( 1 ) IT may be necessary at the very outset to state certain facts to enable the controversy to be judged. On 11th, September, 1957 (the year 1953 given in annexure F is a mistake) the Civil authority who was the Superintendent of Police, Shahjhanpur, served a notice upon the petitioner under the provisions of the Foreigners Act 1946 that he was a Pakistani national who had entered this country under a passport and that his visa expired on the 21st September, 1953 but he was still continuing here. He, therefore, required him to leave India within thirty days from the date of the service of the notice else he will be prosecuted under Section 14 of the foreigners Act and steps will also be taken to deport him out of the limits of this country. Prior to the service of the above notice the petitioner had oh more than one occasion made an attempt to be repatriated to this country in pursuance of the Nehru Liaqat Pact but his efforts did not materialize.

( 2 ) HIS parents, both the father and the mother, were admittedly citizens of this country. The father is dead but the mother is Still alive. The former died on the 8th November, 1956. He has two brothers who too are citizen?, of India. The petitioner claiming that he too is a citizen of india has commenced this petition under Article 226 of the Constitution impugning the legality of the notice dated the 11th September, 1957, and has asked that the opposite parties be restrained by a writ of mandamus from prosecuting the petitioner and also deporting him.

( 3 ) THE petitioners allegations are that he was born at his paternal house in Mohalla Banwaripur, post Office Tilhar, District Shahjahanpur, on 19th July, 1941 and that in July 1947 i. e. six years later he joined the Biryaganj Primary School Tilhar. His allegation further is that he pursued his studies in the above school until he left it in May, 1950. In support he has produced the School leaving Certificate which describes his period of study in the school from 21st July, 1947, to 31st May, 1950. The importance of, the above allegation lies in the fact that on the 26th January, 1950, when the Constitution came into force he along, with his parents was domiciled in India. In his effort to show that he and his parents were domiciled in India and were citizen also of this country, the petitioner has cited several instances in which his parents and brothers including himself were held to be residents in India. In 1950 there were serious communal disturbances in the district of Shahjahanpur. The petitioners allegation is that he was at the time of these disturbances staying with, his sister in village Bhanderi, Police Station Kant, from where all the member of his sisters family including him had to escape into Pakistan to save their lives and property. At that time, the petitioner claims, he was still a minor and further that he had gone to Pakistan not with the intention of migration but because his sister went there to protect her life. Further according to him it was not until sometime in 1953 that his parents were able to know that lie bad been taken away to Pakistan by his sister. But as soon as this fact was known everyone, including the petitioner who to wanted to live with his parents made different efforts to return to his home. Ultimately he was able to return to this country in 1953 on a passport which he secured on his representing himself to be a Pakistani citizen. A visa was also obtained thereon which as earlier stated expired on the 21st September, 1953.

( 4 ) IT is conceded that the principal question which will determine the fate of this petition is whether the petitioner is or is not a citizen of India. In ease he is such a citizen the proceedings commenced against him under the Foreigners Act will undoubtedly be bad. Article 5 of the constitution has in Clause (a) and also in Clause (b) laid down that "every person who was domiciled in India on the 26th January, 1950, and who was born in the