iminal 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
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 article 226 Of the Constitution for a writ quashing an order made against him on January 29 1958 under section 32c of the 
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 section 32c of the 
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  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 32c of the  In this view of the matter the High Court quashed the order
It was contended on behalf of the Union of India that section 9 of the  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 of the case was therefore not apposite
That section had no application to the facts of the case
Section 2a of the  defines a foreigner as a person who is not a citizen of India Sub section 1 of section 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 section 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 8l of the 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 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 article 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 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


Summary:
An order had been made under section 32C Of the  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 article 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 section 9 of the  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 section 32C Of the 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 section 9 of the 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 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 case was whether the respondent was a foreigner or an Indian Citizen
The case was governed by section 9 of the 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