[Cites 8, Cited by 0]
Gauhati High Court
Page No.# 1/15 vs Union Of India And 4 Ors on 13 March, 2026
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/15
GAHC010143812019
2026:GAU-AS:3674
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4718/2019
SRIMOT DAS AND 3 ORS.
S/O. LT. RAMLAL DAS, R/O. VILLAGE- KURKURI PT. III, P.S. KATIGORAH
(SOUTH BEHERA P.P.), P.O. KALAIN, DIST.- CACHAR, (ASSAM), PIN- 788815.
2: SMTI. PRATIBHA BALA DAS @ PRATIBA BALA DAS
W/O. SRIMOT DAS
R/O. VILLAGE- KURKURI PT. III
P.S. KATIGORAH (SOUTH BEHERA P.P.)
P.O. KALAIN
DIST.- CACHAR
(ASSAM)
PIN- 788815.
3: MOHANLAL DAS
S/O. SRIMOT DAS
R/O. VILLAGE- KURKURI PT. III
P.S. KATIGORAH (SOUTH BEHERA P.P.)
P.O. KALAIN
DIST.- CACHAR
(ASSAM)
PIN- 788815.
4: SMTI. NAYANTARA DAS
D/O. SRIMOT DAS
R/O. BHAIRABPUR PT. III
P.S. KATIGORAH (SOUTH BEHERA P.P.)
P.O. KALAIN
DIST.- CACHAR
(ASSAM)
PIN- 788815
VERSUS
UNION OF INDIA AND 4 ORS.
Page No.# 2/15
THROUGH THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI, PIN- 110001.
2:THE STATE OF ASSAM
THROUGH THE SECRETARY
GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY- 781006.
3:THE DEPUTY COMMISSIONER
CACHAR DISTRICT
P.O. AND P.S. SILCHAR (ASSAM)
PIN- 788001.
4:THE SUPERINTENDENT OF POLICE (B)
CACHAR DIST.
P.O.
P.S. SILCHAR (ASSAM)
PIN- 788001.
5:OFFICER-IN-CHARGE
KATIGORAH POLICE STATION
P.O. KALAIN
DIST. CACHAR
PIN- 788815
Advocate for the Petitioner : MR G P BHOWMIK, MR. T A CHOUDHURY,MR. A Y
CHOUDHURY,MRS. M HORE
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
JUDGMENT AND ORDER
(ORAL)
Date : 13.03.2026
(Kalyan Rai Surana, J)
Heard Mr. T. A. Choudhury, learned counsel for the petitioner. Also heard
Ms. S. B. Choudhury, learned CGC for the respondent no.1; Mr. G. Sarma,
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learned standing counsel for FT and Border matters for respondent nos. 2, 4, 5
and 6; Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no.3
and 8; and Mr. N. Kalita, learned counsel appearing on behalf of Mr. A. I. Ali,
learned standing counsel for respondent no.7.
2. There are four petitioners in this writ petition, namely, (1) Sri
Srimot Das, (2) Smt. Pratibha Bala Das @ Pratiba Bala Das, (3) Sri Mohanlal
Das, and (4) Smt. Nayantara Das. The petitioner no.2 is the wife and the
petitioner nos. 3 and 4 are the son and daughter of Sri Srimot Das (petitioner
no.1).
3. By filing this writ petition under Article 226 of the Constitution
of India, the petitioners have assailed the following two opinions:-
a. Ex parte opinion dated 21.10.2017, passed by the learned Member,
Foreigners Tribunal, 4th, Cachar at Silchar, in Case No. F.T.
4th/92/2015, which was rendered in a reference made against Smt.
Pratibha Bala Das @ Pratiba Bala Das (petitioner no. 2), by which the
said petitioner was declared to be a foreigner; and
b. Ex parte opinion dated 07.03.2018, passed by the learned Member,
Foreigners' Tribunal, 4th, Cachar at Silchar, in Case No. F.T.
4th/93/2015, which was a reference made against the Sri Srimot Das,
(petitioner no. 1). However, notice of proceedings was issued against
all the four petitioners and all the four petitioners were declared to be
foreigners post 25.03.1971.
4. The learned counsel for the petitioner has submitted that
though notice was issued to the petitioner no.2 in Case No. FT4th/92/2015, but
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in Case No. F.T. 4th/93/2015, a common notice was issued to all the petitioners.
Accordingly, it was submitted that the notices were not valid as they were not
separately issued to all the respondents.
5. It was also submitted that the petitioners had no knowledge of
the said two ex parte opinions and came to know about it only during the
hearing of the National Register of Citizen (NRC). Thereafter, the petitioners had
obtained the certified copies of the ex parte opinions on 07.05.2019 and
accordingly, a common writ petition was filed to assail the said two ex parte
opinions.
6. It was further submitted that Sri Srimot Das, petitioner no. 1
was issued a citizenship certificate dated 15.02.1971 by the Special Officer for
Registration of Citizens, Silchar. It was also submitted that the name of Smt.
Pratiba Bala Das, petitioner no. 2 was entered in the "admission register of new
migrants", showing her Camp Roll number for the period from 01.10.1964 to
24.10.1964 as Sl. No. 1347. Accordingly, it has been submitted that as the
petitioner nos. 1 and 2 were registered as citizens, one opportunity may be
given to the petitioners to contest the proceedings by filing their written
statement and evidence.
7. Per contra, the learned counsel for the FT matters has opposed
the prayer and has made his submissions in support of the impugned ex parte
opinions. It was submitted that the notice was duly received by Sri Srimot Das
(petitioner no.1) and therefore, the notice was duly served in accordance with
Order 3(5)(f) of the Foreigners (Tribunals) Order, 1964. Accordingly, it was
submitted that no interference is warranted against the impugned ex parte
opinions.
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8. Perused the materials available in the writ petition. Also perused
the records received from the Tribunal and also considered the submissions
made at the Bar.
9. On a perusal of the Tribunal's records, it is seen as follows:-
a. Case record of Case No. F.T. 4th/92/2015:
i. It is seen that the notice issued to Smt. Pratiba Bala Das
(petitioner no.2) on 26.07.2016, containing date of appearance on
09.09.2016, was duly served on Sri Srimot Das (petitioner no. 1) on
13.08.2016.
ii. On 09.09.2016, 31.10.2016 and 28.12.2016, a learned counsel,
namely, Subir Chandra Das, had filed an adjournment petition
before the learned Tribunal, stating therein that he has received
instructions over mobile phone that the petitioners above named are
unable to appear before the learned Tribunal. However, his
vakalatnama is not found in the record.
iii. On 08.12.2016, an adjournment petition was filed by another
counsel, stating that the engaged counsel could not appear before
the learned Tribunal.
iv. On 24.01.2017, the petitioner no.1, through the same learned
counsel, filed an adjournment petition, stating that due to illness, his
wife, the petitioner no.2, could not appear before the learned
Tribunal. On similar ground of illness, the learned counsel for the
petitioner no.1 again filed petition for adjournment on 01.06.2017.
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v. Thus, after the first appearance on behalf of the petitioner no.1
on 09.09.2016, the case was adjourned on 09.09.2016, 31.10.2016,
08.12.16, 28.12.16, 24.01.17, 10.03.17, 01.06.17, 25.08.17 and
22.09.17. Thereafter, ex parte opinion was passed in connection with
Case No. F.T. 4th/92/2015 on 21.10.2017.
b. Case record of Case No. F.T. 4th/93/2015:
i. It is seen that the notice issued to all the petitioners on
22.07.2016, containing date of appearance on 24.08.2016, was duly
served on Sri Srimot Das (petitioner no. 1) on 13.08.2016. However,
the petitioners did not appear or take any steps on 24.08.2016.
ii. On 08.12.2016, an adjournment petition was filed by a learned
counsel, stating that Sri Srimot Das (petitioner no.1) could not
appear before the learned Tribunal due to some urgent matter.
iii. On 28.12.2016, a learned counsel, namely, Subir Chandra Das,
had filed an adjournment petition before the learned Tribunal,
stating that he received instructions over mobile phone that the
petitioners above named are unable to appear before the learned
Tribunal.
iv. On 24.01.2017, the learned counsel, namely, Subir Chandra
Das, had filed his vakalatnama and also filed an adjournment
petition before the learned Tribunal, stating that he has not received
instructions and therefore, written statement could not be filed.
v. On 02.06.2017, an adjournment petition was filed by the
learned counsel, stating that Sri Srimot Das (petitioner no.1) could
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not appear before the learned Tribunal as he is engaged in marriage
of a relative.
vi. Thus, notice was returned after service on 24.08.2017, but the
petitioner did not appear on the said date.
vii. After the first appearance of the petitioner on 08.12.16, they
took adjournments on 08.12.16, 28.12.16, 24.01.17, 02.06.17,
24.08.2017, 28.10.2017, 06.12.2017 and 07.03.2018. But, the
petitioner remained absent without steps on 10.03.2017.
viii. Accordingly, ex parte opinion was passed in Case No. F.T.
4th/93/2015 on 07.03.2018.
10. The Tribunal's records further disclose as under:-
a. Against the said ex parte opinion dated 21.10.2017, passed in
connection with Case No. F.T. 4th/92/2015, the petitioner no.2, namely,
Smti. Pratiba Bala Das, had filed an application under Order 3-A of the
Foreigners (Tribunals) Order, 1964 for setting aside the ex parte
opinion dated 21.10.2017.
b. The said application was accompanied with a separate application
under Section 5 of the Limitation Act, 1963 for condoning the delay in
filing Misc. Case No. 37/2018. The said application was registered and
numbered as Misc. Case No. 37/2018.
c. In connection with the proceedings of Misc. Case No. 37/2018, which
was filed on 18.06.2018, by an order dated 18.06.2018, the case was
fixed on 04.09.2018 for admission hearing.
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d. By order dated 04.09.2018, passed in Misc. Case No. 37/2018, the
petitioner no. 2 was granted bail of Rs.10,000/-and the matter was
fixed on 22.10.2018. The petitioner no.2 appeared before the learned
Tribunal on 22.10.2018. However, though attendance was filed on
28.11.2018, no one appeared for the hearing.
e. The petitioner remained absent without steps on 10.01.2019 and
01.03.2019. Consequently, Misc. Case No. 37/2018 was dismissed vide
order dated 01.03.2019.
f. For setting aside the said ex parte opinion dated 07.03.2018, passed
in connection with Case No. F.T. 4th/93/2015, the petitioner no.1,
namely, Sri Srimot Das, had filed an application under Order 3-A of the
Foreigners (Tribunals) Order, 1964 for setting aside the ex parte
opinion dated 07.03.2018.
g. The said application was accompanied with a separate application
under Section 5 of the Limitation Act, 1963 for condoning the delay in
filing the application under Order 3-A of the Foreigners (Tribunals)
Order, 1964. The said application was registered and numbered as
Misc. Case No. 40/2018.
h. Both the aforesaid applications appear to have been registered and
numbered as Misc. Case No. 40/2018.
i. In connection with the proceedings of Misc. Case No. 40/2018,
which was filed on 18.06.2018, by an order dated 18.06.2018, the case
was fixed on 05.09.2018 for admission hearing.
j. By order dated 05.09.2018, passed in Misc. Case No. 40/2018, the
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petitioner no. 1 was granted bail of Rs.10,000/-, and the matter was
fixed on 22.10.2018. The petitioner no.1 appeared before the learned
Tribunal on 22.10.2018.
k. Though attendance was filed on 28.11.2018, no one appeared for
the hearing.
l. The petitioner no.1 remained absent on 10.01.2019 and 01.03.2019.
Therefore, by order dated 01.03.2019, the said Misc. Case No. 40/2018
was dismissed.
11. It may be stated that upon requisition being made, the Tribunal's
records had reached this Court and its receipt was entered in the office note-
sheet dated 03.10.2019. It is surprising that all this time, the learned counsel
for the petitioner had no time to peruse the Tribunal's records. Even today,
when the matter was being heard, the learned counsel for the petitioner did not
peruse the records. However, after order was dictated till this stage, the learned
counsel for the petitioner, at this stage, has suddenly submitted that he was not
aware about the filing of the said (i) Misc. Case No. 37/2018, and (ii) Misc. Case
No. 40/2018 and accordingly, he has prayed for an adjournment to file an
additional affidavit. The said prayer was rejected as the learned counsel for the
petitioner cannot be given any opportunity, when he had no time to peruse the
Tribunal's records for nearly six years and even before the hearing commenced.
12. Thus, the only presumption that can be drawn is that the learned
counsel for the petitioners had purposefully and deliberately withheld vital facts
relating to the filing and dismissal of Misc. Case No. 37/2018 filed by petitioner
no.2, and the filing and dismissal of Misc. Case No. 40/2018, filed by the
petitioner no.1. It has to be presumed that only after such deliberate and willful
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suppression of vital facts has come to light, the learned counsel for the
petitioners, in order to save himself, has prayed for an adjournment. Thus, the
Court is constrained to hold that the learned counsel for the petitioners has not
only failed to assist the Court, but has also miserably failed to discharge his duty
towards the petitioners. In the process, the learned counsel for the petitioners
has projected a false picture of the case before this Court, which is strongly
deprecated, however, with a stern warning to the learned counsel for the
petitioners.
13. Smt. Pratiba Bala Das (petitioner no.2) and Srimot Das
(petitioner no.1) had filed separate applications under Order 3A of the
Foreigners (Tribunals) Order, 1964, accompanied with separate applications
under Section 5 of the Limitation Act, 1963 which were registered as Misc. Case
No. 37/2018, and Misc. Case No. 40/2018 respectively. Both those Misc. Cases
were dismissed by separate orders dated 01.03.2019, which are not under
challenge. Hence, the said two orders dated 01.03.2019, passed by the said
learned Tribunal in Misc. Case No. 37/2018 and Misc. Case No. 40/2018, have
attained finality.
14. Therefore, the challenge to the following orders, i.e. (i) ex parte
opinion dated 21.10.2017, passed by the learned Member, Foreigners Tribunal,
4th, Cachar at Silchar, in Case No. F.T. 4th/92/2015, by which Smt. Pratibha Bala
Das @ Pratiba Bala Das (petitioner no. 2) was declared to be a foreigner; and
(ii) ex parte opinion dated 07.03.2018, passed by the learned Member,
Foreigners' Tribunal, 4th, Cachar at Silchar, in Case No. F.T. 4th/93/2015, by
which Sri Srimot Das (petitioner no. 1) and the other three petitioners were
declared to be foreigners post 25.03.1971, miserably fail as the two orders
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dated 01.03.2019, thereby dismissing Misc. Case No. 37/2018 and Misc. Case
No.40/2018, have attained finality.
15. On a perusal of the Tribunal's records, it is observed as follows:-
a. As per the ex parte opinion dated 21.10.2017, passed by the learned
Member, Foreigners Tribunal 4th, Cachar, Silchar, in Case No. F.T.
4th/92/2015, Smt. Pratiba Bala Das (petitioner no. 2), Sri Srimot Das
(petitioner no. 1), Sri Mohanlal Das (petitioner no. 3), and Smt.
Nayantara Das (petitioner no. 4) were held to be foreigners.
b. However, in the Tribunal's record of Case No. F.T. 4th/92/2015,
discloses that vide reference under Memo No. (B)/E/122/2012/773-778
dated 15.05.2012, the Superintendent of Police (Border), Cachar,
Silchar, had forwarded case records of Foreigners Act Case No. 149/12
in respect of Smt. Pratiba Bala Das, to the learned Member, Foreigners
Tribunal, Cachar, Silchar. The attached enquiry record reveals that
enquiry was also directed only against Smt. Pratiba Bala Das and not
against any other member of the family. The Enquiry Report in Form-II
and Form-III dated (blank) day of April, 2012, which discloses the
names of the petitioner nos. 1, 3 and 4 merely as husband, son and
daughter of petitioner no.2, without any enquiry against them, and
such enquiry report was forwarded by the Inspector of Police (B),
Cachar Silchar on 10.05.2012, and recommended by the
Superintendent of Police, Cachar, Silchar on 14.05.2012.
c. In the proceedings of Case No. F.T. 4th/93/2015, as per ex parte
opinion dated 07.03.2018, passed by the learned Member, Foreigners
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Tribunal 4th, Cachar, Silchar, Sri Srimot Das (petitioner no.1), Smt.
Pratiba Bala Das (petitioner no.2), Sri Mohanlal Das (petitioner no.3),
and Smt. Nayantara Das (petitioner no.4) were held to be foreigners.
d. However, the Tribunal's record of Case No. F.T. 4th/93/2015, discloses
that vide reference under Memo No. (B)/E/122/ 2012/773-778 dated
15.05.2012, the Superintendent of Police (Border), Cachar, Silchar, had
forwarded case records of Foreigners Act Case No. 148/12 in respect of
Srinath Das to the learned Member, Foreigners Tribunal, Cachar,
Silchar. The attached enquiry record reveals that enquiry was also
directed only against Srimot Das and not against any other member of
the family. The Enquiry Report in Form-II and Form-III dated (blank)
day of April, 2012, which discloses the names of the petitioner nos. 2,
3 and 4 merely as wife, son and daughter of petitioner no.1, without
any enquiry against them, was forwarded by the Inspector of Police
(B), Cachar Silchar on 10.05.2012, and recommended by the
Superintendent of Police, Cachar, Silchar on 14.05.2012.
16. It is trite law that the principles of res judicata applies in the
proceedings before the Foreigners Tribunals. If one needs any authority on the
point, the decision of the Supreme Court of India in the case of Abdul Kuddus v.
Union of India, (2019) 6 SCC 604, which was followed by the Division Bench of
this Court in the case of Jahir Ali v. Union of India & Ors., (2021) 3 GLR 105:
2021 (2) GLT 596, may be referred to.
17. Therefore, in light of the applicability of the principles of res
judicata, in the proceedings before the Foreigners Tribunals, the Court is of the
considered opinion that notwithstanding that the subsequent ex parte opinion
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dated 07.03.2018 was passed by the learned Member, Foreigners Tribunal 4 th,
Cachar, Silchar, in Case No. F.T. 4th/93/2015, the earlier and/or previous ex
parte opinion in point of time dated 21.10.2017, passed by the learned Member,
Foreigners Tribunal 4th, Cachar, Silchar, in Case No. F.T. 4th/92/2015, shall
prevail of the two opinion.
18. Moreover, as there was no enquiry against Sri Mohanlal Das
(petitioner no.3), and Smt. Nayantara Das (petitioner no.4), the ex parte opinion
dated 07.03.2018, passed by the learned Member, Foreigners Tribunal 4 th,
Cachar, Silchar, in Case No. F.T. 4th/93/2015; and the ex parte opinion dated
21.10.2017, passed by the learned Member, Foreigners Tribunal 4 th, Cachar,
Silchar, in Case No. F.T. 4th/92/2015, would not apply on them. In this regard, it
one needs any authority on the point, the case of Sahera Khatun v. Union of
India & Ors., WP(C) 7404/2017, decided by this Court on 31.01.2019 , may be
referred to. In the said case, it has been held that proceeding initiated without
reference would have to be construed to be a proceeding without jurisdiction.
19. However, in the case of Aktara Khatun v. Union of India & Ors.,
2017 (2) GLT 974, it has also been held that once a proceedee is declared to be
a foreigner, it would only be logical corollary to such declaration that the
proceedee's brothers, sisters and other family members would also be
foreigners and therefore, it becomes the duty of the Superintendent of Police to
cause an enquiry against them.
20. Therefore, though by applying the law as laid down in the case
of Sahera Khatun (supra), the (i) ex parte opinion dated 07.03.2018, passed by
the learned Member, Foreigners Tribunal 4th, Cachar, Silchar, in Case No. F.T.
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4th/93/2015; and (ii) ex parte opinion dated 21.10.2017, passed by the learned
Member, Foreigners Tribunal 4th, Cachar, Silchar, in Case No. F.T. 4th/92/2015,
would not apply on Sri Mohanlal Das (petitioner no.3), and Smt. Nayantara Das
(petitioner no.4). Nonetheless, at the same time, by applying the law laid down
by this Court in the case of Aktara Khatun (supra), the Superintendent of Police
(Border), Cachar, Silchar shall be bound to cause an enquiry against (a) Sri
Mohanlal Das (petitioner no.3), and (b) Smt. Nayantara Das (petitioner no.4).
21. Accordingly, as Sri Srimot Das (petitioner no.1) and Smt. Pratiba
Bala Das @ Pratibha Bala Das (petitioner no.2) have both accepted the two
orders dated 01.03.2019, passed by the learned Foreigners Tribunal 4 th, Cachar,
Silchar, in Misc. Case No. 37/2018 (arising out of Case No. F.T. 4th/92/2015) and
Misc. Case No. 40/2018 (arising out of Case No. F.T. 4th/93/2015), no
interference is warranted in respect of (i) ex parte opinion dated 07.03.2018,
passed by the learned Member, Foreigners Tribunal 4 th, Cachar, Silchar, in Case
No. F.T. 4th/93/2015- State v. Srimot Das; and (ii) ex parte opinion dated
21.10.2017, passed by the learned Member, Foreigners Tribunal 4 th, Cachar,
Silchar, in Case No. F.T. 4th/92/2015- State v. Pratiba Bala Das.
22. Consequently, this writ petition stands dismissed.
23. Before parting with the records, it is clarified that this judgment
and order shall not cause any prejudice to the petitioners in the event that they
approach the Government of India or the Government of Assam, claiming the
rights available through the Certificate of Registration of Citizens dated
15.02.1971, issued by the Special Officer for Registration of Citizens, Silchar, in
respect of those petitioners who claim through Shri Ramlal Das; and for those
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petitioners, who claim through the Certificate in the Admission Register of new
migrants post 1964, in respect of Smti. Pratiba Bala Das, petitioner no. 2.
24. In light of the discussions and observations, and subject to
liberty granted, as indicated above, the writ petition stands dismissed in respect
of Sri Srimot Das (petitioner no.1) and Smt. Pratiba Bala Das @ Pratibha Bala
Das (petitioner no.2). The writ petition is partly allowed in respect of Sri
Mohanlal Das (petitioner no.3), and Smt. Nayantara Das (petitioner no.4).
25. The parties are left to bear their own cost.
JUDGE JUDGE.
Comparing Assistant
Amit Das Amit Das
Date: 2026.03.19
13:30:01 +05'30'
