Fundamental rights under Art. 19(1)(d) and (e) of the Constitution are available only to citizens of India.

1. This is a petition under Art. 226 of the Constitution for issue of a direction or order or a writ in the nature of mandamus or prohibition or for grant of any other relief, to safeguard his fundamental rights under Art. 19(1)(d) and (e) of the Constitution.

2. The petitioner was arrested at Bhopal, on 6-4-1950 and detained under the Preventive Detention Act of 1950 for three months by the order of the Chief Commissioner and the detention was extended for another three months. But on 6-10-1950, when his application under Art. 226 of the Constitution was pending in the Judicial Commissioner's Court, Bhopal, he was released, his term having expired, but was externed from the whole of Bhopal State, an order under S. 4(1)(d), Bhopal State Public Safety Act of 1947 read with S. 5, Bhopal Administration Order, 1945 passed by the Chief Commissioner, Bhopal. It is this order that is now challenged as encroaching on the petitioner's fundamental rights under Art. 19 (1)(d) and (e) of the Constitution. The petitioner urges that the Bhopal State Public Safety Act as also the Bhopal Administration Order, 1945 are void under Arts. 19 and 13 of the Constitution.

3. Three affidavits are filed by the petitioner dated 21-10-1945, 12-11-1945 and 18-11-1950 while the State of Bhopal filed two affidavits sworn by the Home Secretary, Bhopal, dated 20-11-1950 and 2-12-1950. The petitioner claims to be a citizen of India while the State Govt. denies this fact and stated that the petitioner belonged to District Mymensingh (East Bengal) and shifted to Calcutta during the period of war and then came to Bhopal in January 1949 but has not settled at this place.

4. The petitioner contends :- (1) That S. 4, Bhopal State Public Safety Act of 1947, contravenes Arts. 19 and 22 of the Constitution and is void; (2) that the whole of the Bhopal State Public Safety Act of 1947 and S. 5 of the Bhopal Administration Order 1945 are void under Art. 13 of the Constitution; (3) that the order dated 6-10-45 is defective, mala fide and illegal.

5. The first and the most important point for determination, therefore, is whether the petitioner is a citizen of India. Part II of the Constitution lays down the Articles to determine citizenship of a person. The question is whether Art. 5 of the Constitution is applicable to the petitioner. Two essentials are necessary under this article viz.: (1) that the petitioner must have his domicile in the territory of India and (2) one of the factors as laid down under cls. (a) or (b) or (c). The petitioner claims that he has his domicile in the territory of India and that he has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement i.e., the commencement of the Constitution.

6. It is, therefore, necessary to find whether the petitioner has his domicile in the territory of India. In the affidavit dated 21-10-50 he merely states that he is a peaceful and respectable citizen of India but in the affidavit dated 12-11-50 he states that he is a displaced person from East Bengal, that he came to Bhopal since January 1949, that he has got no intention to go anywhere else and further that he is enrolled as a voter in the electoral list of Jahangirabad, Bhopal and has his hearth and home in Bhopal. In the affidavit dated 20-11-50 of the Home Secretary, Bhopal the antecedents of the petitioner are stated. It is said that he is not a displaced person from East Bengal that he originally belonged to District Mymensingh (East Bengal) where he was convicted for some offence and then shifted to Calcutta during the last great war, that he came down to Bhopal only in January 1949, and that he had not settled in Bhopal. In the affidavit dated 2-12-50 it is deined that the petitioner has his hearth and home in Bhopal, and stated that no other member of his family had been seen at any time living with the applicant at Bhopal; that the assertion of the applicant that he has been enrolled as