Case Note & Summary
This appeal arose from an election petition filed by Kedar Pandey, the unsuccessful candidate in the 1962 Bihar Legislative Assembly election from Ramnagar constituency, challenging the election of the returned candidate, Narain Bikram Sah (also known as Narain Raja), on the ground that he was not a citizen of India and thus not qualified under Article 173 of the Constitution of India. The Election Tribunal held that Narain Raja was not a citizen and declared the election void, but refused to declare the appellant elected. On appeal, the High Court of Patna set aside the Tribunal's order and upheld the election, finding that Narain Raja was born in Banaras and had acquired domicile of choice in India, satisfying Article 5(a) and (c). The appellant then appealed to the Supreme Court. The family history of Narain Raja was closely connected with the Ramnagar estate in Champaran, Bihar. His father, Rama Raja, was adopted by Mohan Raja, and after protracted litigation, including a Privy Council decision, Rama Raja obtained possession of the estate from 1937 until his death in 1947. Narain Raja was involved in a partition suit in 1942 concerning the estate, and evidence showed his residence in India since at least 1939 and his intention to establish permanent home. The appellant contended that Narain Raja was born in Barewa, Nepal, relying on witnesses and a plaint mentioning Barewa Durbar as birthplace, and argued that no domicile of choice existed. The respondent claimed birth in Banaras, long residence in India, and acquisition of domicile of choice. The Supreme Court, assuming the respondent was not born in India, examined whether he satisfied Article 5(c). It noted that the only intention required for change of domicile is an intention of permanent residence, and that voluntary fixation of habitation in the new country with present intention of making it permanent home establishes domicile. The court found that the respondent had formed deliberate intention to make India his home, was ordinarily resident for five years preceding 1949, and thus had requisite animus manendi. The High Court's conclusion that respondent was citizen under Article 5 and qualified under Article 173 was affirmed. The appeals were dismissed.
Headnote
A) Constitutional Law - Citizenship - Acquisition of Indian Domicile by Choice - Constitution of India, 1950, Art. 5(c) - The respondent, even if not born in India, had voluntarily fixed his habitation in India with intention of permanent residence; he was ordinarily resident for five years immediately preceding the commencement of the Constitution; hence he acquired Indian domicile by choice and satisfied Article 5(c). Held that High Court rightly concluded he was citizen of India at relevant time (Page 805 C-D). B) Constitutional Law - Qualification for Membership of Legislature - Requirement of Indian Citizenship - Constitution of India, 1950, Art. 173 - Election petition challenged respondent's qualification on ground he was not a citizen of India. Held that since respondent was citizen under Article 5, he was not disqualified under Article 173 (Page 805 C-D). C) Evidence - Proof of Domicile - Domicile of Choice and Relevance of Conduct - Constitution of India, 1950, Art. 5 - The court applied principles that only intention required for change of domicile is permanent residence; voluntary fixation of habitation; facts and circumstances before and after relevant time are relevant. Held that conduct established animus manendi (Page 801 F-G, 803 F).
Issue of Consideration
Whether respondent was a citizen of India under Article 5 of the Constitution of India on the material date, and therefore qualified under Article 173 to contest election to Bihar Legislative Assembly.
Final Decision
Appeals dismissed; judgment of High Court affirmed; respondent Narain Bikram Sah held to be citizen of India under Article 5(c) and qualified under Article 173; election upheld.
Law Points
- Indian citizenship under Article 5(c) can be acquired by domicile of choice and five years ordinary residence
- domicile of choice requires voluntary fixation of habitation with present intention of permanent residence
- conduct and circumstances before and after relevant time are relevant to prove domicile
