C.M.Lodha, J. - (1.) The petitioners who are brothers have made two separate applications under Article 226 of the Constitution for issue of writ quashing orders made against them under Section 3 (2) (c) of the Foreigners Act, 1946 (which will hereinafter be referred to as 'the Act'). The orders are identical and read as follows: "You............ a Pak. national resident of Chak No. 179 P. S. Fortabas District Bhawalpur, Pak. at present residing in India at Phoolsar PS Anoopgarh c/o..................... entered India on 10-11-1971 without any valid travel documents for which you are facing trial in the Court of Judicial Magistrate 1st Class Raisinghnagar in case FIR No. 17 dated 11-10-1971 under Section 3/6 IPPA, 3/14 F. Act PS Gharsana. I, Shyam Pratap Singh Rathore, District Superintendent of Police, Sri Ganganagar hereby order you under Section 3 (2) (c) of Foreigners Act, 1946 to leave India before 14-8-1974 positively. You are further directed to secure requisite travel documents through the Swiss Mission in India and make your own travel arrangements to proceed to Pakistan. Any failure on your part to comply with this order shall make you liable for penal prosecution under the provisions of Foreigners Act, 1946." Sd. S. P. Singh Rathore, IPS Distt. Supdt. of Police, Sri Ganganagar." The petitioners did not comply with the orders but instead moved this Court on 8th August, 1974 for issue of a writ to quash them.
(2.) It was contended on behalf of the petitioners that they are not foreigners. There is no doubt that if the petitioners are foreigners, then the impugned orders cannot foe challenged. The question, therefore, is whether the petitioners are foreigners.
(3.) Section 2 (a) of the Act defines a "Foreigner" as "a person who is not a citizen of India." Section 9 of the Act, so far as it is material, is in these terms:- "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 ............ notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) lies upon such person.";