Judgment

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.

2. 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 S. 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 S. 3(2)(c) of the Foreigners Act, 1946." In this view of the matter the High Court quashed the order.

3. 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 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.

4. 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.

5. 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(1) 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.

6. 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 S. 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or i