JUDGMENT

SHARMA, J.:— By these three petitions under Art. 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 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 Belgian 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. Getters 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 contended that by virtue of the provisions of Art. 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 S. 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 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.