1. This is a petition under Article 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 Article 19(1)(d) & (e) of the Constitution.
2. The petitioner was arrested at Bhopal, on 6-4-1950 & detained under the Preventive Detention Act of i960 for three months by the order of the Chief Commissioner & the detention was extended for another three months. But on 6-10-1850, when his application under Article 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 Section 4 (1)(d), Bhopal State Public Safety Act of 1947 read with S. S. 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 Article 19(1)(d) & (e) of the Constitution. The petitioner urges that the Bhopal State Public Safety Act as also the Bhopal Administration Order, 1945 are void under Articles 19 & 13 of the Constitution.
3. Three affidavits are filed by the petitioner dated 21-10-1945,12-11-1945& 18-11-1950 while the State of Bhopal filed two affidavits sworn by the Home Secretary, Bhopal, dated 20-11.1950 & 2-12-1950. The petitioner claims to be a citizen of India while the State Govt. denies this fact & states that the petitioner belonged to District Mymensingh (West Bengal) & shifted to Calcutta during the period of war & then came to Bhopal in January 1949, but has not settled at this place.
4. The petitioner contends: - (1) That Section 4, Bhopal State Public Safety Act of 1947, contravenes Article 19 & 22 of the Constitution & is void; (2) that the whole of the Bhopal State Public Safety Act of 1947 & Section 5 of the Bhopal Administration Order, 1945 are void under Article 13 of the Constitution; (3) that the order dated 6-10-45 is defective, mala fide & illegal.
5. The first & 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 Article 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 & (a) one of the factors as laid down under Clauses (a) or (b) or (c). The petitioner claims that he has his domicile in the territory of India & 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 & respectable citizen of India but in the affidavit dated 12 11-50 he states that be is a displaced persan from East Bengal, that he came to Bhopal since January 1949, that he has got no intention to go anywhere else & further that he is enrolled as a voter in the electoral list of Jahangirabad, Bhopal & has his hearth & 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 offense & then shifted to Calcutta during the last great war, that he came down to Bhopal only in January 1949, & that he had not settled in Bhopal. In the affidavit dated 2-12-50 it is deined that the petitioner has his hearth & home in Bhopal, & 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 a voter in the electoral list of Jahangirabad, Bhopal is not admitted. These are, therefore, antecedents & facts about the petitioner. It was, therefore, necessary for the petitioner to adduce evidence to prove the facts asserted by him & denied by the State. No such other evidence than the affidavits is laid before this Court & therefore the question of fact as to whether the petitioner falls within the purview of Article 5 of the Constitution has to be decide 3 on the material as found in the affidavits.
7. The first essential under Article 5 of the Constitution is that the petitioner should have his domicile in the territory of India. The word 'domicile' is not defined, but as found in the Law Lexicon (P. R. Iyer) domicile is the place where a man has his home or a person's regular place of abode or generally speaking, the place where he has his permanent home. It is further clarified as that place is properly the domicile of a, person in which he has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his permanent home. It must appear that the affidavit dated 12-11-60 does not say anything as to when the petitioner was displaced & where he was till January 1949. The affidavit of the Home Secretary, dated 20-11-50 states that the petitioner shifted to Calcutta during the last great war & came to Bhopal only in January 1949. There is nothing to show in the affidavit of the petitioner that he resided at Calcutta permanently or at any other place in the Indian territory. As regards his story at Bhopal, the affidavit of the parties controvert each other & in view of the denials & assertions by the Home Secretary in detail regarding the petitioner's permanent residence at Bhopal, I am clear that it is not proved that the petitioner has his domicile even at Bhopal. The very first essential under Article 5 of the Constitution is, therefore, absent in the case of the petitioner & therefore, even if he has been ordinarily resident in the territory of India for not less than 8 years immediately preceding the commencement of this Constitution, that fact does not help him to claim to be a citizen of India.
8. Turning to Article 6 of the Constitution, ill would appear that if the petitioner is considered to be a person who has migrated to the territory of India from the territory now included in Pakistan, the requisite under Clause (a) is absent as it is not stated that the petitioner or either of his parents or any of his grand-parents was born in India as defined in the Govt. of India Act, 1935 (as originally enacted this being not proved, in the statement in the petition of the petitioner in that behalf. In the circumstances, the petitioner does not fall within the purview of Article 6 of the Constitution & therefore, it cannot be held that the petitioner is a citizen of India. The petitioner banks his other contentions on the fundamental rights under Article 19(i)(d) & (e) of the Constitution available only to a citizen. The petitioner being not proved to be a citizen of India, no such fundamental rights, as found in the above clauses of the article, can be claimed by him. That being so, in my opinion, the very basis of his contentions, in regard to the provisions of law which he challenges, is knocked out.
l0. The very plank on which the petitioner stood to challenge the validity of the Bhopal State Public Safety Act or any of his provisions & the Bhopal Administration Order having been knocked out, all his contentions in that behalf fail & his petition is liable to be rejected on the preliminary objection itself; it is therefore not necessary to enter into other questions.
11. The petition is, accordingly rejected.