1. This is an appeal by the Union of India from a judgment of the High Courtof Punjab allowing the respondent's application under Art. 226 of theConstitution for a writ quashing an order made against him on January 29, 1958,under s. 3(2)(c) of the Foreigners Act, 1946. That order was made by the ChiefCommissioner of Delhi and was in these terms :
'The Chief Commissioner of Delhi is pleased todirect that Mr. Ghaus Mohd......... a Pakistan national shall not remain inIndia after the expiry of three days from the date on which this notice isserved on him.........'
2. The order was served on the respondent on February 3, 1958. Therespondent did not comply with that order but instead moved the High Court onFebruary 6, 1958, for a writ to quash it.
3. The High Court observed that 'There must be prima facie material onthe basis of which the authority can proceed to pass an order under s. 3(2)(c)of the Foreigners Act, 1946. No doubt if there exists such a material and thenthe order is made which is on the face of it a valid order, then this Court cannotgo into the question whether or not a particular person is a foreigner or, inother words, not a citizen of this country because according to Section 9 ofthe Citizenship Act, 1955, this question is to be decided by a prescribedauthority and under the Citizenship Rules, 1956, that authority is the CentralGovernment.' The High Court then examined the materials before it andheld, 'in the present case there was no material at all on the basis ofwhich the proper authority could proceed to issue and order under Section3(2)(c) of the Foreigners Act, 1946.' In this view of the matter of theHigh Court quashed the order.
4. It was contended on behalf of the Union of India that s. 9 of theCitizenship Act, 1955, had no application to this case. We think that thiscontention is correct. That section deals with the termination of citizenshipof a citizen of India in certain circumstances. It is not the Union's case northat of the respondent that the latter's citizenship came to an end for any ofthe reasons mentioned in that section. The reference to that section by theHigh Court for the decision of the case, was therefore not apposite. Thatsection had no application to the facts of the case.
5. Section 2(a) of the Foreigners Act, 1946, defines a 'foreigner'as 'a person who is not a citizen of India'. Sub-section (1) of s. 3of that Act gives power to the Central Government by order to provide for thepresence of continued presence of foreigners in India. Sub-section (2) of s. 3gives express power to the Government to pass orders directing that a foreignershall not remain in India. It was under this provision that the order askingthe respondent to leave India was made.
6. There is no dispute that if the respondent was a foreigner, then theorder cannot be challenged. The question is whether the respondent was aforeigner. Section 8(1) of the Foreigners Act to which we were referred, dealswith the case of a foreigner who is recognised as its national by more than oneforeign country or when it is uncertain what his nationality is. In such a casethis section gives certain power to the Government to decide the nationality ofthe foreigner. Sub-section (2) of this section provides that a decision as tonationality given under sub-section (1) shall be final and shall not be calledin question in any court. We entirely agree with the contention of the Unionthat this section has no application to this case for that section does notapply when the question is whether a person is a foreigner or an Indiancitizen, which is the question before us, and not what the nationality of aperson who is not an Indian citizen, is.
7. Section 9 of this Act is the one that is relevant. That section so far asis material is in these terms :
Section 9. 'If in any case not falling undersection 8 any question arises with reference to this Act or any order made ordirection given thereunder, whether any person is or is not aforeigner......... the onus of proving that such person is not aforeigner...... shall, notwithstanding anything contained in the IndianEvidence Act, 1872 (1 of 1872), lie upon such person.'
8. It is quite clear that this section applies to the present case and theonus of showing that he is not a foreigner was upon the respondent. The HighCourt entirely overlooked the provisions of this section and misdirected itselfas to the question that arose for decision. It does not seem to have realisedthat the burden of proving that he was not a foreigner, was on the respondentand appears to have placed that burden on the Union. This was a wholly wrongapproach to the question.
9. The question whether the respondent is a foreigner is a question of facton which there is a great deal of dispute which would require a detailedexamination of evidence. A proceeding under Art. 226 of the Constitution wouldnot be appropriate for a decision of the question. In our view, this questionis best decided by a suit and to this course neither party seems to have anyserious objection. As we propose to leave the respondent free to file such asuit if he is so advised, we have not dealt with the evidence on the record onthe question of the respondent's nationality so as not to prejudice anyproceeding that may be brought in the future.
10. We think, for the reasons earlier mentioned, that the judgment of theHigh Court cannot be sustained and must be set aside and we order accordingly.On behalf of the Union of India the learned Attorney-General has stated thatthe Union will not take immediate steps to enforce the order January 29, 1958,for the deportation of the respondent so that in the meantime the respondentmay if he so chooses, file a suit or take any other proceeding that he thinksfit for the decision of the question as to whether he is a foreigner.
11. In the result the only order that we make is that the order and thejudgment of the High Court are set aside.
12. Appeal allowed.