A person who has migrated to Pakistan after the prescribed date and obtained a Pakistan passport is no longer a citizen of India and can be considered a foreigner under the Foreigners' Act 1946.

( 1 ) THE facts in these two cases are shortly as follows : The petitioner in the first case is Dawood Ali Arif Bham and the petitioner in the second case is his wife. The petitioner Dawood Ali Arif Bham says that he is the Mutwalli of a wakf situated in Calcutta, the wakf estate having been created by the petitioner's grand-father Hazi Kasem Arif Bham, deceased. He says that in 1950, when there was recrudescence of communal disturbances in Calcutta, he and his wife Aziza Begum, petitioner in the second case, left for Amnura in Rajshai situate in Eastern Pakistan. There, he resided for some time and eventually he applied for a Pakistan passport. In the meantime the passport-cum-visa system had been introduced in India, sometime in October, 1952 and the special passport obtained by the petitioner from the District Magistrate, Rajshai, is dated 28th November, 1952. With this passport, the petitioner and his wife came back to India. On or about 5th May, 1954 it is alleged that he surrendered his passport to the Deputy High Commissioner for Pakistan in Calcutta. On 24th May, 1957 the petitioner was served with a notice by Sri B. B. Bagchi, Deputy Commissioner of Police, Special Branch, Calcutta. The order was in the following terms :"i order that Shri Dawood Ali Arif Bham, s/o L. Ali Arif Bham of 3 Amratala Lane, Calcutta, shall leave India within thirty (30) days from the date of service of this notice, failing which he will render himself liable for action including prosecution under the provisions of the Foreigners' Act 1946 and Foreigners Order, 1948. "

( 2 ) THIS order was signed by Shri B. Bagchi as Deputy Commissioner of Police, Special Branch and Civil Authority for Calcutta and Suburbs. It is against this order that the petitioner has come up to this Court. These Rules were issued on 10th July, 1957 calling upon the opposite parties to show cause why a Writ in the nature of Mandamus should not issue, directing them to forbear from giving effect to the order complained of in the petition, and for other reliefs. The position in Jaw seems to be as follows : Article 5 of the Constitution lays down that at the commencement of the Constitution, every person who had his domicil in the territory of India and who was either born in the territory of India or either of whose parents was born in the territory of India, or who had been ordinarily resident in the territory of India for not fess than five years immediately preceding such commencement, shall be a citizen of India. This provision of law is however subject to Article 7 which is set out below :"notwithstanding anything in Articles 5 and 6 a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be citizen of India : Provided that nothing in this Article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for re-settlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of Clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948. "

( 3 ) ACCORDING to Article 5, the petitioner is undoubtedly a citizen of India. He was born, and his parents were born, in Indian territory and he was residing in India immediately prior to the commencement of the Constitution, not only for 5 years but all his life. The question is whether it can be said that after the first day of March, 1947 he has migrated from the territory of India to the territory now included in Pakistan. I have stated above that in 1950 the petitioner and his wife deliberately left India and went over to Eastern Pakistan. It may be that there was a reason for going, namely, the communal disturbances in India. But even assuming that this was the reason why they went to Eastern Pakistan, the question is