A person domiciled in India and ordinarily resident for five years immediately preceding the commencement of the Constitution is entitled to Indian citizenship under Article 5.

( 1 ) THE facts in this case are as follows. According to the petitioner, he was born in village Pitambarpur, Police Station Begumganj in the District of Noakhali, when it formed a part of India. He came to Calcutta in the beginning of the year 1943, and took employment as a domestic servant in the household establishment of the then Assistant Shipping Master, Shipping Office, Calcutta where he has continued to be employed for the last 17 years. In August, 1947 when the partition took place, the petitioner at first provisionally opted for Pakistan but thereafter changed his mind and opted for India, where in fact he has continued to remain. According to him, at the commencement of the Constitution, "he was domiciled in India and was ordinarily resident therein for not less than five years immediately preceding such commencement. In fact, according to him, during these 17 years he went to Pakistan only on three occasions for a total period of four months and eleven days. According to him, he has no relatives in Pakistan except his wife who is in Noakhali and lives with her parents there. He was married in 1955 and as his wife has not attained 18 years of age, according to family custom, she must live with her parents, and upon the attainment of 18 years she is expected to come and live with the petitioner. The petitioner says that he has no property whatsoever in Pakistan. In 1954, the petitioner applied for a passport which was granted to him by the Government of India. Such passport cart only be applied for, upon a declaration that the petitioner was a citizen of India, and this position has been accepted by the issue of a passport to him by the Government of India.

( 2 ) ON the 29th June, 1959 the Deputy Commissioner of Police, Special Branch, describing himself as the Civil Authority for the town of Calcutta and its suburbs, under the Foreigners Act, 1948, and the Foreigners Order, 1948, issued a notice upon the petitioner, directing him to leave India within seven days, failing which he would vender himself liable for action, including prosecution under the provisions of the said Act and Order. Following this, on the 29th June, 1959 the Principle Officer, Mercantile Marine Department, Calcutta District, served a notice on the petitioner that inasmuch as he had been served with a notice to leave India by the Civil Authority, his services were terminated with effect from the afternoon of 30th June, 1959. It is against these two orders that the petitioner has come up to this Court.

( 3 ) IN order that the Foreigners Act or Order should apply, the petitioner should be a foreigner, that is to say, not a citizen of India, it is conceded that if he is a citizen of India neither the Act nor the Order applies to him. The question of citizenship is dealt with in Part II of the Constitution. Article 5 states that at the commencement of the Constitution, every person who had his domicile in the territory of India, and 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. Doubtlessly, this is basically a question of fact, and in the ordinary course I would not be competent, in an application of this description, to go into such a disputed question of fact. In my opinion, however, on the materials before me, there is no dispute on any question of fact. The petitioner states in his petition, on oath, that he had been residing in Calcutta continuously ever since the beginning of the year 1943 and that he was domiciled here and had taken out an Indian passport. The taking out of the Indian passport is admitted, and with regard to the other facts, it is stated by the respondent No. 2 who has affirmed the affidavit in opposition, that he has no knowledge of the allegation and does not admit the same. It is firmly established that according to the rules of pleading, this does not amount to a denial. Excepting the fact tha