Shajahan Ali vs The Union Of India And 12 Ors
2023 Latest Caselaw 55 Gua

                                                                     Page No.# 1/8

GAHC010113512019




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

                           Case No. : WP(C)/3435/2019

         SHAJAHAN ALI
         S/O- AMAN ALI @ AMAN ALI SK, VILL- CHARUA BAKHRA, JUNGLE
         BLOCK, P.O- CHAPAR, P.S- CHAPAR, DIST- DHUBRI, ASSAM, PIN- 783374


         VERSUS

         THE UNION OF INDIA AND 12 ORS
         REP. BY THE MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI- 01

         2:THE ELECTION COMMISSION OF INDIA
          REP. BY THE COMMISSIONER
          NEW DELHI- 01

         3:THE STATE OF ASSAM
          REP. BY CHIEF SECRETARY TO THE GOVT OF ASSAM
          DISPUR
          GHY- 06

         4:THE STATE COORDINATOR
          NRC
         ASSAM
          BHANGAGARH
          GHY- 05

         5:THE COMMISSIONER AND SECRETARY
         TO THE GOVT OF ASSAM
          HOME DEPTT
          DISPUR
          GHY- 06

         6:THE DIRECTOR GENERAL OF POLICE
         ASSAM
          ULUBARI
                                                     Page No.# 2/8

             GHY- 05

            7:THE DEPUTY COMMISSIONER
             DHUBRI
            ASSAM
             PIN- 783301

            8:THE SUPERINTENDENT OF POLICE (B)
             DHUBRI
            ASSAM
             PIN- 783301

            9:THE DEPUTY COMMISSIONER
             KAMRUP(M)
            ASSAM
             PIN- 780001

            10:THE COMMISSIONER OF POLICE (B)
             KAMRUP(M)
            ASSAM
             PIN- 780001

            11:THE OFFICER IN CHARGE
             CHAPAR POLICE STATION
             DIST- DHUBRI
            ASSAM
             PIN- 783375

            12:THE OFFICER IN CHARGE
             GEETA NAGAR POLICE STATION
             DIST- KAMRUP(M)
            ASSAM
             PIN- 780001

            13:THE ELECTORAL REGISTRATION OFFICER
             27TH BILASIPARA EAST LAC
             BILASIPARA
             PIN- 78334

Advocate for the Petitioner   : MR. M U MONDAL

Advocate for the Respondent : ASSTT.S.G.I.

Page No.# 3/8

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY order (ORAL)

04-01-2022

[N. Kotiswar Singh, J]

Heard Ms. R. Khatun, learned counsel for the petitioner. Ms. A. Gayan, learned CGC

accepts notice on behalf of respondent no.1; Mr. G. Sarma, learned Special Counsel, F.T.

accepts notice on behalf of respondent no.6, 8, 19, 11 & 12; Mr. A.I. Ali, learned Standing

Counsel, ECI, accepts notice on behalf of respondent no.2 & 13, Ms. L. Devi, learned

Standing Counsel, NRC accepts notice on behalf of respondent no.4 and Ms. K. Phookan,

learned State Counsel, Assam, accepts notice on behalf of respondent nos.3, 5, 7 & 9.

2. Considering the nature of the case, which is based on the applicability of the principle

of res judicata, we are inclined to dispose of this petition at this stage without issuing any

formal notice to the respondents.

3. The present petition has been filed by the petitioner, namely, Shajahan Ali, on being

aggrieved by the impugned order dated 05.03.2019 passed by the Foreigners Tribunal,

Kamrup(M) 2nd, Guwahati-3 in F.T. Case No.1838/2015 declaring the petitioner a foreigner of

post 1971 stream.

4. Learned counsel for the petitioner has taken a preliminary plea in assailing that the

opinion dated 05.03.2019 passed by the Foreigners Tribunal, Kamrup(M) 2 nd, Guwahati-3 in Page No.# 4/8

F.T. Case No.1838/2015 will not lie as the petitioner was already declared an Indian by the

Foreigners Tribunal No.3, Kamrup (M), Guwahati-3 in F.T. Case No.28/2017 vide its opinion

dated 09.06.2017.

5. Learned counsel for the petitioner submits that as far as the applicability of res

judicata in a proceeding before the Foreigners Tribunal is concerned, the same is settled that

if a proceedee was already declared an Indian in a procceding before the Foreigners Tribunal,

unless the same is interfered by the competent forum, the same will be binding on

subsequent proceeding against the same person in terms of the decision of the Hon'ble

Supreme Court passed in Abdul Kuddus vs. Union of India (2019) 6 SCC 604 and the

decision rendered by this Court in WP(C) No.2099/2018 (Sital Mandal vs. Union of India and

Ors.) on 28.04.2022 and other analogous matters and as such, if any such application is

made by the applicant in the subsequent proceeding, the Tribunal is duty bound to examine

the same to ascertain as to whether the proceedee is the same person who was proceeded

earlier before the Tribunal and a favourable opinion was passed by the Tribunal declaring

him/her to be an Indian.

6. Now, the obvious question would be as to whether the petitioner who was declared a

foreigner by the impugned order dated 05.03.2019 in F.T. Case No.1838/2015 by the

Foreigners Tribunal, Kamrup(M) 2nd, Guwahati-3 is the same person who was proceeded in

F.T. Case No.28/2017 before the Foreigners Tribunal No.3, Kamrup (M) in which an opinion

was rendered on 09.06.2017 declaring the proceedee therein as an Indian. If the present

petitioner is the same person who was proceeded in F.T. Case No.28/2017, the subsequent

proceeding would not lie and accordingly, the decision in the subsequent proceeding also Page No.# 5/8

cannot be sustained in law.

7. In order to appreciate the submission advanced by the learned counsel for the

petitioner, we have examined both the impugned orders i.e. the opinion dated 05.03.2019

passed by the Foreigners Tribunal, Kamrup(M) 2 nd, Guwahati-3 in F.T. Case No.1838/2015

and the opinion dated 09.06.2017 passed by the Foreigners Tribunal No.3, Kamrup (M) in F.T.

Case No.28/2017.

8. In the earlier opinion rendered by the Foreigners Tribunal No.3, Kamrup (M) in F.T.

Case No.28/2017on 09.06.2017, the proceedee has been described as Sajahan Ali @

Shahjahan Ali, S/o Iman ali @ Iman Ali Sheikh, a resident of Vill-Sarua Pakra, P.S. Chapar,

Dist.-Dhubri, Assam and in the present proceeding i.e. F.T. Case No.1838/2015 , the

petitioner has been described as Shahjahan Ali, S/o Iman Ali sheikh @ Iman Ali, a resident of

Vill-Charua Bakhra Jangle Block under P.S.-Chapar, Dist.-Dhubri, Assam.

9. From the perusal of the above two descriptions of the proceedees respectively, there

are striking similarities in the descriptions .

10. We have gone through the impugned opinion rendered in F.T. Case No.1838/2015 by

the Foreigners Tribunal, Kamrup(M) 2nd, Guwahati-3. Accordingly, we are of the opinion that

it may not be necessary to consider the other grounds taken, inasmuch as, there is a specific

finding of the Foreigners Tribunal in the impugned order dated 05.03.2019 to the following

effect.

"I have perused judgment and order dated 09.06.2017 passed by Member Foreigners Tribunal No.3, Kamrup9m) bearing F.T. Case No.28/2017 in the name of Sajahan Ali @ Shahjahan Ali, S/o Iman Ali @ Iman Ali Sheikh declaring him as not a foreigner. I respectfully differ with the order declaring the Opposite Party as not foreigner as the proceedee could not establish his legacy with his parents Page No.# 6/8

with documentary evidence"

Thus, it appears that the Tribunal was aware of the fact that earlier there was an

opinion in favour of the petitioner who claimed to be Sajahan Ali @ Shahjahan Ali, who was

proceeded in FT Case no.28/2017 and declared not a foreigner.

11. Accordingly, since we have found similarities in the name and description of the

proceedees as mentioned above, we are of the view that this aspect should be examined by

the Tribunal, more so, when the earlier opinion rendered by the Foreigners Tribunal No.3,

Kamrup (M) in F.T. Case No.28/2017 on 09.06.2017 was brought to the notice of the

Foreigners Tribunal, Kamrup(M) 2nd, Guwahati-3 but the Tribunal did not consider the said

aspect in the second proceeding at all on the ground that the Tribunal differs from the earlier

view, which cannot be done once res judicata applies. It has been clearly mentioned in Abdul

Kuddus (supra) that if there had been an order by the Foreigners Tribunal in favour of a

person determining the citizenship, the said decision will be binding on subsequent

proceedings against the same person and there cannot be another proceeding to re-

determine the citizenship of the person, by applying the principle of res judicata.

12. Accordingly, this shall be the preliminary issue which is to be decided by the Foreigners

Tribunal, Kamrup(M) 2nd, Guwahati-3 in F.T. Case No.1838/2015 as to whether the present

proceedee is the same person who was earlier declared an Indian Citizen in FT Case

no.28/2017 by the Foreigners Tribunal No.3, Kamrup(M), Guwahati-3 and if it is found that

the petitioner is the same person who was proceeded in FT Case no.28/2017 by the

Foreigners Tribunal No.3, Kamrup(M), Guwahati-3, the present proceeding shall immediately

be concluded in favour of the petitioner after considering the order passed in FT Case

no.28/2017on 09.06.2017 where the petitioner was declared an Indian citizen and in such an Page No.# 7/8

event, the impugned order dated 05.03.2019 passed in F.T. Case No.1838/2015 declaring the

petitioner as a foreigner will be superseded by the subsequent order passed in term of this

order.

Only when the Tribunal comes to a finding that the present proceedee is not the same

person who was proceeded and was found to be an Indian in FT Case no.28/2017, the

impugned order dated 05.03.2019 will stand and the order of the Tribunal can be challenged

by the petitioner both on the issue of identity of the petitioner and other grounds raised in

this petition.

13. In view of the above, without entering in the merit of the case, we remand the matter

to the Foreigners Tribunal, Kamrup(m) 2nd, Guwahati-3, to examine whether the petitioner is

the same person who was proceeded in FT Case no.28/2017 by the Foreigners Tribunal No.3,

Kamrup(M), Guwahati-3.

We are also making it clear that we put on hold the order dated 05.03.2019 passed by

the Foreigners Tribunal, Kamrup(M) 2 nd, Guwahait-3 in F.T. Case No.1838/2015 and the

opinion dated 05.03.2019 shall not to be given effect to till the concerned Foreigners Tribunal

comes to the conclusion as to whether the present petitioner is the same person who was

proceeded in F.T. 28/2017 by the Foreigners Tribunal No.3, Kamrup(M), Guwahati-3 because

at this stage, it is yet to be ascertained by the Tribunal as to whether the present petitioner is

the same person or not. It is made clear that if the Foreigners Tribunal comes to the

conclusion that the petitioner is the same person, the opinion of the Foreigners Tribunal,

Kamrup(M) 2nd, Guwahait-3 will not be sustained and will stand set aside without any further

order from this Court.

Page No.# 8/8

14. Accordingly, the petitioner shall appear before the Foreigners Tribunal on 07.02.2023 to

prove as to whether that he is the same person who was proceeded in F.T. 28/2017 by the

Foreigners Tribunal No.3, Kamrup(M), Guwahati-3. If the Tribunal comes to the finding that

the petitioner is not the same person who was proceeded in F.T. 28/2017, the petitioner

would be permitted to approach this Court again to challenge the order of the Tribunal as well

as the order dated 05.03.2019 and take all the grounds which have been taken in the present

petition.

15. It is made clear that since the nationality of the petitioner is already under cloud, he

will remain on bail on furnishing a bail bond of Rs. 5,000/- (Rupees five thousand) with one

local surety of the like amount to the satisfaction of the Deputy Commissioner of Police

(Border), City Guwahati during the pendency of the proceeding before the Tribunal. The

concerned Deputy Commissioner of Police (Border) shall also take steps for capturing the

fingerprints and biometrics of the iris of the petitioner. The petitioner also shall not leave the

jurisdiction of Kamrup(M) district without furnishing the details of the place of destination and

necessary information including contact number to the Deputy Commissioner of Police

(Border), City Guwahati.

16. With the above observations and directions, the writ petition stands disposed of.

17. Copy of this order be furnished to the Deputy Commissioner of Police (Border), City

Guwahati for doing the needful.

                                                  JUDGE                            JUDGE

Comparing Assistant