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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: GHAUS MOHAMMAD

DATE OF JUDGMENT: 04/04/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1526            1962 SCR  (1) 744  CITATOR INFO :  F          1963 SC1035  (10)  R          1974 SC  28  (2)  D          1991 SC1886  (7)

ACT: Externment  Order-Foreigner  or  Indian  Citizen-Burden   of proof-Law  applicable-Citizenship Act, 1955 (LVII of  1955), S.   9-Foreigners Act, 1946 (13 of 1946), ss. 3(2)(C), 9.

HEADNOTE: An order had been made under s. 3(2)(C) Of the Foreigners Act,  1946,  directing  that  the  respondent,  "a  Pakistan national                             745 shall  not remain in India after the expiry of three  days". The respondent moved the High Court of Punjab under Art. 226 of  the Constitution to quash the order contending  that  he was  not a Pakistan national.  The High Court held  that  if there  was Prima facie material to show that a person was  a foreigner,  a  civil court would not go  into  the  question whether he was a foreigner for under s. 9 of the Citizenship Act, 1955, that question had to be decided by the prescribed authority  which under the Rules framed under the  Act,  was the  Central  Government.   The  High  Court  came  to   the conclusion  that  there was no Prima facie material  on  the basis  of which an order under S. 3(2)(C) Of the  Foreigners Act could be passed against the respondent and in that  view quashed  the  order.   On appeal by the Union  of  India  by special leave, Held, that s. 9 of the Citizenship Act dealt with the termi- nation  of the citizenship of an Indian citizen and  had  no application  to this case as the Union did not contend  that the respondent had been an Indian citizen whose  citizenship had terminated. Section 8 of the Foreigners Act which made the decision‘  of the Central Government on a question of the nationality of a foreigner who is recognised as its national by more than one foreign country or when it is uncertain what his nationality is  final, also did not apply as the only question  in  this

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case was whether the respondent was a foreigner or an Indian Citizen. The  case was governed by s. 9 of the Foreigners  Act  under which when a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner is on that person. The High Court was in error In placing on the Union of India the burden of proving that the respondent was a foreigner.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 37  of 1960. Appeal  by special leave from the judgment and  order  dated the April 7, 1958, of the Punjab High Court (Circuit  bench) at Delhi in Criminal Writ No. 57-D of 1957. M.   C.  Setalvad, Attorney-General of India, B. Sen and  T. M. Sen, for the appellants. H.   L. Anand and Janardan Sharma, for respondent. 1961.  April 4. The Judgment of the Court was delivered by 94 746 SARKAR,  J.-This is an appeal by the Union of India  from  a judgment   of  the  High  Court  of  Punjab   allowing   the respondent’s application under Art. 226  Of the Constitution 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 Chief Commissioner of Delhi and was in these terms:               "The Chief Commissioner of Delhi is pleased to               direct that Mr. Ghaus Mohd......... a Pakistan               national  shall not remain in India after  the               expiry  of three days from the date  on  which               this notice is served on him........... The order was served on the respondent on February 3,  1958. The  respondent did not comply with that order  but  instead moved  the  High Court on February 6, 1958, for  a  writ  to quash it. The  High  Court observed that "There must  be  prima  facie material on the 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 then the  order is made which is on the face of it a valid order, then  this Court  cannot  go  into  the  question  whether  or  not   a particular  person is a foreigner or, in other words, not  a citizen  of this country because according to Section  9  of the Citizenship Act, 1955, this question is to be decided by a  prescribed  authority and under  the  Citizenship  Rules, 1956,  that authority is the Central Government."  The  High Court  then examined the materials before it and  held,  "in the  present case there was no material at all on the  basis of  which  the proper authority could proceed  to  issue  an order  under Section, 3(2)(c) of the Foreigners Act,  1946." In this view of the matter the High Court quashed the order. It  was contended on behalf of the Union of India that s.  9 of  the  Citizenship Act, 1955, had no application  to  this case.   We  think  that this contention  is  correct.   That section  deals  with  the termination of  citizenship  of  a citizen  of India in certain circumstances.  It is  not  the Union’s  case nor that of the respondent that  the  latter’s citizenship came to an end 747 for  any  of  the reasons mentioned in  that  section.   The reference to that section by the High Court for the decision

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of  the case, was therefore not apposite.  That section  had no application to the facts of the case. 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. 3 of that Act gives power to the  Central Government by order to provide for the presence or continued presence  of foreigners in India.  Sub-section (2) of  s.  3 gives  express  power  to  the  Government  to  pass  orders directing  that a foreigner shall not remain in  India.   It was   under  this  provision  that  the  order  asking   the respondent to leave India was made. There is no dispute that if the respondent was a  foreigner, then  the  order  cannot be  challenged.   The  question  is whether the respondent was a foreigner.  Section 8(l) of the Foreigners  Act  to which we were referred, deals  with  the case  of  a foreigner who is recognised as its  national  by more  than one foreign country or when it is uncertain  what his  nationality  is.  In such a  case  this  section  gives certain power to the Government to decide the nationality of the  foreigner.   Sub-section (2) of this  section  provides that  a decision as to nationality given under sub-sec.  (1) shall  be final and shall not be called in question  in  any court,.  We entirely agree with the contention of the  Union that  this section has no application to this case for  that section does not apply when the question is whether a person is  a foreigner or an Indian citizen, which is the  question before  us, and not what the nationality of a person who  is not an Indian citizen, is. Section  9  of this Act is the one that is  relevant.   That section so far as is material is in these terms:               Section  9. "If in any case not falling  under               section  8 any question arises with  reference               to  this  Act or any order made  or  direction               given thereunder, whether any person is or  is               not  a foreigner......... the onus of  proving               that such person is not a foreigner ... shall,               notwithstanding  anything  contained  in  ’the               Indian  Evidence  Act, 1872 (1 of  1872),  lie               upon such person." 748 It  is quite clear that this section applies to the  present case and the onus of showing that he is not a foreigner  was upon  the respondent.  The High Court  entirely   overlooked the provisions of this section and misdirected itself as  to the  question that arose for decision.  It does not seem  to have  realised that the burden of proving that he was not  a foreigner, was on the respondent and appears to have  placed that burden on the Union.  This was a wholly wrong  approach to the question. The  question  whether the respondent is a  foreigner  is  a question  of fact on which there is a great deal of  dispute which  would require a detailed examination of evidence.   A proceeding  under Art. 226 of the Constitution would not  be appropriate  for a decision of the question.  In  our  view, this  question is best decided by a suit and to this  course neither  party seems to have any serious objection.   As  we propose to leave the respondent free to file such a suit  if he is so advised, we have not dealt with the evidence on the record on the question of the respondent’s nationality so as not  to prejudice any proceeding that may be brought in  the future. We  think,  for  the reasons  earlier  mentioned,  that  the judgment  of the High 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  that  the

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Union will not take immediate steps to enforce the order  of January  29, 1958, for the deportation of the respondent  so that  in the meantime the respondent may if he  so  chooses, file a suit or take any other proceeding that he thinks  fit for  the  decision  of the question as to whether  he  is  a foreigner. In the result the only order that we make is that the  order and the judgment of the high Court are set aside. Appeal allowed. 749