Gauhati High Court
Page No.# 1/5 vs The Union Of India And 3 Ors on 24 November, 2021
Page No.# 1/5
GAHC010213052018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6687/2018
PALAN BISWAS AND 2 ORS.
S/O- LT GOPAL BISWAS, R/O- VILL- SATGAON, P.O. JALUGUTI, P.S.
MIKIRBHETA, DIST- MORIGAON, ASSAM, PIN- 782104
2: SMTI. BHABANI BISWAS
W/O- SRI PALAN BISWAS
D/O- LT SASHI MOHAN BISWAS
R/O- VILL- SATGAON
P.O. JALUGUTI
P.S. MIKIRBHETA
DIST- MORIGAON
ASSAM
PIN- 782104
3: SRI PRASENJIT BISWAS
S/O- SRI PALAN BISWAS
R/O- VILL- SATGAON
P.O. JALUGUTI
P.S. MIKIRBHETA
DIST- MORIGAON
ASSAM
PIN- 78210
VERSUS
THE UNION OF INDIA AND 3 ORS.
REP. BY THE SECY., GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW
DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
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3:THE DY. COMMISSIONER CUM DISTRICT MAGISTRATE
MORIGAON
DIST- MORIGAON
ASSAM
PIN- 782104
4:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
DIST- MORIGAON
ASSAM
PIN- 78210
Advocate for the Petitioner : MR. P K ROYCHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 24-11-2021
(N. Kotiswar Singh, J.)
Heard Mr. P.K. Roy Choudhury, learned counsel for the petitioners. Also heard Mr. J.
Payeng, learned Special Counsel, FT.
2. In this petition, the petitioners have challenged the opinion dated 28.08.2018 passed in
Case No. FT(C) 305/2015 by which the Foreigners Tribunal No.3 rd, Morigaon had declared the
petitioners as foreigners who had entered India (Assam) after 25.03.1971.
3. When this matter was taken up, it has been submitted that there is already an opinion
rendered by the Foreigners Tribunal, Nagaon on 06.11.1990 in FT Case No.1649/88 by which
the proceedees therein, namely, Gopal Biswas, son of late Mati Biswas along with his sons
Gokul, Polan and Kartik were held to have entered India (Assam) during the period of
01.01.1966 to 25.03.1971 from East Pakistan and since then they had been living in Village-
Kachadhara Satgaon, PS. Mikirbheta, Nagaon.
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4. Mr. Roy Choudhury, learned counsel for the petitioners, submits that the petitioners had
exhibited a certified copy of the said order dated 06.11.1990 declaring them to be foreigners
who had entered India (Assam) during the aforesaid period so as to get the benefit as
provided under Section 6A(3) of the Citizenship Act, 1955 and pursuant to the said opinion
dated 06.11.1990, the petitioners had got themselves registered with the competent
authority and also exhibited the said registration certificates before the Foreigners Tribunal,
Nagaon. However, the Tribunal did not accept the same only on the plea that the petitioners
had stated in the trial that they were born and brought up at Satgaon and also in view of the
judgment of the Division Bench of this Court in Amina Khatun Vs. Union of India (WP(C)
7339/2015), wherein it has been held that the principle of res judicata embodied in Section
11 of the CPC is not applicable in a proceeding under the Foreigners Tribunal and, as such,
the earlier opinion is not binding on the subsequent proceeding.
5. It has been submitted by learned counsel for the petitioners that the matter is no
longer res integra and it is well-settled in view of the decision of the Hon'ble Supreme Court
in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604, that the principle of res
judicata is applicable even in a proceeding before the Foreigners Tribunal and if the Tribunal
had given an opinion earlier, the said opinion will be binding on the subsequent proceeding as
regards the same person(s).
6. Accordingly, without going into the merit of the other observations of the Tribunal, in
the present proceeding, we will confine ourselves as to the applicability of the earlier opinion
rendered by the Foreigners Tribunal on 06.11.1990 in FT Case No.1649/1988 passed by the
Foreigners Tribunal, Nagaon.
7. It is on record that the said opinion was exhibited and relied upon by the petitioners in
the present proceeding. The correctness or genuineness of the said finding is not in doubt.
The Tribunal, however, did not accept the said opinion on the ground that the principle of res
judicata will not be applicable in a proceeding under the Foreigners Tribunal and also that the
petitioners had stated that they were born and brought up in Satgaon.
8. Even if the petitioners had not correctly deposed before the Tribunal about their origin
in the present proceeding, in our view, that may not be a reason to ignore the earlier opinion
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rendered by the Tribunal on 06.11.1990 wherein it has been clearly mentioned that Gopal
Biswas, son of late Mati Biswas along with his sons Gokul, Polan and Kartik Biswas had
entered India (Assam) within 01.01.1966 to 25.03.1971 from East Pakistan and since then
they had been living at Village-Kachadhara Satgaon, PS. Mikirbheta, Nagaon.
9. We have also seen the original registration certificates issued in favour of the
petitioners on 05.12.1990 after the aforesaid opinion was rendered by the Foreigners Tribunal
on 06.11.1990 in which it has been clearly mentioned about the details of the petitioners.
10. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in
Abdul Kuddus (supra), we are of the opinion that the subsequent opinion dated 28.08.2018
rendered in Case No. FT(C) 305/2015 cannot be sustained and the opinion dated 06.11.1990
rendered in FT Case No.1649/1988 will hold the field.
11. We would, however, like to make it clear that the State authorities will be at liberty to
verify the claim of the petitioners that they had registered themselves on 05.12.1990 in terms
of the aforesaid order.
12. Considering the above, we are also of the view that it may not be necessary to
examine the other issues raised in the present proceeding in view of the decision of the
Hon'ble Supreme Court in Abdul Kuddus (supra).
13. Accordingly, the present petition is allowed by setting aside the order dated 28.08.2018
passed by the Foreigners Tribunal No.3 rd, Morigaon in Case No. FT(C) 305/2015.
14. Since the petitioners have already been declared as foreigners, who had entered India
(Assam) during the aforesaid period of 01.01.1966 to 25.03.1971, they are required to be
registered before the competent authority to get the benefit under Section 6A(3) of the
Citizenship Act, 1955. Since the petitioners have claimed that they have already registered,
they need not register themselves again. However, the State authorities will ascertain
whether the aforesaid registration done on 06.12.1990 was properly done or not and if not,
the petitioners will be required to register themselves afresh.
If upon verification, it is found that that the petitioners are not the same persons as
exhibited and the registration was not properly done as claimed by the petitioners, the State
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would be at liberty to apply before this Court for reviewing the present order passed today.
15. Send back the LCR forthwith.
JUDGE JUDGE
Comparing Assistant
