Md. Karim Ali vs The Union Of India And 5 Ors
2021 Latest Caselaw 1718 Gua

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GAHC010148862020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/4646/2020

         MD. KARIM ALI
         S/O- LT. ASMAT ALI, R/O- VILL- KHALAHUBARI, P.S. THELAMARA, DIST.-
         SONITPUR, ASSAM



         VERSUS

         THE UNION OF INDIA AND 5 ORS
         THROUGH THE SECY., TO THE GOVT. OF INDIA, THE MINISTRY OF HOME
         AFFAIRS, GRIHA MANTRALAYA, NEW DELHI

         2:THE STATE OF ASSAM
         THROUGH THE SECY.
         TO THE GOVT. OF ASSAM
          HOME DEPTT.
          DISPUR
          GHY-6

         3:THE ELECTION COMMISSION OF INDIA
          REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA
          NIRVACHAN SADAN ASHOKA ROAD
          NEW DELHI- 110001

         4:THE STATE CO-ORDINATOR
          NATIONAL REGISTRATION OF CITIZEN
         ASSAM
          BHANGAGARH
          GHY-05

         5:THE DY. COMMISSIONER
          SONITPUR
          P.O. TEZPUR
          DIST.- SONITPUR
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             ASSAM
             PIN- 784001

            6:THE SUPERINTENDENT OF POLICE (B)
             SONITPUR
             P.O. TEZPUR
             DIST.- SONITPUR
            ASSAM
             PIN- 78400

Advocate for the Petitioner   : MD. I HUSSAIN

Advocate for the Respondent : ASSTT.S.G.I.




                                    BEFORE
                    HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                             ORDER

28.07.2021 (Soumitra Saikia, J)

Heard Mr. L.R. Mazumder, learned counsel for the petitioner.

2. Also heard Mr. K.K. Parasar, learned CGC for the respondent No. 1; Mr. A Kalita, learned Special Counsel, FT appearing for respondent Nos. 2, 5 & 6; Mr. A. Bhuyan, learned Standing Counsel, ECI appearing for respondent No. 3 and Ms. L. Devi, learned counsel for the respondent No.4.

3. This writ petition has been filed by the petitioner, namely Md. Karim Ali, assailing the opinion/order dated 27.01.2020 passed by the Member, Foreigners' Tribunal No. 8, Tezpur in F.T.(8) Case No. 3808/2018.

4. The petitioner, in response to the notice issued on 16.08.2019, appeared before the Tribunal and contested the reference made by filing written statement and adducing evidences denying the allegations made in the Page No.# 3/13

reference that he was a foreigner of post 25.03.1971.

5. The case projected before the Tribunal is that the ancestors of the petitioner were living in Assam since prior to 1951 and supporting documents to that effect are available. The petitioner submits that he was born on 12.04.1975 at village Khalahubari, P.S. Thelamara, District Sonitpur and was brought up there. He studied up to Class-X in Ulubari Govt. Aided High School, Ulubari, Sonitpur and had left his school on 31.12.1992. In support of his case, the petitioner exhibited as many as eight (8) documents including School Transfer Certificate, Gaon Burah Certificate, NRC details and Voters lists of 1965, 1985, 1997 and 2005. The petitioner also exhibited as Ext. No. 3, an order passed by the Foreigners' Tribunal No. 8, Sonitpur, Thelamara in FT (8) Case No. 1344/2017 in respect of one Md. Karim Ali, S/O Lt. Asmat Ali, who the petitioner claimed as himself declaring him not a foreigner as alleged.

6. The petitioner submits that by virtue of an earlier order dated 04.01.2018 passed in FT(8) Case No. 1344/2017, the same Foreigners' Tribunal i.e. Foreigners' Tribunal No. 8, Sonitpur, Thelamara declared him to be not a foreigner but an Indian Citizen.

7. We have heard the learned counsels for the parties and have also carefully perused the records of the Tribunal as well as the pleadings before this Court. As directed by this Court earlier, since the records of FT(8) Case No. 3808/2018 have been requisitioned by the Registry from Foreigners' Tribunal No. 8, Tezpur, we proceed to dispose of the matter.

8. From the impugned order dated 27.01.2020 passed by the Foreigners' Tribunal No. 8, Tezpur, it is seen that eight (8) exhibits were submitted by the Page No.# 4/13

petitioner in his support of this case. He examined himself as D.W.-1 before the Tribunal. From the impugned Order, it is seen that the Ext.-3, is the order dated 04.01.2018 passed in FT(8) Case No. 1344/2017 by the Foreigners' Tribunal No. 8, Sonitpur, Thelamara declaring the petitioner in an earlier proceeding to be not a foreigner, which was relied upon by the petitioner before the Tribunal in support of his case. However, the Tribunal refused to accept the earlier order and proceeded to distinguish the earlier opinion by referring to Judgment of this Court in Mustt. Amina Khatoon Vs Union of India passed in W.P(C) No. 7339/2015 [reported in (2018) 4 GLR 643] and holding that the Government is not bound to accept the opinion rendered by the Foreigners' Tribunal as the subject matter is not finally decided and therefore, res judicata is not applicable in the instant case. The Tribunal further sought to distinguish the Judgment of the apex Court rendered in Abdul Kuddus Vs. Union of India , reported in (2019) 6 SCC 604 on the ground that the applicability of res judicata will depend on the facts and circumstances of each case and on the facts of this case, the Judgment of Abdul Kuddus (Supra) is not applicable. The relevant portion of the Tribunal's order dated 27.01.2020 is extracted below:

"Ext. 3 cannot be accepted as a valid piece of evidence to decide the instant case for more than one reason. Firstly, the said opinion is based on without any reason. Secondly, the linkage of OP with his claimed father or grandfather is not established in Ext. 3. Thirdly, the documents exhibited in Ext. 3 were not proved.

So far, res judicata is concerned the opinion rendered by a Foreigners' Tribunal cannot be construed as a Judgment (Musstt. Amina Khatun vs. The Union of India and others) and the Government is not bound to accept the opinion rendered by a Foreigners Tribunal as the subject matter is not finally decided and therefore, Resjudicata is not applicable in the instant case.

On the other hand, whether the Resjudicata applicable in a given case or not: it depends upon the facts and circumstances of each case. In Abdul Kuddus case (C.A. No. 5012/2019) as held by the Hon'ble Supreme Court, the facts and circumstances of the said Page No.# 5/13

case is totally different from the instant case."

9. Referring to the Judgment of this Court in the case of Mustt. Amina Khatoon (supra), it is seen that this Court in the said Judgment had held that the principle of res judicata embodied in Section 11 of the CPC would not be attracted to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order and as such, till such view was prevailing, the Foreigners Tribunal could not be faulted with for proceeding with the matter disregarding any earlier opinion given by the Foreigners' Tribunal. However, the issue relating to res judicata and impeachment of findings of an Foreigners' Tribunal, collaterally or in a second round; having been dealt with by the Supreme Court in Abdul Kuddus (supra) it is therefore, no longer res integra.

10. Having noticed the interpretation sought to be made by the concerned Foreigners' Tribunal, it is necessary to refer to the Judgment of the apex Court in Abdul Kuddus (supra). In the said Judgment, the Apex Court held that the Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. The Supreme Court held that paragraph- 3 of the amended 1964 Order uses the expression "competent authority" as is also used in Sub-Para (3) to paragraph 3 of the Schedule [appended to the Citizenship (Registration of Citizenship and Issue of National Identity Cards)] Rules, 2003, albeit in a different context as the competent authority that makes reference to the Tribunal in terms of the paragraph- 3. The Apex Court held that upon the receipt of such reference the Tribunal has to submit its opinion/decision, which opinion/decision in terms of Explanation to Section 6-A of the Citizenship Act is final and binding. The Apex Court held that the decisions of the Tribunals have Page No.# 6/13

been given primacy. The Supreme Court while dealing with the issue relating to the perceived conflict between sub-para (2) to Para 3 and Para 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, went on to consider the various provisions of the Constitution as well as the Foreigners Act and Rules and Orders framed thereunder to deal with the foreigners issue, more particularly with reference to the State of Assam. The Supreme Court accordingly, considered the implication of Section 6-A of the Citizenship Act, which is a special provision to deal with the issue relating to foreigners/Indian Citizenship in the State of Assam. The apex Court held that the opinion by the Foreigners Tribunal is a quasi-judicial order and not an administrative order. The apex Court held that the expression "quasi- judicial order" means a verdict in writing which determines and decides contesting issues and questions by a forum other than a Court and that the determination has civil consequences. The apex Court therefore, held that it would be incorrect to hold that the opinion of the Foreigners' Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. The Apex Court also held that any Quasi Judicial Authority would not ordinarily have the power to unilaterally take a contrary view taken by a coordinate or predecessor authority at an early point in time. The Apex Court has laid down that unless provided for by the statute or as per direction of a superior judicial authority, a quasi-judicial authority cannot take a contrary view taken by another co-ordinate quasi judicial authority in respect of the same matter. The relevant paragraphs of the judgment are extracted below:

"22. We have examined the contentions and have no hesitation in holding that they have no force. The Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. Pertinently, the Rules framed under the Citizenship Act are subordinate legislation.

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The expression Competent Authority used in sub-para (2) to Para 3 of the Schedule to the 2003 Rules would obviously and without a doubt has reference to the duly constituted authority under the Foreigners Act. Indeed, the learned counsel for the appellants did not make any attempt to point out and highlight that there could be any other authority covered by the expression "Competent Authority" or which would qualify and can be treated as a Competent Authority referred to in sub-para (2) to Para 3 of the Schedule to the 2003 Rules. Para 3 of the amended 1964 Order uses the expression "Competent Authority" as is also used in sub-para (2) to Para 3 of the Schedule, albeit in a different context as a competent authority that makes reference to the Tribunal in terms of Para 3. On receipt of such reference, the Tribunal has to submit its opinion/decision, which opinion/decision in terms of the Explanation to Section 6-A of the Citizenship Act is final and binding. Decisions of the Tribunal have been given primacy. Thus, the Competent Authority referred to in sub-para (2) to Para 3 of the Schedule would be, without a doubt, the Tribunal constituted under the Foreigners Act i.e. the 1964 Order.

23. The procedure prescribed by the post 2012 amendment under the 1964 Order mandates compliance with the principles of natural justice. All the allegations and grounds are required to be served by the Tribunal in the form of a show-cause notice to the person who is alleged to be a foreigner [see para 60 in Sarbananda Sonowal (2) [Sarbananda Sonowal (2) v. Union of India, (2007) 1 SCC 174] ]. Thereupon, the person has to be given a reasonable opportunity to file representation and also produce evidence. The Tribunal has been authorised to consider and allow prayer for production and examination of the witnesses which can be refused if found to be vexatious, or made with the intent to cause delay, etc. The evidence produced by the Superintendent of Police can also be recorded. The person concerned has to be heard before the Tribunal gives its opinion. The person concerned may appear in person or can be represented by a legal practitioner or an authorised representative. Opinion is to be given within a period of sixty days after the reference from the competent authority. No doubt, the Rules do not prescribe and require an opinion of the Tribunal to be a detailed judgment, nevertheless, it is obvious that the opinion rendered must state the facts and reasons for drawing the conclusions. It is a decision and an order. Fixing time-limits and recording of an order rather than detailed judgment is to ensure that these cases are disposed of expeditiously and in a time- bound manner. The opinion by the Foreigners Tribunal is a quasi-judicial order and not an administrative order. The expression "quasi-judicial order" means a verdict in writing which determines and decides contesting issues and question by a forum other than a court. The determination has civil consequences. Explaining the meaning of quasi- judicial body in Indian National Congress (I) v. Institute of Social Welfare [Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685] , it was held that when any body of persons has a legal authority to determine questions affecting the rights of subjects and a duty to act judicially, such body of persons constitute a quasi-judicial body and decision given by them is a quasi-judicial decision. It would also be a quasi-judicial order if the statute empowers an authority to decide the lis not between the two contesting parties but also when the decision prejudicially Page No.# 8/13

affects the subject as against the authority, provided that the authority is required by the statute to act judicially. Further, what differentiates an administrative act from the quasi-judicial act is that a quasi-judicial body is required to make an enquiry before arriving at a conclusion. In addition, an administrative authority is the one which is dictated by policy and expediency whereas a quasi-judicial authority is required to act according to the rules.

24. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. Thus, it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for redetermination of the same issue/question. This Court in Ujjam Bai v. State of U.P. [Ujjam Bai v. State of U.P., AIR 1962 SC 1621] has held that the principles of res judicata equally apply to quasi-judicial bodies. Whenever a judicial or quasi-judicial tribunal gives a finding on law or fact, its findings cannot be impeached collaterally or in a second round and are binding until reversed in appeal or by way of writ proceedings. The characteristic attribute of a judicial act or decision is that it binds, whether right or wrong. Thus, any error, either of fact or law, committed by such bodies cannot be controverted otherwise by way of an appeal or a writ unless the erroneous determination relates to the jurisdictional matter of that body.

25. In J.J. Merchant v. Shrinath Chaturvedi [J.J. Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635] , when the learned counsel had pleaded that the National Consumer Disputes Redressal Commission cannot examine complicated questions of facts which require examination and cross- examination of experts including doctors and that the procedure followed for determination of consumer disputes being summary in nature is not suitable for determination of complicated questions, this Court rejected these contentions and held that under the Consumer Protection Act, 1986, for a summary trial, an exhaustive procedure conforming to the principles of natural justice is provided. Merely because the trial is summary in nature cannot be a ground to reject it as unjust or unfair. Further, it was held in Rajesh Kumar v. CIT [Rajesh Kumar v. CIT, (2007) 2 SCC 181] that when civil or evil consequences ensue by reason of an act done by the statutory authority, principles of natural justice must be followed. The Act and power of judicial review vested with the constitutional courts provide sufficient safeguards, in the present context.

26. When we apply general principles of res judicata, the contention of the appellants that the person concerned should be permitted to double-dip and be entitled to a second round of litigation before the Foreigners Tribunal notwithstanding the earlier opinion expressed by the Foreigners Tribunal is far-fetched, and completely unacceptable. The plea is fallacious and has no merit. This contention therefore must be rejected and fails.

(Emphasis supplied)

11. In view of the law now laid down by the apex Court in Abdul Kuddus Page No.# 9/13

(Supra) wherein, it is held that the opinion of the Foreigners' Tribunal is a Quasi Judicial order and not an administrative order and that the principles of res judicata will be applicable. As it is a law declared under Article 141 of the Constitution of India, the same will be binding on this Court as well as the Foreigners' Tribunal. In that view of the matter, the Foreigners' Tribunal could not have ignored the Judgment of the apex Court in Abdul Kuddus (Supra) and proceeded to pass its impugned opinion.

12. While deciding the question whether principles of constructive res judicata apply to writ petitions under Article 32 and 226, where the dispute raised is in respect of an year different from the year involved in a prior dispute decided by this Court. A Constitution Bench of the Apex Court in Amalgamated Coalfields Ltd and Anr. Vs. Janapad Sabha Chhindwara and Ors reported in 1963 Supp (1) SCR 172: AIR 1964 SC 1013 held that there is no doubt that the general principles of res judicata applies to writ petitions filed under Article 32 and 226. The Apex Court further went on to hold that even if a direct decision of the Apex Court on a point of law does not operate as res judicata in a dispute for a subsequent year, such a decision would, under Article 141, have binding effect not only on the parties to it, but also on all Courts in India as a precedent in which law is declared by this Court. The question about applicability of the res judicata to such a decision would thus be a matter of merely academic significance. The relevant portion of the Judgment is extracted below:

"23. In considering this question, it may be necessary to distinguish between decision on questions of law which directly and substantially arise in any dispute about the liability for a particular year, and questions of law which arise incidentally or in a collateral manner, as Lord Radcliffe himself has observed in the case of the Society of Medical Officers of Health, that the Page No.# 10/13

effect of legal decisions establishing the law would be a different matter. If, for instance, the validity of a taxing statute is impeached by an assessee who is called upon to pay a tax for a particular year and the matter is taken to the High Court or brought before this Court and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate as res judicata against the assessee for a subsequent year. That, however, is a matter on which it is unnecessary for us to pronounce a definite opinion in the present case. In this connection, it would be relevant to add that even if a direct decision of this Court on a point of law does not operate as res judicata in a dispute for a subsequent year, such a decision would, under Article 141, have a binding effect not only on the parties to it, but also on all courts in India as a precedent in which the law is declared by this Court. The question about the applicability of the res judicata to such a decision would thus be a matter of merely academic significance."

13. In Nand Kishore -Vs- State of Punjab reported in (1995) 6 SCC 614, the Supreme Court while dealing with the question of constitutionality of the Rule relating to the compulsory retirement has held that under Article 141, the law declared by it is of a binding character as commandful as the law made by a Legislative Body or an Authorized Delegatee of such Body. It held that Supreme Court is not merely the interpreter of law as existing but much beyond that. The Court as a wing of the State is by itself a source of law and the law is what the Court says it is. Paragraph 17 of the Judgment is extracted below: "17. On another facet of res judicata, this Court in Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613 : (1970) 3 SCR 830] had the occasion to observe as under: (SCC p. 617, para 5) "A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue.... A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law."

(emphasis supplied) When this Court strikes down a statutory provision holding it to be unconstitutional, it derives its authority to do so under the Constitution. Under Article 141, the law declared by it is of a Page No.# 11/13

binding character and as commandful as the law made by a legislative body or an authorised delegatee of such body. The Court is thus a "competent authority" within the scope of the words above emphasised. On the other hand the majority view expressed in the Full Bench decision that "the Courts of record including the Supreme Court only interpret the law as it stands but do not purport to amend the same. Their Lordships' decisions declare the existing law but do not enact any fresh law", is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is. Patently the High Court fell into an error in its appreciation of the role of this Court.

14. As such, in view of the Judgment of the Apex Court, Abdul Kuddus (supra) is binding on the Foreigners Tribunal under Article 141 of the Constitution of India. There is no scope for the Foreigners Tribunal to distinguish any law laid down under Article 141 by the Apex Court, as has been done in the present proceeding. The Foreigners' Tribunal cannot re-examine the legality or otherwise of the opinion rendered earlier by a Co-ordinate Foreigners' Tribunal, except to ascertain as to whether the petitioner was the same person against whom the Foreigners' Tribunal in F.T(8). Case No.1344/2017 had given its opinion vide order dated 04.01.2018. If it is found on consideration of the materials on record and after hearing the parties that the present petitioner was indeed the same person against whom the Foreigners' Tribunal had given its opinion in the earlier proceeding in F.T(8). Case No.1344/2017. The Foreigners' Tribunal will have to either close the second reference or remit it back to the Referral Authority stating that the proceedee had already been declared as a Foreigner in an earlier proceeding. The present proceeding will be barred by application of principle of res judicata as laid down in Abdul Kuddus (Supra)

15. In view of the law laid down by the apex Court in Abdul Kuddus (Supra), the opinion rendered by the Tribunal to that effect that the Judgment of the apex Court in Abdul Kuddus (Supra) is totally different from the facts and Page No.# 12/13

circumstances of the instant case and that consequently, res judicata is not applicable on the facts of this case, is wholly untenable and cannot sustain and therefore the same needs to be interfered with. It is also not in dispute that the Referral Authority of the State has not preferred any review or any writ petition questioning the opinion rendered by the Foreigners Tribunal No. 8, Tezpur vide the opinion dated 04.01.2018 passed in FT(8) as No. 1344/2017, whereby the petitioner has been held to be not a foreigner as alleged.

16. This Court, therefore, holds that an opinion once rendered by the quasi- judicial authority like Foreigners Tribunal either in favour or against the proceedee cannot be interfered with by another co-ordinate Quasi-Judicial Authority save and except in terms of any orders that may be passed by a superior judicial forum.

17. In view of the above discussions, we allow this writ petition. The impugned order dated 27.01.2020 passed in FT(8) Case No. 3808/2018 by the Foreigners' Tribunal No. 8, Tezpur is therefore, interfered with, set aside and quashed.

18. The matter is remanded back to the Tribunal to decide the matter afresh as per provisions of law. The Foreigners' Tribunal No. 8, Tezpur will consider the case of the petitioner afresh by giving him an opportunity to prove that the present petitioner, namely, Md. Karim Ali, aged about 45 years, S/O Late Asmat Ali, R/O Village Khalahubari PS-Thelamara, District-Sonitpur, Assam, is one and the same person in whose favour an opinion was earlier given by the same Tribunal on 04.01.2018 in F.T(8). Case No.1344/2017 that he was not a foreigner. If it is found that the present petitioner is the same person who was proceeded against in the said F.T(8). Case No.1344/2017, the present Page No.# 13/13

proceeding in F.T(8) Case No.3808/2018 shall be dropped.

19. Since there is a reference pending against the petitioner, the bail order granted by this Court on 12.11.2020 will continue till disposal of the matter as directed. However, the petitioner will appear before the Foreigners' Tribunal No. 8, Tezpur on or before 01.09.2021 pursuant to which the Tribunal will hear the matter afresh and render its opinion as per the provisions of law.

20. The writ petition is accordingly, disposed of in terms of the above.

21. LCR be immediately remitted to the Foreigners' Tribunal No. 8, Tezpur.

                                     JUDGE                                   JUDGE




Comparing Assistant