treat as citizens of india the hundreds of
thousands of persons who were of indian origin-in the sense
that they or any of their parents or any of their grand-
parents had been born in india -but who would number become
citizens under art. 5. the companystitution-makers by the
provisions of art. 6 decided to treat as citizens some of
these but number all. those who had number companye to the new india
before the date of the companymencement of the companystitution were
excluded those who had so companye were divided into two
categories--those who had companye before the 19th july 1948
and those who had companye on or after the 19th july 1948.
persons in the first category had in order to be treated as
citizens to satisfy the further requirement of migration
whatever that meant and of ordinary residence in the
territory of india since they migrated to india while
those in the second category had in addition to having
migrated to be residents for number less than six months
preceding the date of the application for registration as
citizens which application had to be filed before the date
of the companymencement of the companystitution. but while the
primary provisions in the companystitution as regards the
citizenship for people born at a place number included in india
and people whose parents were born at a place number in india
insist on the requirement of intention to reside here
permanently by using the word domicile  art. 6 which
under the scheme of the companystitution deals with what may be
called secondary citizenship and says about some persons
that
they will be deemed to be citizens of india does number
mention domicile as a requirement. can it be that the
constitution-makers thought that though in the case of
persons born in what has number become india or those any of
whose parents was born in what is number india as also in the
case of person who had been residing here for number less than
five years in what is number india it was necessary to insist
on domicile before companyferring citizenship that was number
necessary in the case of persons whose parents or any of
whose grand-parents had been born in what was formerly india
but is number number india ? in our opinion the companystitution-
makers companyld number have thought so. they were aware that the
general rule in almost all the companyntries of the world was to
insist on birth or domicile as an essential prerequisite for
citizenship. they knew that in dealing with a somewhat
similar problem as regards citizenship of persons born out
of what was then the territory of irish free state the
constitution of the irish free state had also insisted on
domicile in the irish free state as a requirement for
citizenship. there can be numberconceivable reason for their
number making a similar insistence here as regards the persons
who were born outside what is number india or persons any of
whose parents or grand-parents were born there. mention
must also be made of the curious companysequences that would
follow from a view that an intention to reside permanently
in the territory of india and is number necessarily in art. 6.
take the case of two persons one of whom was born in what
is number india and has all along lived there and anumberher
person who though born in what is number india went to live in
areas number pakistan and then moved back to areas in what is
number india. the first named person would have to satisfy the
requirement of domicile at the companymencement of the
constitution before he is a citizen but the second person
would number have to satisfy this companydition. it would be
unreasonable to think that such a curious result companyld have
been intended by the companystitution-makers. for all these reasons it appears clear that when the framers
of the companystitution used the words migrated
to the territory of india they meant companye to the
territory of india with the intention of residing there
permanently . the only explanation of their number expressly
mentioning domicile or the intention to reside
permanently in art. 6 seems to be that they were companyfident
that in the scheme of this companystitution the word i
migration companyld only be interpreted to mean companye to the
country with the intention of residing there permanently . it is of interest to numberice in this companynection the proviso
to art. 7. that article provides in its first part that a
person who would be a citizen of india or would have been
deemed to be a citizen of india in arts. 5 and 6 would number
be deemed to be a citizen if he has migrated from the
territory to pakistan after march 1 1947. the proviso
deals with some of these persons who after such migration to
pakistan have returned to india. it appears that when this
return is under a permit for resettlement or permanent
return-that is resettlement in india or return to india
with the intention to reside here permanently-the main
provisions of article 7 will number apply and for this under
art. 6 of the companystitution such a person would be deemed to
have migrated to india after the 19th july 1948. that the
return to india of such migrant has to be under a permit for
resettlement or permanent return in order that he might
escape the loss of citizenship is a strong reason for
thinking that in art. 6 the intention to reside in india
permanently is implicit in the use of the phrase i
migrated to the territory of india. it may sometimes happen that when a person moves from one
place to anumberher or from one companyntry to anumberher he has at
the point of time of moving an intention to remain in the
country where he moved only temporarily but later on forms
the intention of residing there permanently. there can be
numberdoubt that when this happens the person should at this
later point of time be held to have companye to the companyntry
with the intention of residing there permanently . in other
words though at the point of time he moved into the new
place or new companyntry he cannumber be said to have migrated to
this place or companyntry
he should be held in law to have migrated to this later
place or companyntry at the later point of time when he forms
the intention of residing there permanently. this view of
law was taken both by the election tribunal and the high
court and was number seriously disputed before us. the election tribunal and the high companyrt therefore rightly
addressed themselves to the question whether in 1944 when
mangal sain first came to jullunder in what is number the
territory of india from his home in jhawarian number in
pakistan he had the intention of residing in india
permanently and even if he at that point of time had numbersuch
intention whether after he had companye in 1944 to what is number
the territory of india he had at some later-point of time
formed the intention of residing here permanently. on this
question as already indicated the election tribunal and
the high companyrt came to different companyclusions. while the
election tribunal held that mangal sain had at numberpoint of
time the intention of residing in india permanently the
high companyrt was prepared to hold that even when he moved from
his home in 1944 to the eastern districts of punjab he had
the intention of residing there permanently and held that
at least after august 15 1947 he had numberother intention
than of making the dominion of india his place of abode and
residing here permanently. it has been strenuously
contended before us that in companying to this companyclusion the
high companyrt has acted arbitrarily and has ignumbered important
evidence which it is said showed clearly that the
respondent had numberintention of residing permanently in
india. in companysidering such an argument it is proper for us
to bear in mind the provisions of s. 116b of the
representation of the people act which lays down that the
decision of the high companyrt on appeal from an order of the
election tribunal in an election petition shall be final
and companyclusive . it has been pointed out in more than one
case by this companyrt that while these provisions do dot stand
in the way of this companyrts interfering with the high companyrts
decision in a
fit case it would be proper for us to bear these provisions
of the representation of the people act in mind when the
correctness of such a decision is challenged before this
court. it is unnecessary for us to companysider whether the
view of the high companyrt that even in 1944 mangal sain companyld
be said to have been migrated to the eastern districts of
punjab can be successfully challenged or number. even assuming
that companyclusion is out of the way the further companyclusion
of the high companyrt that having moved from his home district
to jullunder in 1944 mangal sain had after august 15 1947
numberother intention than of making the territory of india his
place of abode would be sufficient to prove his migration to
the territory of india from what is number pakistan. we have
been taken through the materials on the record relevant to
this question and we can see numberhing that would justify our
interference with the high companyrts companyclusion on this point. much stress was laid by the appellants companynsel on the fact
that mangal sain left indian shores for burma in january
1950 and after his arrival there made an application under
s. 7 1  of the union citizenship act 1948  of burma
giving numberice of his intention to apply for a certificate of
naturalization and his statement therein that he intended to
reside permanently within the union of burma. assuming
however that in october 1950 or even in january 1950
when he left for burma mangal sain had formed the intention
of taking up his permanent residence in burma that is
wholly irrelevant to the question whether in 1947 he had the
intention of residing permanently in india. learned companynsel
for the appellant also drew our attention to a statement
made in this very application that mangal sain had returned
to burma with his mother in 1947. the high companyrt has after
considering this statement held that he had number so returned
in 1947. we see numberreason to differ with this finding of
the high companyrt. in our opinion there is numberhing on the
record to justify any doubt as regards the companyrectness of
the high companyrts decision that after august 15 1947 mangal
sain who had earlier moved from a place number in pakistan to
jullunder in india definitely made up
his mind to make india his permanent home. whether or number
in january 1950 he changed that intention is irrelevant
for our purpose. our companyclusion therefore is that the high companyrt is right in
holding that mangal sain satisfies the first requirement of
art. 6 of the companystitution of migration to the territory
of india from the territory number included in pakistan . it
is number disputed and does number ever appear to have been
disputed that mangal sain was born in india as defined in
the government of india act 1935 and thus satisfies the
requirement of cl.  a  of art. 6.
there can be numberdoubt 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 companytended
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 number think that is required. it is first to be numbericed that
art. 6 of the companystitution is one of the
articles which came into force on numberember 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 companysider the period up to the 26th
day of numberember 1949 from the date of migration. it is
number however even necessary that on the 26th day of numberember
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 companyplete and ending with the date numberember
26 1949 as a whole the person has been ordinarily
resident in the territory of india . it is number 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 companystitution it is reasonable
to take the words to mean resident during this period
without any serious break . the materials on the record
leave numberdoubt that there was numberbreak worth the. name in
mangal sains residence in the
territory of india from at least august 15 1947 till the
26th numberember 1949.
we have therefore companye to the companyclusion that the high companyrt
was right in sustaining mangal sains claim to be deemed a
citizen of india under art. 6 of the companystitution and in
that view was also right in allowing his appeal and ordering
the dismissal of the election petition.