Gauhati High Court
Rafikul Islam vs The Union Of India And 5 Ors on 17 February, 2023
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GAHC010268802022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/251/2023
RAFIKUL ISLAM
S/O LT. JABED ALI, R/O VILL. BATIMARI P.S JAMUGURI DIST. SONIPUR
ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
THROUGH THE SECRETARY TO THE GOVT. OF INDIA THE MINISTRY OF
HOME AFFARIRS GRIHA MANTRALAYA NEW DELHI
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT.
DISPUR GUWAHATI-6
3:THE ELECTION COMMISSION OF INDIA
REP BY THE CHIEF ELECTION COMMISSIOER OF INDIA NIRVACHAN
SADAN ASHOKA ROAD NEW DELHI-110001
4:THE STATE CO ORDINATOR
NRC ASSAM BHANGAGARH GUWAHATI-781005
5:THE DEPUTY COMMISSIONER
SONITPUR
P.O TEZPUR DIST SONITPUR ASSAM PIN-784001
6:THE SUPERINTENDENT OF POLICE (BORDER) SONITPUR
P.O. TEZPUR DIST. SOINTPUR ASSAM PIN-78400
Advocate for the Petitioner : MD A RAHMAN
Advocate for the Respondent : DY.S.G.I.
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 17.02.2023
(A.M. Bujor Barua, J)
The petitioner raises an issue that in an earlier reference made to the
Foreigners' Tribunal No. 2 at Tezpur in F.T. Case No. 102/2014, an opinion was
rendered that the petitioner is not a foreigner. A second reference was also
made against the petitioner in F.T. Case No. 1684/2012 before the Foreigners'
Tribunal No. 2 at Tezpur wherein the petitioner was declared to be a foreigner,
but the second proceeding was dropped on a conclusion being arrived that the
proceedee in the first proceeding and also in the second proceeding are one and
the same person. However, there was a third reference against the petitioner
resulting in F.T. Case No. 05/2019 before the Foreigners' Tribunal No. 2 at
Tezpur wherein the petitioner by the opinion dated 08.09.2022 had been
declared to be a foreigner.
2. Mr. I. Hussain, learned counsel for the petitioner has raised an issue that
the third proceeding being F.T. Case No. 05/2019 is barred by the principles of
res-judicata.
3. On principle we are of the view that the principles of res-judicata would be
applicable in any subsequent reference being made even in case of the
references for opinion to the Foreigners' Tribunal as per the judgment of the
Hon'ble Supreme Court in Abdul Kuddus Vs. Union of India & Ors. reported in
(2019) 6 SCC 604. The principles of res-judicata are applicable upon satisfaction
of two conditions precedent i.e. the earlier dispute must be between the same
parties and secondly, the issue between the parties must be decided in the
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earlier proceeding. The opinion rendered by the Foreigners' Tribunal No. 2 at
Tezpur in F.T. Case No. 102/2014 by the order dated 29.12.2014 merely depicts
as to what the proceedee had stated in his evidence before the Tribunal and
thereupon from the evidence in record and the submission of the Government
pleader, the Tribunal was of the opinion that the proceedee is not to be a
foreigner. A reading of the order does not make it discernible that there was any
adjudication or a decision being rendered and the opinion appears to be based
more on a view rather than a decision of the Tribunal.
4. In the aforesaid circumstance, the petitioner may make further submission
as to whether the principles of res-judicata would be applicable in the present
case.
5. The records in F.T. Case No. 102/2014, F.T. Case No. 1684/2012 and F.T.
Case No. 05/2019 be called from the Foreigners' Tribunal No. 2 at Tezpur.
6. List on 03.03.2023 for further hearing on the issue of applicability of the
principles of res-judicata in the present case. Till then, no coercive action be
taken against the petitioner.
JUDGE JUDGE
Comparing Assistant
