Gauhati High Court
WP(C)/262/2018 on 12 November, 2021
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GAHC010009892018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/262/2018
Anita Sarkar @ Anita Mondal, 46 years,
W/O Dilip Kumar Sarkar,
D/O Late Nitai Mandal,
Village- Khagarpur Part-II,
P.S. Abhayapuri, District- Bongaigaon (Assam).
......Petitioner
-Versus-
1. Union of India,
Represented by the Secretary to the Govt. of India,
Ministry of Home Affairs, Shastri Bawan, New Delhi.
2. The State of Assam,
Represented by the
Commissioner & Secretary to the Govt. of Assam,
Home Department, Dispur, Guwahati-6.
3. The Deputy Commissioner, Bongaigaon,
P.O & Dist.- Bongaigaon, Assam.
4. The Superintendent of Police (Border), Bongaigaon,
P.O & Dist.- Bongaigaon, Assam.
5. The Election Commission of India,
Guwahati, Assam.
6. The State Coordinator,
National Registrar of Citizens (NRC), Assam.
......Respondents.
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BEFORE
HON'BLE MR JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Petitioner : Ms. R. Choudhury,
Mr. A.H.M.R. Choudhury,
......Advocates.
For the Respondent No. 1 : Mr. R.K.D. Choudhury,
Asstt. Solicitor General of India.
: Ms. L. Devi, Advocate.
For the Respondent Nos.2 & 4 : Mr. A. Kalita, Standing Counsel,
Foreigners Tribunal.
For the Respondent No.3 : Ms. U. Das,
Additional Senior Govt. Advocate.
For the Respondent No.5 : Mr. A. Bhuyan,
Standing counsel, ECI.
For the Respondent No.6 : Ms. L. Devi,
Standing Counsel, NRC.
......Advocates.
Date of Hearing & Judgment : 12.11.2021.
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.]
Heard Ms. R. Choudhury as well as Mr. A.H.M.R. Choudhury, learned counsel for the
petitioner. Also heard Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal appearing for
respondent Nos. 2 and 4; Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D.
Choudhury, learned ASGI for respondent No.1; Ms. U. Das, learned Additional Senior
Government Advocate, Assam for respondent No.3 and Mr. A. Bhuyan, learned Standing
Counsel, ECI appearing for respondent No.5; Ms. Devi also appears for respondent No.6 as
the learned Standing Counsel, NRC.
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2. In this petition, the petitioner has challenged the proceeding of the Case No.
BNGN/APR/FT 619/2017 pending before the learned Foreigners Tribunal, Bongaigaon No.2,
Abhayapuri on the ground that the petitioner had been already declared as an Indian Citizen
by the opinion dated 11.02.2011 passed by the learned Foreigners Tribunal, Bongaigaon in
BNGN/FT/Case No. 751/2007.
3. Learned counsel for the petitioner has submitted that vide order dated 05.12.2017
passed by the learned Foreigners Tribunal, Bongaigaon No.2, Abhayapuri in BNGN/APR/FT
619/2017, the petitioner was directed to submit her written statement.
The aforesaid order dated 05.12.2017 reads as follows.
"5-12-17:
OP is present.
I have gone through the documents submitted by OP and the statements
made by OP. In my opinion, at this stage OP has not been able to establish linkage with
her projected father. Hence, case has been fixed for W/S and documents fixing 27-12-
17."
4. From the records, it appears that vide order dated 08.01.2018 passed in Case No.
BNGN/APR/FT 619/2017, the learned Foreigners Tribunal, Bongaigaon No.2, Abhayapuri held
that the petitioner had failed to prove her case that she is an Indian as she failed to appear
before the Tribunal after seeking several adjournments in this regard.
The aforesaid order dated 08.01.2018 reads as follows.
"8-1-18
OP is absent. On earlier occasion also OP was absent. OP has appeared before this
Tribunal on 17-8-17 and submitted a copy of opinion dated 11-02-2011, whereby she was
decleared as not a foreigner. By order dated 17-8-17 OP was directed to submit the original
documents considering which the aforesaid order/opinion dated 11-02-2011 passed. By taking
adjournments on 16-9-17, 20-10-17, 21-11-17 OP has submitted original documents in the form
of a written statement.
After going through the same, and recording the statements of OP, in my opinion OP has not
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been able to establish linkae by submitted documents and therefore OP has again directed to file
written statement and documents on the next date fixing 27-12-17. But on 27-12-17 and 8-1-18
OP remain absent and her engaged counsel has filed adjournment petition.
As the proceeding under Foreigners' Act 1946 has to be completed within a stipulated period of
time, adjournments was not be granted for indefinite period of time and therefore, the petition
submitted by the engaged counsel is rejected.
Fixing 11/1/18 for N/O."
5. On perusal of the records, it appears that the petitioner had received notice and
appeared before the Foreigners Tribunal on 17.08.2017 by submitting a copy of the order
passed by the Foreigners Tribunal, Bongaigaon in BNGN/FT Case No.751/2007 [BNGN/Police
Case No.167/2005] on 11.02.2011, by which the petitioner was declared to be an Indian.
However, subsequently, the petitioner could not appear before the Foreigners Tribunal which
resulted in passing of the impugned order dated 08.01.2018.
6. From the records, it appears that the petitioner was declared to be an Indian by order
dated 11.02.2011 passed by the learned Member, Foreigners Tribunal, Bongaigaon in
BNGN/FT Case No.751/2007 [BNGN/Police Case No. 167/2005]
7. Relying on the decision of the Hon'ble Supreme Court passed in Abdul Kuddus Vs.
Union of India, [(2019) 6 SCC 604] , learned counsel for the petitioner submits that the
principle of res judicata will apply in the present proceeding inasmuch if a person had been
declared Indian in earlier proceeding that decision, unless challenged, will hold the field and
subsequent proceeding will not lie.
8. In the present case though the petitioner could not appear on the date which the
learned Foreigners Tribunal Bongaigaon No.2, Abhayapuri had fixed, resulting in rejection of
the case of the petitioner, considering the fact that she had already submitted a copy of the
earlier opinion dated 11.02.2011 passed in BNGN/FT Case No.751/2007 [BNGN/Police Case
No.167/2005] declaring her to be Indian, we are of the view that the petitioner should be
afforded another opportunity to prove her case that the petitioner was the same proceedee,
Anita Sarkar who was earlier declared Indian vide opinion dated 11.02.2011 passed by the
learned Foreigners Tribunal, Bongaigaon in BNGN/FT Case No.751/2017 [BNGN/Police Case
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No.167/2005].
Accordingly, we allow this petition by setting aside the order dated 08.01.2018 passed
by the learned Foreigners Tribunal, Bongaigaon No.2, Abhayapuri in Case No.
BNGN/APR/FT619/2017.
9. Petitioner will accordingly, appear before the Foreigners Tribunal Bongaigaion No.2,
Abhayapuri on or before 13.12.2021. Thereupon the learned Foreigners Tribunal will consider
the case of the petitioner by taking into consideration the earlier opinion dated 11.02.2011
passed by the learned Foreigners Tribunal, Bongaigaon in BNGN/FT Case No. 751/2017
[BNGN/Police Case No.167/2005] in which one Anita Sarkar was declared as an Indian for
which the petitioner would be entitled to lead evidence to prove it and if it is found that the
petitioner is same person who was earlier declared Indian vide opinion dated 11.02.2011, the
Tribunal will not proceed any further with the proceeding and close the proceeding by
declaring the petitioner as an Indian citizen on the strength of earlier order dated 11.02.2011
passed in BNGN/FT Case No. 751/2007. Only when it is found that the petitioner is not the
same Anita Sarkar who was proceeded in BNGN/FT Case No. 751/2007, the Tribunal will
proceed in accordance with law.
10. With the above observation and direction, the present petition stands disposed of.
JUDGE JUDGE
Comparing Assistant
