JUDGEMENT
D.Basu, J. -
(1.)This application under Article 226 of the Constitution is directed against the order served upon the Petitioner to quit India, dated the 2nd August, 1962, issued under Section 8 (2) (o) of the Foreigners Act, 1946, which Is in Annexure M to the Petition.
(2.)The Petitioner's case, in short, is that he was born in India, In the district Birbhum, in 1925, where his parents have all along been living, in the ancestral home. The Petitioner was brought up and educated in India and was, in 1945, appointed a Clerk in the Office of the Chief Commercial Manager, B. and A. Railway. At the time of the Partition of India, he exercised his option for service in Pakistan, but his parents remained in India. In January, 1950, he came home from Saidpur, in Pakistan, where he was posted, and remained at home till the 10th of October, 1952. Thereafter, he temporarily returned to Saidpur with the intention of resigning his post, but, the Passport system having in the meantime been Introduced, the Petitioner had to come to India, next time, in March, 1953, on obtaining a Pakistani passport He had to return to Saidpur on receiving a call from his office but had to come home again IB September, 1959, on account of his mother's illness, and, for overstaying at home, the Pakistani authorities discharged him on 21-12-1959. 8. The Petitioner, next, avers that after the discharge from service, he surrendered his Pakistani passport and, as advised by the D. I. B. Suri, made an application for Indian citizenship under Section 5(1)(a) of the Citizenship Act, 1956, but that application has been rejected on the 7th July, 1962 (Ann. L), by the State Government and this has bean followed by the impugned order to quit India, which was served on the Petitioner on 26-8-1962.
(3.)The primary ground upon which the petitioner challenges the impugned order is that he is a citizen of India under Article 5 of the Constitution and that, accordingly, that citizenship can be terminated only by a determination made by the Central Government under Section 9(2) of the Citizenship Act, and that the rejection of his application under Section 5(1) by the State Government is not conclusive or binding.