# UNION OF INDIA v. GRAUS MOHAMMAD

- **Citation:** [1962] 1 S.C.R. 744
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Criminal Appeal No. 37 of 1960
- **Bench:** B. P. Sinha, S. K. Das, A. K. SaRKAR, K. C. Das GUPTA, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-graus-mohammad-2077
- **Pages:** 5

## Headnote

Externinent Order-Foreigner or Indian Citizen-Burden of
proof-Law applicable-Citizenship Act, I955 (LV II of 1955),
s. 9-Foreigners Act, z946 (IJ of z946), ss. 3(2)(c), 9·
An order had been made under s. 3(2)(c) of the Foreigners
Act, 1946, directing that the respondent, "a Pakistan national
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1
I S.C.R.
SUPREME COURT REPORTS
745
shall not remain in India after the expiry of three days'". The
r96r
respondent moved the High Court of Punjab under Art. 226 of
.
.
the Constitution to quash the order contending that he was not Union of Indta
a Pakistan national. The High Court held that if there was prima
v.
facie material to shO\V that a person was a foreigner, a civil Ghaus ll!ohamtnad
court would not go into the question whether he was a foreigner
for under s. g of the Citizenship Act, r955, 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 c;ime 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, thats. 9 of the Citizenship Act dealt with the termination of the cit!zenship 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 whtn 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 s, g 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.
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. 0. 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
deHvered by
ll.\
746
SUPREME COURT REPORTS
[1962]
I96r
SARKAR, J.-This is an appeal by the Union of
~
India from a i"udgment of the High Court of Puni"ab
Union of India
v.
allowing the respondent's application under Art. 226
Ghaus Mohammad of the Constitution for a writ quashing an order made
against him on January 29, 1958, under s. 3(2)( c) of
Sark" J.
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 t

## Text

744
SUPREME COURT REPORTS
[1962]
Though we are upholding the decision of the High
Court, we wish to observe that we do not do. so for the
The State of
Andhra Pradesh reasons mentioned by it. It is unnecessary to discuss
z96r
v.
those reasons but we would like to point out one
Abdul Khad" thing, namely, that the High Court seems to have
Sarkar ].
April 4·
been of the opinion that Art. 7 of the Constitution
contemplates migration from India to Pakistan even
after January 26, 1950.
We desire to make it clear
that we should not be taken to have accepted or endorsed the correctness of this interpretation of Art. 7.
The reference in the opening words of Art. 7 to Arts.
5 and 6 taken in conjunction with the fact that both
Arts. 5 and 6 are concerned with citizenship (at the
commencement of the Constitution) apart from various other considerations would appear to point
to the conclusion th11t the migration referred to in
Art. 7 is one before January 26, 1950, and that the
contmry construction which the learned Judge has
put upon Art. 7 is not justified, but in the view that
we have taken of the facts of this case, namely, that
the respondent had never migrated to Pakistan, we
do not consider it necessary to go into this question
more fully or finally pronounce upon it.
In the result we dismiss the appeal.
Appeal dismissed.
UNION OF INDIA
v.
GRAUS MOHAMMAD
(B. P. SINHA, C. J., S. K. Das, A. K. SaRKAR,
K. C. Das GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)
Externinent Order-Foreigner or Indian Citizen-Burden of
proof-Law applicable-Citizenship Act, I955 (LV II of 1955),
s. 9-Foreigners Act, z946 (IJ of z946), ss. 3(2)(c), 9·
An order had been made under s. 3(2)(c) of the Foreigners
Act, 1946, directing that the respondent, "a Pakistan national
.. '
•
•
..
•
•
.I
1
I S.C.R.
SUPREME COURT REPORTS
745
shall not remain in India after the expiry of three days'". The
r96r
respondent moved the High Court of Punjab under Art. 226 of
.
.
the Constitution to quash the order contending that he was not Union of Indta
a Pakistan national. The High Court held that if there was prima
v.
facie material to shO\V that a person was a foreigner, a civil Ghaus ll!ohamtnad
court would not go into the question whether he was a foreigner
for under s. g of the Citizenship Act, r955, 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 c;ime 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, thats. 9 of the Citizenship Act dealt with the termination of the cit!zenship 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 whtn 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 s, g 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.
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. 0. 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
deHvered by
ll.\
746
SUPREME COURT REPORTS
[1962]
I96r
SARKAR, J.-This is an appeal by the Union of
~
India from a i"udgment of the High Court of Puni"ab
Union of India
v.
allowing the respondent's application under Art. 226
Ghaus Mohammad of the Constitution for a writ quashing an order made
against him on January 29, 1958, under s. 3(2)( c) of
Sark" J.
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
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1 '.S.C;R. SUPREME COURT REPORTS
747.
for any of the reasons mentioned in that sectiOn. The
reference to that section by· the High Court for the
z96I
Union of India
decision of the case, was therefore not apposite. That
v.
section had no application to the facts of the case.
Ghaus Mohammad
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 ma.de .
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 th"'t 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."
Sarkar ].
748
SUPREME COURT REPORTS
[1962)
'96'
It is quite clear that this section applies to the present
Uuioo of InJia case and the onus of showing that ?e is not a forei~ner
v.
was upon the respondent. The High Court entirely
Ghaus Mohammad overlooked the provisions of this section and misdirected itself as to the question that arose for decision. It
5'" 1'"' J.
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 sueh 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 AttorneyGeneral 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 ho thinks
fit for the decision of the question as to w hcther 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.
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