Dixit C.J.- l. This is an application under Article 226 of the Constitution for the issue of a writ of certiorari for quashing an order made by the State Government on 20th February 1962 under section 3 (2) (c) of the Foreigners Act, 1946, directing the petitioner, Usman Ali to leave India within seven days of the receipt of the order.

2. The petitioner was born in Umaria on 15th July 1938. His father, Ishtiaque Ali, is a petition-writer at Umaria. In April 1952 he went with his maternal grand-father, one Mohammad Ibrahim, to Karachi. After a stay of nearly two years he returned to India on a Pakistani passport issued on 12th February 1954. Since then he has been residing with his father at Umaria. The petitioner contends that he and his father as also this brothers and sisters all had their domicile in the territory of India at the time of the commencement of the Constitution and are citizens of India by virtue of article 5 that his father never migrated to Pakistan; that he was a minor when he went with his maternal-grandfather to Karachi in 1952; that this visit to Pakistan did not constitute any voluntary migration to Pakistan so as to destroy his Indian citizenship acquired by virtue of article 5 and that he was a minor when he applied for a passport in Pakistan, and that being so, the fact that he returned to India on a Pakistani passport or made a declaration of his being a Pakistani citizen for obtaining a passport can in no way be regarded as showing that he had voluntarily acquired the citizenship of Pakistan. The petitioner says that he is and has always been an Indian citizen and not a foreigner, and consequently the order made under section 3 (2) (c) of the Foreigners Act asking him to leave India is illegal.

3. In the return filed on behalf of the opponents, it is not disputed that the petitioner was a minor when he went to Pakistan in 1952 and returned to India in 1954 and that he is still a minor. It is also not disputed that his father Ishtiaque Ali has al ways been residing at Umaria and that both the petitioner and his father had their domicile in India at the commencement of the Constitution. It has, however, been averred that it was with the consent of his guardian that the petitioner went to Pakistan in 1952 with his maternal grandfather, and that thus he became a Pakistani citizen and returned to India as a Pakistani citizen on a Pakistani passport.

4. This petition must be granted. When an order under section 3 (2) (c) of the Foreigners Act directing a person to leave India is made and that order is challenged, the question to be determined is whether the person is a foreigner or an Indian citizen. Under section 9 of the Act, the onus of showing that he is not a foreigner is upon the person against whom the order has been made. In the present case, on the admitted facts it is abundantly clear that the petitioner is an Indian citizen the applicant and his father had their domicile in India at the commencement of the Constitution. They have, therefore, the status of Indian citizens by virtue of article 5 of the Constitution. The petitioner's father never migrated to Pakistan and has all along been living at Umaria. It was during his minority that the applicant want to Karachi not with his father but with his maternal grand-father. He was a minor at the time when be obtained a Pakistani passport and returned to India on the basis of it in 1954. It is well settled that in the case of a dependant his domicile "is the same as, and changes (if at all) with the domicile of the person on whom he is, as regards his domicile, legally dependent" (see Rule - 11 in Dicey's Conflict of Laws. 7th edn., at p. 113). Thus a dependant person has domicile of the person on whom he is considered by law to be dependant. A dependant person cannot acquire a domicile of choice by his own act. Again, it has been stated in Dicey's Conflict of Laws, at p. 122, that "the last domicile which a person receives while he is a dependant