[Cites 4, Cited by 0]
Gauhati High Court
Page No.# 1/5 vs The Union Of India And 5 Ors on 27 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/5
GAHC010187952019
2026:GAU-AS:4427
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5789/2019
KANAN DHAR @ KANAN SUTRADHAR
D/O LT. UPENDRA SUTRADHAR, W/O LT. NITAI DHAR, R/O VILL. NO. 1
NAMANI GAON, P.O. AND P.S. RANGAPARA, DIST. SONITPUR, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
THROUGH THE SECRETARY TO THE GOVT. OF INDIA, THE MINISTRY OF
HOME AFFAIRS, 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 COMMISSIONER OF INDIA
NIRVACHAN SADAN ASHOKA ROAD
NEW DELHI-110001
4:THE STATE CO-ORDINATOR
NATIONAL REGISTRATION OF CITIZEN
ASSAM
BHANGAGARH
GUWAHATI-5
5:THE DEPUTY COMMISSIONER
SONITPUR
P.O. TEZPUR
DIST. SONITPUR
ASSAM
PIN-784001
Page No.# 2/5
6:THE SUPERINTENDENT OF POLICE (BORDER)
SONITPUR
P.O. TEZPUR
DIST. SONITPUR
ASSAM
PIN-78400
Advocate for the Petitioner : MR. S C BISWAS, MS A BORAH,MR. F A HASSAN,MS A DAS
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ECI,SC, NRC
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 27.03.2026
(K.R. Surana, J)
Heard Mr. F.A. Hussain, learned counsel for the petitioner. Also heard Mr.
S.K. Medhi, learned CGC; Ms. A. Verma, learned standing counsel for the FT &
Border matters; Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P.
Sarmah, learned Addl. Senior Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the impugned opinion dated 22.12.2018,
passed by the learned Member, Foreigners' Tribunal, 7th Sonitpur, Balipara, in
Case No. FTDC 563/16, arising out of Ref. No. TZP(B)/483/98 dated 17.07.1998,
by which the petitioner was declared to be a foreigner of post 25.03.1971
stream.
3. In view of the order which is proposed to be passed, the statements in
the written statement and the nature of evidence tendered by the petitioner has
Page No.# 3/5
not been elaborately discussed in this order.
4. It would suffice to mention that on receipt of the reference, the
petitioner had stated in her written statement that she had been declared to be
not a foreigner by an opinion dated 15.03.2016, passed by the same learned
Tribunal i.e. learned Member, Foreigners' Tribunal, 7th Sonitpur, Balipara, in FT
Case No. 159/15, registered on the basis of a reference forwarded by the
Superintendent of Police (Border), Sonitpur, Tezpur.
5. Accordingly, she took the plea of the present proceedings being barred
by the principle of res judicata. Along with the written statement, a copy of the
said opinion was annexed as Annexure-A, and in her evidence, the petitioner
had tendered the copy of this opinion, and exhibited the same as Ext.F.
6. In respect of Ext.F, the following discussion has been made by the
learned Tribunal:
"Exhibit-F is the order passed by this Tribunal in the case of 159/2015 passed on
15.03.2016 by this Tribunal declaring Kamal Dhar is an Indian Citizen on the
ground of not rebuttal by the state of Assam, this approach of this Tribunal passed
by my predecessor MR. A.K. Sharma Member, F.T 7th, Sonitpur is not satisfied in
my consideration, as it is a contrary to law as laid down in full base judgment of
the Guwahati High Court in state of Assam -vs- Moslem Mandal, reported in 2013
(1) GLT 809. Under section 9 of the Foreigners Act burden is on the Proceede to
prove that she is not a foreigner. But this burden never shift to the state. The
question of rebuttal by the state arise only if the Proceede adduces evidence which
are admissible, proved and have relevance. (refer State of Assam -VS- Ohab Ali
decided on 29.05.2018 in wpc case no- 2641/17), in this case no iota of
admissibility, proved, therefore, the principle of Resjudicata cannot be applied in
foreigners case, therefore this order is not considered and decided at my
independent view."
7. The learned Standing Counsel for the FT and Border matters has made
her submission in support of the impugned opinion by submitting that the
opinion dated 15.03.2016 has taken into consideration only the birth certificate
Page No.# 4/5
issued by the Gaonburah and the copy of the voters list, which were exhibited
as Ext.A and Ext.B respectively. It is submitted that the Gaonburah certificate
cannot be a proof of birth and cannot be used as a document for citizenship.
Moreover, only by the voters list of 1966 (Ext.B) and the birth certificate of the
Gaonburah (Ext.A), the petitioner cannot be connected to a projected father.
Accordingly, she has supported the impugned opinion.
8. In the case of Abdul Kuddus vs. Union of India (2019) 6 SCC 604 , it
has been held by Full Bench of the Supreme Court of India that the order of the
Foreigners Tribunal is a quasi-judicial order and the principle of res judicata
would apply. This principle has also been followed by this Court in the case of
Jahir Ali vs. Union of India (2021) 3 GLR 105 :2021 (2) GLT 596.
9. Therefore, the case of State of Assam vs. Ohab Ali, WP(C) 2641/2017,
decided on 29.05.2018, which was referred to by the learned Tribunal to discard
the plea of res judicata, cannot be said to be good law in view of the Full Bench
decision of the Supreme Court of India in the case of Abdul Kuddus (supra).
10. Therefore, the Court is inclined to remand the matter back to the
learned Foreigners' Tribunal, 7th Sonitpur, Balipara, for a fresh decision by taking
into consideration the observations made in this order. In order to facilitate a
fresh opinion, the Court is inclined to set aside the impugned opinion dated
22.12.2018, passed by the learned Member, Foreigners' Tribunal, 7 th Sonitpur,
Balipara, in Case No. FTDC 563/16, arising out of Ref. No. TZP(B)/483/98 dated
17.07.1998.
11. The petitioner, namely, Smti Kanan Dhar @ Kanan Sutradhar, who is
duly represented by her learned counsel, is directed to appear before the
learned Member, Foreigners' Tribunal, Tribunal, 7th Sonitpur, Balipara on
Page No.# 5/5
30.04.2026 without fail and by producing a certified copy of the order, await
further orders from the said learned Tribunal.
12. The Registry shall send back the records expeditiously along with a
copy of this order to be made a part of the record by the said learned Tribunal.
13. The writ petition stands partly allowed to the extent as indicated
above.
14. There shall be no order as to costs.
JUDGE JUDGE
Comparing Assistant
