Ojala Bewa @ Ujala Khatun vs The Union Of India And 5 Ors
2023 Latest Caselaw 4511 Gua

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GAHC010236932023




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

                         Case No. : WP(C)/6359/2023

         OJALA BEWA @ UJALA KHATUN
         D/O- LATE SAINUDDIN,
         R/O- VILLAGE RASULPUR.
         P.S- KALGACHIA,
         DIST- BARPETA, ASSAM



         VERSUS

         THE UNION OF INDIA AND 5 ORS
         REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
         AFFAIRS, SASTRI BHAWAN, NEW DELHI- 110001.

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

         3:THE ELECTION COMMISSION OF INDIA
          REP. BY THE STATE ELECTION COMMISSIONER
         HOUSEFED COMPLEX
          DISPUR
          GUWAHATI-06

         4:THE STATE COORDINATOR
          NATIONAL REGISTER OF CITIZENS
         ASSAM
          GUWAHATI-06
          DISPUR

         5:THE DEPUTY COMMISSIONER
          BARPETA
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             DIST- BARPETA
             ASSAM

             6:THE SUPERINTENDENT OF POLICE (B)
              BARPETA
              DIST- BARPETA
             ASSA

Advocate for the Petitioner   : MR H K GOGOI

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




                                     BEFORE
                   HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
                  HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                          ORDER

06-11-2023 (M.R.Pathak, J)

Heard Mr. H K Gogoi, learned counsel for the petitioner and Ms. A Gayan, learned CGC for the respondent No. 1. Also heard Ms. A Verma, learned Standing counsel, Home Department, Assam for the respondent Nos. 2 & 6; Mr. A I Ali, learned Standing counsel, Election Commission of India for the respondent No. 3 as well as Mr. H K Hazarika, learned Government Advocate, Assam for the respondent No. 5.

2. It is placed before the Court by the petitioner that the learned Member, Foreigners'

Tribunal 5th, Barpeta by the Judgment and Order dated 18.05.2016 passed in FT Case No. 192/15 (Ref. No. 01/2015) opined the petitioner and her two sons, namely, Farhat Ali and Ohab Ali @ Wahab Ali to be not foreigners under the Foreigners Act, 1946.

3. Subsequent to that, on receipt of notice from the Foreigners' Tribunal 5 th, Barpeta, Assam i.e., the same Foreigners' Tribunal in F.T. Case No. 1108/2017 the petitioner appeared before the said Tribunal and by filing appropriate application brought to the notice of the Tribunal concerned that in FT Case No. 192/15 (Ref. No. 01/2015), the very same Tribunal on 18.05.2016 declared her and her two sons, noted above, as not foreigners and as such, the subsequent proceeding of said F.T. Case No. 1108/2017 is barred by res-judicata.

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4. However, the concerned Tribunal i.e., Foreigners' Tribunal 5 th, Barpeta by the impugned order dated 28.07.2023 rejected the claim of the petitioner that said F.T. Case No. 1108/2017 against her is barred by res-judicata.

5. Being aggrieved with the impugned order dated 28.07.2023 in rejecting her claim of res- judicata with regard to the proceeding of F.T. Case No. 1108/2017, the petitioner has filed this writ petition on 16.10.2023.

6. Ms. Verma, Standing counsel, Home Department, Assam at this stage relied upon the Judgment & Order (Oral) dated 03.03.2023 passed by a Co-ordinate Bench of this Court in WP(C) No. 251/2023, wherein the Court categorically observed that -

"5. We have perused the opinion rendered by the Foreigners Tribunal (Second) Sonitpur in F.T. Case No. 102/2014 and it is noticed that the Tribunal apart from recording that the evidence had been rendered by the proceedee had not given any reason as to why the Tribunal was of the view that the petitioner is not a foreigner. An unreasoned order is unacceptable in law, more so, when the said order is relied upon in a subsequent proceeding to take the plea of the subsequent proceeding being barred by the principles of res judicata.

6. The principles of res judicata under the law requires two conditions precedent to be satisfied i.e., the earlier dispute must be between the same parties and secondly, the issue between the parties must be decided. The very condition that the issue must be decided requires that it must be decided by a reasoned order and not by an order merely depicting the view that the Foreigners Tribunal may have taken without any reason. From such point of view, we are unable to accept the plea of the petitioner that the subsequent proceeding against the petitioner in F.T. Case No. 05/2019 corresponding to S.P. Case No. 731/2008 is barred by the principles of res judicata ."

7. Considering the above, we are of the view that before proceeding further with the case, the relevant records of both the cases decided by the concerned Tribunal need to be perused.

8. Accordingly, Call for the record of FT Case No. 192/15 (State of Assam -Vs.- Ujala Khatun) decided on 18.05.2016 as well as the record of F.T. Case No. 1108/2017 (State of Assam -Vs.- Ojala Bewa) wherein the impugned order dated 28.07.2023 was passed, from

the office of the learned Member, Foreigners' 5th, Barpeta, Assam.

9. A copy of this order requisitioning the case records and the forwarding letter by which the case records of said FT Case No. 192/15 and F.T. Case No. 1108/2017 are sent to this Page No.# 4/4

Court be made part of the record files of the concerned Tribunal.

10. List on 30.11.2023.

                                      JUDGE                         JUDGE




Comparing Assistant