Gauhati High Court
WP(C)/1816/2020 on 28 April, 2022
GAHC010067992018
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) Nos.2099/2018, 2601/2018, 4610/2018, 8491/2018,
8493/2018, 822/2019, 2239/2019, 8189/2019, 8253/2019,
1816/2020, 3514/2021
1. WP(C) 2099/2018
Sital Mandal,
Son of late Mangal Mandal,
Village- Bidyapur, Ward No.2,
P.S.- Nalbari, District-Nalbari,
Assam, PIN-781335.
......Petitioner
-Versus-
1. The Union of India,
Represented by the Secretary to the Government of India,
Department of Home Affairs, New Delhi.
2. Election Commission of India, New Delhi.
3. Coordinator, N.R.C., Assam, Guwahati.
4. The State of Assam,
Represented by the Commissioner and Secretary,
Home and Political (B) Department,
Dispur-781006.
5. The Foreigners Tribunal 1, Nalbari,
District -Nalbari, PIN-781335.
6. The Superintendent of Police (Border), Nalbari,
Assam, PIN-781335.
7. The Deputy Commissioner, Nalbari,
Assam, PIN-781335.
WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, Page 1 of 124
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
8. The Officer-in-charge,
Nalbari Police Station, District- Nalbari
Assam, PIN-781335.
...... Respondents.
2. WP(C) 2601/2018
Musstt. Jahera @ Jahura Khatoon,
Wife of Md. Samsul Hoque,
Village-Kashimpur, P.S.- Nalbari,
District- Nalbari, Assam,
PIN-781341.
......Petitioner
-Versus-
1. The Union of India,
Represented by the Secretary to the Government of India,
Department of Home Affairs, New Delhi.
2. Election Commission of India, New Delhi.
3. Coordinator, N.R.C., Assam, Guwahati.
4. The State of Assam,
Represented by the Commissioner and Secretary,
Home and Political (B) Department,
Dispur-781006.
5. The Foreigners Tribunal 1, Nalbari,
District -Nalbari, PIN-781335.
6. The Superintendent of Police (Border), Nalbari,
Assam, PIN-781335.
7. The Deputy Commissioner, Nalbari,
Assam, PIN-781335.
......
Respondents.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
3. WP(C) 4610/2018
Md. Chand Miah @ Chan Miah
Son of Lt. Fakir Chan,
Resident of Village- Goroimari Satra,
P.S.- Chhaygaon, District- Kamrup (R),
Assam, PIN-781124.
......Petitioner
-Versus-
1. The Union of India,
Represented by the Secretary to the Government of India,
Ministry of Home Affairs, Shastri Bhawan,
Tilok Marg, New Delhi-1.
2. The State of Assam,
Represented by the Commissioner and Secretary,
Home Department, Dispur,
Guwahati-6.
3. The Superintendent of Police (B), Kamrup,
Amingaon, Assam, PIN-781031.
4. The Deputy Commissioner, Kamrup,
Amingaon, Assam, PIN-781031.
5. The Election Commission of India, New Delhi-1.
6. The State Co-ordinator of N.R.C.,
Bhangaghar, Guwahati-5.
...... Respondents.
4. WP(C) 8491/2018
Nurjahan Begum,
Wife of Ali Hussain,
Daughter of Late Kazimuddin,
Village- Ward No.2, Kheroni Basti, Rangapara,
P.S.- Rangapara, District- Sonitpur, Assam.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
......Petitioner
-Versus-
1. The Union of India,
Represented by the Secretary to the Ministry of Home
Affairs,
Govt. of India, Shastri Bhawan, Tilok Marg,
New Delhi-1.
2. The State of Assam,
Represented by the Commissioner & Secretary
to the Govt. of Assam,
Department of Home, Dispur,
Guwahati-06.
3. The Election Commissioner of India,
through its Secretary, Nirbachan Bhawan,
New Delhi-1.
4. The State Co-Ordinator,
National Register of Citizens (NRC),
Assam, Bhangagarh, Guwahati-5.
5. The Deputy Commissioner of Sonitpur,
P.O, P.S. & Dist.- Sonitpur, Assam,
PIN-784001.
6. The Superintendent of Police (B), Sonitpur,
P.O. & Dist.- Sonitpur, Assam,
PIN-784001.
...... Respondents.
5. WP(C) 8493/2018
Nurjahan Begum,
Wife of Ali Hussain,
Daughter of Late Kazimuddin,
Village- Ward No.2, Kheroni Basti, Rangapara,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
P.S.- Rangapara, District- Sonitpur, Assam.
......Petitioner
-Versus-
1. The Union of India,
Represented by the Secretary to the Ministry of Home
Affairs,
Govt. of India, Shastri Bhawan, Tilok Marg,
New Delhi-1.
2. The State of Assam,
Represented by the Commissioner & Secretary
to the Govt. of Assam,
Department of Home, Dispur,
Guwahati-06.
3. The Election Commissioner of India,
Through its Secretary, Nirbachan Bhawan,
New Delhi-1.
4. The State Co-Ordinator,
National Register of Citizens (NRC),
Assam, Bhangagarh, Guwahati-5.
5. The Deputy Commissioner of Sonitpur,
P.O, P.S. & Dist.- Sonitpur, Assam,
PIN-784001.
6. The Superintendent of Police (B), Sonitpur,
P.O. & Dist.- Sonitpur, Assam,
PIN-784001.
...... Respondents.
6. WP(C) 822/2019
Mativan Nessa,
Daughter of Lt. Jashimuddin,
Wife of Jabbar Ali,
Resident of Village- Chalcholia,
P.S.-Sorbhog, District- Barpeta, Assam.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
......Petitioner
-Versus-
1. The Union of India,
Represented by the Secretary to the Govt. of India,
Ministry of Home Affairs,
Shastri Bhawan, Tilok Marg,
New Delhi-01.
2. The State of Assam,
Represented by the Commissioner & Secretary
to the Govt. of Assam,
Home Department, Dispur,
Guwahati-06.
3. The Superintendent of Police (Border), Barpeta,
P.O. & District- Barpeta,
Assam, PIN-781352.
4. The Deputy Commissioner, Barpeta,
P.O. & District- Barpeta,
Assam-781352.
5. The Election Commissioner of India,
Through its Secretary,
Nirbachan Bhawan,
New Delhi-01.
6. The State Co-Ordinator,
National Register of Citizens (NRC), Assam,
Bhangagarh, Guwahati-05.
...... Respondents.
7. WP(C) 2239/2019
Nadim Ali @ Nadim Badsa,
Son of Late Ifaruddin Sk. @ Ifaruddin Ali,
Village- Jhakuwapara, P.O.- Kopati,
P.S.- Rowta, District- Udalguri, BTAD,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
PIN-784509.
......Petitioner
-Versus-
1. The Union of India,
Represented by its Secretary, Govt. of India,
Ministry of Home Affairs, New Delhi-110001.
2. The State of Assam,
Represented by the Commissioner & Secretary
to the Govt. of Assam, Home Department,
Dispur, Guwahati-6.
3. The Election Commission of India, New Delhi-110001.
4. The Deputy Commissioner, Udalguri,
PIN-784509.
5. The State Coordinator,
National Registrar of Citizens, Assam,
Guwahati-781005.
6. The Superintendent of Police (B), Darrang,
District- Darrang, PIN-784125.
7. The Officer-in-Charge,
Rowta Police Station,
District- Udalguri, PIN-784509.
...... Respondents.
8. WP(C) 8189/2019
Ator Ali @ Rahman,
Son of -Khalilur Rahman @ Khalil,
Resident of Village- Dhorasap, Sataribori,
P.S. Mikirbheta, P.O.-Habibarongbari,
District- Morigaon, Assam,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
PIN-782108.
......Petitioner
-Versus-
1. The Union of India,
Represented by the Secretary to the Govt. of India,
Ministry of Home Affairs, New Delhi.
2. The Chief Election Commissioner,
Election Commission of India,
Ashoka Road,
New Delhi-110001.
3. The State of Assam,
Represented by its Secretary, Govt. of Assam
Home Department,
Dispur, Guwahati-06.
4. The Director General of Police, Assam,
Ulubari, Guwahati-07.
5. The State Coordinator,
O/O The State Coordinator of
National Registrar of Citizen (NRC), Assam,
1st Floor, Achyut Plaza,
G.S. Road, Bhangagarh, Guwahati-05.
6. The Deputy Commissioner, Morigaon
District- Morigaon, Assam.
7. The Superintendent of Police (B), Morigaon,
District- Morigaon, Assam.
...... Respondents.
9. WP(C) 8253/2019
Smti. Phul Banu @ Phulbanu Begum,
Wife of Intaz Ali,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Resident of Village: Lakhi Nepali Bosti,
P.S. Jonai, District- Dhemaji,
Assam.
......Petitioner
-Versus-
1. The Union of India,
Represented by its Secretary, Government of India,
Ministry of Home Affairs, New Delhi-110001.
2. The State of Assam,
Represented by the Commissioner & Secretary
to the Govt. of Assam, Home Department,
Dispur, Guwahati-6.
3. The Director General of Police (Administration),
Assam, PIN-787060.
4. The District Magistrate cum Deputy Commissioner,
Dhemaji, District- Dhemaji, Assam, PIN-787060.
5. The Superintendent of Police (Border), Dhemaji,
District- Dhemaji, Assam, PIN-787060.
6. The State Coordinator, National Registrar of Citizens (NRC),
Guwahati, Assam, Guwahati-5.
7. The Election Commission of India,
Nirvachan, Sadan, Ashoka Road,
New Delhi-110001.
...... Respondents.
10. WP(C) 1816/2020
Sahera Khatun,
Daughter of Anju Miah @ Amzad Ali,
Wife of Abdul Bakki,
Village-Rowmari, P.S. Tarabari,
District- Barpeta, Assam.
......Petitioner
-Versus-
1. The Union of India,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Represented by the Ministry of Home Affairs,
Govt. of India, New Delhi-110001.
2. The Election Commissioner of India,
Govt. of India, New Delhi-110001.
3. The State of Assam,
Represented by the Commissioner & Secretary
to the Govt. of Assam, Home Department,
Dispur, Guwahati-781006.
4. The State Coordinator,
National Registrar of Citizens (NRC),
Bhangagarh, Guwahati-05.
5. The Deputy Commissioner, Barpeta,
District- Barpeta, Assam,
PIN-781301.
6. The Superintendent of Police (B), Barpeta,
District- Barpeta, Assam, PIN-781301.
...... Respondents.
11. WP(C) 3514/2021
Nal Mia @ Lal Mia,
Son of Late Mamud Ali,
Resident of Village- Bamunpara,
P.S.-Mankachar, District- South Salmara Mankachar,
Assam.
......Petitioner
-Versus-
1. The Union of India,
Represented by its Secretary, Government of India,
Ministry of Home Affairs, New Delhi-110001.
2. The State of Assam,
Represented by the Commissioner & Secretary
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
to the Govt. of Assam, Home Department,
Dispur, Guwahati-6.
3. The Director General of Police (Administration),
Assam, PIN-07.
4. The District Magistrate cum Deputy Commissioner,
Kamrup (Metro) at Guwahati,
District- Kamrup (M), Assam,
PIN-781001.
5. The Deputy Commissioner of Police (Border), Kamrup (M) at
Guwahati, District- Kamrup (M), Assam,
PIN-781001.
6. The State Coordinator,
National Registrar of Citizens (NRC),
Guwahati, Assam, Guwahati-5.
7. The Election Commission of India,
Nirvachan, Sadan, Ashoka Road,
New Delhi-110001.
...... Respondents.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE NANI TAGIA
For the Petitioner in : Mr. B.C. Das, Adv.
WP(C) Nos.2099, 2601/2018
For the Petitioner in : Mr. A.R. Sikdar, Adv.
WP(C) No.4610/2018 : Mr. A. Mannaf, Adv.
: Md. A.S. Ali, Adv.
For the Petitioner in : Mr. A.R. Sikdar, Adv.
WP(C) No.8491/2018 : Mr. H.A. Ahmed, Adv.
: Md. A. Ali, Adv.
For the Petitioner in : Mr. A.R. Sikdar, Adv.
WP(C) No.8493/2018 : Mr. H.A. Ahmed, Adv.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
: Md. A. Ali, Adv.
For the Petitioner in : Mr. A.R. Sikdar, Adv.
WP(C) No.822/2019 : Mr. N. Ahmed, Adv.
: Md. A. Ali, Adv.
: Mr. S.I. Talukdar, Adv.
For the Petitioner in : Mr. H.R.A. Choudhury, Sr. Adv.
WP(C) No.2239/2019 : Mr. F.U. Barbhuiya, Adv.
: Ms. S. Das, Adv.
: Mr. I.U. Choudhury, Adv.
: Mrs. S. Islam, Adv.
For the Petitioner in : Mr. K.M. Hassan, Adv.
WP(C) No.8189/2019
For the Petitioner in : Mr. M. Khan, Adv.
WP(C) No.8253/2019 : Mr. J. Rahman, Adv.e
: Ms. K. Devi, Adv.
For the Petitioner in : Mr. H.R.A. Choudhury, Sr. Adv.
WP(C) No.1816/2020 : Mr. H. Ali, Adv.
: Mr. J.M. Sulaiman, Adv.
For the Petitioner in : Mr. M. Khan, Adv.
WP(C) No.3514/2021 : Mr. J. Rahman, Adv.
: Mr. R. Islam, Adv.
......Advocates
For the Respondents : Mr. A. Kalita.
: Mr. J. Payeng.
Special Counsel,
Foreigners Tribunal.
: Mr. A.I. Ali,
: Mr. A. Bhuyan
Standing Counsel, ECI.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
: Ms. L. Devi,
: Mr. P.S. Lahkar,
Standing Counsel, NRC.
: Ms. U. Das,
Addl. Senior Govt. Adv.,
Assam.
: Mr. H. Gupta, CGC.
: Mr. A.K. Dutta, CGC.
......Advocates
Dates of Hearing : 23.03.2022, 29.03.2022
& 06.04.2022
Date of Judgment : 28.04.2022
JUDGMENT AND ORDER (CAV)
[N. Kotiswar Singh, J.]
Heard Mr. B.C. Das, learned counsel for the petitioners in WP(C)
No.2099/2018 and WP(C) No.2601/2018; Mr. A.R. Sikdar, learned
counsel for the petitioner in WP(C) Nos.4610/2018, 8491/2018,
8493/2018, 822/2019; Mr. F.U. Barbhuiya, learned counsel for the
petitioner in WP(C) No. 2239/2019; Mr. K.M. Hassan, learned counsel
appearing for the petitioner in WP(C) No.8189/2019; Mr. M. Khan,
learned counsel appearing for the petitioners in WP(C) No.8253/2019 &
WP(C) No.3514/2021 and Mr. H. Ali, learned counsel for the petitioner
in WP(C) No.1816/2020.
Also heard Mr. A. Kalita and Mr. J. Payeng, learned Special
Counsel, Foreigners Tribunal for the State respondents; Mr. A.I. Ali,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
learned Standing Counsel, ECI; Ms. U. Das, learned Additional Senior
Govt. Advocate, Assam; Mr. A.K. Dutta, learned Central Government
Counsel and Ms. L. Devi, learned Standing Counsel, NRC.
2. The common theme which runs through this batch of writ
petitions is the applicability of the principle of res judicata.
The petitioners contend based on the decision in Abdul Kuddus
Vs. Union of India, (2019) 6 SCC 604 [Abdul Kuddus for short]
that the subsequent proceedings before the Foreigners Tribunals
challenged in these petitions are barred by res judicata. Though many
such petitions have been already allowed by this Court on the basis of
the decision in Abdul Kuddus, learned Special Counsel for the
Foreigners Tribunal submits that the law laid down by this Court in
Amina Khatoon Vs. Union of India, (2018) 4 Gau LR 643
[Amina Khatoon for short] in which it was held that res judicata is
not applicable in the proceeding before the Foreigners Tribunal will
continue to hold the field, as the said decision has not yet been
overruled by the Hon‟ble Supreme Court till date. Neither it has been
challenged before the Hon‟ble Supreme Court so far.
3. The contention of the Special Counsel is based on the following
premises.
3.1. It has been submitted that the issue before the Hon‟ble Supreme
Court in Abdul Kuddus was about 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 (2003 Rules for short) which related to denial of registration by
the NRC authorities and not relating to any decision of the Tribunal
declaring any procedee to be a foreigner, and as such any observation
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
by the Hon‟ble Supreme Court about res judicata is merely an orbiter
dicta and the decision in Abdul Kuddus will be confined to the facts of
the case.
It has been submitted that in the said case before the Hon‟ble
Supreme Court, no decision of the Foreigners Tribunal declaring a
person to be a foreigner was challenged. On the other hand, the issue
of res-judicata was pointedly decided by this Court in Amina Khatoon
that res-judicata is not applicable in the proceedings before the
Foreigners Tribunals. Further, applicability of res judicata before the
Foreigners Tribunal was not the specific issue raised nor considered in
Abdul Kuddus.
It has been also submitted that the judgment of Amina
Khatoon was neither challenged nor brought to the notice of the
Hon‟ble Supreme Court. Thus, the decision in Amina Khatoon has
remained unchallenged and as such, will continue to be binding and
hold the field.
3.2. It has been further submitted that a Special Leave to Appeal
No.19253 of 2018 was filed before the Hon‟ble Supreme Court against
a decision of this Court in Shahjahan Ali Vs. Union of India & Ors,
[Writ Petition No. 3362 of 2018] relying on the decision Amina
Khatoon that the principle of res judicata is not applicable in a
proceeding before the Foreigners Tribunal. The Hon‟ble Supreme Court
dismissed the said SLP. According to the learned Special Counsel,
dismissal by the Hon‟ble Supreme Court of the SLP preferred against
decision in Shahjahan Ali (supra) affirms the decision rendered in
Amina Khatoon that res-judicata is not applicable.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
3.3. Further, relying on the decision of Hon‟ble Supreme Court in
Canara Bank vs. N.G. Subbaraya Setty and Anr. [(2018) 6 SCC
228], it has been submitted by Mr. Kalita that on many occasions, the
Tribunals had erroneously given the opinions without proper application
of mind and as such, the principle of res judicata will not apply in the
subsequent proceedings.
3.4. It has been also contended by Mr. Kalita, based on the decision
of Hon‟ble Supreme Court in V. Rajeshwari (Smt) Vs. T.C.
Saravanabava, [(2004) 1 SCC 551] that if the plea of res judicata
is not raised at the first instance before the Foreigners Tribunals, the
said plea cannot be allowed to be taken subsequently before this Court.
3.5. Ld. Special Counsel in submitting that res judicata is not
applicable in a proceeding before the Foreigners Tribunal has reiterated
the reasons on which this Court held in Amina Khatoon that the
principle of re judicata is not applicable, including that the opinion of
the Tribunal is merely an opinion which does not have a binding effect,
that the Tribunal is not a Court and in view of the overarching public
policy to detect and deport foreigners, such a public policy shall prevail
over the principle of res judicata.
4. On the other hand, the learned counsel for the petitioners have
forcefully argued that principle of res judicata are applicable relying on
a number of decisions, apart from Abdul Kuddus. It has been
submitted that the decision in Amina Khatoon is plainly contrary to
several decisions of the Hon‟ble Supreme Court and as such, cannot
have a binding effect.
Some of the decisions relied upon by the counsel for the
petitioners are as follows:
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
(i) Indian National Congress (I) Vs. Institute of Social
Welfare, (2002) 5 SCC 685.
(ii) Hope Plantations Ltd. Vs. Taluk Land Board
Peermade & Anr., decided on 03.11.1998.
(iii) Satyadhyan Ghosal and Ors. Vs. Smst. Deorjin Debi
and Anr., AIR 1960 SC 941.
(iv) Sheodan Singh Vs. Daryao Kunwar (Smt), (1966) 3
SCR 300 : AIR 1966 SC 1332 Jaswant Singh and Anr.
Vs. Custodian of Evacuee Property, New Delhi,
(1985) 3 SCC 648
(v) Jahir Ali Vs. Union of India and Ors., 2021 (2) GLT
5. As we proceed to examine the rival contentions of the contesting
parties, we would like to clarify that we are not undertaking any
exercise of review of the order passed in Amina Khatoon. The
decision in Amina Khatoon remains undisturbed as it is from our side.
It is the stand of the Special Counsel, Foreigners Tribunals that
Amina Khatoon continues to hold the field and on the other hand, it
is the contention of the petitioners that in view of the decision in Abdul
Kaddus and other judgments of the Hon‟ble Supreme Court, Amina
Khatoon is not a good law any longer to be followed.
In order to examine whether the submission of the Ld. Special
Counsel has merit or not, as to whether the law laid down by this Court
in Amina Khatoon will continue to be applicable in proceedings before
the Foreigners Tribunals, in spite of the order passed Abdul Kuddus,
we will try to understand the decisions in Amina Khatoon and Abdul
Kuddus in proper perspective.
While doing so, we have to examine the effect of Abdul
Kuddus. If, on consideration of Abdul Kuddus, it is found that it is
binding on us under Article 141 of the Consitution of India being a
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
decision rendered by the Hon‟ble Supreme Court, it may not be
necessary to refer to the various judgements relied upon by the
petitioners.
Only when it is found that Abdul Kuddus does not decide the
applicability of the principle of res judicata in the proceedings before
the Foreigners Tribunals, the question of reassessing the applicability of
the decision in Amina Khatoon may arise as claimed by the learned
counsel for the petitioners, whether by way of review or by referring it
to a larger Bench.
6. Decision in Amina Khatoon :
6.1. The specific issue framed in Amina Khatoon was whether an
opinion rendered by a Foreigners Tribunal in respect of the same
proceedee would be binding on another Foreigners Tribunal or the
same Foreigners Tribunal following further or fresh reference made by
the State.
6.2. In examining the said issue in Amina Khatoon, the Division
Bench of this Court considered the argument in favour of applicability
of resjudicata that, though section 11 of the Code of Civil Procedure,
1908 („the Code‟) may not be strictly applicable to a proceeding before
a Foreigners Tribunal, the spirit or principle underlying section 11 would
govern a proceeding before a Foreigners Tribunal. It was submitted
that principle of res judicata is based on public policy which has been
recognized by the Hon‟ble Supreme Court as held in Burn &
Co. v. Employees, AIR 1957 SC 38, Workmen v. Straw Board
Manufacturing Company, (1974) 4 SCC 681 etc., in which it was
held that it is a well-recognised principle in law that a decision once
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
rendered by a competent court on a matter in issue between the
parties after a full enquiry should not be permitted to be re-agitated. It
is on this principle, which is founded on sound public policy, that the
rule of res judicata enacted in section 11 of the Code is based. It was
observed that this principle is of universal application.
Another plea was also taken that, under paragraph 4 of the
Foreigners (Tribunals) Order, 2006 (Foreigners Order), a Foreigners
Tribunal has the power of a civil court in respect of summoning and
enforcing attendance of any person and examining him on oath;
requiring discovery and production of any document; and issuing
commission for examination of any witness. Therefore, provisions of
the Code would be applicable to a proceeding before a Foreigners
Tribunal. Thus, principle of res-judicata as contained in the Code will be
applicable.
6.3. The opposing submission of the State considered by the Division
Bench of this Court in Amina Khatoon was that under section 3 of the
Foreigners Act, 1946, power is vested on the Central Government to
detect and deport foreigners. For administrative exigencies, Central
Government delegated this power to the Superintendents of Police and
deportation is executed by the Central Government. Under the
Foreigners (Tribunals) Order, 1964 [Foreigners Order 1964 for short],
the Superintendents of Police only seek an opinion from the Foreigners
Tribunals. The ultimate decision vis-a-vis an illegal foreigner is taken by
the referral authority, i.e., the Superintendents of Police and
deportation is executed by the Central Government. A Foreigners
Tribunal only renders an opinion. Therefore, it would be wrong to say
that the Central Government or for that matter, Superintendents of
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WP(C) No.1816/2020 & WP(C) No.3514/2021
Police would be bound by the opinion of the Foreigners Tribunal. It was
thus contended that a reference made to a Foreigners Tribunal is
neither a lis nor a controversy; consequently, opinion rendered by a
Foreigners Tribunal cannot be construed as a judgment.
Further, though the principle of res judicata may be based on
public policy, detection and declaration of foreigners illegally residing in
India concerns national security and is, therefore, a higher public
policy. Thus, on the ground of higher public policy, principle of res
judicata cannot be invoked to prevent the State from acting against an
illegal foreigner notwithstanding an adverse opinion previously
rendered by a Foreigners Tribunal.
6.4. On consideration of the aforesaid submissions, the Division
Bench in Amina Khatoon observed that what discernible is that firstly,
the principle of res judicata as engrafted in section 11 of the Code is
operative in a court. Secondly, it relates to a suit or an issue between
the same parties litigating under the same title; and thirdly, the suit or
issue between the same parties was heard and finally decided by the
court of competent jurisdiction. Section 11 of the Code is, stricto senso,
applicable to a court trying a suit or an issue which was directly and
substantially in issue in a former suit between the same parties
litigating under the same title and which was finally heard and decided
by the competent court.
6.5. The Division Bench in Amina Khatoon thereafter, proceeded to
analyse the provisions of the Foreigners Act and held that under section
3 of the Foreigners Act, the power to deal with foreigners including the
decision to remove a foreigner vests in the Central Government. As a
matter of fact, citizenship, naturalization and aliens; admission into and
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
immigration and expulsion from India; passports and visas are subjects
having entries in List-I, i.e., Union List under 7th Schedule to the
Constitution of India. It was accordingly, held that for all intent and
purpose, it is the Central Government which is the authority to deal
with illegal migrants and issues relating to them, such as, detection and
deportation.
6.6. It was also held that a proceeding before a Foreigners Tribunal
is summary in nature as a Foreigners Tribunal is only required to
render its opinion on the reference made to it as to whether the
proceedee is a foreigner or not.
6.7. The Division Bench also noted that a proceeding before a
Foreigners Tribunal is neither civil nor criminal notwithstanding the fact
that for attendance of any person or examination of witnesses it has
the powers of a civil court under the Code of Civil Procedure, 1908 and
for issuing warrant of arrest against a proceedee for default, it has the
powers of a Judicial Magistrate First Class. Therefore, it may not be
wrong to say that a proceeding before the Foreigners Tribunal is sui
generis.
6.8. The Division Bench further observed that a plea to transfer from
one Foreigners Tribunal to another Foreigners Tribunal was rejected on
the ground that it is not a Court, and provisions of section 24 of the
Code of Civil Procedure, 1908 was not applicable[Mainul
Haque v. Union of India, 2018 (1) GLT 777].
6.9. Referring to Bahaluddin Sheikh (Mohd.) v. Union of India,
2013 (3) GLT 264, it was also observed that jurisdiction of the civil
court stands ousted.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
6.10. The Division Bench also made a reference to the observations
made in the Full Bench decision in State of Assam v. Moslem
Mondal, 2013 SCC OnLine Gau 1 : (2013) 3 GLR 402 : 2013 (1)
GLT 809, that even if a finding is recorded in a writ petition in favour
of a person who was declared an illegal migrant by the IMD Tribunal,
State will not be precluded from proceeding afresh against such a
person under the provisions of the Foreigners Act and the Foreigners
(Tribunals) Order, 1964. The Division Bench accordingly, observed that
the principle of res judicata would not be applicable in such situations.
6.11. The Division Bench in Amina Khatoon held that a reference
made by a referral authority to a Foreigners Tribunal is neither a lis nor
a controversy. And in contradistinction, an opinion rendered by a
Foreigners Tribunal upon a reference made to it by the referral
authority under paragraph 2(1) of the Foreigners Tribunals Order
remains an opinion even after the Central Government acts on it and
takes steps for expulsion of the declared foreigner under section 3 of
the Foreigners Act based on such opinion. It does not change its
character from opinion to judgment upon execution. It was also
observed that as held in Mainul Hoque (supra), a Foreigners Tribunal
assigned the task of rendering an opinion on a reference made to it by
the Superintendent of Police (Border) is not a court. Therefore, a
Member of Foreigners Tribunal is not a judge.
6.12. The Division Bench in Amina Khatoon, thus, held that an
opinion rendered by a Foreigners Tribunal is not a judgment.
Foreigners Tribunal is only to render an opinion on the reference made
to it but the ultimate decision rests with the Central Government under
section 3 of the Foreigners Act. If the Central Government or the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
delegated authority, which in the case of Assam is the Superintendent
of Police (Border), finds that the negative opinion rendered was
contrary to the materials on record or there was no proper appreciation
of the materials on record or if new materials emerge against a suspect
or if the opinion of a Foreigners Tribunal is palpably wrong, the Central
Government or the Superintendent of Police (Border) cannot be
debarred from seeking a fresh opinion from a Foreigners Tribunal.
6.13. The Division Bench in Amina Khatoon, accordingly, took the
view that having regard particularly to the fact that State of Assam is
facing external aggression and security and integrity of the nation has
been threatened on account of large scale illegal migration of
foreigners from Bangladesh into Assam, to hold that principle of res
judicata would be applicable to a proceeding under the Foreigners Act
and the Foreigners (Tribunals) Order would be self-defeating and
against the overarching public policy, i.e., to ensure national security
and to protect the integrity of the nation.
6.14. It was, accordingly, held in Amina Khatoon that though the
principle of res judicata is based on public policy, the same will stand
subsumed under the overarching public policy governing a sovereign
nation while dealing with illegal foreigners under the Foreigners Act and
the Foreigners (Tribunals) Order.
7. Before us, the Ld. Special Counsel has reiterated the grounds on
which the Division Bench in Amina Khatoon held that principle of res
judicata is not applicable in proceedings before the Foreigners
Tribunals, giving emphasis on the grounds that as the Foreigners
Tribunals merely give "opinions" and not "judgments" and these are
not legally binding on any authority. Thus, the "opinions" of the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Foreigners Tribunals, not being judgments, and since the Foreigners
Tribunals are not "courts", this principle of res-judicata cannot be
imported to the proceedings of the Foreigners Tribunals.
It has been also emphasised that influx of illegal immigrants
from the neighbouring country being a cause of internal disturbance
which virtually amounts to external aggression, as also noted by the
Hon‟ble Supreme Court in Sarbananda Sonowal v. Union of India,
(2005) 5 SCC 665, such legal principle should not come in the way of
detection and deportation of foreigners.
8. Keeping the aforesaid in mind, we would examine what was
decided by the Hon‟ble Supreme Court in Abdul Kuddus as regards
the issue of applicability of res judicata in the proceedings before the
Foreigners Tribunals, and in what way Abdul Kuddus would be
binding on us.
9. Decision in Abdul Kuddus:
9.1. Background and Issues involved:
The plea taken by the appellants in Abdul Kuddus was that a
person declared a foreigner by a Foreigners Tribunal and whose name
is also included in the citizenship registrar should be allowed to file an
appeal against an adverse order by the NRC authority under Paragraph
8 of the Schedule to the Citizenship (Registration of Citizens and Issue
of National Identity Cards) Rules, 2003, hereinafter referred as the
"2003 Rules" denying registration.
9.2. Before we proceed, it may be apposite to refer briefly to the
background of the special provisions of law applicable in the State of
Assam relating to foreigners as relevant for our consideration.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
9.3. Because of the peculiar historical reasons which led to a massive
immigration of foreigners to Assam without proper and valid
documents, it led to an unprecedented upheaval in the State of Assam
protesting against illegal immigrants and demanding detection and
deportation of illegal immigrants especially from the erstwhile East
Pakistan and the present day Bangladesh popularly known as Assam
Agitation. This resulted in inking of a landmark agreement between the
Government of India and those spearheading the Assam Agitation for
identification of foreigners and those who could be granted Indian
citizenship and those who would be declared as foreigners who would
be liable to be deported. This agreement led to the amendment of the
Citizenship Act, 1955 by incorporating Section 6-A providing special
provisions as to the citizenship of persons covered by the Assam
Accord.
Without dwelling in detail of the provisions of Section 6-A, the
salient features of the same may be noted.
Section 6-A identified broadly three categories of foreigners who
entered Assam (India) in different periods of time, giving different
status to them as follows.
Firstly, those of Indian origin who came to Assam on or
before the 1st day of January, 1966 to Assam from the
"specified territory", i.e., territories included in Bangladesh
(including such of those whose names were included in the
electoral rolls used for the purposes of the General Election to
the House of the People held in 1967) and who have been
ordinarily resident in Assam since the date of their entry into
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Assam shall be deemed to be citizens of India as from the 1st
day of January, 1966.
Secondly, such person of Indian origin who came to
Assam on or after the 1st day of January, 1966 but before the
25th day of March, 1971 from the specified territory; and has
since the date of his entry into Assam, been ordinarily resident in
Assam; and has been detected to be a foreigner, shall register
with such authority.
Such a person from the date on which he has been
detected to be a foreigner till the expiry of a period of ten years
from that date, have the same rights and obligations as a citizen
of India but shall not be entitled to have his name included in
any electoral roll for any Assembly or Parliamentary constituency
at any time before the expiry of the said period of ten years. He
however, shall be deemed to be a citizen of India for all
purposes as from the date of expiry of a period of ten years
from the date on which he has been detected to be a foreigner.
Thirdly, as regards those who enter Assam on or after
25th day of March, 1971, there is no such privilege granted,
thereby, indicating that such persons will be declared illegal
migrants or foreigners who would be liable to be deported.
9.4. Section 6-A (1) (e)of the Citizenship Act, 1955 provides that a
person shall be deemed to have been detected to be a foreigner on the
date on which a Tribunal constituted under the Foreigners (Tribunals)
Order, 1964 submits its opinion to the effect that he is a foreigner to
the officer or authority concerned.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Explanation to Section 6-A (3) attaches great importance to the
opinion of the Tribunal as regards the status of such persons. It
provides that in the case of every person seeking registration under this
sub-section, the opinion of the Tribunal constituted under the
Foreigners (Tribunals) Order, 1964 holding such person to be a
foreigner, shall be deemed to be sufficient proof of the requirement
under clause (c) of this sub-section and if any question arises as to
whether such person complies with any other requirement under this
sub-section, the registering authority shall, if such opinion contains a
finding with respect to such other requirement, decide the question in
conformity with such finding of the Foreigners Tribunal and if such
opinion does not contain a finding with respect to such other
requirement, refer the question to a Tribunal constituted under the said
Order having jurisdiction in accordance with such rules as the Central
Government may make in this behalf under Section 18 and decide the
question in conformity with the opinion received on such reference.
9.5. Apart from these special provisions relating to migrants coming
to Assam and about citizenship, there are other statutory provisions
relating to registration of citizens, as the 2003 Rules. In these 2003
Rules also, special provisions have been made for the State of Assam,
by incorporating Rule 4-A.
Under Rule 4-A, the Central Government shall, for the
purpose, of the National Register of Indian Citizens in the State of
Assam, cause to carry out throughout the State of Assam for
preparation of the National Register of Indian Citizens in the State
of Assam by inviting applications from all the residents, for
collection of specified particulars relating to each family and individual,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
residing in a local area in the State including the citizenship
status based on the National Register of Citizens 1951, and the
electoral rolls up to the midnight of the 24th day of March, 1971.
Schedule to the aforesaid 2003 Rules lays down the modalities
to deal with the applications so received from the persons seeking
inclusion in the NRC, providing that those persons who had been
declared as illegal migrants or foreigners by the competent authority
shall not be eligible to be included in the consolidated list.
Paragraph 7 provides for publication of supplementary list for
inclusion or deletion of names before the Registrar General of Citizens
Registration publishes the final National Register of Indian Citizens in
the State of Assam.
There is a provision for appeal under paragraph 8 that if any
person is not satisfied with the outcome of the decisions of the
claims and objections under paragraph 7, such a person can prefer
an appeal before the designated Tribunal constituted under the
Foreigners (Tribunals) Order, 1964.
9.6. From the above, what is evident is that the role of the
Foreigners Tribunals come into play in two situations, one, under sub-
para (2) of Para 3 of the Schedule to the 2003 Rules and secondly,
under Para 8 of the Schedule to the aforesaid Rules, where the
opinions of the Foreigners Tribunals become critical and decisive.
As discussed above, a person who enters Assam during the
period of 01.01.1966 and 25.03.1971, against whom the Foreigners
Tribunal has given an "opinion" of being a foreigner is entitled to get
himself/herself registered with the competent authority and will
become an Indian citizen of ten years of detention as a foreigner. Such
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
opinion is rendered by the Foreigners Tribunal on a reference being
made by the competent authority.
It may be noted that as provided under Order 2 of the
Foreigners (Tribunals) Order, 1964, the Central Government or the
State Government or the Union territory administration or the District
Collector or the District Magistrate may, by order, refer the question as
to whether a person is a foreigner or not within the meaning of the
Foreigners Act, 1946 to a Tribunal constituted for the said purpose, for
its opinion.
Further, the registering authority appointed under sub-rule (1)
of Rule 19 of the Citizenship Rules, 2009 may also refer to the Tribunal
the question whether a person of Indian Origin, complies with any of
the requirements under sub-section (3) of Section 6A of the Citizenship
Act, 1955.
It has been further provided under sub-order (1B) of Order 2
that any person referred to in paragraph 8 of the Schedule to the
Citizenship (Registration of Citizens and Issue of National Identity
Cards) Rules, 2003 may prefer an appeal, on the terms and conditions
specified therein, before the designated Tribunal constituted under this
Order.
9.7. Thus, the aforesaid dual role of the Foreigners Tribunals is to be
found in sub-para(2) of para 3 and para 8 of Schedule to the 2003
Rules.
Sub-para (2) of para 3 of the Schedule reads as follows:
―3. Scrutiny of applications--
(1) The scrutiny of applications received under sub-
paragraph (3) of paragraph 2 shall be made by comparing the
information stated in the application form with the official
records and the persons, of whom the information is found in
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WP(C) No.1816/2020 & WP(C) No.3514/2021
order, shall be eligible for inclusion of their names in the
consolidated list.
(2) The names of persons who have been declared
as illegal migrants or foreigners by the competent authority
shall not be included in the consolidated list:
Provided that the names of persons who came in the
State of Assam after 1966 and before the 25th March, 1971
and registered themselves with the Foreigner Registration
Regional Officer and who have not been declared as illegal
migrants or foreigners by the competent authority shall
beeligible to be included in the consolidated list.‖
In the above referred sub-para (2), the reference to the
"competent authority" is to the Foreigners Tribunal which is constituted
under Foreigners (Tribunals) Order, 1964,to give its opinion when
reference is made to it as to whether a person is a foreigner or not.
Para 8 of the Schedule to the 2003 Rules reads as follows:
―8. Appeal--Any person, not satisfied with the outcome of
the decisions of the claims and objections under paragraph
7, may prefer appeal, before the designated Tribunal constituted
under the Foreigners (Tribunals) Order,1964, within a period of
sixty days from the date of such order, and or the disposal of
appeal by the Tribunals the names shall be included or
deleted, as the case may be, in the National Register of
Indian Citizens in the State of Assam.‖
Under Para 8 of the Schedule to the 2003 Rules, the said
Foreigners Tribunal constituted under Foreigners (Tribunals) Order,
1964 has been identified as the appellate forum to consider any order
that may be passed by the registering authority under Paragraph 7 of
the Schedule.
9.8. Thus, the Foreigners Tribunal discharges original jurisdiction
under sub-para (2) of Paragraph 3 of the Schedule to the 2003 Order,
and under Paragraph 8 of the Schedule it discharges the function of an
appellate authority. However, irrespective of the nature of the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
jurisdiction whether original or appellate, the Foreigners Tribunal
discharges similar functions.
Under sub-para (2) of Paragraph 3 of the Schedule to the 2003
Order, the function of the Foreigners Tribunal is to determine whether
the person against whom reference is made, is a foreigner or not.
On the other hand, under Paragraph 8 of the Schedule
Foreigners Tribunal, while discharging the function of an appellate
tribunal, it decides whether the order passed by the registering
authority in including or excluding the person in the consolidated list of
citizens under the National Register of Indian Citizens in the State of
Assam is correct or not. Since, a person who is a foreigner cannot be
included in the said list, the finding by the Foreigners Tribunal in the
form of the opinion is critical and determinative of the rights of the
persons concerned to be included in the list.
Thus, though the Foreigners Tribunal discharges apparently
different functions, in essence the function is of similar nature that is,
to ascertain whether the person concerned is a foreigner or not.
9.9. It was in that context, the Hon‟ble Supreme Court observed in
Abdul Kuddus in the opening paragraph that the "order decides
perceived conflict between sub-paragraph (2) of paragraph 3 and
paragraph 8 of the Schedule to the Citizenship(Registration of Citizens
and Issue of National Identity Cards)Rules, 2003 ("the 2003 Rules" for
short)
9.10. In the said judgment of Abdul Kuddus (supra), the other issue
considered by the Hon‟ble Supreme Court was the alternative argument
and suggestion of the appellants that the Hon‟ble Supreme Court
should by way of a judicial pronouncement and in exercise of Civil
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Appeal arising out of SLP (C) No. 23127 of 2018 power under Article
142of the Constitution of India provide and create an appellate forum
for deciding disputes regarding the citizenship status of persons
residing in the State of Assam. However, we are not concerned with
this second issue in the present proceeding.
10. Consideration by the Hon'ble Supreme Court in Abdul
Kuddus:
10.1. The Hon‟ble Supreme Court referred to the various provisions
relating to citizenship, viz., Articles 5 to 9 of the Constitution. Hon‟ble
Supreme Court also referred to Section 14-A of the Citizenship Act
which provides for compulsory registration of every citizen of India and
issuance of national identity card. Thereafter, the Hon‟ble Supreme
Court examined the scope of Section 6-A of the Citizenship
(Registration of Citizens and Issue of National Identity Cards) Rules,
2003 Citizenship Act which dealt the methodology of registration which
debars registration of those who are found or declared to be foreigners
by the Foreigners Tribunals.
In that context, the Hon‟ble Supreme Court observed in paras 11
and 12 of Abdul Kuddus that,
" 11. It is obvious to us that the persons covered by sub-para (2) to
Para 3 of the Schedule i.e. persons who have been declared to be
illegal migrants or foreigners by the Competent Authority fall in a
separate and distinct class and in such cases, no enquiry or
investigation is required to be conducted in terms of sub-para (4).
Such persons cannot, in terms of the specific language used in sub-
para (2) to Para 3 of the Schedule, be included in the National
Register of Citizens. The reason as is evident is that their citizenship
status has already been determined by the Competent Authority. A
person once declared an illegal migrant or a foreigner cannot claim or
put forth a claim to the citizenship of India on the basis that he/she has
been residing in the State of Assam.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
12. ........................... We would, however, reiterate that the said
list(s) would not include name of the persons who have been declared
illegal migrants or foreigners by the Competent Authority in terms of
sub-para (2) to Para 3 of the Schedule. In other cases i.e. cases not
covered by sub-para (2) to Para 3, the Local Registrar after
considering the objections and claims has to prepare a supplementary
list to be published under Para 7 of the Schedule for inclusion and
deletion of names, as the case may be, and thereafter, a final list of
National Citizens in the State of Assam.‖
10.2. The Hon‟ble Supreme Court, thereafter, examined the provisions
of Foreigners (Tribunals) Order, 1964 issued under Section 3 of the
Foreigners Act, 1946 and the Foreigners Tribunals constituted under
these Orders to decide whether a person is a foreigner or not within
the meaning of Foreigners Act. The Hon‟ble Supreme Court thereafter
referred to the two decisions in Sarbananda Sonowal v. Union of
India [Sarbananda Sonowal v. Union of India, (2005) 5 SCC
665] ("Sonowal (1)", for short), wherein it was held that the
procedure prescribed for the Tribunals constituted under the 1964
Order was just, fair and reasonable and struck down provisions of the
Illegal Migrants (Determination by Tribunals) Act, 1983 ("the IMDT
Act", for short) as ultra vires the Constitution of India, primarily on the
ground that the offending Act did not contain any provision similar to
Section 9 of the Foreigners Act which stipulates that the burden of
proof as to whether any person is or is not a foreigner lies upon the
said person notwithstanding anything contained in the Indian Evidence
Act, 1872.
The Hon‟ble Supreme Court also noted the observation made in
Sonowal (1) about the large scale influx in the State of Assam
dubbing it to be an external aggression and causing internal
disturbance.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
10.3. After the IMDT Act was struck down, the Central Government
made the Foreigners (Tribunals) Amendment Order, 2006 which
however, was struck down in Sarbananda Sonowal (2) v. Union of
India, [(2007) 1 SCC 174] ["Sonowal (2)", for short] on the
ground that it suffered from similar defects as were found in the IMDT
Act and as a consequence, Foreigners (Tribunals) Order, 1964 was
revived and proceedings against the suspected foreigners began to be
examined by the Foreigners Tribunals constituted under the 1964 Order
and by following the procedures laid thereunder.
10.4. The Hon‟ble Supreme Court then referred to Para 3 of the
amended 1964 Order, viz., the Foreigners (Tribunals) Amendment
Order, 2012, which provides for procedure for disposal of question, on
which basis, it was urged by the appellants that an order of the
Foreigners Tribunal is an executive order which merely renders an
opinion, which cannot be equated with a judgment. It was also
submitted that the opinion formed by the Foreigners Tribunal being an
executive order would not operate as res judicata.
It was also submitted that there were instances where persons
who had been declared foreigners under the Foreigners Act have been
included in the draft National Register of Citizens for the State of
Assam, while other siblings and close blood relations of such persons
have been named in the draft National Register of Citizens. Under such
circumstances, it was contended that an aggrieved person should be
entitled to invoke the appellate provision under Para 8 of the Schedule
to the 2003 Rules to challenge such orders passed by the registering
authority and also the opinion of the Foreigners Tribunals.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In that context, the Hon‟ble Supreme Court observed as follows
under para 21:
"21. Referring to the above amended provisions, it is urged on
behalf of the appellants that an order of the Foreigners Tribunal is
an executive order which renders an opinion and therefore, it
cannot be equated with a judgment. Summary opinion of the
Foreigners Tribunal, it is submitted, is not a detailed order and
hence, is not a decision or judgment. Based on the said submission,
it is argued that the opinion formed by the Foreigners Tribunal is
not an order of the Competent Authority for the purposes of sub-
para (2) to Para 3 of the Schedule to the 2003 Rules. Further, the
opinion formed by the Foreigners Tribunal being an executive
order would not operate as res judicata. It is highlighted that in
some cases, persons who have been declared to be a foreigner
under the Foreigners Act have been included in the draft National
Register of Citizens for the State of Assam, while in others siblings
and close blood relations of such persons have been named in the
draft National Register of Citizens. It is averred that in these cases
of contradictions, an aggrieved person should be entitled to take
recourse to Para 8 of the Schedule to the 2003 Rules.‖
10.5. The Hon‟ble Supreme Court rejected those contentions and held
that the Competent Authority referred to in sub-para (2) to Para 3 of
the Schedule would be, without a doubt, be the Tribunal constituted
under the Foreigners Act i.e. the 1964 Order.
The Hon‟ble Supreme Court thereafter, examined the scope of
the procedure prescribed by the post 2012 amendment under the 1964
Order,noting that it complies with the principles of natural justice, by
referring to provisions for reasonable opportunity to be given to the
proceedee and to produce evidence, including by way of examination of
witnesses. The Hon‟ble Supreme Court while noting that the Rules do
not require that an opinion of the Tribunal to be a detailed judgment,
nevertheless, held that it must indicate the facts and reasons for
coming to such conclusions.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
The Hon‟ble Supreme Court then held that such an opinion of
the Foreigners Tribunals is a decision and an order. It was also held
that the opinion by the Foreigners Tribunal is a quasi-judicial order and
not an administrative order as the determination by it has civil
consequences. In that regard, the Hon‟ble Supreme Court referred to
the decision in Indian National Congress (I) v. Institute of Social
Welfare, (2002) 5 SCC 685, wherein 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 was held that it is not only when a lis between two
contesting parties is decided, but also when the decision prejudicially
affects the subject as against the authority, provided that the authority
is required by the statute to act judicially, it can be considered to be a
quasi-judicial body. The Hon‟ble Supreme Court then distinguished
between an administrative act from the quasi-judicial act by clarifying
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. [See Para 23 of
Abdul Kuddus].
11. Conclusion and decision of the Hon'ble Supreme Court in
Abdul Kuddus:
11.1 The Hon‟ble Supreme Court then proceeded to observe that the
opinion of the Foreigners Tribunal would operate as res judicata, in the
following words,
"24. The opinion/order of the Tribunal, or the order passed by the
Registering Authority based upon the opinion of the Foreigners
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WP(C) No.1816/2020 & WP(C) No.3514/2021
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.‖
11.2. Having held that the principle of res judicata are applicable, the
Hon‟ble Supreme Court rejected the contention of the appellants
therein that a person is entitled to go for a second round of litigation
before the Foreigners Tribunals in spite of an earlier opinion to the
contrary in the following words,
"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."
11.3. However, as regards the differing views of the Foreigners
Tribunals in cases of near family members, the Hon‟ble Supreme Court
held that principle of res judicata would not apply to separate
proceedings even if against two closely related but different persons, as
each case has to be strictly decided on the facts and evidence on
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
record. Further, an aggrieved person would have liberty to invoke writ
jurisdiction, or if necessary, review jurisdiction before the High Court or
this Court to ensure that no injustice is done. The Hon‟ble Supreme
Court also clarified that any order passed in case of close family
members, subsequent to adjudication order determining the citizenship
status of a person, would be a material evidence which can be duly
taken note of and considered while deciding a writ petition or a review
application. [See para 28 of Abdul Kuddus].
11.4.The Hon‟ble Supreme Court thus affirmed that where the Tribunal
constituted under the 1964 Order has already adjudicated upon and
decided the issue as to whether the person is an Indian National or a
foreigner, an appeal would not be maintainable under Para 8 of the
Schedule to the 2003 Rules. The determination by the Foreigners
Tribunal would be final and binding on the Registering Authority and
the Local Registrar under the Schedule. It was held that Para 8 does
not envisage and provide for a second round of litigation before the
same authority i.e. the Foreigners Tribunal constituted under the 1964
Order on and after preparation of the final list. It was clarified that
provisions of Para 8 of the Schedule to the 2003 Rules will apply when
there has not been an earlier adjudication and decision by the
Foreigners Tribunal.
In our view, the Hon‟ble Supreme Court has, thus,
authoritatively decided that once a Foreigners Tribunal constituted
under Order 1964 has determined the nationality status of a person,
that would be final and decisive and it cannot be re-agitated through
another round of litigation even when seeking to challenge an adverse
order under Paragraph 8 of the Schedule to the 2003 Order before the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Foreigners Tribunal, which also acts as the appellate forum. The earlier
determination by the Foreigners Tribunal on the issue of being a
foreigner of person will be binding in subsequent proceedings and
cannot be reopened.
11.5. The findings and conclusions of the Hon‟ble Supreme Court are
recorded in paragraph no. 29 of Abdul Kuddus which are reproduced
herein below.
―29. In view of the aforesaid findings, it has to be held that Para 8 of
the Schedule to the 2003 Rules which gives a right to appeal before the
Tribunal under the 1964 Order would apply only if and, in those cases,
where the Tribunal constituted under the 1964 Order has not already
adjudicated upon and decided the issue as to whether the person is an
Indian National or a foreigner. In other words, where the issue and
question of nationality has already been determined under the 1964
Order, an appeal would not be maintainable under Para 8 of the
Schedule to the 2003 Rules. The determination would be final and
binding on the Registering Authority under the Schedule and the Local
Registrar. Para 8 does not envisage and provide for a second round of
litigation before the same authority i.e. the Foreigners Tribunal
constituted under the 1964 Order on and after preparation of the final
list. Provisions of Para 8 of the Schedule to the 2003 Rules will apply
when there has not been an earlier adjudication and decision by the
Foreigners Tribunal.‖
12. It is to be noted that when the Hon‟ble Supreme Court rendered
the aforesaid judgment, the decision rendered by this Court in Amina
Khatoon was not brought to the notice of the Hon‟ble Supreme Court.
This, however, in our view, will not make any difference in as much as
the decision of the Hon‟ble Supreme Court on any question of law will
prevail over any decision of the High Court on the same issue.
13. In Jigya Yadav v. CBSE, (2021) 7 SCC 535, certain issue
arose regarding the power and jurisdiction of the High Courts in
directing statutory bodies like the Central Board of Secondary Education
(CBSE) to make corrections in the certificates issued by the Board, in
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
which regard, there were different views expressed by the Hon‟ble
Supreme Court and the High Court of Kerala. In that context it was
held by the Hon‟ble Supreme Court that the view of the Hon‟ble
Supreme Court will prevail over any decision of the High Court.
It was held (in Jigya Yadav) as follows:
―187. Before proceeding further, we must briefly note that the
dictum of this Court in Mohd. Sarifuz Zaman [Board of Secondary
Education of Assam v. Mohd. Sarifuz Zaman, (2003) 12 SCC 408 :
5 SCEC 432] has been relied upon by the Board to contend that it
prohibits any change in contravention of the bye-laws as it does not
recognize any legal right to claim such changes beyond the
prescribed conditions. It has also been asserted that Mohd. Sarifuz
Zaman [Board of Secondary Education of Assam v. Mohd. Sarifuz
Zaman, (2003) 12 SCC 408 : 5 SCEC 432] and Subin
Mohammed [Subin Mohammed S. v. Union of India, 2015 SCC
OnLine Ker 39731 : (2016) 1 KLT 340] contradict each other.
Whether the two judgments are in conflict with each other is an
examination that is not called for. For, we have not placed any
reliance upon Subin Mohammed [Subin Mohammed S. v. Union of
India, 2015 SCC OnLine Ker 39731 : (2016) 1 KLT 340] for
deciding this case and also because Mohd. Sarifuz Zaman [Board
of Secondary Education of Assam v. Mohd. Sarifuz Zaman, (2003)
12 SCC 408 : 5 SCEC 432] is a judgment of this Court as
against Subin Mohammed [Subin Mohammed S. v. Union of India,
2015 SCC OnLine Ker 39731 : (2016) 1 KLT 340] is a judgment
of the Kerala High Court. It requires no reiteration that even if a
conflict exists, the judgment of this Court must prevail under all
circumstances unless there is another judgment of larger Bench of
this Court which takes a different view.‖
(emphasis added)
14. Thus, the view of the Hon‟ble Supreme Court on the issue of res
judicata will prevail over the view of this High Court.
We will examine this aspect from another perspective.
As far as the decision of this Court in Amina Khatoon is
concerned, on the issue of res judicata, it is quite clear that, this Court
held that this principle is not applicable in the proceedings before the
Foreigners Tribunals. But the question is, whether it can still be a good
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
law in the light of the decision of the Hon‟ble Supreme Court in Abdul
Kuddus. Thus, we may examine as to what is the ratio decidendi of
the decision in Abdul Kuddus which will be binding on us as a
precedent and with regard to the law under Article 141 of the
Constitution, so as to override the decision of our High Court in Amina
Khatoon.
15. As to what is ratio decidendi and what amounts to precedents
have been explained in Dalbir Singh v. State of Punjab, (1979) 3
SCC 745 in the following words:
"22. ........................ According to the well-settled theory of
precedents every decision contains three basic ingredients:
―(i) findings of material facts, direct and inferential. An
inferential finding of facts is the inference which the
Judge draws from the direct or perceptible facts;
(ii) statements of the principles of law applicable to the
legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of (i) and
(ii) above.‖
For the purposes of the parties themselves and their privies,
ingredient (iii) is the material element in the decision for it
determines finally their rights and liabilities in relation to the
subject-matter of the action. It is the judgment that estops the
parties from reopening the dispute. However, for the purpose of the
doctrine of precedents, ingredient (ii) is the vital element in the
decision. This indeed is the ratio decidendi. [ R.J. Walker & M.G.
Walker : The English Legal System. Butterworths, 1972, 3rd Edn.,
pp. 123-24] It is not everything said by a judge when giving
judgment that constitutes a precedent. The only thing in a judge's
decision binding a party is the principle upon which the case is
decided and for this reason it is important to analyse a decision and
isolate from it the ratio decidendi. In the leading case of Qualcast
(Wolverhampton) Ltd. v. Haynes [LR 1959 AC 7 43 : (1959) 2 All
ER 38] it was laid down that the ratio decidendi may be defined as
a statement of law applied to the legal problems raised by the facts
as found, upon which the decision is based. The other two elements
in the decision are not precedents. The judgment is not binding
(except directly on the parties themselves), nor are the findings of
facts. This means that even where the direct facts of an earlier case
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
appear to be identical to those of the case before the court, the
judge is not bound to draw the same inference as drawn in the
earlier case.‖
15.1. This doctrine of precedence and the ratio decidendi of a case
have been also elucidated in Krishena Kumar v. Union of India,
(1990) 4 SCC 207 as follows:
"19. The doctrine of precedent, that is being bound by a previous
decision, is limited to the decision itself and as to what is
necessarily involved in it. It does not mean that this Court is bound
by the various reasons given in support of it, especially when they
contain ―propositions wider than the case itself required‖. This was
what Lord Selborne said in Caledonian Railway Co. v. Walker's
Trustees [(1882) 7 App Cas 259 : 46 LT 826 (HL)] and Lord
Halsbury in Quinn v. Leathem [1901 AC 495, 502 : 17 TLR 749
(HL)] . Sir Frederick Pollock has also said : ―Judicial authority
belongs not to the exact words used in this or that judgment, nor
even to all the reasons given, but only to the principles accepted
and applied as necessary grounds of the decision.‖
20. In other words, the enunciation of the reason or principle upon
which a question before a court has been decided is alone binding
as a precedent. The ratio decidendi is the underlying principle,
namely, the general reasons or the general grounds upon which the
decision is based on the test or abstract from the specific
peculiarities of the particular case which gives rise to the decision.
The ratio decidendi has to be ascertained by an analysis of the facts
of the case and the process of reasoning involving the major
premise consisting of a pre-existing rule of law, either statutory or
judge-made, and a minor premise consisting of the material facts of
the case under immediate consideration. If it is not clear, it is not
the duty of the court to spell it out with difficulty in order to be
bound by it. In the words of Halsbury (4th edn., Vol. 26, para 573)
―The concrete decision alone is binding between
the parties to it but it is the abstract ratio decidendi, as
ascertained on a consideration of the judgment in
relation to the subject matter of the decision, which
alone has the force of law and which when it is clear it is
not part of a tribunal's duty to spell out with difficulty a
ratio decidendi in order to bound by it, and it is always
dangerous to take one or two observations out of a long
judgment and treat them as if they gave the ratio
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
decidendi of the case. If more reasons than one are given
by a tribunal for its judgment, all are taken as forming
the ratio decidendi."
15.2. In similar lines, how to ascertain ratio decidendi of a judgment
has been explained in Arasmeta Captive Power Co. (P) Ltd. v.
Lafarge India (P) Ltd., (2013) 15 SCC 414 as follows:
"31. At this juncture, we think it condign to refer to certain
authorities which lay down the principle for understanding the ratio
decidendi of a judgment. Such a deliberation, we are disposed to
think, is necessary as we notice that contentions are raised that
certain observations in some paragraphs in SBP [SBP &
Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] have been relied upon
to build the edifice that latter judgments have not referred to them.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xx
35. In State of Orissa v. Mohd. Illiyas [(2006) 1 SCC 275 : 2006
SCC (L&S) 122] it has been stated thus: (SCC p. 282, para 12)
―12. ... According to the well-settled theory of precedents,
every decision contains three basic postulates: (i) findings of
material facts, direct and inferential. An inferential finding of
facts is the inference which the Judge draws from the direct,
or perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A
decision is an authority for what it actually decides. What is
of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment.‖
36. In Islamic Academy of Education v. State of Karnataka [(2003)
6 SCC 697] the Court has made the following observations: (SCC
p. 719, para 2)
―2. ... The ratio decidendi of a judgment has to be found out
only on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The answer
to the question would necessarily have to be read in the
context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has to
be looked into. By reading a line here and there from the
judgment, one cannot find out the entire ratio decidendi of
the judgment.‖
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
(emphasis supplied)
16. Keeping in mind the above principles, if we examine carefully the
decision in Abdul Kuddus, it can be noticed that the plea raised
before the Hon‟ble Supreme Court was that the Foreigners Tribunal is
an administrative body and the order of the Foreigners Tribunals is an
executive order and cannot be equated with a judgment and as such it
cannot operate as res judicata. It was, accordingly, contended that
even if a person had been declared a foreigner by the Foreigners
Tribunal and if a person has not been included in the draft National
Register of Citizens by an order passed by the registering authority
under Paragraph 7 of the Schedule, any such aggrieved person can file
an appeal under Paragraph 8 of the Schedule before the Foreigners
Tribunal challenging the earlier opinion of the Foreigners Tribunal.
As discussed above, the Hon‟ble Supreme Court after
considering the various facets of the relevant and special provisions of
law relating to citizenship in the State of Assam, including Section 6-A
of the Citizenship Act, 1955, Section 3 of the Foreigners Act, 1946,
Foreigners (Tribunals) Order, 1964, National Register of Citizens, 1951,
Citizenship (Registration of Citizens and Issue of National Identity
Cards) Rules, 2003, etc. rejected such contentions by holding that the
Foreigners Tribunal is a quasi-judicial body and the order passed by the
Foreigners Tribunals is "quasi-judicial order" which is a verdict in
writing which determines and decides contesting issues and question
by a forum other than a court and the determination has civil
consequences.
The Hon‟ble Supreme Court further referring to the decision in
Ujjam Bai (supra) held that principle of res judicata equally apply to
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
quasi-judicial bodies and when such finding is rendered by a quasi-
judicial body, such a decision cannot be challenged collaterally or in a
second round and are binding until reversed in appeal or by way of writ
proceedings.
It may be also mentioned that the Hon‟ble Supreme Court while
deciding Abdul Kuddus, extensively discussed the provisions of
Foreigners (Tribunals) Order, 1964 under which the Foreigners
Tribunals are constituted and render their opinions on references being
made. The opinion of the Foreigner Tribunal is critical for considering
the claim of such persons who have entered Assam during the period
of 01.01.1966 and 25.03.1971 who are given the benefit of registration
to be treated as Indian citizens.
The Hon‟ble Supreme Court also held that opinion/decision of
the Foreigners Tribunal in terms of the Explanation to Section 6-A of
the Citizenship Act is final and binding and such decisions have to be
given primacy.
The Hon‟ble Supreme Court also made it clear that the
"Competent Authority" mentioned in sub-para (2) to Para 3 of the
Schedule to the 2003 Order is the Tribunal constituted under the
Foreigners Act, i.e., 1964 Order.
17. Thus, according to us, there cannot be any iota of doubt that the
Foreigners Tribunals whose opinion is binding and in respect of which
res judicata will be applicable as held in Abdul Kuddus is the same
Foreigners Tribunal whose attributes were considered by this Court in
Amina Khatoon.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In our view, most of the grounds on which this Court in Amina
Khatoon held that res judicata will not apply have been rendered
otiose by the reasons given in Abdul Kuddus.
18. As discussed above, the Division Bench in Amina Khatoon took
the view that a proceeding before a Foreigners Tribunal is neither civil
nor criminal and a reference made by a referral authority to a
Foreigners Tribunal is neither a lis nor a controversy. Further, an
opinion rendered by a Foreigners Tribunal upon a reference made to it
by the referral authority under paragraph 2(1) of the Foreigners
Tribunals Order remains an opinion even after the Central Government
acts on it and takes steps for expulsion of the declared foreigner under
Section 3 of the Foreigners Act based on such opinion. It does not
change its character from opinion to judgment upon execution. The
Division Bench, accordingly, held that an opinion rendered by a
Foreigners Tribunal is not a judgment.
The Hon‟ble Supreme Court has however, taken a contrary view
as discussed above, that the Foreigners Tribunal is a quasi judicial body
and even though there may not be a lis between two contesting
parties, nevertheless, its decision can prejudicially affect the subject as
against the authority and the Tribunal is required to act judicially.
Hence its opinion is a decision and an order which is final and binding.
This view effectively demolishes the view of the High Court that the
opinion of the Foreigners Tribunals is merely an opinion and remains so
even after it is acted upon. The quintessential characteristic of an
opinion is its non bindingness. According to the Division Bench in
Amina Khatoon, opinion of the Foreigners Tribunal is not binding on
the authorities. The authorities may or may not accept it. On the other
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
hand, the Hon‟ble Supreme Court in Abdul Kuddus discarded the said
view by ascribing finality on the opinion. It held that such opinion is
final and binding [See para 22].
The Hon‟ble Supreme Court, accordingly, held that the principle
of res judicata will be applicable to the proceedings before the Tribunal.
The aforesaid view of the Hon‟ble Supreme Court was arrived at
after an exhaustive discussion of the relevant law governing the powers
and functions of the Tribunals and other authorities who are to act on
such opinions.
19. In our view the ratio decidendi of Abdul Kuddus is that
principle of res judicata will be applicable to the proceedings before the
Foreigners Tribunals and as such, the contrary decision of this Court in
Amina Khatoon will no more be good law and such view will be
denuded of its precedential value will be deemed to be oversaid by
Abdul Kuddus and we will be bound by the decision in Abdul
Kuddus and not by Amina Khatoon on issue.
20. There is yet another reason why the Division Bench of this Court
in Amina Khatoon held that the principle of res judicata will not be
applicable. Emphasising that the State of Assam is facing external
aggression and security and integrity of the nation has been threatened
on account of large scale illegal migration of foreigners from
Bangladesh into Assam, the Division Bench held that to hold that the
principle of res judicata would be applicable to a proceeding under the
Foreigners Act and the Foreigners (Tribunals) Order would be self-
defeating and against the overarching public policy, i.e., to ensure
national security and to protect the integrity of the nation.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In this regard, one may also note that the Hon‟ble Supreme
Court was also conscious of this historical fact and made a specific
reference to this serious problem in paragraph 16 of the judgment in
Abdul Kuddus. It was observed as follows:
"16. Referring to the factual data reflecting discernible illegal
migration threatening the demographic structure of the area,
resultant outbreak of insurgency in Assam and other concomitant
dimensions that had greatly undermined the national security, duty
of the Union Government under Article 355 of the Constitution to
protect the State against external aggression and internal
disturbance, it was held that the word ―aggression‖ is a word of
very wide import and would include influx of foreigners who had
illegally migrated. Reference was also made to the Memorandum
of Settlement between the Government of India and All India
Students Union and the State of Assam. In para 33 in Sarbananda
Sonowal (1) [Sarbananda Sonowal v. Union of India, (2005) 5
SCC 665] acknowledging the role of the Tribunals constituted
under the 1964 Order, it was observed: (SCC p. 697)...........‖
20. The Hon‟ble Supreme Court though cognisant of the aforesaid
problem did not apply any such doctrine of overarching value
subsuming other values as invoked by the High Court in Amina
Khatoon. The Division Bench of this Court held that though the
principle of res judicata is based on public policy, the same will stand
subsumed under the overarching public policy governing a sovereign
nation while dealing with illegal foreigners under the Foreigners Act and
the Foreigners (Tribunals) Order.
Though, we are not reviewing the order passed by a co-ordinate
Bench of this Court in Amina Khatoon nor are we sitting in appeal
against it but revisiting it in the light of the decision in Abdul Kuddus,
which in our opinion overrules the ratio in Amina Khatoon, we can
make only a passing observation that if any public policy is judicially
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
determined to be of overarching nature so as to override other equally
well established judicial norms, it can lead to serious consequences. In
our view, the judiciary is perhaps not well suited to determine which
particular policy will have an overarching value over others. Such an
approach can best be adopted by the law making authority or the
legislature. We are aware of many changes made in the well-
established principles of law. Presumption of innocence forms the
bedrock of our criminal justice system and burden of proof is always on
the prosecution to establish the guilt of the accused. Yet departures to
this principle have been made by making necessary changes in law,
viz., Section 304B IPC under which, where the death of a woman is
caused by any burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty or har-
assment by her husband or any relative of her husband for, or in
connection with, any demand for dowry, such death shall be called
"dowry death", and such husband or relative shall be deemed to have
caused her death. Thus, in such circumstances, the burden is shifted to
the accused to prove that he did not cause her death. Similarly, under
Section 35 of the NDPS Act, there is a presumption of culpable
mental state and under Section 54, there is also a presumption unless
and until the contrary is proved, that the accused has committed
an offence under this Act in respect of offences mentioned therein.
Section 29 of the POCSO Act provides that when a person is
prosecuted for committing an offence of sexual assault against a minor,
the Special Court trying the case shall presume the accused to be
guilty. The accused then has to rebut the presumption.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In the Foreigners Act, 1955, Section 9 of the statute requires
that the burden of proof that a person is not a foreigner is on the
person charged and not on the prosecution.
Therefore, it would be understandable, if such overriding effect
is ordained by statute and by the legislature, rather than by a judicial
order as sought to be done in Amina Khatoon that principle of res
judicata will not be applicable to the proceedings before the Foreigners
Tribunal. In our opinion, such eclipse of the well-established principle of
law would lie within the domain of the legislature by make appropriate
laws in that regard. Thus, the principle of res judicata which is well
entrenched and has taken a firm root in our jurisprudence could be
denuded of its applicability to Foreigners Tribunals by a legislation only,
if at all permissible.
21. There is yet another issue which would require certain
clarification. It has been submitted by the learned Special Counsel that
an SLP filed against a decision of this Court in Shahjahan Ali (supra)
based on the decision Amina Khatoon (supra) that principle of res-
judicata is not applicable in a proceeding before the Foreigners Tribunal
was dismissed by the Hon‟ble Supreme Court thus affirming the
decision rendered in Amina Khatoon (supra) that res judicata is not
applicable.
22. We have gone through the order dated 02.08.2018 passed in
the SLP, which is a non-speaking order, which reads as follows:
"Heard the learned counsel for the petitioner and perused the relevant
material.
Application for exemption from filing OT is allowed.
We find no ground to interfere.
The Special Leave Petition is accordingly dismissed."
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
23. As to the effect of dismissal of the special leave petition in
limine, it has been held by the Hon‟ble Supreme Court that it does not
mean that the reasoning of the judgment of the High Court against
which the special leave petition has been filed before the Hon‟ble
Supreme Court stands affirmed.
The Hon‟ble Supreme Court in Fuljit Kaur v. State of Punjab,
(2010) 11 SCC 455 held that,
"7. There is no dispute to the settled proposition of law that
dismissal of the special leave petition in limine by this Court does
not mean that the reasoning of the judgment of the High Court
against which the special leave petition has been filed before this
Court stands affirmed or the judgment and order impugned merges
with such order of this Court on dismissal of the petition. It simply
means that this Court did not consider the case worth examining
for the reason, which may be other than merit of the case. Nor such
an order of this Court operates as res judicata. An order rejecting
the special leave petition at the threshold without detailed reasons
therefore does not constitute any declaration of law or a binding
precedent. [Vide Workmen v. Cochin Port Trust [(1978) 3 SCC
119 : 1978 SCC (L&S) 438 : AIR 1978 SC 1283] , Ahmedabad
Mfg. & Calico Printing Co. Ltd. v. Workmen [(1981) 2 SCC 663 :
1982 SCC (L&S) 36 : AIR 1981 SC 960] , Indian Oil Corpn.
Ltd. v. State of Bihar [(1986) 4 SCC 146 : 1986 SCC (L&S) 740 :
AIR 1986 SC 1780] , Hon'ble Supreme Court Employees' Welfare
Assn. v. Union of India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569
: AIR 1990 SC 334] , Yogendra Narayan Chowdhury v. Union of
India [(1996) 7 SCC 1 : 1996 SCC (L&S) 362 : AIR 1996 SC 751]
, Union of India v. Sher Singh [(1997) 3 SCC 555 : AIR 1997 SC
1796] , V.M. Salgaocar & Bros. (P) Ltd. v. CIT [(2000) 5 SCC 373
: AIR 2000 SC 1623] , Saurashtra Oil Mills Assn. v. State of
Gujarat [(2002) 3 SCC 202 : AIR 2002 SC 1130] , Union of
India v. Jaipal Singh [(2004) 1 SCC 121 : 2004 SCC (L&S) 12]
and Y. Satyanarayan Reddy v. Mandal Revenue Officer [(2009) 9
SCC 447 : (2010) 1 SCC (Cri) 1] .]"
24. Further, it also well settled that an order rejecting the special
leave petition at the threshold without detail reasons does not
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
constitute any declaration of law or binding precedent under Article 141
of the Constitution.
In this regard one may refer to the following decisions.
(i)Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770
"113. A large number of judicial pronouncements made by this
Court leave no manner of doubt that the dismissal of the special
leave petition in limine does not mean that the reasoning of the
judgment of the High Court against which the special leave petition
had been filed before this Court stands affirmed or the judgment
and order impugned merges with such order of this Court on
dismissal of the petition. It simply means that this Court did not
consider the case worth examining for a reason, which may be
other than the merit of the case. An order rejecting the special
leave petition at the threshold without detailed reasons, therefore,
does not constitute any declaration of law or a binding precedent.‖
(ii) State of Orissa v. Dhirendra Sundar Das, (2019) 6 SCC
"9.27. It is a well-settled principle of law emerging from a catena
of decisions of this Court, including Hon'ble Supreme Court
Employees' Welfare Assn. v. Union of India [Hon'ble Supreme
Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC
187, paras 22 and 23 : 1989 SCC (L&S) 569] and State of
Punjab v. Davinder Pal Singh Bhullar [State of
Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, paras
112 and 113 : (2012) 4 SCC (Civ) 1034 : (2012) 4 SCC (Cri) 496 :
(2014) 1 SCC (L&S) 208] , that the dismissal of an SLP in
limine simply implies that the case before this Court was not
considered worthy of examination for a reason, which may be
other than the merits of the case. Such in limine dismissal at the
threshold without giving any detailed reasons, does not constitute
any declaration of law or a binding precedent under Article 141 of
the Constitution.‖
25. Further, it may be noted that the order dismissing the SLP was
passed on 02.08.2018, whereas the reasoned decision of the Hon‟ble
Supreme Court in Abdul Kuddus was rendered subsequently on
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
17.05.2019. Therefore, there cannot be an iota of doubt that the
subsequent reasoned decision will hold the field.
26. For the reasons discussed above, there is absolutely no merit in
the contention of the Special Counsel for the State that since the
decision in Amina Khatoon has not been challenged nor overruled by
the Hon‟ble Supreme Court, it will continue to hold field as regards
applicability of principle of res judicata, as the decision of the Hon‟ble
Supreme Court in Abdul Kuddus will hold the field which is binding on
us, as the law under Article 141 of the Constitution and any decision
this High Court or for that matter any other High Court to the contrary,
can no longer be a good law.
Principle of res judicata will be applicable to the proceedings
before the Foreigners Tribunals where the same person has been
proceeded again. However, in other cases, where there may be
conflicting opinions of the Foreigners Tribunals in respect of family
members, the Hon‟ble Supreme Court clarified that such opinions could
be material evidences for considering the claims as observed in para 28
of Abdul Kuddus, as reproduced below:
"28. It was highlighted that there could be contradicting
decisions/opinions of the Foreigners Tribunal even in cases of near
family members, albeit contradictions can be avoided when
―family tree hearings‖ are held as is now being undertaken. In the
absence of joint decisions, conflict is possible as the principle of
res judicata would not apply to separate proceedings even if against
two closely related but different persons, as each case has to be
strictly decided on the facts and evidence on record. Secondly,
there is a possibility that some/one of the near family members
may have migrated to India prior to midnight of 24-3-1977 and,
therefore, fall in a different category. Any such conflict, however,
would not compel us to take a different view, in terms of the clear
statutory provisions. In a given case, the person aggrieved would
have liberty to invoke writ jurisdiction, or if necessary, review
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
jurisdiction before the High Court or this Court to ensure that no
injustice is done. Any order passed in case of close family
members, subsequent to adjudication order determining the
citizenship status of a person, would necessarily be a material
evidence which can be duly taken note of and considered while
deciding a writ petition or a review application.‖
27. As regards the contention of Mr. Kalita that many a times the
Tribunals erroneously give opinions without proper application of mind
and without assigning any reasons and as such the principle of res
judicata will not applicable, we do not find any merit for the reason that
if the opinion of the Tribunal suffers from such defects, the Union/State
Government can always challenge the same before the High Court
under Article 226, as the aggrieved persons have done.
28. As far as the contention of Mr. Kalita that if the plea of res
judicata is not raised before the Tribunal at the first available instance,
such a plea cannot be raised before the High Court, there cannot be
any dispute about the said proposition of law. The proceedee if already
declared an Indian by a Tribunal should bring to the notice of the
Tribunal in the subsequent proceeding about any such earlier opinion
given by the Tribunal. If the person is already declared not a foreigner,
the need to proceed against such a person again does not arise and if
done, the same can be disallowed. On the other hand, we wonder why
any proceedee should not mention about any earlier opinion given in
his favour before the Tribunal.
Nonetheless, it has to be also kept in mind that after the
decision was rendered by this Court on 19.04.2018 in Amina
Khatoon, which specifically held that principle of res judicata will not
be applicable in the proceedings before the Foreigners Tribunal, if any
proceedee had not taken this plea before the Tribunal in any
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
proceedings after 19.04.2018, the proceedee cannot be faulted for not
raising the plea before the Tribunal as he could not have raised such a
plea because of Amina Khatoon. Thus, he will be entitled to raise this
plea even if it is for the first time before this Court.
29. Accordingly, all these petitions will be considered and disposed
of in the light of the law laid down in Abdul Kuddus and not on the
basis of the decision rendered in Amina Khatoon as it is no more a
good law.
30. WP(C) 2099/2018 [Sri Sital Mandal Vs. The Union of
India and 7 Ors.]
30.1. In this petition [WP(C) No.2099/2018], the petitioner, Sri
Sital Mandal, aged 58 years, son of late Mangal Mandal of village-
Bidyapur, Ward No.2, P.S. Nalbari, District- Nalbari, Assam, PIN-781335
has challenged the impugned order dated 14.03.2018 passed by the
learned Foreigners Tribunal-1, Nalbari in F.T. (Nal) Case No. Case
No.664/2011 [S.P. Reference No.278/09] by which the learned Tribunal
declared the petitioner a foreigner by holding that the O.P has not been
successful to prove his citizenship from the relevant period and the
petitioner is found to be in India illegally after 25th March, 1971.
30.2. Before that opinion was rendered, the petitioner was earlier
proceeded in F.T. (Nal) Case No.(N)3784/06 [Police Reference
No.909/2002] in which the learned Foreigners Tribunal, Nalbari vide
opinion dated 12.03.2012 had held that the petitioner is not a
foreigner.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Therefore, to examine the plea of the petitioner that principle of
res judicata will apply, we have to first ascertain as to whether the
present petitioner is the same person who was proceeded earlier in F.T.
(Nal) Case No.(N)3784/06 since the issues before the learned Tribunal
in both the proceedings are same, i.e., whether the proceedees are
foreigners or not.
30.3. From the records, what we have seen is that in the earlier
proceeding in F.T.(Nal) Case No.(N) 3784/06, the proceedee was "Sri
Sital Mandal, son of Late Mangal Borai, Vill- Vidyapur, Ward No.2, P.S.-
Nalbari, District Nalbari".
In the order 12.03.2012 passed in the said proceeding, the
learned Tribunal observed that Sri Sital Mandal is not a foreigner, which
reads as follows,
"............
As the name of the O.P.'s mother is enlisted in the voter list of
1966. So, O.P's mother Rukma Bala Baroi is a citizen of India as per
Provision of Section 6(i)(a)(ii) of the Citizenship Amendment Act,
1985 and being the son of Rukma Bala O.P. Sri Sital Mandal is also a
citizen of India as per above mentioned Provision of law.
Considering the above, I am of the opinion that O.P. Sri Sital
Mandal is not a foreigner.‖
30.4. In the present case, it has been contended that the petitioner
Sital Mandal had specifically pleaded before the learned Foreigners
Tribunal-1, Nalbari in the subsequent proceeding in F.T.(Nal) Case
No.(N) 664/2011 that he was earlier proceeded in F.T.(Nal) Case
No.(N)3784/06 by learned Foreigners Tribunal, Nalbari in which he was
declared not to be a foreigner.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
30.5. In the subsequent proceeding in F.T.(Nal) Case No.(N)
664/2011, the proceedee has been described as "Sri Sital Mandal, son
of Late Mangal Mandal, Vill. Bidyapur, Ward No.2, P.S. Nalbari, District-
Nalbari (Assam)."
In the subsequent impugned opinion and order dated
14.03.2018 rendered in F.T.( Nal) Case No.(N) 664/2011, in para
Nos.7, 8, 9, 10 it has been observed that
―7. On appreciation of the evidence on record, it transpires that
though the same O.P./Proceedee was suspected to be a Foreigner and in
a reference F.T.(N) 3784/06 Case this Tribunal had declared him as not
a Foreigner by judgment and order dated 12.03.2012 (Ext.14] but in the
instant case he has not been able to prove his linkage with Rakmabala
Baroi daughter of/wife of Late Mangla Baroi of Village-Abhayapuri
Town, Ward No.4(Ext.1). He is also failed to produce any document
after 1966 and before 1980. I, therefore, respectfully differ from the
judgment and order dated 12.03.2012.
8. Net result of the above discussion is that the Proceedee/O.P. has
miserably failed to establish his linkage to an Indian parent or grand
parent relatable to a period prior to 25.3.1971 which is cut of date for
identification of foreigners in the State of Assam as per Section 6A of
the Citizenship Act, 1955 as amended. The version of the Proceedees
suffers from multiple material contradictions rendering the same highly
improbable. In such circumstances, it cannot be presumed that the
Proceedee has discharged his burden as required under Section 9 of the
Foreigners Act, 1946.
9. I am, therefore, of the opinion that the O.P. has not been
successful to prove his Citizenship from the relevant period. He is
found to be in India illegally on or after 25th March, 1971.
10. This reference stands disposed of by answering the question in
negative holding that the O.P. is a Foreigner.‖
30.6. Thus, from the above, it transpires that the learned Tribunal-1,
Nalbari though did not doubt the identity of the present proceedee as
the same person who was declared not a foreigner by an earlier
opinion dated 12.03.2012 in F.T. (Nal) Case No.(N)3784/06, yet,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
declared him to be a foreigner on the ground that in the subsequent
proceeding, the petitioner was not able to prove his linkage with
Rukmabala Baroi, wife of Late Mangla Baroi and thus, the learned
Tribunal differed from the judgment and order dated 12.03.2012.
30.7. In our opinion, if the earlier opinion of the learned Foreigners
Tribunal, Nalbari dated 12.03.2002 passed in F.T.(Nal) Case
No.(N)3784/06 had attained finality and not challenged by anyone
including the State and if the present petitioner is the same proceedee
who was proceeded in the said F.T.(Nal) Case No.(N) 3784/06, in view
of the decision of the Hon‟ble Supreme Court rendered in Abdul
Kuddus, the principle of res-judicata will apply, in which event, the
impugned order dated 14.03.2018 passed in F.T. (Nal) Case No.(N)
664/2011 [S.P. Reference No.278/09] cannot be sustained in law.
30.8. Accordingly, for our own satisfaction, we have examined the
credentials of the present proceedee, Sri Sital Mandal who claims to be
the same proceedee in the earlier proceeding. In the earlier proceeding
in F.T.(Nal) Case No.(N)3784/06, the particulars of the proceedee is
"Sri Sital Mandal, son of Late Mangal Baroi, Village- Vidyapur, Ward
No.2, P.S. Nalbari, District- Nalbari" and in the second proceeding, the
proceedee is "Sri Sital Mandal, son of Late Mangal Mandal, Vill.
Bidyapur, Ward No.2, P.S. Nalbari, District- Nalbari (Assam)".
Thus, as far as the particular details of the identity of the
present petitioner and the proceedee in the earlier proceeding are
concerned, these appear to be same.
Further, the learned Foreigners Tribunal No.1, Nalbari in opinion
dated 14.03.2018 has also mentioned in para No.7 that on appreciation
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
of evidence on record, it transpires that though the same
O.P./Proceedee was suspected to be a foreigner the Tribunal had
declared him not a foreigner by judgment and order dated 12.03.2012,
yet, in the instant case he was held to be a foreigner as he was not
able to prove his linkage with Rukmabala Baroi wife of Late Mangla
Baroi.
30.9. From the above, we are satisfied that the present petitioner Sital
Mangal was the same person who was proceeded earlier in F.T.(Nal)
Case No. (N)3784/06.
The State had never taken the plea that the present petitioner is
not the same person who was the proceedee in the earlier proceeding.
Neither it had tried to rebut the claim of the petitioner also. In our
view, it would be too much of a coincidence that the two persons,
having similar names having similar father‟s name also in the same
village can exist.
We have also kept in mind that in a proceeding before the
Tribunal, the standard of the proof required is preponderance of
probability. Thus, we have no doubt that in all probability in the light of
the evidence mentioned above, the present petitioner is the same
person who was proceeded earlier.
30.10. Accordingly, we allow this petition by setting aside the
impugned order dated 14.03.2018 passed by the learned Foreigners
Tribunal-1, Nalbari in F.T.(Nal) Case No.(N)664/2011 [S.P. Reference
No.278/09]. Consequently, the earlier opinion dated 12.03.2012 passed
in F.T.(Nal) Case No.(N)3784/06 will continue to hold the field as far as
citizenship of the petitioner is concerned.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In other words, the present petitioner, in terms of the earlier
opinion dated 12.03.2012 passed in F.T.(Nal) Case No.(N)3784/06 [S.P.
Reference No.909/2002], is to be treated as an Indian and not a
foreigner.
30.11. With the above observations and directions, the present
petition is allowed.
31. WP(C) 2601/2018 [Jahera @ Jahura Khatoon Vs. The
Union of India and 5 Ors.]
31.1. In this petition [WP(C) No.2601/2018], the petitioner,
Musstt. Jahera @ Jahura Khatoon, aged 41 years, wife of Md. Samsul
Hoque, Village- Kashimpur, P.S.-Nalbari, District- Nalbari, Assam, PIN-
781341 has challenged the impugned order dated 14.12.2017 passed
by the learned Foreigners Tribunal No.1, Nalbari in F.T.(Nal) Case
No.(N)1627/06 [S.P. Reference No.1317/2003] by which the learned
Tribunal declared the petitioner a foreigner.
31.2. In this petition, the petitioner also claims that she was earlier
proceeded in F.T.(Nal) Case No.(N)2116/06 [Police Reference
No.815/2001] and was declared as not a foreigner by learned
Foreigners Tribunal, Nalbari vide order dated 04.04.2012 threin.
31.3. It has been contended that the petitioner had taken the
aforesaid plea before the learned Foreigners Tribunal in the subsequent
proceeding in F.T.(Nal) Case No.(N) 1627/06 but the learned Tribunal
held that it transpires that the proceedees in F.T.(Nal) Case
No.1627/06 and Case No.2116/06 and 4395/06 might be different.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
31.4. Mr. Das, learned counsel for the petitioner, however, submits
that the aforesaid opinion dated 14.12.2017 rendered by the learned
Tribunal in the subsequent proceeding in F.T.(Nal) Case No.(N)
1627/06 is contrary to record and the opinion that the present
petitioner might be a different person is ex-facie wrong and
unsustainable in law as the proceedee is the same person.
31.5. In the earlier proceeding in F.T.(Nal) Case No.(N)2116/06, the
proceedee was "Musstt. Jura Khatoon, Wife of Md. Samsul Haque,
Village- Kashimpur, P.S. Nalbari, District- Nalbari (Assam)".
In the subsequent proceeding in F.T.(Nal) Case No.(N) 1627/06,
the proceedee has been described as "Musstt. Jahura Khatun @
Begam, Wife of Md. Samsul Haque, Vill-Kasimpur, P.S.-Nalbari, District-
Nablari (Assam)".
Thus, from the descriptions of the aforesaid proceedees, it
appears that the identities of both the proceedees appear to be similar
being the wife of same person i.e. Md. Samsul Haque residing in same
village under the same Police Station Kasimpur and District Nalbari.
There is a difference in the name "Jura" and "Jahura" which,
however, appears to be insignificant, if other particulars and evidences
point that these refer to the same person.
31.6. We have gone through the earlier opinion dated 04.04.2012
passed in F.T.(Nal) Case No.(N) 2116/06 in which it has been clearly
mentioned that the pleaded case of the proceedee therein was that
Musstt. Jura Khatun was born in village Bareigaon under Sarthebari
Police Station. Though she could not remember her date of birth, she
mentioned her father‟s name as Late Iman Ali. It was also mentioned
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
that in the voters list of 1966 (Ext.1), her father‟s name was included
at Serial No.228, House No.44 in respect of No.53 Sarukhetri
Legislative Assembly Constituency. In the voters list of 1970 (Ext.2),
the name of petitioner‟s father was recorded at Serial No.336 with the
same House No.44 of Part No.11 in respect of the same No.53
Sarukhetri Legislative Assembly Constituency. In the voters list of 2008,
her father‟s name was enlisted in respect of village Bareigaon at Serial
No.1279, Hosue No.108 of Part No.14 of the same LAC.
31.7. Thus, as far as, the aforesaid particulars of the petitioner‟s
father as mentioned in the voters lists of 1966, 1970 and 2008 are
concerned, these are same. These voters lists were relied on by the
petitioner in the earlier proceeding in F.T.(Nal) Case No. (N) 2116/06 in
which the opinion was rendered on 04.04.2012 that the said
proceedee Jura Khatoon alias Jahura Khatoon who was the daughter of
Iman Ali was not a foreigner but a citizen of India.
31.8. In the earlier proceeding, the learned Tribunal categorically gave
the following finding,
"As the name of O.P.'s father Iman Ali is enlisted in the voter
list of 1966. So, O.P.'s father Iman Ali is a Citizen of India as per
provision of Section 6(i)(a)(ii) of the Citizenship Act, 1985 and being
the daughter of Iman Ali O.P. Musstt. Jura Khatoon alias Jahura
Khatun is also a citizen of India as per above mentioned Provision of
law.
Considering the above, I am of the opinion that O.P. Musstt.
Jura Khatoon alias Jahura Khatun is not a foreigner."
31.9. We have also noted from the records requisitioned from the
learned Tribunal that the present petitioner has relied on the same
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
voters lists of 1966, 1970 and 2008, where her projected father‟s name
Iman Ali appears with the same description of the particulars.
Thus, as far as the identity of the petitioner‟s father is
concerned, it appears same.
31.10. In the voters list of 1966 and 1970 which were exhibited as
Ext.2 and 3, the name of Iman Ali appeared at serial No. 228 under
House No.44 and his name again appeared in the voters list of 1970
relating to the 53 Sarukhetri Legislative Assembly Constituency at
Serial No.336, House No.44.
31.11. These are the same voters lists relied upon in the earlier
proceeding in F.T.(Nal) Case No.(N)2116/06 where a favourable order
was passed on 04.04.2012 on the basis of which the learned Tribunal
held that the proceedee being the daughter of said Iman Ali is an
Indian.
31.12. Petitioner has also annexed additional documents.
31.13. However, in the subsequent opinion dated 14.12.2017, the
learned Tribunal observed as regards the particulars of the proceedee
and proceedee‟s father as follows,
―.......
8. As per Police Enquiry Report Musstt. Jahera Khatun daughter
of Iman Ali and wife of Samsul Haque a resident of Village-Kasimpur,
Police Station and District- Nalbari, Assam aged about-35 years as on
26.8.2003, was suspected to be an illegal migrant coming from Village-
Kaliakur, Police Station-Basail, District Dacca of Bangaldesh. Safura
Khatun aged about 6 years was her daughter. In the Police Enquiry
Report of F.T. Case No.2116/06 Musstt. Jura Khatoon aged about 24
years as on 15.9.2001 daughter of Iman Ali, wife of Samsul Haque,
place of origin Village-Napona, Police Station-Shusungdurgapur,
District- Mymansingh, Country- Bangladesh and the name of her sons-
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Jaber Ali, Jiyayul Haque and Fajar Ali were written. In Police Enquiry
Report of F.T. Case No.4395/06- Jahura Khatun, daughter of Iman Ali,
wife of Samsul Haque aged about 22 years as on 28.8.01 place of origin
Village- Kharasahur, Police Station- Tarail, District- Mymansingh,
Country- Bangladesh and sons-Jiyayul Haque, Fajar Ali are written.
9. In all three cases the Police Report reveal that the name of
father of the suspect O.P. was Iman Ali and name of husband was
Samsul Haque. However, the place of origin and the age of the O.P. in
all the Cases were different. In F.T. No.2116/06 and F.T. No.4395/06
Jiyayul Haque and Fajar Ali are names of her children. Though in F.T.
Case No.2116/06 Jaber Ali is also written as her eldest son. But in
F.T.(Nal) Case No.1627/06 Safura Khatun is her only children.
10. On careful scrutiny of the above, it transpires that F.T.(Nal)
Case NO.1627/06 i.e. the Case in hand might be of different O.P. than
the Case No.2116/06 and 4395/06. I, therefore, proceed to appreciate
the evidence in the instant case independently. The name -Jahura
Khatun relation name- Samsul appeared in India for the first time in
1997 at village-Kasimpur, Police Station and District- Nalbari, Assam
(Ext.4). Though a certificate issued by Village Head-man was exhibited
as Ext.6 as a link document for her linkage with Iman Ali son of
Jasimuddin of Village-Bharegaon, District- Barpeta, Assam but the
Certificate and its contants were not proved by appropriate authority
and so this exhibit is not admitted. In absence of any other evidence
showing the relation of O.P. with Iman Ali, son of Jasimuddin of
Vilalge-Bharegaon, District- Barpeta, Assam. I am of the view that the
later is not related with the O.P. and is a different person than the father
of the O.P.
11. I am, therefore, of the opinion that the O.P. has not been
successful to prove her Citizenship from the relevant period. She is
found to be in India illegally on or after 25th March, 1971.
12. This reference stands disposed of by answering the question in
negative holding that the O.P. is a Foreigner.
........ "
31.14. Thus, in the present case, the learned Tribunal disbelieved the
present petitioner on various grounds including that the petitioner‟s
name appeared along with Samsul for the first time in 1997 in Village-
Kasimpur and the learned Tribunal also did not believe the other
documents. Further, in the absence of evidence showing the relation of
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
the O.P./Proceedee with her father Iman Ali, the learned Tribunal held
that the present petitioner is a different person.
31.15. The learned Tribunal also by relying on the Police Enquiry
Report as mentioned in para No.9 of the impugned order dated
14.12.2017, observed that in the Police Report, it has been shown that
the name of the suspect O.P. was Iman Ali and name of the husband
was Samsul Haque and the place of origin and the age of the O.P. in all
the cases were different.
31.16. We fail to understand how the Police Enquiry Reports could
have been acted upon in absence any proof of these. The said Police
Enquiry Report had not been proved by the State in course of the
proceeding. No evidence was led. No witness was examined. These
police reports were good only for the purpose of making a reference,
but the contents of these could not be used without proving the same.
If there are different findings in the Police Enquiry Reports, it is for the
State to substantiate the same and ask the proceedee to explain the
same. However, in the present proceeding, none appeared for the
State to prove the Enquiry Reports nor the petitioner was questioned
on the same.
31.17. We have noted that the reasons for disbelieving by the Tribunal
that the petitioner Musstt. Jajura Khatun @ Begam is not the same
person in the two proceedings was on the grounds amongst others,
that the petitioner could not remember the name of her grandmother
and also that there were some discrepancies in the name of the father
as mentioned in the police reports and that the petitioner had failed to
establish the linkage with her projected father Iman Ali which
conclusions do not appear to be sound in law and on facts.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
31.18. Be that as it may, we are satisfied on the basis of the aforesaid
evidences that the present petitioner is the same person who was
proceeded in earlier proceeding in F.T.(Nal) Case No.(N)2116/06 as
well as in F.T.(Nal) Case No.4395/06 wherein she was declared as an
Indian.
31.19. Accordingly, we hold that the subsequent proceeding in
F.T.(Nal) Case No.(N) 1627/06 [S.P. Reference No.1317/2003] in which
impugned order dated 14.12.2017 was rendered, is hit by principle of
res judicata as it relates to same person, and as such it may not be
necessary to go in detail and examine the merit of the case as regards
appreciation of evidence by the learned Tribunal in the impugned
order.
31.20. Since, we are satisfied that the present petitioner is the same
person who was proceeded in earlier two proceedings, we allow this
petition by setting aside the impugned order dated 14.12.2017 passed
in F.T.(Nal) Case No.(N) 1627/06 [S.P. Reference No.1317/2003].
Resultantly, the petitioner Jahera @ Jahura Khatoon is to be
declared an Indian in terms of the order/opinion dated 04.04.2014
passed in F.T.(Nal) Case No.(N)2116/06.
32. WP(C) No.4610/2018 [Md. Chand Miah @ Chan Miah vs.
The Union of India & Ors.]
32.1. In this petition, the petitioner, Md. Chand Miah @ Chan Miah,
aged about 53 years , son of Late Fakir Chan, resident of Village-
Goroimari Satra, P.S.-Chhaygaon, District-Kamrup(R), Assam has
challenged the impugned order dated 30.06.2018 passed by the
Foreigners Tribunal, Kamrup(R) No.1 at Guwahati in GFT (R) Case
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
No.1049/2017 by which the Tribunal had declined to take up the plea
of res judicata on the ground that in view of the decision taken by this
Court in Amina Khatoon the plea of the petitioner that he was
already declared an Indian by the Foreigners Tribunal No.2, Kamrup
(Rural), Boko in BFT Case No.683/2016 vide opinion dated 24.04.2017
could not be considered.
32.2. It is the specific plea of the petitioner that when the petitioner in
his written statement took the plea to discontinue and close the
proceeding in GFT (R) Case No.1049/2017 which was pending before
the Foreigners Tribunal, Kamrup(R) No.1 at Guwahati, in the light of
the earlier opinion dated 24.04.2017 passed in BFT Case No.683/2016
by the Foreigners Tribunal No.2, Kamrup (Rural), Boko whereby the
petitioner was declared an Indian, the Foreigners Tribunal, in the
subsequent proceeding refused to entertain the said plea on the
ground above mentioned.
32.3. We have already held that Amina Khatoon is not more a good
law in view of the decision of the Hon‟ble Supreme Court in Abdul
Kuddus. Accordingly, if the petitioner has taken a specific plea that he
was earlier proceeded by the Foreigners Tribunal No.2, Kamrup (Rural),
Boko which gave a favourable opinion that he is an Indian and not a
foreigner, in the subsequent proceeding, the Foreigners Tribunal,
Kamrup(R) No.1 at Guwahati is to first examine as to whether the
principle of res judicata will be applicable in subsequent proceeding or
not.
Thus, the Tribunal shall first examine as to whether the present
petitioner namely, Md. Chand Miah @ Chan Miah, aged about 53 years
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
, Son of Late Fakir Chan, resident of Village-Goroimari Satra, P.S.-
Chhaygaon, District-Kamrup(R), Assam is the same person who was
proceeded earlier in BFT Case No.683/2016 before the Foreigners
Tribunal No.2, Kamrup (Rural), Boko and if it is found that the
petitioner is the same person who was proceeded in BFT Case
No.683/2016 by the Foreigners Tribunal No.2, Kamrup (Rural), Boko,
the present proceeding shall immediately be concluded in favour of the
petitioner on the basis of the earlier order passed on 24.04.2017 in BFT
Case No.683/2016 where the petitioner was declared an Indian citizen,
as there would be no need to examine the matter afresh.
If, however, the Tribunal comes to a decision that the present
petitioner is not the same person who was procedded in BFT Case
No.683/2016, the proceeding will continue as per law.
32.4. With the above observations and directions, the present petition
i.e. WP(C) No.4610/2018 is disposed of by setting aside the order
dated 30.06.2018 passed by the learned Foreigners Tribunal, Kamrup
(R) No.1 at Guwahati in GFT (R) Case No.1049/2017 as the principle of
res judicata is applicable.
Accordingly, the petitioner will appear before the Foreigners
Tribunal, Kamrup(R) No.1 at Guwahati after 1 (one) month from today.
32.5. The LCR be remitted to the concerned Tribunal immediately.
33. WP(C) No. 8491/2018 [Nurjahan Begum Vs. The Union
of India & 3 Ors. and WP(C) No.8493/2018 [Nurjahan
Begum Vs. The Union of India and 5 Ors.]
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
WP(C) No.8491/2018 [Nurjahan Begum Vs. The Union of
India & 3 Ors.]
33.1. These two petitions, WP(C) No.8491/2018 and WP(C)
No.8493/2018 are clubbed together as these two writ petitions are
preferred by the same petitioner, namely, Nurjahan Begum though
against two different orders of the learned Foreigners Tribunals.
33.2. In WP(C) No.8491/2018, the petitioner has challenged the
opinion dated 04.09.2018 passed by the learned Foreigners Tribunal,
7th Sonitpur, Balipara in Case No.FTDC 644/16 [TZP(B)/1240/07
dtd.29.03.07] declaring the petitioner as a foreigner of post 25.03.1971
stream.
In WP(C) No.8493/2018, the petitioner has challenged another
opinion dated 08.10.2018 passed by the learned Foreigners Tribunal,
7th Tezpur, Chariduar at Balipara in Case No.DC 556/2016 [Ref. Case
No.TZP/B/98/468] by which the petitioner was declared a foreigner of
post 25.03.1971 stream.
33.3. In both these two petitions, the background facts appear to be
same.
It is the case of the petitioner that there was a reference earlier
against her vide Ref. Case No.TZP/B/98/468, dated 17.07.98, which
was also the first reference following which, a case was registered
under Case No.DC556/2016 before the learned Foreigners Tribunal 7th
Tezpur, Chariduar at Balipara in which an opinion was rendered on
08.10.2018 declaring the petitioner a foreigner of 25.03.1971 stream
which has been challenged in second Writ Petition, WP(C)
No.8493/2018.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
The authority also made another reference, being the second
one, under S.P.(B)-765 dated 25.05.2006 following which another
proceeding was initiated against her under F.T. Case No.150/15 before
the learned Foreigners Tribunal, Tezpur-7th Chariduar at Balipara and in
the said proceeding the petitioner had been declared not to be a
foreigner vide order dated 22.03.2016.
However, a third reference was made against the petitioner vide
TZP(B)/1240/07 dated 29.03.2007 following which, Case No.FTDC
644/16 was registered and an opinion dated 04.09.2018 was passed
declaring the petitioner to be a foreigner of post 25.03.1971 stream
which has been challenged in WP(C) No.8491/2018.
Apart from the aforesaid three references, the fourth reference
was made against the petitioner under S.P.(B)235 Dated, 08.02.08
Case No.886/07 following which F.T. Case No.156/16 was registered in
which vide order dated 17.11.2016, the petitioner was declared not to
be a foreigner by the learned Foreigners Tribunal, Tezpur-7, Chariduar
at Balipara.
33.4. From the above, what appears is that 4 (four) references made.
4(four) opinions were rendered by the learned Foreigners Tribunals in
respect of these references giving different opinions, but not in
chronological order, viz.,
1. 1st Reference dated 17.07.1998 No.TZP/B/98/468 resulting in
F.T. Case No.DC556/2016 in which opinion was rendered on
08.10.2018 declaring the petitioner as a foreigner.
2. 2nd Reference dated 25.05.2006 No.SP(B)765 resulting in F.T.
Case No. 150/15 in which opinion was rendered on
22.03.2016 declaring the petitioner as not a foreigner.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
3. 3rd Reference dated 29.03.07 No. TZP(B)1240/07 resulting in
Case No.FTDC 644/16 in which opinion was rendered on
04.09.2018 declaring the petitioner as a foreigner.
4. 4th Reference dated 08.02.08 No.SP(B)-235 resulting in Case
No.886/07-F.T. Case No.156/16 in which opinion was
rendered on 17.11.2016 declaring the petitioner as not a
foreigner.
Thus, from the above we have noted is that, in respect of the
second and fourth references, opinions were rendered earlier on
22.03.2016 and 17.11.2016 declaring the petitioner not to be a
foreigner. On the other hand in the remaining proceedings, opinions
were later on given, declaring the petitioner as a foreigner.
33.5. Since the issue of res judicata has been raised in this two writ
petitions, WP(C) No.8491/2018 and WP(C) No.8493/2018 aring out of
the two subsequent opinions, it would be necessary to examine as to
whether the petitioners in these two writ petitions were the same and
one person who was proceeded in other two proceedings where the
proceedees were declared not to be foreigners by earlier two opinions
dated 22.03.2016 and 17.11.2016.
33.6. Accordingly, it would be necessary to first examine whether the
identity of the present petitioners in these two petitions is same as the
identity of the proceedees in above two referred proceedings where
favourable opinions were rendered.
In the favourable opinion given earliest on 22.03.2016 in F.T.
Case No.150/15, the proceedee has been described as follows:
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
"Musstt. NurJahan, Wife of Md. Ali Hussain, Village-
Kherani Basti, Police Station- Rangapara, District-
Sonitpur, Assam.
Coming to the second favourable opinion dated 17.11.2016
passed in F.T. Case No.156/16, the proceedee has been described as,
"Musstt. Nurjahan Begum, Wife of Lt. Hazimuddin,
Village: No.2 Ward Kheroni basti, Police Station-
Rangapara, District- Sonitpur, Assam."
33.7. In the subsequent opinion dated 04.09.2018 rendered in Case
No.FTDC 644/16 where the proceedee was declared a foreigner has
been described as,
"Musstt. Nurjahan Begum, W/O- Md. Ali Hussain, Vill-
Ward No.2 Rangapara, P.S.- Rangapara, District-
Sonitpur, Assam"
In the last opinion dated 08.10.2018 passed in Case
No.DC556/2016 where the proceedee has been declared a foreinger
has been described as,
33.8. From the above, it is seen that the names of the proceedees in
all these proceedings except in the second opinion appear to be similar.
The villages, Police Stations and Districts are also same. There appears
to be a slight difference in the name of the husband of the proceedee
in one proceeding. While in three proceedings, the name of the
husband of the proceedee has been mentioned as Md. Ali Hussain, in
the order/opinion dated 17.11.2016 passed in F.T. Case No.156/16, the
name of the husband of the proceedee has been shown as Lt.
Hazimuddin. It may, however, be noted that in the said proceeding
where the favourable opinion was passed, the proceedee had taken a
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
specific plea as also mentioned in the opinion dated 17.11.2016 that
the opposite party in her evidence had deposed that, in the reference
case in Memo No.-Tjp(B)/08/235/, Dtd.08.02.08, her husband‟s name
was incorrectly written as Lt. Hajimuddin in place of Ali Hussain. At the
same time in one page of the case diary, her father‟s name- Lt.
Kajimuddin has been incorrectly shown as her husband, but in the rest
of the pages of the case diary including her statement recorded by
police, her husband‟s name and her father‟s name had been correctly
written as Ali Hussain and Lt. Kajimuddin respectively. Thus, it appears
that misdescription of the name of the husband of proceedee Musstt.
Nurjahan Begum in F.T. Case No.156/16 appears to have been clarified
and accepted by the learned Tribunal.
Therefore, it can be inferred that the name of the husband of
the proceedee in all these proceedings is Md. Ali Hussain and not Lt.
Hazimuddin as initially wrongly recorded in one of the proceedings
(F.T. Case No.156/16) referred to above.
33.9. We are thus, satisfied with the identity of the proceedees in all
these proceedings appears to be same. The evidences relied upon in
the aforesaid proceedings also clearly support this view.
In the two proceedings where favourable opinions had been
rendered the proceedees are same.
In the first favourable opinion dated 22.03.2016 passed in F.T.
Case No.150/15, the proceedee had taken the specific plea that she
was born and brought up at village-Kadong, P.S..- Baghbar, District-
Kamrup, now Barpeta, Assam. She also claimed that she had landed
property in the said village and her father‟s name is Kajimuddin and he
was a permanent resident of village- Kadong and his father‟s name
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
appeared in the voters list of 1966 and 1970 of 51- Jonia Legislative
Assembly Constituency at Serial No.137, House No.39 and Serial
No.156, House No.39 respectively which were duly exhibited. She also
stated that her father died about 30 years ago.
She also stated that she got married to one Md. Ali Hussain @
Ali Hussain of Village- Kheranibasti, Rangapara, about 25/30 years ago
and since then she has been living with him. She also exhibited her
land holding certificate issued by the Circle Officer, Baghbar Revenue
Circle Office. She also exhibited the voters list of 1966 and 1970 where
her father‟s name appear.
On the basis of the evidences so led by the proceedee, and since
there was no rebuttal evidence led by the State, the learned Tribunal
held that the proceedee, namely, Musstt. Nurjahan is not a foreigner.
33.10. In the second favourable opinion dated 17.11.2016 passed in
F.T. Case No.156/16, it was the pleaded case of the proceedee that she
was born and brought up at village- Kadong, P.S. Baghbor, District-
Kamrup now Barpeta, Assam and she had landed property in the said
village and her father‟s name is late Kajimuddin and he was a
permanent resident of village- Kadong. She also stated that her father‟s
name appeared in the voters lists of 1966 and 1970 under 51- Jonia
Legislative Assembly Constituency at Serial No.137, House No.39 and
Serial No.156, House No.39 respectively. She also stated that her
husband‟s name was incorrectly written as Lt. Hajimuddin in place of Ali
Hussain and her father‟s name is Late Kajiumuddin which was
incorrectly shown as her husband‟s name in the case diary but in the
rest of the pages of the case diary including her statement taken by
police, her husband‟s name and her father‟s name had been correctly
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
written as Ali Hussain and Lt. Kajimuddin respectively. She also stated
that she was married to one Md.Ali Hussain @ Ali Hussain of village-
Kheranibasti, Rangapara about 25/30 years back and since then she
had been living with him.
She also stated that she possessed land and exhibited the land
holding certificate. She also exhibited the voters lists of 1966 and 1970
where the name of her father appeared.
In the said proceeding no rebuttal evidence was led by the
State.
The learned Tribunal on the basis of the evidences so adduced
declared the proceedee, namely, Musstt. Nurjahan Begum not a
foreigner.
33.11. From the above first 2(two) favourable opinions dated
22.03.2016 and 11.06.2016 passed in two different proceedings, it is
clear that the proceedees were the same i.e. Musstt. Nurjahan Begum,
wife of Md. Ali Hussain.
33.12. Now, we have to examine whether the proceedees in the two
proceedings [F.T. Case No.DC556/2016 and Case No.FTDC 644/16]
where contradictory orders were passed subsequently on 08.10.2018
and 04.09.2018 holding the proceedees to be a foreigner, are the same
person who was proceeded in the other two proceedings where
favourable opinions were passed earlier.
33.13. Case No. FTDC 644/16 where the impugned order dated
04.09.2018 was passed arose apparently after the proceedee therein,
namely, Musstt. Nurjahan Begum was suspected to be a "Doubtful"
voter.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In the said proceeding, the proceedee had filed a number of
documents and adduced evidence. In the said proceeding, earlier order
22.03.2016 passed in F.T. Case No.150/15 was also relied upon with a
prayer to close the proceeding. The leaned Tribunal, however, made
the observation that he was not convinced with the finding in the said
F.T. Case No.150/15 as it was a foreigners case and the onus is upon
the proceedee to discharge her burden as required under Section 9 of
the Foreigners Act, 1946 and merely because of non rebuttal of the
evidence led by the proceedee, no favourable order could have been
passed. Accordingly, the learned Tribunal declined to accept the order
passed in F.T. Case No.150/15.
33.14. Similarly, the other favourable opinion dated 17.11.2016 passed
in F.T. Case No.156/16 was also ignored by the learned Tribunal as
evident from the following paragraph of the impugned order dated
04.09.2018,
―Exihibit 4 : Is the copy of the Order F.T. Case No.150/15, in this
Order passed by this Tribunal on 22.03.2016 is keenly perused, it is
seen on Order that the Proceedee was declared Indian for the non
rebuttal of the evidence by the state, therefore, the learned Member of
this Tribunal Mr. A.K. Sharma did not find or nothing to disbelieved
the evidence adduced by the Proceedee, but, I am not conceded with his
findings as this case is foreigners case contemplated under section 9 of
the foreigners act 1946, under section 9 of the foreigners act is a
exceptional provision as burden of proof lies entirely on the Procedee
not upon the state of Assam. The state has very megre role and non
rebuttal of the evidence does not cause to be declaring Indian which is
applied in the other civil case. The Present principle of not rebuttal
cause the favourable order in the other party that principle of civil case
cannot be applied in the foreigners case, so, I have no hesitation to
deny to accept this Order. In the same way the Exhibit 5 is the copy of
the Order F.T. Case No.156/16 passed on 17.11.2016 declaring Indian.
These orders are not accepted.‖
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
33.15. Thus, from the above what can be understood is that the
learned Foreigners Tribunal in Case No.FTDC 644/16 declined to accept
the earlier favourable orders passed on 22.03.2016 in F.T. Case
No.150/15 and opinion dated 17.11.2016 passed in F.T. Case
No.156/16 primarily on the ground that the State did not adduce any
rebuttal evidence in those/earlier proceedings.
33.16. However, on perusal of the aforesaid favourable orders it can
be seen that it was not merely because of failure of the State to adduce
rebuttal evidene that the favourable opinions were passed. In both the
proceedings in F.T. Case No.150/15 and F.T. Case No.156/16, the
proceedee had given credible evidences to show that she is the
daughter of one Late Kajimuddin whose name was already entered in
the voters lists of 1966 and 1970 and as such, her father was very
much present in the State of Assam before 1966 with supporting
documents and since the aforesaid specific plea had remained
unrebutted, the learned Tribunal could not be faulted for giving
favourable orders to the proceedee.
33.17. We are of the view that the reason assigned by the learned
Tribunal in the impugned order dated 04.09.2018 in ignoring the
favourable orders can be considered to be correct in law.
33.18. What we have also noted that in the impugned order it is
mentioned that the proceedee, i.e. Musstt. Nurjahan Begum had stated
in the proceeding that her father‟s name is Kajimuddin and his name
appeared in the voters lists of 1966 and 1970 in respect of No.51 Jonia
Legislative Assembly Constituency, under serial Nos.137 and 139 and in
same House No.39. It was also stated that she was born at Village
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Kadang, Barpeta. However, all these details have been ignored by the
learned Tribunal.
The relevant portion of the order wherein the learned Tribunal
has given the reasons for rejecting the plea of the petitioner reads as
follows,
"REASON- ......................................
No 1 she has not adduced any birth certificate and did not stated where
and when she was born in the W/S. So, the deposition that she was born
at Vill- Kadang gaon, Dist.- Barpeta is not beyond doubt. No-2 the
voter list of 1994 is not mentioned in the W/S but, mentioned in her
evidence which is also beyond W/S, so, her present existent in Assam
is not estaboished. No-3 the voter list of 1966 and 1970 in the name of
Projected father Kajimuddin is not recently issued, so, it is doubtful.
No.-4 If the voter list of 1966 is construed to be true then she should
have exhibited loinkage document linking to her purported father
Kajimuddin, but, that link certificate is not exhibited. No-5 B the land
certificate is a post 25.03.1971 or 01.01.1966 document and it is not
proved. No-6 the exhibit 5 and 6 order of this Tribunal in FT case
No.150/15 and 156/16 declaring the Proceedee Nurjhan begum as India
are not accepted. Because, of section 9 of the foreigners act 1946, from
this above noted reasons, I have no option but to declare the Proceedee
as foreigner on or after 25.03.1971., hence this reference is answered as
affirmative."
The learned Tribunal rejected the plea of the petitioner on the
following grounds,
Firstly, that the petitioner did not adduce any birth certificate
and also did not mention in the Written Statement where and when she
was born.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Secondly, that the petitioner did not mention the voters list of
1994 in the Written Statement. However, she mentioned the same in
her evidence which is beyond the Written Statement and accordingly,
the petitioner‟s existence in Assam is not established.
Thirdly, that the voters lists of 1966 and 1970 issued in the
name of the Projected father of the petitioner Kajimuddin were not
recently issued and accordingly, these were doubtful.
Fourthly, that if the voter list of 1966 is construed to be true, the
petitioner should have exhibited the linkage certificate linking to her
purported father. According to the Tribunal, however, the petitioner
had not exhibited the link certificate.
Fifthly, that the Land certificate was a post 25.03.1971 or
01.01.1966 document which was not proved.
Sixthly, the order of the the Tribunal passed in F.T. Case
No.150/15 and 156/16 declaring the petitioner to be India could not be
accepted because of Section 9 of the Foreigners Act, 1946.
Accordingly, for the aforesaid reasons, the learned Tribunal
declared the petitioner as foreigner of post 15.03.1971 stream.
33.19. We are, however, unable to accept the said approach of the
learned Foreigners Tribunal in the present case i.e. Case No.FTDC
644/16 as the learned Tribunal could not have ignored the sameness in
the identity of the proceedees. Once, it is seen that the proceedee is
the same person who was proceeded earlier, there was no need to
rerappreciate the evidences on record, except for the purpose of
establishing the identity of the proceedee.
On the basis of the evidences on record, we are satisfied that
Musstt. Nurjahan Begum, the proceedee in Case No.FTDC 644/16 is the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
same person who was proceeded earlier in F.T. Case No.150/15 and
F.T. Case No.156/16, in whose favour favourable opinions were
rendered by the learned Foreigners Tribunal vide opinion dated
22.03.2016 and 17.11.2016 that she is not a foreigner and since
principle of res judicata will be applicable, the subsequent opinion
dated 04.09.2018 passed in Case No. FTDC644/2016 is set aside.
33.20. Accordingly, we allow the writ petition, WP(C) No.8491/2018
and declare the petitoenr Nurhajan Begum, wife of Ali Hussain,
daughter of Late Kazimuddin, Village- Ward No.2, Kheroni Basti,
Rangapara, P.S.- Rangapara, District- Sonitpur and declare her as an
Indian.
34. WP(C) No.8493/2018 [Nurjahan Begum Vs. The Union of
India and 5 Ors.]
34.1. This second petition filed by the same person, Nurjahan Begum.
We have also noted that impugned order dated 08.10.2018 was
passed by the learned Foreigners Tribunal, Chariduar at Balipara in
Case No.DC 556/2016 [Ref. Case No.TZP/B/468 dated 17.07.98] on
similar grounds as in Case No.FTDC 644/16 which has been
challenged in WP(C) No.8493/2018.
In the impugned order dated 08.10.2018, the learned Tribunal
had also ignored the favourable orders [opinion dated 22.03.2016
rendered in Case No.F.T.150/15 and opinion dated 17.11.2016 passed
in Case No.FT 156/16] as evident from the impugned order dated
08.10.2018, relevant portions of which read as follows,
―..........
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Exhibit 4 & Exhibit 5, Exhibit 4 is the certified copy of the
Foreigners' Tribunal Order vide case No.FT 150/15 passed on
22.03.2016 and Exhibit 5 is the certified copy of the Foreigners'
Tribunal Order vide case No.F.T. 156/16, passed on 17.11.2016. the
Proceedee was declared as Indian in both cases. On perusal of these
order it is found that the proceedee declared by the Tribunal as not
foreigner on ground not rebuttal of evidence by the states.
The foreigners case is somewhat exception for section 9 of the
foreigners act 1946, under provision entire burden of prove lies on the
proceedee the roll of the state is very negligible, therefore, the mere
non rebuttal of evidence does not ispofecto determined that the
Proceedee is not a foreigner in my consideration, besides the foreigner
case is not barred by LAW of res-judicata, therefore, the order copy is
not accepted and case to be decided independently.
From the above noted discussion of documents and it is crystal cleared
that the Proceedee has not exhibited any link certificate related to his
purported father documents of 1966 and 1970 which is prior to cut of
mark of 25.03.1971. She has not produced any birth certificate and nor
any residential certificate to give relief under sec 3 of the citizenship
act 1955. The evidence of the Proceedee is vitiated by multiple of
omission as discussion noted above. Resultantly the Proceedee could
not discharge her burden having regard to the mandate of sec 9 of the
foreigners act 1946. Therefore, I am compelled to declare the
Proceedee is a foreigner came to Assam on or after 25.03.1971.
..........................................‖
34.2. We are of the view that the said approach adopted by the
learned Foreigners Tribunal in Case No.DC 556/2016 is not in
consonance with law.
We have noted that in the said proceeding, the proceedee,
namely, Musstt. Nurjahan Begum had filed her written statement
stating that her father‟s name is Kajimuddin and her father‟s name was
recorded in the Electoral Rolls of 1966 and 1970 along with his family
members under 51 No. Jania Legislative Assembly. She also stated that
she got married to one Md. Ali Hussain, son of Late Ramjan Ali of
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Kheroni Basti, P.S. Rangapara, District, Sonitpur, Assam and she
possessed landed property at village-Kadamgaon, Mouza Jania, District-
Barpeta, Assam. She also stated that she was already declared as
Indian by the leaned Foreigners Tribunal in earlier proceedings in F.T.
Case No.156/16 and F.T. Case No.150/15.
34.3. Learned Tribunal observed, referring to the written statement,
that it was found that the petitioner‟s father name is Kajimuddin and
the petitioner was a resident of Village Kheronibasti of Sonitpur and
though the petitoner‟s father‟s name was enrolled in the voters lists of
1966 and 1970 of 51 Jania Legislative Assembly Constituency, but in
her written statement, the petitioner had not stated regarding her date
of birth nor annexed any supportive document. Learned Tribunal
observed that the proceedee had not stated about her date of birth as
well as place of birth and also about her mother nor of the brother and
sisters.
34.4. We have noted that the petitioner had deposed herself as DW1
by stating that her parents‟ names were Lt. Kajimuddin and Lt. Rahetun
Nessa and that she was born at Kadang Village of Barpeta district and
she got married to one Md. Ali Hussain and after her marriage she was
residing at Kheronibasti. She also stated that her father cast vote in the
year 1966 and 1970 in 51 No. Jania Legislative Assembly Constituency
at village Kadang gaon and his name was entered in the aforeisaid
voters lists under Serial No.137 and 156, Part No.66 and 67 and House
No. 39 respectively. She also stated that her mother‟s name was
recorded in both the voters lists. The proceedee cast her vote in the
year 1994 in 78 No. Rangapara Legislative Assembly Constituency and
her name was included in the voters list of 1994 under part No.9 Serial
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
No.959 and House No.12 at Barjuli Bagan. She also stated that she has
landed property at Village Kadang Gaon under Jania Mouza. She also
stated that prior to this proceeding, two foreigner cases had been
registered against her before the same Tribunal, vide FT Case
No.F.T.150/15 and F.T.156/16 and in both the cases she was declared
as a citizen of India vide opinions dated 22.03.2016 and 17.11.2016.
34.5. Petitioner had exhibited the voters list of 1966 of No.51 Jania
Legislative Assembly Constituency showing the name of her father
Kajimuddin at Serial No.137, House No.39, Part No.67 in respect of
No.51 Jania Legislative Assembly Constituency, village- Kadang,
Mouoza- Jania, P.S. Baghbar, District- Kamrup, Assam.
34.6. Petitioner also exhibited the voters list of 1970 showing the
name of her father at Serial No.156 with the same House No.39 and
Part No.67 in No.51 Jania Legislative Assembly Constituency of village-
Kadang, Mouza- Jania, P.S. Baghbar, District- Kamrup, Assam.
Petitioner also exhibited the photocopy of the Mutation
certificate issued by Baghbar Revenue Circle.
Petitioner also exhibited the certified copies of the orders passed
in F.T. Case No.150/15 and F.T. Case No.156/16.
34.7. Considering the evidences adduced by the petitioner, the
learned Tribunal observed that the proceedee did not exhibit any link
certificate related to his purported father‟s documents of 1966 and
1970, prior to cut of mark of 25.03.1971, and also observed that the
petitioner had not produced any birth certificate and nor any residential
certificate so as to give relief under Section 3 of the Citizenship Act,
1955.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Accordingly, the learned Tribunal held that the evidence of the
Proceedee/petitioner is vitiated by multiple omissions. Consequently,
learned Tribunal held that the proceedee could not discharge her
burden under Section 9 of the Foreigners Act, 1946 and declared the
petitioner as a foreigner who came to Assam on or after 25.03.1971.
34.8. In our opinion, the view of the learned Tribunal that as the
petitioner failed to produce the birth certificate or residentaial
certificate, she could not produce any link certificate can not be said to
be correct. Though existence of these documents could have
strengthened the claim of a proceedee, failure to produce these
documents cannot be a reason to declare a proceedee a foreigner if
there are, otherwise, credible evidences to show that the proceedee is
an Indian.
34.9. We are of the view that the said approach adopted by the
learned Foreigners Tribunal in Case No.DC 556/2016 in which the
impugned opinion has been passed is not in accordance with law as the
petitioner was already declared as not a foreigner in the earlier
proceedings in F.T. Case No.150/15 and F.T. Case No.156/16 vide
opinions dated 22.03.2016 and 17.11.2016.
In our view, the approach of the learned Tribunal ought to have
been to first ascertain whether the present proceedee is the same
person who was proceeded in the earlier two proceedings in which
favourable orders were passed. If it is found that the present
proceedee is the same person, then because of principle of res
judicata, the learned Tribunal should have closed the proceeding.
However, instead of doing so, the learned Tribunal re-appreciate
the evidences on record by ignoring that the similar evidences had
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
been relied in the earlier two proceedings in which favourable orders
were passed. The learned Tribunal thereafter, held that the proceedee
had failed to establish her linkage with the projected father.
34.10. In the present case, in the light of the evidences
adduced, we are satisfied that the proceedee in Case No.DC 556/2016,
namely, Musstt. Nurjahan Begum is the same person who was
proceeded earlier in F.T. Case No.150/15 as well as F.T. Case
No.156/16. In that view of the matter, because of the applicability of
the principle of res judicata, the impugned order dated 08.10.2018
cannot be sustained in law.
34.11. Accordingly, the present petition, WP(C) No.8493/2018 is
allowed by setting aside the impugned order dated 08.10.2018 passed
in Case No.DC556/2016 [Ref.Case No.TZP/B/98/468, Dtd-17.07.98]
rendered by learned Foreigners Tribunal, 7th Tezpur, Chariduar at
Balipara.
35. WP(C) No.822/2019 [Mativan Nessa vs. The Union of
India & Ors.]
35.1. In this petition, the petitioner, namely, Mativan Nessa, aged
about 46 years , daughter of late Jashimuddin and wife of Jabbar Ali,
Village-Chalcholia, P.S.-Sorbhog, District-Barpeta, Assam has
challenged the impugned order dated 04.09.2018 passed by the
Foreigners Tribunal No.11th, Barpeta in Case No.(Bpt/11th)
F.T.784/2016, by which the Tribunal declared the petitioner a foreigner
of post 25.03.1971 stream.
35.2. It is the grievance of the petitioner that thought the petitioner
had pleaded before the Foreigners Tribunal No.11th, Barpeta that she
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
was already declared an Indian vide impugned order dated 08.10.2015
passed in F.T. Case No.01/2015 (new) F.T. Case No.851/2011 (old)
arising out of Ref. IM(D)T Case No.14/2009 by the Foreigners Tribunal
No.8th, Barpeta, Assam, yet, the learned Tribunal took the view that the
present petitioner Motivan Nessa, aged about 46 years, daughter of
late Jashimuddin and wife of Jabbar Ali, Village-Chalcholia, P.S.-
Sorbhog, District-Barpeta, Assam and Matibhanu Nessa, wife of Jabbar
Ali, Village-Chalchalia, Mouza-Rupsi, P.S.-Sarbhog, Dist-Barpeta,
Assam, who was proceeded in the earlier proceeding in F.T. Case
No.01/2015 (new) F.T. Case No.851/2011 (old) arising out of Ref.
IM(D)T Case No.14/2009 before the Foreigners Tribunal No.8 th,
Barpeta, is not the same and one person.
35.3. Accordingly, the Tribunal held that the petitioner failed to
discharge the burden to prove that she is not a foreigner and
accordingly, declared her a foreigner of post 1971 stream.
35.4. Before we examine the correctness of the aforesaid finding of
the Tribunal, we would like to ascertain the identity of the proceedees
in both the cases.
In the first proceeding i.e. in F.T. Case No.01/2015 (new) F.T.
Case No.851/2011 (old) arising out of Ref. IM(D)T Case No.14/2009
before the Foreigners Tribunal No.8th, Barpeta, the proceedee has been
described as "Mati Bhanu Nessa, wife of Jabbar Ali, Village-Chalchalia,
Mouza-Rupsi, P.S. Sarbhog, District-Barpeta, Assam", whereas in the
second proceeding i.e. in Case No.(Bpt/11th) F.T.784/2016 before the
Foreigners Tribunal No.11th, Barpeta, the proceedee has been
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
described as "Motivan Nessa, wife of Jabbar Ali, Village-Chalcholia,
P.S.-Sorbhog, Dist-Barpeta".
Thus, there are striking similarities in the identities of the
aforesaid two proceedees like their names, the names of their
husbands and their addresses, though there is a slight variation in the
names of the proceedees. Whether this slight variation is indeed
significant or not can be ascertained from the remaining evidences.
35.5. In F.T. Case No.01/2015 (new) F.T. Case No.851/2011 (old),
the proceedee therein took the plea that the names of her parents are
Late Jasimuddin and late Joynab Khatoon. In the second proceeding
i.e. in Case No.(Bpt/11th) F.T.784/2016, the petitioner also had taken
the specific plea that her father‟s name is Joshimuddin @ Jashimuddin
Mandal and her mother‟s name is Joynab Khatun and the grandfather‟s
name is Samad Ali @ Samed Ali Mandal and grandmother‟s name is Esa
Bhan.
As such, in both the proceedings there are similarities in the
names of the proceedee‟s parents.
35.6. In the first proceeding the proceedee stated that in the year
1965 the father of the proceedee had purchased a plot of land in the
village-Jamadarbari, Mouza-Kharija, Bijni, P.S. Sorbhog under the then
district Kamrup. In the subsequent proceeding also the proceedee
stated that in the year 1965 her father along with her paternal uncle
purchased a plot of land covered by Dag No.133, 271, PP No.19 Kheraji
situated at Villge Jamadarbori, Under Kharija, Bijni Mouza P.S. Sorbhog
and one revenue paying receipt dated 17.07.1984 issued in favour of
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
the petitioner‟s father Jasimuddin and her paternal uncle Bakkaz Uddin.
Thus, as far as the factum of purchase of land in the year 1965 by the
father of the proceedee is concerned, there is similarity in the claim in
the both the proceedings.
35.7. In the earlier proceeding it is also mentioned that the name of
the petitioner‟s paternal uncle Bakas Uddin had appeared in the voters
lists of 1970 under SL No.161, Part No.38, House No.35 at Village-
Jamadarbar, Sorbhog Legislative Assembly Constituency. In the present
proceeding also the proceedee has mentioned about her paternal
uncle, namely, Bakajuddin, whose name appeared in 1970 voters list in
the same Constituency of Sorbhog Legislative Assembly Constituency.
Thus, the aforesaid claims as regards the particulars of her uncle also
appear to be same in both the proceedings.
35.8. It has been mentioned that the name of the proceedee‟s father
appeared in the 1951 NRC with House no.61, Holding No.46 of Village-
Jamadarbari, Mouza-Kharija, Bijni, P.S.-Sorbhog of the then Dist.-
Kamrup, Assam and in the second proceeding also the proceedee
claimed that her father‟s name appeared in the 1951 NRC along with
other 8 (eight) persons pertaining to Vill-Jamadarbori under Sorbhog
P.S.
35.9. In the first proceeding the proceedee claimed that her name
appeared in the voters lists of 1989 and 2005 under Village-Chalchalia,
P.S.-Sorbhog, Dist.-Barpeta under No.44 Jania LAC and in the second
proceeding also the petitioner had mentioned that her name appears in
the 1989 voter list under SL No.756, House No.301 under village
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Chalchalia, Mouza-Rupsi, P.S.-Sorbhog, Dist.-Barpeta of 44 No. Jania
LAC.
35.10. In the earlier proceeding the petitioner examined herself and
also one Jalil Mondal, brother of the proceedee, as D.W.2, who testified
about the relevant facts. In the present proceeding also we have noted
that the petitioner has examined herself and one Jalil Mondal, whom
the petitioner claims to be her elder brother who testified about the
relevant facts as mentioned by the proceedee. The said Jalil Mandal
during the cross-examination stated that his father also the father of
the proceedee Jashimuddin was also known as Jashim @ Jasimuddin
Mandal and he also clearly mentioned that his mother‟s name is Jainab
Khatun and his father had two brothers, namely, Sahabuddin and
Bakaruddin.
Jalil Mondal, D.W.2 also clearly mentioned that he has 4 (four)
sisters, out of which one is dead and the proceedee, Motibhan Nessa is
his younger sister. He also mentioned about one Amina Khatun who is
his step mother. He also mentioned about the purchase of land by his
father Jasimuddin in village Jamadarbori.
35.11. From the above what can be seen is that the documents
produced by the proceedee and the witnesses who were examined are
same in both the proceedings which would not be possible if the
proceedees are not the same person. It cannot be possible that two
different persons will use same and similar documents in respect of two
different proceedings. In fact, in course of the cross-examination
nothing had been suggested that the present petitioner and her brother
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
who were examined, were different from those who testified in the
earlier proceedings.
35.12. Under such circumstances, apart from the minor differences
which have been stated by the Tribunal in the impugned opinion dated
04.09.2018 as also noted by us as above, we are satisfied that the
present petitioner, namely, Mativan Nessa wife of Jabbar Ali and
Matibhanu Nessa, wife of Jabbar Ali, who was proceeded in F.T. Case
No.01/2015 (new) are one and same person.
35.13. In the impugned opinion dated 04.09.2018 passed by the
Foreigners Tribunal No.11th, Barpeta in Case No.(Bpt/11th)
F.T.784/2016 the Tribunal had given certain reasons for not agreeing
that the two proceedees are the same and one person. It has been
mentioned in the impugned opinion dated 04.09.2018 that the Jabbar
Ali‟s (proceedee‟s husband) parentage is not known.
35.14. Normally, in a proceeding before the Foreigners Tribunal, the
emphasis is given on the lineage tracing through the father or mother
of the proceedee but not through the husband. Thus, merely because
the parentage of the petitioner‟s husband is not described, more so,
when it was not asked to the proceedee, it cannot be a ground to
disbelieve the testimony of the proceedee.
Further, the Tribunal also has observed that though the
proceedee had projected Jaynab Khatun as her mother, she had not
filed any documentary evidence, which raised serious doubts about her
mother‟s presence in Assam. In our view, the same cannot be a good
ground to disbelieve the evidence of the petitioner for the reason that
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
the petitioner‟s elder brother Jalil Mandal had appeared and clearly
mentioned in his deposition as well as in his cross-examination that
Jaynab Khatun is his mother, in which event Jaynab Khatun will be also
the mother of the petitioner. This statement was also not doubted by
the State during the recording of evidence.
35.15. The Tribunal also made an observation that as per her own
declaration, the petitioner‟s projected father late Jashimuddin, was a
resident of village Chalchalia but she claimed that she was born in
Village-Jamadarbori in her paternal house. In our view this finding does
not appear to be based on evidence.
No plea was ever earlier taken by the petitioner that her father
was a resident of Chalchalia. Throughout, it has been stated that her
father was a resident of Jamadarbari.
35.16. As regards the observation of the Tribunal that the proceedee
was 36 years old and her son Majibur Ali is 28 years old in the year
2008 voter list and as such, the difference of age does not support the
claim of their relationship as mother and son. In our view, it is not a
good ground to disbelieve her evidence only because of the minor age
gap between mother and son as shown in the voters list, since the age
reflected in the voters list is not highly reliable. Since, there are credible
evidences of the relationship of the proceedee with her father, this
aspect regarding age can not be a ground to disbelieve her testimony.
35.17. It is also observed by the learned Tribunal that though the
petitioner‟s projected mother Jaynab Khatun died in the year 1983, her
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
name did not appeare in the Exhibit-1. However, non-mentioning in our
view is not fatal.
Further, the Tribunal has also found certain discrepancies
regarding the age of the petitioner‟s elder brother Abdul Jalil.
We are of the view that such discrepancies cannot be a ground
to disbelieve other evidences because such discrepancies are very
common in the voters lists. We have also noted that at the time of
cross-examination no question was asked about such discrepancies of
age either to the proceedee or to the D.W.2.
35.18. Accordingly, for the reasons discussed above, we cannot
disbelieve that the proceedees in the both the cases do not refer to the
same person. There are sufficient and cogent evidences on record to
substantiate the claim of the petitioner that she is the same person
who was proceeded earlier where a favlurable opinion was given.
We are thus, satisfied that because of the similarities in the
documents and in the plea taken in both the proceedings, there cannot
be any doubt that the present petitioner is the same person who was
proceeded in F.T. Case No.01/2015 (new) F.T. Case No.851/2011 (old)
arising out of Ref. IM(D)T Case No.14/2009 before the Foreigners
Tribunal No.8th, Barpeta.
35.19. Accordingly, for the reasons discussed above, we allow this writ
petition by setting aside impugned order 04.09.2018 passed by the
Foreigners Tribunal, Barpeta 11th, Assam in Case No.(Bpt/11th)
F.T.784/2016 and declare the petitioner an Indian in the terms of the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
earlier opinion dated 08.10.2015 passed in F.T. Case No.01/2015 (new)
F.t. Case No.851/2011 (old) arising out of Ref.IM(D)T Case
No.14/2009.
36. WP(C) No. 2239/2019 [Nadim Ali @ Nadim Badsa Vs.
The Union of India and 6 Ors.]
36.1. In this petition, [WP(C) No.2239/2019], the petitioner, Nadim Ali
@ Nadim Badsa, aged -59 years, son of Late Ifaruddin Sk. @ Ifaruddin
Ali, of village- Jhakuwapara, P.O.- Kopati, P.S.-Rowta, District-Udalguri,
BTAD has challenged the impugned judgment and order dated
30.01.2019 passed by the learned Foreigners Tribunal (2nd), Darrang,
Mangaldai in F.T.(2nd) Case No.5893/2011 [Ref-IM(D)T Case
No.1306/98] by which the petitioner was declared as a foreigner of
post 25.03.1971 stream.
36.2. In the proceeding in F.T. (2nd) Case No.5893/2011 [Ref.-IM(D)T
Case No.1306/98], the petitioner had taken the plea before the
learned Foreigners Tribunal (2nd), Darrang, Mangaldai that he was
already declared not to be a foreigner vide opinion dated 27.09.2016
passed in Case No.F.T.(2)9/2016 by learned Foreigners Tribunal
(Second), Darrang. However, the learned Tribunal did not examine the
said plea of the petitioner on the ground that each reference has to be
decided on its merit and previous opinion may be considered if it is
found to be genuine and proved and the learned Foreigners Tribunal,
accordingly, proceeded to examine the matter again on merit and
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
declared the petitioner to be not a citizen of India and declared him a
foreigner of post 25.03.1971 stream.
36.3. Mr. F.U. Borbhuiya, learned counsel for the petitioner submits
that the aforesaid approach of the learned Foreigners Tribunal is faulty
inasmuch as there are sufficient materials on record to show that the
present proceedee/petitioner is the same person who was proceeded
earlier in Case No.F.T.(2) 9/2016 and the learned Tribunal was required
only to ascertain whether the present proceedee is the same person
who was proceeded earlier in F.T.(2) Case No.9/2016 and if it is found
that the present petitioner is the same person, the learned Tribunal
could not have proceeded to examine the matter on merit.
36.4. We are also of the view that as and when such a plea is taken
by a proceedee that he had been declared Indian in an earlier
proceeding, it was incumbent upon the learned Tribunal to examine
whether the present proceedee is the same person or not who was
proceeded earlier, based on the evidence that may be adduced and
accordingly, if it is found that the present proceedee is the same
person who was proceeded earlier, the learned Tribunal is not required
to go into the other issues and aspects and evidences, except for the
purpose of satisfaction of the identity of the proceedee.
36.5. In the present proceeding in issue, it appears that the learned
Tribunal, however, did not consider that aspect and proceeded to
examine the matter on merit and declared the petitioner to be a
foreigner.
36.6. We have gone through the earlier opinion dated 27.09.2016
passed in Case No.F.T.(2) 9/2016 [Corresponding to F.T. Case
No.555/15] by the learned Foreigners Tribunal (Second), Darrang by
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
which the proceedee therein was declared to be not a foreigner. In the
said proceeding, the proceedee was described as "Md. Nadim Ali, S/o
Late Ifaruddin Sheikh, Vill.- Jhakuwapara, P/S.- Rowta, Dist.-Udalguri
(BTAD), Assam".
36.7. We have also noted that in the present proceeding in issue, in
F.T.(2nd) Case No.5893/2011 [Ref.IM(D)T Case No.1306/98], the
proceedee has been described as "Nadim Ali, S/o- Effaruddin Ali, Vill-
Jakuapara, P.S.-Rowta, Dist.-Udalguri (BTAD)".
Thus, there appears to be close resemblance as far as the
descriptions of the proceedees are concerned. That apart, we have also
examined what was stated in the earlier proceeding.
36.8. In the earlier proceeding in Case No.F.T.(2) 9/2016, the
proceeded therein had taken a specific plea that he was born at Village
Alikash, P.S. Dolgaon, District- Darrang. He also stated in the
proceeding that his father Late Ifaruddin Sheikh was wrongly
mentioned in the voters list of 1997 as Kereuddin instead of his actual
name Eferuddin Sheikh along with his mother Late Aiton Nessa.
Thereafter, O.P.‟s parents shifted from village Alikash to Village
Jhakuwapara, P.S. Rowta (earlier Dolgaon).
In the said proceeding, the proceedee had executed an affidavit
to explain the discrepancy in the father‟s name which was also
exhibited and proved.
36.9. The learned Tribunal in the earlier proceeding also considered
the certificate issued by one Sri Juju Ram Basumatary, Govt.
Gaonburah of village Jhajuabeel, Sialmari and Dhakuapara showing
that the proceedee Nadim Ali is the son of Late Ifaruddin of Village
Jhakuwapara, P.S. Rowta, District Udalguri, BTAD (Assam). Another
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
certificate issued by the Govt. Gaonburah of Village Ghansimuli &
Alikash showing that the proceedee Nadim Ali is the son of Ifaruddin
Sheikh and was a resident of village Alikash, P.S. Kharupetia, District
Darrang (Assam) was also considered by the learned Tribunal.
Voters list of 2014 was also taken into consideration by the
learned Tribunal in the earlier proceeding wherein the name of the
proceedee, Nadim Ali, son of Ifaruddin and the name of his wife
Fulmoti Nessa were shown in the said voters list under 68 Dalgaon
L.A.C. against Serial Nos.199 and 200 respectively under House No.46.
In the earlier proceeding, the voters list of 1966 under 72
Mangaldai LAC was also produced in which the names of the
petitioner‟s father appeared at Serial No.149 and the mother of the
proceedee, Aitan Nessa appeared at Serial No.150 and the brother of
the proceedee Abdul Karim appeared at Serial No.151 and another
brother Abdul Rahim also appeared at Serial No.152 under the common
House No.37.
36.10. We have also noted that in the present proceeding in F.T.(2nd)
Case No.5893/2011, the petitioner/proceedee had taken a specific plea
and relied on the same voters list of 1966 and similar Certificates
issued by the Govt. Gaonburah.
36.11. However, the learned Foreigners Tribunal in the present
proceeding ignored the voters list of 1966 on the ground that the
petitioner had failed to explain why he could not furnish any other
voters list of the projected parents and brothers prior or post 1966
voters list and what had happened to his projected father and mother
and brother Abdul Rahim after 1966. The learned Tribunal also held
that the petitioner has failed to prove the contents of the voters list of
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
1966 by producing of the primary evidence through custodian of the
Electoral Roll of Mangaldai Constituency for the year 1966. We are
unable to agree with the aforesaid reasons given by the learned
Tribunal.
36.12. In the original record, the said voters list of 1966 has been
exhibited as Ext.2 in which there is a remark by the Member,
Foreigners Tribunal(2nd), Darrang, Mangaldai that it is proved in
original. Further, the correctness of the contents of the said voters list
of 1966 had not been questioned by the State.
36.13. Therefore, we are unable to agree with the finding arrived by
the learned Tribunal that the proceedee failed to prove the contents of
the said Ext.2 by producing the primary evidence through the custodian
of the Electoral Roll of Mangaldai as there is no need to prove the
contents of a public document which was produced in original.
Further, merely because the petitioner failed to furnish any other
voters list of projected parents, brothers prior to or post 1966, cannot
be a ground to disbelieve the testimony of the petitioner.
In any event, we are afraid and we cannot re-examine the
genuineness, reliability, authenticity, credibility or adequacy of the
evidences since these had been already examined by the learned
Tribunal on earlier occasion referring to the same voters list and the
Tribunal had taken into consideration the same while declaring the said
proceedee Nadim Ali to be an Indian.
36.14. Further, we have also noted that Ext.3 and Ext.4, the
certificates issued by the Govt. Gaonburah of Khajuabeel, Sialmari and
Dhakuapara and Ghansimuli and Alikash Village were produced in
original but not contested nor questioned by the State and such similar
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
certificates were also relied on by the proceedee in the earlier
proceeding which were also taken into consideration by the learned
Tribunal in earlier proceeding while giving its opinion that the
proceedee therein Nadim Ali is not a foreigner.
In our view, the assessment of evidences and findings by the
earlier Tribunal could not have been re-opened and re-examined in the
subsequent proceeding as the subsequent Tribunal was not acting as
the appellate or reviewing forum, even if there appears to be errors in
the law and fact.
Any such irregularilty can be rectified and any opinion based on
such alleged irregular finding of facts can be interfered by a comptent
forum/higher authority and not by the same Tribunal. The State could
have challenged any such irregular earlier order of a Tribunal, and
certainly not by another Tribunal exercising the same jurisdiction.
In any event, once it is shown that the present proceedee is the
same person who was proceeded earlier and favourable opinion was
given, by applying the principle of res-judicata, the subsequent
proceeding can not be sustained in law.
36.15. We have also examined the both the original records i.e.
records of F.T.(2) Case No.09/2016 in which the petitioner was
declared as not a foreigner vide opinion dated 27.09.2016 as well as
the records of F.T(2) Case No.5893/11 wherein the present petitioner
was declared to be a foreigner.
36.16. Having compared both the original records, we have noted that
the documents relied on by the proceedee in the earlier proceeding in
Case No.F.T.(2) 9/2016 appeared to be same and similar as in the
subsequent proceeding.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
36.17. Under the circumstances, we are of the view that the present
petitioner, namely, Nadim Ali @ Nadim Badsa, son of Late Ifaruddin Sk.
@ Ifaruddin Ali, Resident of Village- Jhakuwapara, P.O. Kopati, P.S.-
Rowta, District Udalguri, BTAD, Assam is the same person who was
proceeded earlier in F.T.(2)9/2016 in which event, the subsequent
proceeding in F.T.(2nd) Case No.5893/2011 [Ref. IM(D)T Case
No.1306/98] cannot lie in view of the decision of the Hon‟ble Supreme
Court in Abdul Kuddus as the principle of res judicata will be
applicable and as such, it may not be necessary to go further to
examine the reasons given by the learned Foreigners Tribunal (2nd),
Darrang, Mangaldai in the subsequent proceeding in F.T.(2nd) Case
No.5893/2011 in declaring the petitioner to be a foreigner and as such,
the subsequent proceeding can not be sustained.
36.18. Accordingly, the present petition is allowed by setting aside the
impugned order dated 30.01.2019 passed by the learned Foreigners
Tribunal (2nd), Darrang, Mangaldai in F.T.(2nd) Case No.5893/2011
[Ref.IM(D)T Case No.1306/98].
36.19. The view taken by the learned Foreigners Tribunal (Second),
Darrang, Mangaldai in Case No. F.T.(2)9/2016 vide opinion dated
27.09.2016 will prevail, in which event, the petitioner would be
declared to be not a foreigner but an Indian.
37. WP(C) No. 8189/2019 [Ator Ali @ Rahman Vs. The
Union of India and 6 Ors.]
37.1. In this petition, [WP(C) No.8189/2019], the petitioner, Ator Ali
@ Rahman, Son of Khalilur Rahman @ Khalil, resident of Village
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Dhorasap, Sataribori, P.S. Mikiarbheta, P.O. Habibarongabari,
PIN:782108, District Morigaon, Assam has challenged the impugned
order dated 30.08.2016 passed by the learned Foreigners Tribunal
No.3rd, Morigaon in Case No.F.T.(D)121/2015 [Ref: D/N Case
No.498/1997 dtd.10.11.1997] by which the learned Foreigners Tribunal
held that the petitioner had miserably failed to satisfy the Tribunal as
required under Section 9 of the Foreigners Act, 1946 and declared the
petitioner a foreigner having entered India after the cut of date
24.03.1971.
37.2. In the present proceeding in Case No.F.T.(D) 121/05, the
petitioner had taken a specific plea before the learned Foreigners
Tribunal No.3rd, Morigaon that his father Md. Khalilur Rahman was
proceeded on an earlier occasions before the learned Foreigners
Tribunal, Nagaon in F.T. Case No.4731/88 as well as in Case No.F.T.(D)
114/09 before the learned Foreigners Tribunal No.2, Morigaon and in
both the proceedings, his father was declared not to be a foreigner and
as such, being the son of an Indian, the present petitioner is to be
declared an Indian.
37.3. It has been submitted further that in the first proceeding in F.T.
Case No.4731/88 before the learned Foreigners Tribunal, Nagaon, not
only his father Md. Khalilur Rahman but the petitioner, Ator Ali himself
was proceeded along with other family members and the learned
Foreigners Tribunal declared all the proceedees therein not to be
foreigners of the stream of 01.01.1966 and 25.03.1971 as alleged by
the State.
37.4. In the subsequent proceeding only against his father Khalil @
Md. Khalilur Rahman before the learned Foreigners Tribunal No.2,
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Morigaon in Case No.F.T.(D)114/09 his father was again declared not a
foreigner by taking into consideration the earlier finding rendered by
the learned Foreigners Tribunal, Nagaon vide opinion dated 07.07.1998
in F.T. Case No.4731/88.
37.5. Mr. Hassan, learned counsel for the petitioner submits that the
learned Foreigners Tribunal No.3rd, Morigaon in Case
No.F.T.(D)121/2015 did not consider the said two favourable opinions
of the learned Foreigners Tribunal in the earlier two proceedings and
declared the petitioner to be a foreigner vide impugned opinion dated
30.08.2016 passed in Case No.F.T.(D)121/2015.
37.6. Learned counsel for the petitioner submits that in one of the
earlier two opinions, in F.T. Case No.4731/88 [opinion dated
07.07.1998] the petitioner was also a proceedee wherein the learned
Tribunal had given the opinion that they are not foreigners. Thus, in
view of the fact that the present petitioner is the son of the aforesaid
Khalilur Rahman, there cannot be any doubt that the petitioner is also
an Indian.
37.7. Mr. Kalita, learned counsel for the State, on the other hand has
submitted that there is nothing wrong or illegal in the impugned order
as the documents cannot be relied on as correctly held by the learned
Tribunal.
37.8. In order to appreciate the rival contentions of the learned
counsel for the parties, it may be apposite to refer to the earlier
opinions.
In F.T. Case No.4731/88, the learned Foreigners Tribunal,
Nagaon passed the following order on 07.07.1998,
"OFFICE OF THE MEMBER, FOREIGNERS TRIBUNAL,
NAGAON
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
F.T. CASE NO.-4731/88
PRESENT:..................., Member
FOREIGNERS TRIBUNAL, NAGAON
State Vs. 1. Md. Khalilur Rahman
2. Musstt. Rezina Khatoon (Begum)
3. Ator Ali (S) 4........ (S)
5. Miss Afia Khatoon
6. Miss Safia Khatoon
Date of hearing : 07/07/1998
Date of Order : 07/07/1998
ORDER
Supdt. of Police, (B), Nagaon referred this case to the
Tribunal to determine whether O.P.s are Foreigners of Stream 01-
1-1996 and 25/3/1971. Necessary notices were issued O.P.s to file
written statement and documents if any. In respect to notices O.P.s
appeared submitted, written statement and documents. O.P. and
Md. Khalilur Rahman examined himself as witnesses, state
declined to adduce any witness.
Evidence of O.P.Khalilur Rahman is that he was born and
brought up at village Chatoribari, P.S. Mikirbheta, district- Nagaon
(Assam). Musstt. Rezina Begum is his wife and OP3 to 6 are sons
and daughters who are born and brought up at Chatoribari gaon
under Mikirbheta P.S., district- Nagaon. As he was a minor in 1966
his name did not find place in Electoral Roll of 1966 but his name
appeared in 84 Lahorighat Assembly Constituency, 1971 (Ext-Kha)
is the certified copy of the aforesaid Lahorighat Assembly
Constituency 1971. His evidence is that he was minor in 1966 and
his name did not appear in the Electoral Roll of 1966 but the name
of his elder brother Mona Seikh appeared who was his elder
brother. Ext. (Kha) is certified copy of 84 Lahorighat Assembly
Constituency, village Chatoribari Part-85 of 84 Lahorighat
Assembly Constituency, 1966. It seems that OP Khalilur Rahman
was minor in 1966 and his name did not find place in 1966
Electoral Roll of Assembly Constituency. Chain of Electoral Roll
of 84 Lahorighat Assembly Constituency it is clear that O.P.s are
here before 1966.
They are not foreigners of stream of 01/1/1966 and
25/3/1971.
Inform all concern.
...........‖
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
37.9. As mentioned above in the said proceeding, the present
petitioner, Ator Ali was also proceeded and was impleaded as
respondent No.3 as the son of Md. Khalilur Rahman apart from other
family members, namely, Musstt. Rezina Khatoon (Begum) mother of
the present petitioner, his brother Mintu and two sisters Afia Khatoon
and Safia Khatoon.
37.10. On perusal of the aforesaid order dated 07.07.1998, it can be
seen that Md. Khalilur Rahman who the petitioner claims to be his
father was born and brought up at village Chatoribari, P.S. Mikirbheta,
district Nagaon (Assam). It was also stated that since the said Md.
Khalilur Rahman was a minor in 1966, his name did not appear in the
Electoral Roll of 1966 but his name appeared in the voters list of 1971
of 84 Lahorighat Assembly Constituency.
37.11. Learned Tribunal accepted the said plea and declared the
proceedees therein i.e. the petitioner‟s father, the petitioner and his
brother and two sisters as not foreigners of the stream 01.01.1966 and
25.03.1971 and thus, attained finality.
37.12. The said opinion dated 07.07.1998 passed in F.T. Case
No.4731/88 has not been challenged.
Subsequently, there was another opinion rendered by the
learned Foreigners Tribunal (2nd), Morigaon in Case No.F.T.(D) 114/09
initiated against Khalil @ Md. Khalilur who the petitioner claims to be
his father.
In the said proceeding, which was disposed of on 12.12.2012,
the said Khalil @ Md. Khalilur had stated that he was born at village
Lachanabori and presently residing at Sotoribori. He stated that his
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
father‟s name appeared in the voters list of 1965 and also produced the
earlier order dated 07.07.1998.
The said proceedee Khalilur also produced other documents to
show that he is an Indian.
37.13. The learned Tribunal on consideration of the said documents
including the earlier opinion dated 07.07.1998 passed in F.T. Case
No.4731/88 declared the petitioner therein (petitioner‟s projected
father) not to be a foreigner vide order dated 12.12.2012 passed in
Case No.F.T.(D)114/09.
37.14. Before the learned Tribunal in Case No.F.T.(D) 121/2015 in the
subsequent proceeding, the petitioner had examined himself as DW1
and his father Md. Khalilur Rahman also appeared before the learned
Tribunal and examined as DW2.
The petitioner‟s father Khalilur Rahman (DW2) had testified that
he had two sons, namely, Ator Ali and Abdul Rezek and two daughters
namely, Safia Begum and Afia Begum but his eldest daughter Hushnara
Begum expired 10 years back. He also stated that his wife is Rezia
Begum. He also stated that he was born in Lochanebari under
Lahorighat P.S. but thereafter, shifted to Sotoribari under Mikirbehta
P.S. before permanently settling down at Dhorahap.
Before the learned Tribunal in the subsequent Case No.F.T.(D)
121/2015, the petitioner also took the plea that he is the son of Md.
Khalil @ Khalilur Rahman and that the said Khalil @ Khalilur Rahman
along with Musstt. Rejina Khatun (Begum), his mother, Ator Ali, the
petitioner himself and his brother and two sisters were declared as
Indian citizens by the learned Foreigners Tribunal in F.T. Case
No.4731/88 and he also stated that his name appeared in the voters
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
list of 2004 in respect of Morigaon Legislative Assembly Constituency
No.80 and as such, he is an Indian citizen.
37.15. However, as can be seen from the impugned order dated
30.08.2016 passed in Case No. F.T.(D) 121/2015, the learned Tribunal
held that the petitioner and his father had suppressed material facts
before the learned Tribunal by referring to the voters list of 1966.
Learned Tribunal observed that in the proceeding before the learned
Foreigners Tribunal, Nagaon in F.T. Case No.4731/88, the proceedee
Khalilur Rahman had stated that since he was a minor in 1966 his
name did not appear in the Electoral Roll of 1966 but the name of his
elder brother Mona Seikh had appeared. On the other hand, in the
deposition before the learned Tribunal in the instant proceeding, the
said Khalilur Rahman had stated that his elder brother‟s name is Abdul
Mannan and also the present petitioner had stated that his parental
uncle is Mannan. Thus, the learned Tribunal took the view that the
name of the petitioner‟s uncle who is the elder brother of petitioner‟s
father Khalilur Ramman is shown differently as Monna Sk. and Abdul
Mannan. According to the learned Tribunal it amounts to suppression of
facts.
Unfortunately, we are not able to agree with the aforesaid
inference drawn by the learned Tribunal for the reason that no
question was asked during the cross-examination as to why there was
a variation in the name of the petitioner‟s uncle, Abdul Mannan who
was mentioned as Mona Sk. by his father in the earlier proceeding in
F.T. Case No.4731/88 as a person can have a nick name also.
37.16. Therefore, if there was any such doubt, that could have been
clarified during the cross-examination and only when the witness failed
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
to satisfactorily explain the discrepancy in the name, necessary adverse
inference could have been drawn by the learned Tribunal. However, in
the present case, what we have noted is that no such question was
asked to the petitioner or his father as regards the alleged discrepancy
in the name of the petitioner‟s uncle and as such, we are of the view
that the learned Tribunal could not have drawn such an inference that
the petitioner and his father had fraudulently obtained the favourable
order from the learned Tribunal in F.T. Case No.4731/88.
We have taken this view as, we found that in respect of other
evidences, these appear to be similar.
37.17. In the concluding part of the impugned opinion dated
30.08.2016 passed in Case No.F.T.(D)121/2015, the learned Tribunal
made the following observation,
―9. The present O.P have not exhibited the 1965 voter list in the
name of Mafizuddin that was produced in F.T.(D) 114/2009. The voter
list of 1966 that was exhibited as Ext.‖Kha‖ in F.T. Case
No.4731/1988. Moreover, the name of the O.P's parental uncle/brother
spelt out by the D.Ws do not tally with the name inscribed in F.T. Case
No.4731/1988 as in the said Order the name of purported elder
brother/parental uncle of the D.Ws is shown as Mona Sk. Whereas they
have named Abdul Mannan as their brothr/parental uncle. Therefore
document so submitted is engulfed with serious doubts about the
genuinity of the documents as well as the person involved being
projected and therefore considering the entire aspects of the materials
on record as well as the evidence so recorded, I completely differ with
the opinion rendered by my predecessor in F.T. No.4731/1988 and
F.T.(D) 114/2009.‖
37.18. Apart from casting doubt on the identity of the petitioner‟s
uncle, the learned Tribunal also held that he would differ from the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
opinion rendered by his predecessor in F.T. Case No.4731/1988 and
F.T.(D) Case No.114/2009.
37.19. In our view, the learned Tribunal could not have given such a
finding in as much as the learned Tribunal was not sitting as an
Appellate authority nor was reviewing the earlier orders. If there were
any defect or irregularity or illegality in the earlier opinions in F.T. Case
No.4731/88 and F.T.(D) Case No.114/2009, nothing prevented the
State Government from challenging the same.
However, as noted above, the said two opinions were never
challenged by the State and accordingly, have attained finality.
37.20. Under the circumstances, the learned Tribunal could not have
taken the view that he completely differs from the opinions rendered
earlier in F.T. Case No.4731/88 and F.T.(D) Case No.114/2009.
37.21. However, the issue before us is to ascertain as to whether the
present petitioner, namely, Ator Ali @ Rahman is the same person who
was proceeded earlier in F.T. Case No.4731/88 and is the son of the
said Khalilur Rahman who was also proceeded in Case No.
F.T.(D)114/09 in which the learned Tribunal had given the opinion that
they were not foreigners.
37.22. We have noted from the order in F.T. Case No.4731/88 that the
present petitioner Ator Ali was also one of the proceedees and the said
Md. Khalilur Rahman, projected father of the petitioner had
categorically stated about his children which included the present
petitioner and the learned Tribunal gave the opinion that the
proceedees therein (including the present petitioner) are not foreigners
of the stream of 01.01.1966 and 25.03.1971.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
37.23. In the subsequent proceeding in Case No.F.T.(D)114/2009, the
learned Tribunal also gave the opinion that the said Khalil @ Md.
Khalilur Rahman, the projected father of the petitioner is not a
foreigner relying on the earlier opinion rendered in F.T. Case
No.4731/88.
37.24. These two favourable opinions of the learned Foreigners
Tribunal dated 07.07.1998 passed in F.T. Case No.4731/88 and dated
12.12.2012 passed in Case No.F.T.(D) 114/09 had been relied on by
the present petitioner in present proceeding in Case
No.F.T.(D)121/2015 and the petitioner‟s father Khalilur Rahman had
himself appeared before the third proceeding in Case No. F.T.(D)
121/2015 and had given the testimony about the aforesaid facts.
37.25. We have also noted that the evidence of the present petitioner
as well as his father have not been shaken.
The genuineness of the earlier two opinions have never been
questioned by the State, and as such, we are satisfied that there are
sufficient evidences on record to show that the present petitioner
himself was proceeded in the earlier proceeding in F.T. Case
No.4731/88 before the learned Foreigners Tribunal, Nagaon which was
disposed of on 07.07.1998 declaring the present petitioner and other
family members as not foreigners of the stream of 01.01.1966 and
25.03.1971.
Similarly, we have also noted the fact that the petitioner‟s
projected father, Khalilur Rahman who had appeared and deposed
before the learned Tribunal, was also declared not a foreigner in the
subsequent proceeding in Case No.F.T.(D) 114/09.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
37.26. Under the circumstances, we are of the view that apart from
applicability of res judicata in view of the earlier opinion dated
07.07.1998 passed in F.T. Case No.4731/88, also because of the fact
that the petitioner‟s father had been declared as not a foreigner but an
Indian in another proceeding in Case No.F.T.(D) 114/09, the petitioner
has been able to establish that he is an Indian and not a foreigner.
37.27. Accordingly, for the reasons discussed above, we are unable to
agree with the conclusion arrived by the learned Foreigners Tribunal
No.3rd, Morigaon, Assam in Case No.F.T.(D) 121/2015 vide order dated
30.08.2019 and accordingly, the same is set aside.
37.28. Resultantly, petitioner is to be considered an Indian in terms of
the earlier opinion dated 07.07.1998 passed in F.T. Case No.4731/88
and as the son of an Indian, Md. Khalilur Rahman who was also
declared not a foreigner in Case No.F.T.(D) 114/09 vide opinion dated
12.12.2012.
37.29. Accordingly, the present petition, WP(C) No.8189/2019 stands
allowed.
38. WP(C) No. 8253/2019 [Phul Banu @ Phulbanu Begum
Vs. The Union of India and 5 Ors.]
38.1. In this petition, [WP(C) No.8253/2019], the petitioner, Smti.
Phul Banu @ Phulbanu Begum aged about 70 years, Wife of Intaz Ali,
regisdent of Village- Lakhi Nepali Bosti, P.S. Jonai, District- Dhemaji,
Assam has challenged the impugned order dated 27.02.2019 passed by
the learned Foreigners Tribunal 3rd Dhemaji, Jonai, Assam in F.T.(3)
Case No.FT(DV) 1275/16 [Ref.IM(DMJ)1780/98] by which the learned
Foreigners Tribunal held that the petitioner had failed to adduce any
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
documents to prove herself as an Indian citizen and declared her as a
foreigner who had entered Assam on or after 25.03.1971.
38.2. In this case also, the petitioner had taken a specific plea before
the learned Foreigners Tribunal 3rd, Dhemaji, Jojai stating that she was
proceeded earlier in Case No.FT/DMJ 1213/2007 and an opinion was
rendered on 22.08.2013 declaring that she being the daughter of an
Indian citizen Abdul Rahim is also an Indian citizen and not a foreigner.
A copy of the said opinion dated 22.08.2013 passed by learned
Foreigners Tribunal, Dhemaji in Case No.FT/DMJ-1213/2007 was
exhibited before the learned Foreigners Tribunal 3rd Dhemaji, Jonai as
Ext.5. However, the learned Foreigners Tribunal did not consider the
said exhibit and proceeded to hold that the petitioner had failed to
discharge her burden under Section 9 of the Foreigners Act, 1946 to
prove that she was not a foreigner but a citizen of India and declared
her to be a foreigner of post 15.03.1971 stream.
38.3. Mr. M. Khan, learned counsel for the petitioner has submitted
that there are sufficient materials on record to show that the present
petitioner Smti Phul Banu @ Phulbanu Begum, wife of Intaz Ali,
daughter of Abdul Rahim, a resident of Village Lakhi Nepali Bosti, P.S.
Jonai, District Dhemaji, Assam is the same person who was proceeded
earlier in Case No.FT/DMJ-1213/2007 before the learned Foreigners
Tribunal, Dhemaji.
38.4. In our view, it was necessary on the part of the learned
Foreigners Tribunal to have examined whether the present petitioner is
the same person who was proceeded earlier in Case No.FT/DMJ-
1213/2007 and if it is found that the present petitioner is the same
person who was proceeded in Case No.FT/DMJ-1213/2007 in which a
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
favourable opinion was rendered declaring the petitioner to be an
Indian, the subsequent proceeding in F.T(3) Case No.FT(DV)1275/16
would not lie in view of the decision rendered in Abdul Kuddus.
38.5. Though the earlier opinion dated 22.08.2013 was a short one
declaring the said proceedee Musstt. Fulbanu @ Phoolbanu Begum as
an Indian, the learned Tribunal had rendered the opinion by accepting
the plea considering the certified copy of the voters list of 1965 for
No.84 Laharighat Legislative Assembly Constituency wherein the name
of the claimed father of the petitioner Abdul Rahim was found at Serial
No.114.
38.6. In the subsequent proceeding in F.T.(3) Case No.FT(DV)
1275/16, what we have noted is that the petitioner made a specific
claim that she is daughter of one Abdul Rahim and also had exhibited
the voters list of 1965 as Ext.2 wherein the name of the Petitioner‟s
father Abdul Rahim appears at Serial No.114, House No.18 of village
Solmarigaon, Part No.57, P.S.- Lahorighat, Nagaon, Assam.
38.7. We have also gone through the original records of both the
proceedings before the learned Foreigners Tribunal.
38.8. In the written statement filed in the earlier proceeding in
FT/DMJ 1213/2007, the petitioner had specifically stated that her name
had appeared in the voters list of 2013, the petitioner has been shown
as wife of Intaz Ali under 114 No. Jonai Legislative Assembly
Constituency part No.26 at Serial No.1033, House No.434 in Village-
Lakhi Nepali Bosti.
In the subsequent proceeding in F.T.(3) Case
No.FT(DV)1275/16, the petitioner had relied on the voters list of 1997.
In the voters list of 1997, the name of the petitioner appeared under
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
the same village Lakhi Nepali Basti, P.S. Jonai, under the same Dhemaji
District and same Assembly Constituency i.e. 114 No.Jonai Legislative
Assembly Constituency.
38.9. In both the proceedings, the same voters list of 1965 have been
relied upon and on comparison it is found that the name of the
projected father of the petitioner Abdul Rahim appears in the same
serial No.114 and the same House No.18 in respect of the same village
Solmarigaon, Part 57, P.S. Lahorighat, Nagaon, Assam in respect of the
same 84 No. Lahorighat Legislative Assembly Constituency.
38.10. The earlier opinion rendered by the learned Foreigners
Tribunal, Dhemaji in Case No.FT/DMJ-1213/2007 on 22.08.2013 has
attained finality and not challenged by the State, though in the present
proceeding, the petitioner has produced additional documents in terms
of other voters lists. However, in our view the additional documents will
not be necessary, once we are satisfied with the similarity of identity of
the proceedees in the two proceedings, that is that, they are the same
and one person.
38.11. In the present case, we are satisfied that the present petitioner
is the same person who was proceeded earlier in Case No.FT/DMJ-
1213/2007.
38.12. Under the circumstances, the present petition is allowed by
setting aside the subsequent opinion dated 27.02.2019 rendered by the
learned Foreigners Tribunal 3rd, Dhemaji, Jonai, Assam in F.T.(3) Case
No.FT(DV)1275/16 [Ref: IM(DMJ) 1780/98].
38.13. As a result, the petitioner is to be declared not a foreigner but
an Indian citizen in terms of the earlier opinion dated 22.08.2013
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
passed by the learned Foreigners Tribunal, Dhemaji in Case
No.FT/DMJ-1213/2007.
39. WP(C) No.1816/2020 [Sahera Khatun vs. The Union of
India & Ors.]
39.1. In this petition, the petitioner, Sahera Khatun, aged about 55
years , Daughter of Anju Miah @ Amzad Ali and wife of Abdul Bakki,
Village-Rowmari, P.S.-Tarabari, District-Barpeta has challenged the
impugned common order dated 21.01.2020 passed by the Foreigners
Tribunal No.7th, Barpeta in F.T. Case No.69/2018 arising out of IM(D)T
Case no.887/03 and F.T. Case No.432/2016 arising out of IM(D)T Case
No.4882/1998 by which the Tribunal declared the petitioner a foreigner
of post 25.03.1971 stream.
39.2. Learned counsel for the petitioner submits that the petitioner
was already declared an Indian by birth vide impugned order dated
27.02.2015 passed in F.T.(2ND Tribunal) Case No.1419/2012 by the
Foreigners Tribunal No.2nd, Barpeta. However, the Tribunal took the
view that the issue in the aforesaid F.T. Case No.1419/2012
substantially is not the same with the issue in F.T. Case No.69/2018
and F.T. Case No.432/2016 and accordingly, on the basis of the
evidence on record in the aforesaid subsequent F.T. Case No.69/2018
and F.T. Case No.432/2016 proceeded to pass the impugned order
dated 21.01.2020 by declaring the petitioner to be a foreigner of post
25.03.1971.
39.3. It was observed by the learned Tribunal that since the petitioner
failed to establish the linkage with her projected parents Anju Miah @
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Amzad Ali and Kanchan Mala, the petitioner cannot take the benefit of
the order dated 27.02.2015 passed in F.T.(2ND Tribunal) Case
No.1419/2012 by the Foreigners Tribunal No.2nd, Barpeta.
39.4. In view of the above, before we examine the merit of the case
on the basis of the evidence adduced in this proceeding, we will first
examine whether the issues raised in the earlier opinion dated
27.02.2015 in F.T.(2ND Tribunal) Case No.1419/2012 before the
Foreigners Tribunal No.2nd, Barpeta are different from the issue raised
in F.T. Case No.69/2018 and F.T. Case No.432/2016 as observed by
the learned Tribunal.
39.5. In the earlier proceeding i.e. in F.T.(2ND Tribunal) Case
No.1419/2012 Barpeta, the issue was whether the proceedee therein,
namely, Sahera Begum wife of Bakki Mia, resident of Village-Roumari
Pather, P.S.-Tarabari, Dist.-Barpeta was an illegal immigrant. In the
said proceeding, the said proceedee Sahera Begum testified and also
examined other witnesses. The Foreigners Tribunal No.2nd, Barpeta, on
the basis of the evidence adduced therein took the view that the
proceedee Sahera Begum was born and brought up in the Village-
Karagari, P.S. & Dist.-Barpeta, Assam and her father‟s name is late
Anju Miah, whose name appeared in the voters lists of 1965 and 1970
under 48 No. Bhawanipur LACT, Village-Karagari. The learned Tribunal
also noted that she was married to one Bakki Miah (Abdul Bakki) and
her name appeared in the voter lists of 1989 under 41 No. Bhawanipur
LACT, village-Chenglimari and later on, she shifted her residence to
Village-Roumari Pather and her name also appeared in the voter lists of
1994. The Tribunal also observed that the said proceedee‟s father was
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
a permanent resident of village-Karagari, P.S. & Dist.-Barpeta, Assam
before 1965.
Accordingly, the Tribunal took the view that she had been able
to discharge her burden to prove that she is a citizen of this country
and returned the reference in favour of the proceedee Sahera Begum.
We will accordingly, examine as to whether the present
proceedee, namely, Sahera Khatun is the same who was the proceedee
in the earlier proceeding in F.T. Case No.1419/2012 for the purpose of
considering the applicability of the principle of res judicata.
39.6. The description of the proceedee in F.T. Case No.69/2018
arising out of IM(D)T Case No.887/03 and F.T. Case No.432/2016
arising out of IM(D)T Case No.4882/1998 which were before the
Foreigners Tribunal No.7th, Barpeta in which the impugned opinion has
been passed, is as follows: Sahera Khatun, aged about 55 years ,
Daughter of Anju Miah @ Amzad Ali and wife of Abdul Bakki, Village-
Rowmari, P.S.-Tarabari, District-Barpeta.
39.07. In the first proceeding i.e. in F.T.(2ND Tribunal) Case
No.1419/2012 before the Foreigners Tribunal No.2nd, Barpeta where
the favourable order was passed, the description of the proceedee is as
follows: Sahera Begum wife of Bakki Mia, resident of Village-Roumari
Pather, P.S.-Tarabari, Dist.-Barpeta.
39.08. Thus, it appears that the descriptions of the proceedees in all
the proceedings appear to be similar. However, as an abundant
caution, we would like to examine as to whether there are other
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
similarities as regards the evidences adduced in the aforesaid 2 (two)
proceedings for our satisfaction.
39.9. As discussed above, in the first round i.e. in F.T.(2ND Tribunal)
Case No.1419/2012 the proceedee had relied upon the voters lists of
1965 and 1970 in which her father‟s name appeared as late Anju Miah.
In the subsequent second round i.e. in F.T. Case No.69/2018 and F.T.
Case No.432/2016 also it was the plea of the petitioner that her father
is Anju Sheikh @ Anju Miah @ Amzad Ali and her mother‟s name is
Kanchan Mala and Falani Begum is her step mother. In the voters list of
1965 which was exhibited as Exhibit B, the name of Anju Miah, the
projected father of the petitioner the name Anju Miah appeared under
48 No. Bhawanipur LAC, Mouza-Bhawanipur, Village-Kargari, P.S.-
Barpeta. Similarly, in the voters lists of 1970 which was exhibited as
Exhibit-C before the Tribunal, the name of Anju Miah again appeared in
the said voters list under the same village Karagari. But, in the voters
list of 1989 which was exhibited as Exhibit-A the name of one Amjat Ali
appeared under the 41 No. Bhawanipur LAC, Mouza-Bijni, Village-
Chenglimari, P.S.-Barpeta Road and in the voters lists of 1997, which
was exhibited as Exhibit-D, the names of said Amjad Ali appeared
under the 46 No. Sarukhetri LAC, Mouza-Pakka, Village-Naligaon, P.S. &
Dist.-Barpeta with the petitioner‟s projected step mother Falani Begum.
The names of the petitioner/proceedee appeared along with her
husband Abdul Bakki under 41 no. Bhabanipur LAC, Mouza-Bijni,
Village-Chenglimari, P.S.-Barpeta.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In the earlier proceeding the said proceedee also stated that
her family shifted to the residence to village-Roumari Pather and
thereafter, her name appeared in the voters list of 1994.
39.10. In the second proceedings also i.e. in F.T. Case No.69/2018
and F.T. Case No.432/2016, the petitioner stated that she was born
and brought up at village Karagari and then, she had shifted to village
Chenglimari and thereafter, to village Roumari sometime in the year
1994 due to Bodo agitation and her name also appeared in the voters
list of 1994.
39.11. The petitioner also filed additional documents in the second
round of proceedings about her parents and other relatives.
39.12. From the perusal of the impugned order dated 21.01.2020
passed by the Foreigners Tribunal No.7th, Barpeta in F.T. Case
No.69/2018 and F.T. Case No.432/2016, it is evident that the Tribunal
was not convinced with the plea taken by the proceedee that she is the
daughter of Anju Miah, primarily for the reason that while the name of
her projected father was recorded in the voters lists of 1965 and 1970
as Anju Miah, it was recorded as Amjad Ali in the voters list of 1997
and as such, the Tribunal held that the petitioner failed to prove that
she is the daughter of Anju Miah whose name was recorded in the
voters lists of 1965 and 1970.
39.13. As regards the plea of res judicata, the Tribunal had given a
categorical finding in Para-49 of the opinion dated 21.01.2020 by
stating that the issue in F.T.(2ND Tribunal) Case No.1419/2012 is
substantially different from the issue in F.T. Case No.69/2018 and F.T.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Case No.432/2016. For coming to such a conclusion the Tribunal
observed that in the enquiry report the name of the father of the
proceedee is shown as Amzad Ali though she claims that her father is
Anju Miah as recorded in the voters lists of 1965 and 1970. The said
opinion and finding in Para-49 is reproduced herein below:
"In this case, O.P. relied on the certified copy of the judgment dated
27.02.2015 passed in F.T. Case No.1419/2012 declaring O.P./2nd party
Shera Khatun is an Indian citizen by birth. In that reference proceeding
after perusal of the documentary evidence on record, the Tribunal
rendered an opinin that Anju Miya name appears in the voter lists of 1965
and 1970 under 48 No. Bhabanipur LAC. Coming to the present reference,
the Inquiry Officer in Form-I and Form-II recorded Sahera Begam father
name is Amjad Ali. The issue in F.T. Case No.1419/2012 is substantially
not the same issue in F.T. Case No.69/18 and 432/16. Having seen the
said, that it has already been discussed and conclusively held that O.P.
have failed to establish her linkage that she is the offspring of Anju Miya
and as a result, the opinion dated 27.02.2015 would come to aid for O.P.
only when O.P. can satisfactorily and conclusively demonstrate linkage
with her projected parents Anju Miya and Kanchan Mala. Therefore, the
linkage not having been established as required under the law, the O.P.
cannot claim the benefit of the order dated 27.02.2015 passed in F.T. Case
No.1419/2012."
39.14. However, we are of the view that the aforesaid approach of the
Tribunal is not correct. If the petitioner is able to demonstrate before
the Tribunal that she is the same person who was proceeded in the
earlier proceeding i.e. F.T.(2ND Tribunal) Case No.1419/2012, there
would be no need to examine the subsequent proceeding on merit in
view of the applicability of the principle of res judicata.
39.15. However, in the impugned order dated 21.01.2020 what
appears to have been done is that rather than trying to ascertain as to
whether the present proceedee is the same person who was proceeded
in earlier proceeding i.e. F.T.(2ND Tribunal) Case No.1419/2012, the
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
Tribunal proceeded to examine the matter on merit and thereafter,
held that the earlier opinion is not applicable as the issues were
different.
39.16. It is not correct to say that the issue in the earlier first
proceeding in F.T. (2nd Tribunal) Case No.1419/12 is different from the
issue in the subsequent proceeding in Case No.F.T.69/2018,
F.T.432/2016. In fact, these are same i.e. to find out whether the
proceedees were foreigners or not. There is no difference in the issues.
Further, it is also clearly seen from the evideneces on record that the
proceedees in all these proceedings are same, in which event, the
matter could be concluded by holding the view that the petitioner is not
a foreigner in terms of the earlier opinion dated 27.02.2015 and the
learned Tribunal could not have proceeded to examine as to whether
the petitioner had been able to establish her linkage with the said Anju
Miah. The issue of establishing her linkage with Anju Miah would arise
only when the earlier opinion is held to be in respect of some other
person and not the same. If it is the same person then the principle of
res judicata will be applicable.
Accordingly, for the reasons discussed above, we allow this
petition by setting aside the impugned order dated 21.01.2020 passed
in Case No.F.T.69/2018, F.T.432/2016 by learned Foreigners Tribunal
No.7, Barpeta, Assam.
Resultantly, the petitioner, Sahera Begum, daughter of Anju
Miah @ Amzad Ali, wife of Abdul Bakki of village Rowmari, P.S.-
Tarabari, District- Barpeta, Assam will be declared to be an Indian in
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
terms of earlier opinion dated 27.02.2015 passed in F.T.(2 nd Tribunal)
Case No.1419/12 which has attained finality and not challenged by the
State.
40. WP(C) No. 3514/2021 [Nal Mia @ Lal Mia Vs. The Union
of India and 6 Ors.]
40.1. In this petition [WP(C) No.3514/2021], the petitioner, Nal
Mia @ Lal Mia, aged about 36 years, son of Late Mamud Ali, resident of
Village- Bamunpara, P.S.-Mankachar, District- South Salmara
Mankachar, Assam has challenged the impugned order dated
26.04.2021 passed by the learned Foreigners Tribunal, Kamrup (M)
No.2 at Guwahati in F.T. Case No.1448/2015 by which the learned
Tribunal rejected the plea of the petitioner to drop F.T. Case
No.1448/2015 and thereafter fixed the matter for filing written
statement on 20.05.2021.
40.2. The petitioner submitted before the learned Foreigners Tribunal,
Kamrup (M) 2nd, Guwahati in F.T. Case No.1448/2015 that the
petitioner, Nal Mia @ Md. Lal Mia had already been declared as an
Indian vide opinion dated 06.03.2017 passed in F.T. Case No.280/2015
and accordingly, prayed before the learned Tribunal to drop the
proceeding in F.T. Case No.1448/2015 on the ground that the principle
of res judicata is applicable as decided by the Hon‟ble Supreme Court in
Abdul Kuddus. However, vide impugned order dated 26.04.2021
passed in F.T. Case No.1448/2015, the learned Tribunal held that the
case cannot be dropped merely based on the submission of the
petitioner that he had been declared an Indian on earlier occasion and
even there be similarity in name and address of the present petitioner
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
and the suspect of F.T. Case No.1448/2015, without examining
documents and witnesses and it cannot be concluded that person
named in the present F.T. Case No.1448/2015 is the same person who
was declared as Indian vide order dated 06.03.2017 in F.T. Case
No.280/2015, and accordingly, rejected the plea of the petitioner to
drop the F.T Case No.1448/2015 and fixed the matter for written
statement on 20.05.2021.
40.3. Vide impugned order dated 26.04.2021, the learned Tribunal
while giving the aforesaid conclusion also made certain observations
about the applicability of Abdul Kuddus in the light of dismissal of the
SLP by the Hon‟ble Supreme Court challenging the order passed by the
Division Bench of this Court in W.P No. 3362/2018 [Shahjahan Ali
Vs. Union of India and Ors.]
40.4. We are of the view that it will not be necessary for the Tribunal
to examine the said issue again based on the decision of this Court in
Shahjahan Ali (Supra) in the light of our discussion made above.
Shahjahan Ali was decided on the basis of Amina Khatoon, which is
no more a good law, in view of the decision of Abdul Kuddus and as
such, cannot be relied upon anymore.
We, accordingly, direct that whenever a proceedee takes the
plea of applicability of res judicata on the ground that he had been
already declared not a foreigner but an Indian by Foreigners Tribunal in
an earlier proceeding. The Tribunal has to take up it as the preliminary
issue before going into the merit of the case and the proceedee in the
subsequent proceeding has to show that he is the same person who
was proceeded earlier.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
In the present proceeding, the Tribunal has to first determine
whether the petitioner is the same person who was proceeded in the
earlier proceeding. Thus, the scope of examination is confined only to
the issue whether the petitioner is the same person who was
proceeded earlier or not. For that purpose, there can be examination of
evidences in the form of oral documents and evidences to arrive at
such a satisfaction. If the Tribunal on such examination comes to a
conclusion that the present proceedee is the same person who was
proceeded in the earlier proceeding, there is no need to go into the
merit of the case any further, by way of filling any written statement
and documents etc.
40.5. Thus, if the learned Tribunal comes to conclusion based on the
evidence that may be adduced by the present petitioner/proceedee
relevant to the determination of the preliminary issue, that he is the
same person who was proceeded earlier in the proceeding before the
learned Foreigners Tribunal on the plea of applicability of res judicata,
the subsequent proceeding shall be closed without any further
examination, but on the basis of the earlier opinion declaring the
person to be not a foreigner.
40.6. We would also like to remind the learned Tribunal that in spite of
burden of proof cast on the proceedee as provided under Section 9 of
the Foreigners Act, 1946, the standard of proof required is
"preponderance of probability" and not proof beyond all reasonable
doubts. Therefore, if the petitioner is able to establish on the basis of
preponderance of probabilities that he is the same person who was
proceeded earlier in whose favour a favourable opinion was rendered
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
that he is not a foreigner, the Tribunal has to close the present
proceeding.
40.7. In the present case, the learned Tribunal has not yet decided
this issue as to whether the present petitioner is the same person who
was earlier proceeded in F.T. Case No.280/2015 in which the said
proceedee was declared to be an Indian vide order dated 06.03.2017.
40.8. Accordingly, we dispose of this petition with the direction to the
learned Foreigners Tribunal, Kamrup (M) 2nd, Guwahati to consider this
plea as to whether the present petitioner, Nal Mia @ Md. Lal Mia is the
same person who proceeded earlier in F.T. Case No.280/2015.
40.9. We have also noted that in the earlier proceeding in F.T. Case
No.280/2015, the proceedee was described as Lal Mia @ Nal Mia, son
of Mamud Ali Seikh, Resident of Bamunpara, P.S. Mankachar, District-
Dhubri [P/A C/O Runu Ali, Birubari, P.S. Paltanbazar].
In the present proceeding in F.T. Case No.1448/2015, the
proceedee has been described as Nal Mia @ Md. Lal Mia, Son of (Lt.)
Mamud Ali Sk., village- Bamunpara, P.S.- Mankachar, District- South
Salmara Mankachar, Hatsingimari, Assam and as such there is close
resemblance as far as the identity of the both the proceedees are
concerned.
40.10. Be that as it may, the learned Foreigners Tribunal, Kamrup (M)
2nd will examine this preliminary issue as to whether the present
petitioner Nal Mia @ Lal Mia is the same person who was proceeded
earlier in F.T. Case No.280/2015 and if the learned Foreigners Tribunal
comes to a conclusion that he is the same person who was proceeded
in F.T. Case No.280/2015, the subsequent proceeding in F.T. Case No.
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
1448/2015 shall be closed without any further enquiry as directed
above. If the finidng is otherwise, the matter will be proceeded in
accordance with law.
JUDGE JUDGE
Comparing Assistant
WP(C) Nos.822, 2239, 8189, 8235/2019,
WP(C) No.1816/2020 & WP(C) No.3514/2021
