Asia Khatun @ Ayesa Khatun vs The Union Of India And 5 Ors
2023 Latest Caselaw 3280 Gua

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GAHC010182322023




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

                          Case No. : WP(C)/4769/2023

         ASIA KHATUN @ AYESA KHATUN
         S/O- WIFE LATE HATEM ALI, VILL- GOBINDAPUR, P.O. GOBINDAPUR, P.S.
         GOALPARA, DIST.- GOALPARA, ASSAM, PIN- 783101



         VERSUS

         THE UNION OF INDIA AND 5 ORS
         REPRESENTED BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF
         HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1

         2:THE STATE OF ASSAM
          REPRESENTED BY ITS COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM
          DEPARTMENT OF HOME
          DISPUR
          GUWAHATI-6

         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
          GOALPARA
          DIST.- GOALPARA
         ASSAM
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                6:THE SUPERINTENDENT OF POLICE (B)
                 GOALPARA
                 DIST.- GOALPARA
                ASSA

Advocate for the Petitioner   : MR M SHELIM

Advocate for the Respondent : GA, ASSAM




                                        BEFORE
             HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
                  HON'BLE MRS. JUSTICE MITALI THAKURIA
                                       O R D E R

23.08.2023 (A.M. Bujor Barua, J)

Heard Mr. R Ali, learned counsel for the petitioner. Also heard Ms. L Devi, learned CGC appearing on behalf of respondents in the Union of India as well as for the respondents in the NRC, Mr. J Payeng, learned Government Advocate for the State respondents in the Home Department of Government of Assam, Mr. AI Ali, learned counsel for the Election Commission of India, Mr. P Sarma, learned counsel for the Deputy Commissioner, Goalpara.

Issue notice, returnable on 13.09.2023.

Extra copies of the writ petition be served on the learned counsel for the respondents as indicated hereinabove within three days.

The petitioner Asia Khatun @ Ayesa Khatun had been referred to the Foreigners Tribunal No. 2, Goalpara for rendering an opinion as to whether she is a foreigner within the meaning of foreigner under the Foreigners Act, 1946 resulting in registration of FT Case No. GFT(2) 870/2022. In the said reference, Page No.# 3/4

the petitioner instituted Misc Case No. 03/2023 taking a stand that by an earlier opinion dated 01.07.2011 in FT Case No. 1127/G/2006, the Foreigners Tribunal, Goalpara had declared the petitioner to be an Indian citizen and therefore, the subsequent proceeding in FT Case No. GFT(2) 870/2022 would be barred by the principles of res-judicata.

The Tribunal dismissed the said Misc Case No. 03/2023 by its order dated 26.06.2023 by arriving at a conclusion that the earlier opinion was not a reasoned opinion and therefore, the principle of res-judicata would not be applicable. Being aggrieved, this writ petition is instituted.

A reading of the opinion dated 01.07.2011 in FT Case No. 1127/G/2006 makes it discernible that the Tribunal had taken note of the evidence of DW-1 therein, who had stated that she had seen the grandfather of the petitioner late Montaz Ali as well as her grandmother Nesatun Khatun and had also described the house where the grandfather had resided. The DW-1 had also stated as to where the father of the petitioner was born as well as where the writ petitioner was born and also when and how she got married. Having accepted the evidence of DW-1 who was also cross examined by the Home Department of the Government of Assam, the Tribunal had arrived at its conclusion that the petitioner had discharged the burden to prove that she is not a foreigner.

The said provision in the earlier opinion dated 01.07.2011 in FT Case No. 1127/G/2006 does not prima-facie makes it discernible that the opinion was not a reasoned opinion.

But, however, Mr. J Payeng, learned counsel for the respondents in the Home Department has raised an issue that the subsequent reference was made upon having the authorities found some further materials which may show that Page No.# 4/4

the writ petitioner may be a foreigner and the subsequent reference was registered in the said circumstance.

If the respondents are of the view that they had arrived at some further materials which may indicate that the writ petitioner is a foreigner, the question would remain as to what further remedy may remain for the respondents in such circumstance i.e. whether a subsequent reference can be registered or otherwise by adopting some other means.

We have also taken note of the judgment rendered by the Hon'ble Supreme Court in Abdul Kuddus -vs- Union of India and others, reported in (2019) 6 SCC 604, wherein it had been held that opinions rendered by the Foreigners Tribunals are also judgments and therefore, the principles of res-judicata would be applicable.

However, on the prayer of Mr. J Payeng, learned counsel for the respondents in the Home Department, list the matter again on 13.09.2023.

Until further orders, further proceeding in FT Case No. GFT(2) 870/2022 shall remain stayed.

                 JUDGE                                   JUDGE



Comparing Assistant