JUDGMENT 1. This Rule is directed against an order made on the petitioner by respondent No. 5, who is a Civil Authority in the district of Murshidabad, under Rule 3 of the Foreigners Order, 1948, directing the petitioner to leave India within seven days. 2. The petitioner alleges that he was born in village Baleshyampur, Police Station Bhagabangola, in the district of Murshidabad. He says that he has ancestral dwelling house and properties in the said village and that his wife and children also live in that village. In the year 1918, he says, he was recruited as a "gangman" in the East Indian Railway, was posted at Bhagabangola and served in that position continuously up to the year 1947. On the eve of partition of India, he opted for service in East, Pakistan and was posted at Rajsahi, where he worked between 1947 and 1955. The petitioner attempts to give an explanation as to why he opted for Pakistan. He says that he was under a misapprehension that under the Radcliff Award Murshidabad district would fall in the share of Pakistan and since he did not want to leave his native district and to be posted elsewhere, he made the choice of service under the Government of Pakistan, only to be disillusioned about his mistake when it was too late. 3. It also appears that the petitioner used to enter Indian Union, under a pakistani passport, from time to time. The petitioner attempts to give an explanation as to why he obtained a Pakistani passport. He says that he was coming from East Pakistan to India and going back from India to East Pakistan without travel documents, when suddenly one day he was stopped at a border check-post for such documents. Since it was very difficult for a person resident in East Pakistan to obtain an Indian passport, he applied for a Pakistani passport and easily obtained one. He used that passport from time to time. When he came back to India, after having given up his service in East Pakistan, the petitioner states, he surrendered his Pakistani passport. 4. Having come back to India, the petitioner alleges, he settled down in his native village Baleshyampur and took to cultivation. He used that passport from time to time. When he came back to India, after having given up his service in East Pakistan, the petitioner states, he surrendered his Pakistani passport. 4. Having come back to India, the petitioner alleges, he settled down in his native village Baleshyampur and took to cultivation. He says that he began paying taxes to the local Union Board and was recorded as a voter in a constituency of the Union Board and of the West Bengal Legislative Assembly and of the Indian Parliament. On August 7, 1959 there was an order served on the petitioner by the respondent No. 5, the Civil Authority, to quit India. The petitioner characterised the said order as illegal and mala fide made against him. So as to obviate troubles, the petitioner filed an application under section 5 (1) (a) of the Citizenship Act, 1955, before the prescribed authority, for his registration as a citizen of India. That application was rejected and the matter rests there. It is in these circumstances that the petitioner moves this Court, under Article 226 of the Constitution, praying for a writ of Certiorari for quashing the order, dated August 7, 1959, and for a writ of Mandamus directing the respondents not to enforce the order against him. 5. Mr. C. F. Ali, learned Advocate for the petitioner, contends that the petitioner became a citizen of India under Article 5 of the Constitution and no order directing him to quit India could be made against him by the Civil Authority, under the Foreigners Order, 1948. Now Article 5 of the Constitution, in so far as material for the present purposes, is to the following effect:- "5. At the commencement of this Constitution, every person who has his domicile in the territory of India and- (a) who was born in the territory of India; or (b. . (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. " 6. The petitioner was admittedly born at Baleshyampur, a place within the Indian Union. Admittedly he opted for Pakistan on the eve of partition of India and remained in East Pakistan between 1947 and 1955 (1958 according to the affidavit-in-opposition filed on behalf of the District Magistrate of Murshidabad. " 6. The petitioner was admittedly born at Baleshyampur, a place within the Indian Union. Admittedly he opted for Pakistan on the eve of partition of India and remained in East Pakistan between 1947 and 1955 (1958 according to the affidavit-in-opposition filed on behalf of the District Magistrate of Murshidabad. The question is whether the petitioner had his domicile in India at the commencement of the Constitution, in spite of that what has been stated above. "two constituent elements that are necessary by English Law for the existence of domicile", observed the Supreme Court in Central Bank of India Ltd. v. Ram Narain (1) 1954 S. C. A. 1305, "are: (1) a residence of a particular kind, and (2) an intention of a particular bind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicile and the law may attribute to him a domicile in a country where in reality he has not. A person may be a vagrant as when he lives in a yacht or wanders from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicile in one particular territory. In order to make the rule that nobody can be without a domicile effective, the law assigns what is called a domicile of origin to every person at his birth. This prevails until a new domicile has been acquired, so that if a person leaves title country of his origin with an undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. " That being the law, let me now test what the domicile the petitioner had at the commencement of the Constitution. His domicile of origin was undoubtedly undivided India. Undivided India or British India ceased to exist under the provisions of Indian Independence Act, with effect from August 15, 1947 and two new dominions, India and Pakistan, came to exist in its place. His domicile of origin was undoubtedly undivided India. Undivided India or British India ceased to exist under the provisions of Indian Independence Act, with effect from August 15, 1947 and two new dominions, India and Pakistan, came to exist in its place. With the cessation of undivided India the petitioner's domicile of origin ceased to be effective, because it is not possible for anybody to have a domicile in a country which does not exist. Unless, therefore, the petitioner had subsequently acquired a domicile of some other country, he would acquire the domicile either of the Indian Union or of Pakistan (See A.I.R. 1953 Cal., 530 (2) R. E. Attaullah v. J. Attaullah, the question is which domicile the petitioner acquired. 7. At the date of the commencement of the Constitution the petitioner was residing at Rajsahi, in East Pakistan, and was serving the Pakistan Government. He so resided between 1947 to 1955 or 1958. He also took out a Pakistani passport to facilitate his sojourn to India, where his family may have been residing. The residence of his family in India is no doubt a circumstance in his favor but is not conclusive on the point, without any material showing that he had not established a home in East Pakistan, where he was living for years. Even if from that fact an animus can be ascribed to him to come to settle in India the factum of his residence in India was wanting. In the absence of that fact, an Indian domicile cannot be ascribed to the petitioner. In this view I am fortified by the observations of Mahajan, C. J. in the case of Central Bank of India Ltd. v. Ram Narain (1) (A. I. R. 1955 S. C. 36 at page 40. Further the fact that the petitioner of his own accord obtained a Pakistani passport adds weight to the conclusion that he was a person of Pakistani domicile which domicile he acquired. 8. If the petitioner had no domicile in India at the commencement of the Constitution, he cannot be said to have become a citizen of India, under Article 5 of the Constitution, merely by reason of his birth at a place which happens to fall within the Indian Union. Moreover, the petitioner applied for his registration as, a citizen of India under section 5 of the Citizenship Act. Moreover, the petitioner applied for his registration as, a citizen of India under section 5 of the Citizenship Act. That he could do only if he was not already a citizen of India under the Constitution. This conduct on the part of the petitioner makes it further difficult for him now to claim citizenship under Article 5 of the Constitution. Then again, the petitioner's application for registration as a citizen was rejected by the prescribed Authority and he left the matter there. For the aforesaid reasons, I am disinclined to interfere with the order complained of. This Rule is accordingly discharged, but I make no order as to costs.