DEBABRATA MOOKERJEE, J. - (1.) THIS appeal is from an order of Banerjee J. dismissing in limine an application under Art. 226 of the Constitution for the issue of a composite writ of mandamus and certlo -rari.
(2.) THE facts which require to be stated for the limited purpose of this appeal are these: The appellant claims to be an Indian citizen who was born at Noakhali before India was partitioned, about 25 years ago he came to this country and later accepted employment as a Boiler Fireman at Samala Colliery in the district of Burdwan. His case is that he has ever since been living at the place where he acquired lands upon which he built a house, married a wife and had by her children. He had been Involved about 1950 in litigation and produced evidence of having paid rents for the lands he held. His case further is that on receipt of an urgent message that his sister had been lying seriously ill at Noakhali, he attempted to obtain a passport from the country but having failed to do so, he adopted the advice of obtaining a Pakistani passport which was issued in his favour on the basis that he had been a Pakistan national. This passport was issued on the 31st of March 1953 and against it he obtained an Indian visa which permitted him to stay in this country till the 7th of April 1955. The visa was later extended by another year which permitted his stay in India till the 7th of April, 1956. Al -though he had obtained the Pakistani passport, it was never used since he had intimation of the death of his sister and consequently there was no longer any reason for him to leave this country. In February 1961, a police office approached him for purposes of interrogation and the appellant then produced his Pakistani passport which he had obtained on, what he now states, a false pretence in order to be able to rush to Noakhali so that he might have a last look at his dying sister.
(3.) PRESUMABLY , in consequence of enquiries which followed, the appellant was served with a notice dated the 8th of September 1961 issued by the Deputy Secretary to the Government of West Bengal, 'Home (Passport) Department. The notice stated that in exercise of the power conferred by Clause (c) of sub -Section (2) of Section 3 of the Foreigners' Act, 1946, read with the Government of India Notification No. 4/3/56 -(l) -F.I. dated the 19th April, I958, the Governor was pleased to order that the appellant, a foreigner of Pakistan nationality, should not remain in India after the expiry of seven days from the date of service of the order upon him. The appellant did not comply with the order but applied instead to the Superintendent of Police District Enforcement Branch Burdwan asking for permission to stay on in this country till the 5th of December, 1961. In this petition, the appellant stated that while he felt bound to quit India by the date mentioned in the notice, he prayed to be shown some accommodation on the ground that he had to collect his debts and pay his own for which at least one month would be necessary. The actual words used by the appellant may be noticed: 'For all the reasons, it will be convenient on my part to quit India provided at least one month is extended for quitting India. I am bound to leave India and I must go to East Pakistan.;