Gauhati High Court
Md Abdul Rahman @ Abdul Rahman vs Union Of India And 8 Ors on 2 August, 2023
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GAHC010054382018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1669/2018
MD ABDUL RAHMAN @ ABDUL RAHMAN
S/O LT. JASUM UDDIN
VILL- KATARATI
P.S. SOOTEA
DIST. BISWANATH, ASSAM
VERSUS
UNION OF INDIA AND 8 ORS.
TO BE REP. BY SECRETARY TO THE GOVT. OF INDIA, HOME
DEPARTMENT, NORTH BLOCK, NEW DELHI-1.
2:THE STATE OF ASSAM
TO BE REP. BY COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06.
3:ADDITIONAL DIRECTOR GENERAL OF POLICE
ASSAM (BORDER)
BHANGAGARH
GUWAHATI-05.
4:ELECTION COMMISSION OF INDIA
REP. BY SECRETARY
NIRVASAN SADAN
NEW DELHI-1.
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5:NATIONAL REGISTRAR OF CITIZENS-NRC
STATE CO-ORDINATOR
ACHUYT PLAZA
BHANGAGARH
GUWAHATI-2
ASSAM
6:DEPUTY COMMISSIONER
SONITPUR
ASSAM
7:DEPUTY COMMISSIONER
BISWANATH
ASSAM
8:SUPERINTENDENT OF POILICE (BORDER)
SONITPUR
ASSAM
9:SUPERINTENDENT OF POLICE (BORDER)
BISWANATH
ASSA
Advocate for the Petitioner : MR. A S TAPADER
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 02.08.2023
(A.M. Bujor Barua, J)
Heard Mr. A.S. Tapader, learned counsel for the petitioner and Ms. L. Devi,
learned counsel for the respondents No. 1 and 5, being the Union of India and
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the State Co-ordinator of NRC, respectively. Also heard Ms. A. Verma, learned
counsel for the respondents No. 2, 3, 8 and 9, being the authorities in the Home
Department; Mr. A.I. Ali, learned counsel for the respondent No. 4, being the
Election Commission of India and Ms. K. Phukan, learned counsel for the
respondents No. 6 and 7, being the Deputy Commissioner, Sonitpur and the
Deputy Commissioner, Biswanath, respectively.
2. The petitioner Md. Abdul Rahman @ Abdul Rahman was earlier referred to
the Foreigners' Tribunal No. 2, Sonitpur, Tezpur for rendering an opinion as to
whether he is a foreigner under the Foreigners Act, 1946 and accordingly F.T.
Case No. 65/2015 was registered wherein the Tribunal had rendered its opinion
dated 20.01.2016 declaring the petitioner to be not a foreigner. Thereafter, the
petitioner was again referred to the Foreigners' Tribunal No. 6, Tezpur, Sootea
for rendering an opinion as to whether he is a foreigner under the Foreigners
Act, 1946 and accordingly F.T.C.(6) Case No. 137/2017 was registered and the
Tribunal had served notice dated 30.08.2017 upon the petitioner for his
appearance. Being aggrieved by the subsequent notice dated 30.08.2017, this
writ petition is instituted.
3. In the writ proceeding, the petitioner relies upon the voters' list of 1966 of
village Katerati, Mouza Sootea in the present Biswanath district which contains
the name of Jash Muddin son of Posha at Sl. No. 2523. It is claimed that Jash
Muddin is the father of the petitioner. To substantiate the same, reliance is also
placed upon the voters' list of 1993 of village Katerati in the present Biswanath
district which contains the name of Abdul Rahman son of Jsumuddin at Sl. No.
628. It is claimed that Abdul Rahman of the voters' list of 1993 of village
Katerati is the petitioner himself. The petitioner also claims that by another
opinion dated 20.01.2016 in F.T. Case No. 65/2015 before the Foreigners'
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Tribunal No. 2, Sonitpur, Tezpur, the petitioner was declared to be not a
foreigner and accordingly, a claim is also made that the present proceeding is
barred by the principle of res judicata.
4. Although the principle of res judicata is applicable in the proceedings
before the Foreigners' Tribunal as per the judgment of the Hon'ble Supreme
Court in the case of Abdul Kuddus Vs. Union of India and Ors., reported in
(2019) 6 SCC 604, we have also examined the opinion dated 20.01.2016 where
the Tribunal had merely recorded the materials that may have been produced by
the proceedee and thereupon arrived at its conclusion that in the view of the
Tribunal the proceedee is an Indian citizen. However no reason is forthcoming in
the opinion of the Tribunal as to why the Tribunal had arrived at its conclusion
that the petitioner is an Indian citizen.
5. In order to attract the principle of res judicata in the earlier proceeding, it
must be between the same parties and it also must be decided between the
parties. In the absence of any reasoned conclusion, we cannot accept that in
the opinion dated 20.01.2016 there was a decision in favour of the petitioner.
Consequently, we do not accept the plea of res judicata by the petitioner,
however, from the voters' lists of 1966 and 1993 of village Katerati, it appears
that the petitioner can discharge the burden under Section 9 of the Foreigners
Act, 1946.
6. In view of the above, we remand the matter back to the Foreigners'
Tribunal No. 6, Tezpur, Sootea to examine the aforesaid voters' lists of 1966 and
1993 of village Katerati. The petitioner to produce the complete and continuous
voters' lists from the year 1966 to 1993 of village Katerati before the Tribunal
and if the voters' lists so produced give an indication that the petitioner is an
Indian citizen, the Tribunal may pass a reasoned order.
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7. The petitioner to appear before the Tribunal on 08.09.2023. Till the
reasoned order is passed, no coercive action be taken against the petitioner.
Writ petition stands disposed of as indicated above.
Send back the LCR forthwith.
JUDGE JUDGE
Comparing Assistant
