S. K. DUBEY, J. ( 1 ) AZIZ Ahmed s/o Faiz Mohammad, a citizen of India and a resident of Indore, through his son, filed a petition under Art. 226 of the Constitution of India for issuance of a writ of habeas corpus or for any other suitable writ, order or direction, as Aziz Ahmed was taken in the police custody on 26-5-88 at 8. 30 p. m. by the police force of the M. I. G. Police Station, Indore, on the pretext that he is involved in some motor accident criminal case. As Aziz Ahmed did not come back, the petitioner, who is his son, enquired from the Police Station, where the petitioner came to know that his father is being deported to Pakistan illegally. ( 2 ) DURING the summer vacation, on an application, an ad-interim writ was issued to the respondents to the effect that the respondents shall maintain status quo in relation to Aziz Ahmed, as on the date of the passing of the order. After hearing the respondents, vide order dt. 30-6-88, this Court ordered release of the petitioner's father on furnishing a bail-bond of Rs. 2,000/- with one surety in the like amount, to the satisfaction of the Chief Judicial Magistrate, Indore, for his appearance in this Court till the decision of the petition. ( 3 ) THE case of the petitioner, as set out in the petition, briefly, is as follows :-THE petitioner and his father Aziz Ahmed s/o Faiz Mohammad are citizens of India and have been residing at 9/5, Malwa Mill Ki Chawl, Indore for the last 8 years. Aziz Ahmed was born in or about the year 1933 in Pijarwadi, Ujjain and since his birth, he has been living in India. Aziz Ahmed never went to Pakistan hence, the question of his coming to India from Pakistan on a Pakistani Passport does not arise. He is a motor driver, who holds a driving licence issued by the Licensing Authority, Bombay on 21-2-64 annexed as Annexure-'a'. This licence was renewed from time to time and is now valid up to 16th of Nov. , 1989. Aziz Ahmed served in Sir Ratan Tata Institute, Bombay. A copy of the certificate issued by the Institute dt. He is a motor driver, who holds a driving licence issued by the Licensing Authority, Bombay on 21-2-64 annexed as Annexure-'a'. This licence was renewed from time to time and is now valid up to 16th of Nov. , 1989. Aziz Ahmed served in Sir Ratan Tata Institute, Bombay. A copy of the certificate issued by the Institute dt. 18-4-1985 has also been annexed as Annexure-C. During the pendency of the petition, the petitioner has also filed a certificate issued by Abdul Rehman and Sons, Transport Agents and Motor Contractor, 99 E, Mohammad Ali Road, Bombay-3 (Annexure-G) and a certificate issued by the Chief Kazi of Bombay dt. 29-5-1969 (Annexure-H ). The petitioner also filed photostat copy of the Voters' List of Ward No. 15, Polling Booth No. 116/117, Indore, wherein the name of Aziz Ahmed s/o Faiz Mohammad finds place at serial No. 65. After his name, the rest three members are his wife and two sons - Nasir Khan and Nadin Khan. The petitioner alleged in the petition that Aziz Khan is the citizen of India but the police, illegally treating him to be a Pakistani national under the name of Mohammad Jalil Khan, R/o 380 Juna Risala, Indore, took him in custody on 26-5-1988 and for forcibly deporting him, sent him to the border of Pakistan, without giving him any opportunity of hearing. The look put notice and the order of deportation passed by the Government in the year 1961 is being executed illegally treating Aziz Ahmed as Mohammad Jalil Khan. The petitioner also contended that as Aziz Khan claimed to be an Indian national, unless and until that question is determined under S. 9 (2) of the Citizenship Act, 1955 (hereinafter referred to as "the Act") Aziz Ahmed cannot be deported. ( 4 ) THE respondents resisted the petition and contended that the petitioner's father is not a citizen of India that the petitioner's father's name is Aziz Ahmed has also been denied and it was contended in the return that the real name of the petitioner's father is Mohammad Jalil Khan. In year 1947, Mohammad Jalil Khan went to Pakistan and became the citizen of Pakistan. In 1955, he came to India on the Pakistani Passport No. 307611 dt. 1-6-1955 issued from Karachi (Pakistan ). A photocopy of the Visa has been filed with the return as Annexure-R-1. In year 1947, Mohammad Jalil Khan went to Pakistan and became the citizen of Pakistan. In 1955, he came to India on the Pakistani Passport No. 307611 dt. 1-6-1955 issued from Karachi (Pakistan ). A photocopy of the Visa has been filed with the return as Annexure-R-1. It has also been alleged that again, in the year 1957 the petitioner's father came to India on the same Passport. A copy of the Visa was handed over to Attary Railwat Checkpost on 29-5-88 and the petitioner's father was deported to Pakistan. A copy of the receipt of deportation No. 4688/ar dt. 29-5-88 issued by the Attary Railway Checkpost has also been filed with the return as Annexure-R-2. It is alleged in the return that in the year 1957, the petitioner's father applied for extension of the period of Visa, which was refused by the Government of Madhya Pradesh, Home (General) Department, Bhopal on 21st Dec. , 1957. A copy of the order of refusal is Annexure R-3. The respondents alleged that the petitioner's father did not go to Pakistan and remained in India and started living with a fictitious name of Aziz Ahmed s/o Faiz Mohammad. During his stay, Aziz Ahmed was changing places of his residence, which would be evidenced from the driving licence. In the year 1961 a look out notice and the deportation order dt. 4-6-61 were issued by the government for searching the petitioner's father but since he kept on changing the places of residence, the respondents could not trace him out. Ultimately, secret sources informed the authorities that Mohammad Jalil Khan is residing in Indore on the address given by the petitioner. After this information, the respondents verified this fact through different secret sources and as such Aziz Ahmed was despatched for deportation on 27-5-88. The respondents also contended that in the matter of deportation, it is not necessary to issue any show cause notice nor any opportunity of hearing has to be given as the action is administrative in character, which is being taken at the instance of the government on the basis of secret enquiry, which is being done in the interest of the nation. ( 5 ) SHRI M. A. Khan, learned Counsel for the petitioner, contended that the order of deportation could not have been passed and the action could not have been taken without an order of the Central Government under S. 9 (2) of the Act and without affording an opportunity of hearing to the petitioner's father. Learned Counsel placed reliance on two decisions of the Apex Court in Government of Andhra Pradesh v. Syed Mohammad Khan, AIR 1962 SC 1778 and State of U. P. v. Rehmatullah, AIR 1971 SC 1382 and a Division Bench decision of this Court in Razia Khatoon v. State of Madhya Pradesh (Misc. Petn. No. 158 of 1979 - decided on 25-7-1979 at Indore Bench ). Learned Counsel also relied on two decisions in Mukhtar Ahmed v. State of U. P. , AIR 1965 All 191 and Hasan Khan v. State of Rajasthan, AIR 1961 Raj 182 . ( 6 ) SHRI S. M. Jain, learned Deputy Government Advocate, contended that the petitioner cannot seek any relief under Art. 226 of the Constitution as serious controversy and disputed, questions of fact have arisen in this petition and the burden to prove by cogent evidence that Aziz Ahmed is a citizen of this country and not a foreigner, lies on the petitioner. Learned Counsel placed reliance on Union Of India v. Ghaus Mohammad, AIR 1961 SC 1526 ; Fateh Mohammad v. Delhi Administration, AIR 1963 SC 1035 ; Masud Khan v. State of U. P. , AIR 1974 SC 28 and Jalal v. The State of Rajasthan. AIR 1976 Raj 141 , and contended that as the burden to prove that Aziz Ahmed is a Indian citizen and not a foreigner is on the person ordered to be deported hence, in the circumstances of the case, the present petition under Art. 226 of the Constitution is not an appropriate proceeding and a decision on this question can best be given in a suit. ( 7 ) BEFORE we deal with the rival contentions of the parties, we would like to mention the significant distinctive features mentioned in Annexure-R-1, the form of Visa. A bare look at Annexure-R-1, the application for Visa for India on Passport No. 307611 dt. ( 7 ) BEFORE we deal with the rival contentions of the parties, we would like to mention the significant distinctive features mentioned in Annexure-R-1, the form of Visa. A bare look at Annexure-R-1, the application for Visa for India on Passport No. 307611 dt. 1-6-55, which gives the particulars of the person, who has applied for Visa, it shows the name as Mohammad Salil Khan, permanent address - Mohammadi Building, 18, Clat on Road, Karachi and the address of Indore has been given as Mohammad Jalil Khan, 380, Juna Risala, Indore (Madhya Bharat); colour of eyes is black, hair black, height 5 feet and 4 inches, visible distinguishing marks - mole on nose. The application also contains a photograph of Mohammad Jamil Khan. Aziz Ahmed, who remained throughout present at the time of proceedings of the case and hearing, prima facie does not look to be the same person as his height is about 5 feet and 10 inches. Certainly, the person Aziz Ahmed is not of 5 feet and 4 inches' height. He has got a fair colour and there is no mole on his nose. His nose is sharp. The photograph on the Visa application has no resemblance with the face of the petitioner's father. Therefore, this Court asked the learned Deputy Government Advocate to place the original record and the material, if any, to show that Aziz Ahmed is the same person, who came to India on the Visa on Passport No. 307611. After giving a number of opportunities, no material has been placed before this Court for prima facie satisfying this Court that Aziz Ahmed and Jalil Khan are one and the same person. ( 8 ) IN view of the allegations made in the petition and the stand taken by the respondents in the return, a serious and disputed question as to whether Aziz Ahmed is a Pakistani national moving about in this country in an assumed name arises in the case. ( 8 ) IN view of the allegations made in the petition and the stand taken by the respondents in the return, a serious and disputed question as to whether Aziz Ahmed is a Pakistani national moving about in this country in an assumed name arises in the case. There is no dispute for the proposition that if Aziz Ahmed is a foreigner, then the order of deportation cannot be said to be illegal and the question whether Aziz Ahmed is a foreigner is a question of fact, on which there is a great deal of controversy between the parties, which requires a detailed examination of evidence and the writ Court cannot exercise its jurisdiction under Art. 226 of the Constitution of India, on serious disputed questions of fact as observed by the Supreme Court in AIR 1961 SC 1526 . But after considering the contentions of the learned Counsel and the material placed before us, a bare look at the record and the person ordered to be deported, clearly shows that there is a serious dispute about the losing of Indian citizenship by Aziz Ahmed after acquiring the citizenship of another country, i. e. of Pakistan, which has to be decided under S. 9 (2) of the Act and the Citizenship Rules, 1956, Sch. III, R. 3 by the Central Government, before taking an action for deportation. Section 9 of the Act reads as under :-"9. Termination of Citizenship - (1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th Jan. , 1950 and the commencement of this Act voluntarily acquired or, as the case may be, such commencement, cease to be a citizen of India : provided that nothing in this Sub-Section shall apply to a citizen of India, who, during any war, in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. (2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rule of evidence, as may be prescribed in this behalf. (2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rule of evidence, as may be prescribed in this behalf. " ( 9 ) THE Apex Court in case of AIR 1962 SC 1778 (supra), after considering its earlier decision in Izhar Ahmed Khan v. Union of India, AIR 1962 SC 1052 , observed :-"indeed, it is clear that in the course of the judgement, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned rule, the conclusion may follow that he has acquired the citizenship of the foreign country; but the conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question. Therefore, there is no doubt that in all cases, where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State and have lost in consequence the citizenship of this country, it is essential that that question should be first considered by the Central Government. In dealing with the question, the Central Government would undoubtedly be entitled to give effect to the impugned R. 3 in Sch. III and deal with the matter in accordance with other relevant rules framed under the Act. The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him. III and deal with the matter in accordance with other relevant rules framed under the Act. The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him. "in the case of AIR 1971 SC 1382 , while considering the case of prosecution of an Indian national under S. 14 of the Foreigners Act, 1946 and after considering the earlier cases and the case of AIR 1962 SC 1778 (supra), the Supreme Court held that the prosecution of an Indian national under S. 14 on a charge of overstaying in India the period of his Pakistani permit is not maintainable when there is no determination by the Central Government under S. 9 of the Act that he had acquired Pakistani nationality and had thereby become a foreigner. ( 10 ) IN a recent decision of the Apex Court in Bhagwati Prasad Dixit 'ghorewala' v. Rajeev Gandhi, AIR 1986 SC 1534 , in an election petition, the Apex Court again observed as under :-"in exercise of the powers conferred by Cl. (h) of Sub-Section (2) of S. 18 of the Citizenship Act, 1955 and Sub-Section (2) of S. 9 of that Act, the Central Government has framed rules to decide the question of voluntary acquisition of citizenship of a foreign country and the consequent determination of the citizenship of India. By R. 30 of the Citizenship Rules, 1956, the Central Government is appointed as the authority to decide such question. Schedule III of the Citizenship Rules, 1956 contains the Rules of Evidence applicable to a case arising under S. 9 (2) of the Citizenship Act, 1955. No other Court or authority has the power to decide the question as to whether, when or how an Indian citizen has acquired the citizenship of another country. " ( 11 ) ANOTHER contention of the learned counsel for the petitioner has also force that Aziz Ahmed was neither given a show cause notice nor was afforded an opportunity of hearing to show that he has not migrated to Pakistan, obtained a passport on declaration of that nationality and lost his Indian citizenship by virtue of the Act. The person affected ought to have been given a reasonable opportunity of hearing before deportation and an enquiry was necessary by the Central Government about the status of Aziz Ahmed. The person affected ought to have been given a reasonable opportunity of hearing before deportation and an enquiry was necessary by the Central Government about the status of Aziz Ahmed. The order of deportation made by the State Government without obtaining determination of the Central Government on the question of nationality, is invalid. This Court, while considering the arguments advanced by the State, in the case of Raziz Khatoon (supra), after considering the provisions of S. 3 of the Foreigners Act, 1946, in particular S. 3 (2) (c) of that Act, in para 7, observed :-"new a power to direct a person not to remain in India is conferred upon the authorities concerned u/s. 3 (2) (c) of the Act. This power can be exercised only after the authorities concerned are satisfied that the person in question is a foreigner. In arriving at this decision it cannot be disputed, the authorities have to act fairly. The concept of fairness dictates that the person, who is likely to be affected by an order, is heard before passing that order. The order may be administrative in character, yet the duty to act fairly is not ruled out even in case of an executive or administrative order. "admittedly, in the present case also, no opportunity of hearing was afforded to Aziz Ahmed before taking an action for deporting him to Pakistan. ( 12 ) FROM the above discussion, we are of the clear opinion that before passing an order of deportation when there was dispute about the citizenship there was no determination of nationality or status of Aziz Ahmed u/s. 9 (2) of the Act by the Central Government and as such, the order of deportation passed in relation to Aziz Ahmed was invalid. Besides this, the cult of fairness in arriving at the decisional process, after observing the basic principles of natural justice, was not followed, before taking any action for deportation against Aziz Ahmed, the consequence of which is that the action of deportation of Aziz Ahmed is illegal and cannot be sustained in law. But, in the circumstances of the case, the authorities are free to take action u/s. 3 (2) (c) of the Foreigners Act, 1946 afresh for deportation of Aziz Ahmed, after getting the status of Aziz Ahmed determined by the Central Government u/s. 9 (2) of the Act. But, in the circumstances of the case, the authorities are free to take action u/s. 3 (2) (c) of the Foreigners Act, 1946 afresh for deportation of Aziz Ahmed, after getting the status of Aziz Ahmed determined by the Central Government u/s. 9 (2) of the Act. ( 13 ) FOR all these reasons, this petition is allowed. The action and order of deportation against Aziz Ahmed are hereby quashed. However, we make it clear that the authorities concerned are free to pass orders u/s. 3 (2) (c) of the Foreigners Act, 1946 afresh, after determination of the status of Aziz Ahmed by the Central Government. In the circumstances of the case, parties to bear their own costs of this petition. Petition allowed. .