THE GAUHATI HIGH COURT AT GUWAHATI v. The Union of India

Mr. M. Khan, Adv. Mr. J. Rahman, Adv.e Ms. K. Devi, Adv. Mr. H.R.A. Choudhury, Sr. Adv. Mr. H. Ali, Adv. Mr. J.M. Sulaiman, Adv. Mr. M. Khan, Adv. Mr. J. Rahman, Adv. Mr. R. Islam, Adv. ……Advocates Mr. A. Kalita. Mr. J. Payeng. Special Counsel, Foreigners Tribunal. Mr. A.I. Ali, Mr. A. Bhuyan Standing Counsel, ECI. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 : : : : : Ms. L. Devi, Mr. P.S. Lahkar, Standing Counsel, NRC. Ms. U. Das, Addl. Senior Govt. Adv., Assam. Mr. H. Gupta, CGC. Mr. A.K. Dutta, CGC. ……Advocates Dates of Hearing :

23.03.2022, 29.03.2022 & 06.04.2022 Date of Judgment :

28.04.2022 JUDGMENT AND ORDER (CAV) [N. Kotiswar Singh, J.] Heard Mr. B.C. Das, learned counsel for the petitioners in WP(C) No.2099/2018 and WP(C) No.2601/2018; Mr. A.R. Sikdar, learned counsel for the petitioner in WP(C) Nos.4610/2018, 8491/2018, 8493/2018, 822/2019; Mr. F.U. Barbhuiya, learned counsel for the petitioner in WP(C) No. 2239/2019; Mr. K.M. Hassan, learned counsel appearing for the petitioner in WP(C) No.8189/2019; Mr. M. Khan, learned counsel appearing for the petitioners in WP(C) No.8253/2019 & WP(C) No.3514/2021 and Mr. H. Ali, learned counsel for the petitioner in WP(C) No.1816/2020. Also heard Mr. A. Kalita and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal for the State respondents; Mr. A.I. Ali, WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 learned Standing Counsel, ECI; Ms. U. Das, learned Additional Senior Govt. Advocate, Assam; Mr. A.K. Dutta, learned Central Government Counsel and Ms. L. Devi, learned Standing Counsel, NRC.

2. The common theme which runs through this batch of writ petitions is the applicability of the principle of res judicata. The petitioners contend based on the decision in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604 [Abdul Kuddus for short] that the subsequent proceedings before the Foreigners Tribunals challenged in these petitions are barred by res judicata. Though many such petitions have been already allowed by this Court on the basis of the decision in Abdul Kuddus, learned Special Counsel for the Foreigners Tribunal submits that the law laid down by this Court in Amina Khatoon Vs. Union of India, (2018) 4 Gau LR 643 [Amina Khatoon for short] in which it was held that res judicata is not applicable in the proceeding before the Foreigners Tribunal will continue to hold the field, as the said decision has not yet been overruled by the Hon‟ble Supreme Court till date. Neither it has been challenged before the Hon‟ble Supreme Court so far. 3. The contention of the Special Counsel is based on the following premises.

3.1. It has been submitted that the issue before the Hon‟ble Supreme Court in Abdul Kuddus was about the perceived conflict between sub- para (2) to Para 3 and Para 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards)Rules, 2003 (2003 Rules for short) which related to denial of registration by the NRC authorities and not relating to any decision of the Tribunal declaring any procedee to be a foreigner, and as such any observation WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 by the Hon‟ble Supreme Court about res judicata is merely an orbiter dicta and the decision in Abdul Kuddus will be confined to the facts of the case. It has been submitted that in the said case before the Hon‟ble Supreme Court, no decision of the Foreigners Tribunal declaring a person to be a foreigner was challenged. On the other hand, the issue of res-judicata was pointedly decided by this Court in Amina Khatoon that res-judicata is not applicable in the proceedings before the Foreigners Tribunals. Further, applicability of res judicata before the Foreigners Tribunal was not the specific issue raised nor considered in Abdul Kuddus. It has been also submitted that the judgment of Amina Khatoon was neither challenged nor brought to the notice of the Hon‟ble Supreme Court. Thus, the decision in Amina Khatoon has remained unchallenged and as such, will continue to be binding and hold the field.

3.2. It has been further submitted that a Special Leave to Appeal No.19253 of 2018 was filed before the Hon‟ble Supreme Court against a decision of this Court in Shahjahan Ali Vs. Union of India & Ors, [Writ Petition No. 3362 of 2018] relying on the decision Amina Khatoon that the principle of res judicata is not applicable in a proceeding before the Foreigners Tribunal. The Hon‟ble Supreme Court dismissed the said SLP. According to the learned Special Counsel, dismissal by the Hon‟ble Supreme Court of the SLP preferred against decision in Shahjahan Ali (supra) affirms the decision rendered in Amina Khatoon that res-judicata is not applicable. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021

3.3. Further, relying on the decision of Hon‟ble Supreme Court in Canara Bank vs. N.G. Subbaraya Setty and Anr. [(2018) 6 SCC 228], it has been submitted by Mr. Kalita that on many occasions, the Tribunals had erroneously given the opinions without proper application of mind and as such, the principle of res judicata will not apply in the subsequent proceedings.

3.4. It has been also contended by Mr. Kalita, based on the decision of Hon‟ble Supreme Court in V. Rajeshwari (Smt) Vs. T.C. Saravanabava, [(2004) 1 SCC 551] that if the plea of res judicata is not raised at the first instance before the Foreigners Tribunals, the said plea cannot be allowed to be taken subsequently before this Court.

3.5. Ld. Special Counsel in submitting that res judicata is not applicable in a proceeding before the Foreigners Tribunal has reiterated the reasons on which this Court held in Amina Khatoon that the principle of re judicata is not applicable, including that the opinion of the Tribunal is merely an opinion which does not have a binding effect, that the Tribunal is not a Court and in view of the overarching public policy to detect and deport foreigners, such a public policy shall prevail over the principle of res judicata.

4. On the other hand, the learned counsel for the petitioners have forcefully argued that principle of res judicata are applicable relying on a number of decisions, apart from Abdul Kuddus. It has been submitted that the decision in Amina Khatoon is plainly contrary to several decisions of the Hon‟ble Supreme Court and as such, cannot have a binding effect. Some of the decisions relied upon by the counsel for the petitioners are as follows: WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 (i) Indian National Congress (I) Vs. Institute of Social Welfare, (2002) 5 SCC 685. (ii) Hope Plantations Ltd. Vs. Taluk Land Board Peermade & Anr., decided on 03.11.1998. (iii) Satyadhyan Ghosal and Ors. Vs. Smst. Deorjin Debi and Anr., AIR 1960 SC 941. O R D E R Supdt. of Police, (B), Nagaon referred this case to the Tribunal to determine whether O.P.s are Foreigners of Stream 01- 1-1996 and 25/3/1971. Necessary notices were issued O.P.s to file written statement and documents if any. In respect to notices O.P.s appeared submitted, written statement and documents. O.P. and Md. Khalilur Rahman examined himself as witnesses, state declined to adduce any witness. Evidence of O.P.Khalilur Rahman is that he was born and brought up at village Chatoribari, P.S. Mikirbheta, district- Nagaon (Assam). Musstt. Rezina Begum is his wife and OP3 to 6 are sons and daughters who are born and brought up at Chatoribari gaon under Mikirbheta P.S., district- Nagaon. As he was a minor in 1966 his name did not find place in Electoral Roll of 1966 but his name appeared in 84 Lahorighat Assembly Constituency, 1971 (Ext-Kha) is the certified copy of the aforesaid Lahorighat Assembly Constituency 1971. His evidence is that he was minor in 1966 and his name did not appear in the Electoral Roll of 1966 but the name of his elder brother Mona Seikh appeared who was his elder brother. Ext. (Kha) is certified copy of 84 Lahorighat Assembly Constituency, village Chatoribari Part-85 of 84 Lahorighat Assembly Constituency, 1966. It seems that OP Khalilur Rahman was minor in 1966 and his name did not find place in 1966 Electoral Roll of Assembly Constituency. Chain of Electoral Roll of 84 Lahorighat Assembly Constituency it is clear that O.P.s are here before 1966. They are not foreigners of stream of 01/1/1966 and 25/3/1971. Inform all concern. ...........‖ WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021

37.9. As mentioned above in the said proceeding, the present petitioner, Ator Ali was also proceeded and was impleaded as respondent No.3 as the son of Md. Khalilur Rahman apart from other family members, namely, Musstt. Rezina Khatoon (Begum) mother of the present petitioner, his brother Mintu and two sisters Afia Khatoon and Safia Khatoon.

37.10. On perusal of the aforesaid order dated 07.07.1998, it can be seen that Md. Khalilur Rahman who the petitioner claims to be his father was born and brought up at village Chatoribari, P.S. Mikirbheta, district Nagaon (Assam). It was also stated that since the said Md. Khalilur Rahman was a minor in 1966, his name did not appear in the Electoral Roll of 1966 but his name appeared in the voters list of 1971 of 84 Lahorighat Assembly Constituency.

37.11. Learned Tribunal accepted the said plea and declared the proceedees therein i.e. the petitioner‟s father, the petitioner and his brother and two sisters as not foreigners of the stream 01.01.1966 and

25.03.1971 and thus, attained finality.

37.12. The said opinion dated 07.07.1998 passed in F.T. Case No.4731/88 has not been challenged. Subsequently, there was another opinion rendered by the learned Foreigners Tribunal (2nd), Morigaon in Case No.F.T.(D) 114/09 initiated against Khalil @ Md. Khalilur who the petitioner claims to be his father. In the said proceeding, which was disposed of on 12.12.2012, the said Khalil @ Md. Khalilur had stated that he was born at village Lachanabori and presently residing at Sotoribori. He stated that his WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 father‟s name appeared in the voters list of 1965 and also produced the earlier order dated 07.07.1998. The said proceedee Khalilur also produced other documents to show that he is an Indian.

37.13. The learned Tribunal on consideration of the said documents including the earlier opinion dated 07.07.1998 passed in F.T. Case No.4731/88 declared the petitioner therein (petitioner‟s projected father) not to be a foreigner vide order dated 12.12.2012 passed in Case No.F.T.(D)114/09.

37.14. Before the learned Tribunal in Case No.F.T.(D) 121/2015 in the subsequent proceeding, the petitioner had examined himself as DW1 and his father Md. Khalilur Rahman also appeared before the learned Tribunal and examined as DW2. The petitioner‟s father Khalilur Rahman (DW2) had testified that he had two sons, namely, Ator Ali and Abdul Rezek and two daughters namely, Safia Begum and Afia Begum but his eldest daughter Hushnara Begum expired 10 years back. He also stated that his wife is Rezia Begum. He also stated that he was born in Lochanebari under Lahorighat P.S. but thereafter, shifted to Sotoribari under Mikirbehta P.S. before permanently settling down at Dhorahap. Before the learned Tribunal in the subsequent Case No.F.T.(D) 121/2015, the petitioner also took the plea that he is the son of Md. Khalil @ Khalilur Rahman and that the said Khalil @ Khalilur Rahman along with Musstt. Rejina Khatun (Begum), his mother, Ator Ali, the petitioner himself and his brother and two sisters were declared as Indian citizens by the learned Foreigners Tribunal in F.T. Case No.4731/88 and he also stated that his name appeared in the voters WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 list of 2004 in respect of Morigaon Legislative Assembly Constituency No.80 and as such, he is an Indian citizen.

37.15. However, as can be seen from the impugned order dated

30.08.2016 passed in Case No. F.T.(D) 121/2015, the learned Tribunal held that the petitioner and his father had suppressed material facts before the learned Tribunal by referring to the voters list of 1966. Learned Tribunal observed that in the proceeding before the learned Foreigners Tribunal, Nagaon in F.T. Case No.4731/88, the proceedee Khalilur Rahman had stated that since he was a minor in 1966 his name did not appear in the Electoral Roll of 1966 but the name of his elder brother Mona Seikh had appeared. On the other hand, in the deposition before the learned Tribunal in the instant proceeding, the said Khalilur Rahman had stated that his elder brother‟s name is Abdul Mannan and also the present petitioner had stated that his parental uncle is Mannan. Thus, the learned Tribunal took the view that the name of the petitioner‟s uncle who is the elder brother of petitioner‟s father Khalilur Ramman is shown differently as Monna Sk. and Abdul Mannan. According to the learned Tribunal it amounts to suppression of facts. Unfortunately, we are not able to agree with the aforesaid inference drawn by the learned Tribunal for the reason that no question was asked during the cross-examination as to why there was a variation in the name of the petitioner‟s uncle, Abdul Mannan who was mentioned as Mona Sk. by his father in the earlier proceeding in F.T. Case No.4731/88 as a person can have a nick name also.

37.16. Therefore, if there was any such doubt, that could have been clarified during the cross-examination and only when the witness failed WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 to satisfactorily explain the discrepancy in the name, necessary adverse inference could have been drawn by the learned Tribunal. However, in the present case, what we have noted is that no such question was asked to the petitioner or his father as regards the alleged discrepancy in the name of the petitioner‟s uncle and as such, we are of the view that the learned Tribunal could not have drawn such an inference that the petitioner and his father had fraudulently obtained the favourable order from the learned Tribunal in F.T. Case No.4731/88. We have taken this view as, we found that in respect of other evidences, these appear to be similar.

37.17. In the concluding part of the impugned opinion dated

30.08.2016 passed in Case No.F.T.(D)121/2015, the learned Tribunal made the following observation, ―9. The present O.P have not exhibited the 1965 voter list in the name of Mafizuddin that was produced in F.T.(D) 114/2009. The voter in F.T. Case that was exhibited as Ext.‖Kha‖ list of 1966 No.4731/1988. Moreover, the name of the O.P’s parental uncle/brother spelt out by the D.Ws do not tally with the name inscribed in F.T. Case No.4731/1988 as in the said Order the name of purported elder brother/parental uncle of the D.Ws is shown as Mona Sk. Whereas they have named Abdul Mannan as their brothr/parental uncle. Therefore document so submitted is engulfed with serious doubts about the genuinity of the documents as well as the person involved being projected and therefore considering the entire aspects of the materials on record as well as the evidence so recorded, I completely differ with the opinion rendered by my predecessor in F.T. No.4731/1988 and F.T.(D) 114/2009.‖

37.18. Apart from casting doubt on the identity of the petitioner‟s uncle, the learned Tribunal also held that he would differ from the WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 opinion rendered by his predecessor in F.T. Case No.4731/1988 and F.T.(D) Case No.114/2009.

37.19. In our view, the learned Tribunal could not have given such a finding in as much as the learned Tribunal was not sitting as an Appellate authority nor was reviewing the earlier orders. If there were any defect or irregularity or illegality in the earlier opinions in F.T. Case No.4731/88 and F.T.(D) Case No.114/2009, nothing prevented the State Government from challenging the same. However, as noted above, the said two opinions were never challenged by the State and accordingly, have attained finality.

37.20. Under the circumstances, the learned Tribunal could not have taken the view that he completely differs from the opinions rendered earlier in F.T. Case No.4731/88 and F.T.(D) Case No.114/2009.

37.21. However, the issue before us is to ascertain as to whether the present petitioner, namely, Ator Ali @ Rahman is the same person who was proceeded earlier in F.T. Case No.4731/88 and is the son of the said Khalilur Rahman who was also proceeded in Case No. F.T.(D)114/09 in which the learned Tribunal had given the opinion that they were not foreigners.

37.22. We have noted from the order in F.T. Case No.4731/88 that the present petitioner Ator Ali was also one of the proceedees and the said Md. Khalilur Rahman, projected father of the petitioner had categorically stated about his children which included the present petitioner and the learned Tribunal gave the opinion that the proceedees therein (including the present petitioner) are not foreigners of the stream of 01.01.1966 and 25.03.1971. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021

37.23. In the subsequent proceeding in Case No.F.T.(D)114/2009, the learned Tribunal also gave the opinion that the said Khalil @ Md. Khalilur Rahman, the projected father of the petitioner is not a foreigner relying on the earlier opinion rendered in F.T. Case No.4731/88.

37.24. These two favourable opinions of the learned Foreigners Tribunal dated 07.07.1998 passed in F.T. Case No.4731/88 and dated

12.12.2012 passed in Case No.F.T.(D) 114/09 had been relied on by present petitioner present proceeding Case No.F.T.(D)121/2015 and the petitioner‟s father Khalilur Rahman had himself appeared before the third proceeding in Case No. F.T.(D) 121/2015 and had given the testimony about the aforesaid facts.

37.25. We have also noted that the evidence of the present petitioner as well as his father have not been shaken. The genuineness of the earlier two opinions have never been questioned by the State, and as such, we are satisfied that there are sufficient evidences on record to show that the present petitioner himself was proceeded in the earlier proceeding in F.T. Case No.4731/88 before the learned Foreigners Tribunal, Nagaon which was disposed of on 07.07.1998 declaring the present petitioner and other family members as not foreigners of the stream of 01.01.1966 and

25.03.1971. Similarly, we have also noted the fact that the petitioner‟s projected father, Khalilur Rahman who had appeared and deposed before the learned Tribunal, was also declared not a foreigner in the subsequent proceeding in Case No.F.T.(D) 114/09. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021

37.26. Under the circumstances, we are of the view that apart from applicability of res judicata in view of the earlier opinion dated

07.07.1998 passed in F.T. Case No.4731/88, also because of the fact that the petitioner‟s father had been declared as not a foreigner but an Indian in another proceeding in Case No.F.T.(D) 114/09, the petitioner has been able to establish that he is an Indian and not a foreigner.

37.27. Accordingly, for the reasons discussed above, we are unable to agree with the conclusion arrived by the learned Foreigners Tribunal No.3rd, Morigaon, Assam in Case No.F.T.(D) 121/2015 vide order dated

30.08.2019 and accordingly, the same is set aside.

37.28. Resultantly, petitioner is to be considered an Indian in terms of the earlier opinion dated 07.07.1998 passed in F.T. Case No.4731/88 and as the son of an Indian, Md. Khalilur Rahman who was also declared not a foreigner in Case No.F.T.(D) 114/09 vide opinion dated

12.12.2012.

37.29. Accordingly, the present petition, WP(C) No.8189/2019 stands allowed.

38. WP(C) No. 8253/2019 [Phul Banu @ Phulbanu Begum Vs. The Union of India and 5 Ors.]

38.1. In this petition, [WP(C) No.8253/2019], the petitioner, Smti. Phul Banu @ Phulbanu Begum aged about 70 years, Wife of Intaz Ali, regisdent of Village- Lakhi Nepali Bosti, P.S. Jonai, District- Dhemaji, Assam has challenged the impugned order dated 27.02.2019 passed by the learned Foreigners Tribunal 3rd Dhemaji, Jonai, Assam in F.T.(3) Case No.FT(DV) 1275/16 [Ref.IM(DMJ)1780/98] by which the learned Foreigners Tribunal held that the petitioner had failed to adduce any WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 documents to prove herself as an Indian citizen and declared her as a foreigner who had entered Assam on or after 25.03.1971.

38.2. In this case also, the petitioner had taken a specific plea before the learned Foreigners Tribunal 3rd, Dhemaji, Jojai stating that she was proceeded earlier in Case No.FT/DMJ 1213/2007 and an opinion was rendered on 22.08.2013 declaring that she being the daughter of an Indian citizen Abdul Rahim is also an Indian citizen and not a foreigner. A copy of the said opinion dated 22.08.2013 passed by learned Foreigners Tribunal, Dhemaji in Case No.FT/DMJ-1213/2007 was exhibited before the learned Foreigners Tribunal 3rd Dhemaji, Jonai as Ext.5. However, the learned Foreigners Tribunal did not consider the said exhibit and proceeded to hold that the petitioner had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India and declared her to be a foreigner of post 15.03.1971 stream.

38.3. Mr. M. Khan, learned counsel for the petitioner has submitted that there are sufficient materials on record to show that the present petitioner Smti Phul Banu @ Phulbanu Begum, wife of Intaz Ali, daughter of Abdul Rahim, a resident of Village Lakhi Nepali Bosti, P.S. Jonai, District Dhemaji, Assam is the same person who was proceeded earlier in Case No.FT/DMJ-1213/2007 before the learned Foreigners Tribunal, Dhemaji.

38.4. In our view, it was necessary on the part of the learned Foreigners Tribunal to have examined whether the present petitioner is the same person who was proceeded earlier in Case No.FT/DMJ- 1213/2007 and if it is found that the present petitioner is the same person who was proceeded in Case No.FT/DMJ-1213/2007 in which a WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 favourable opinion was rendered declaring the petitioner to be an Indian, the subsequent proceeding in F.T(3) Case No.FT(DV)1275/16 would not lie in view of the decision rendered in Abdul Kuddus.

38.5. Though the earlier opinion dated 22.08.2013 was a short one declaring the said proceedee Musstt. Fulbanu @ Phoolbanu Begum as an Indian, the learned Tribunal had rendered the opinion by accepting the plea considering the certified copy of the voters list of 1965 for No.84 Laharighat Legislative Assembly Constituency wherein the name of the claimed father of the petitioner Abdul Rahim was found at Serial No.114.

38.6. In the subsequent proceeding in F.T.(3) Case No.FT(DV) 1275/16, what we have noted is that the petitioner made a specific claim that she is daughter of one Abdul Rahim and also had exhibited the voters list of 1965 as Ext.2 wherein the name of the Petitioner‟s father Abdul Rahim appears at Serial No.114, House No.18 of village Solmarigaon, Part No.57, P.S.- Lahorighat, Nagaon, Assam.

38.7. We have also gone through the original records of both the proceedings before the learned Foreigners Tribunal.

38.8. In the written statement filed in the earlier proceeding in FT/DMJ 1213/2007, the petitioner had specifically stated that her name had appeared in the voters list of 2013, the petitioner has been shown as wife of Intaz Ali under 114 No. Jonai Legislative Assembly Constituency part No.26 at Serial No.1033, House No.434 in Village- Lakhi Nepali Bosti. In subsequent proceeding F.T.(3) Case No.FT(DV)1275/16, the petitioner had relied on the voters list of 1997. In the voters list of 1997, the name of the petitioner appeared under WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 the same village Lakhi Nepali Basti, P.S. Jonai, under the same Dhemaji District and same Assembly Constituency i.e. 114 No.Jonai Legislative Assembly Constituency.

38.9. In both the proceedings, the same voters list of 1965 have been relied upon and on comparison it is found that the name of the projected father of the petitioner Abdul Rahim appears in the same serial No.114 and the same House No.18 in respect of the same village Solmarigaon, Part 57, P.S. Lahorighat, Nagaon, Assam in respect of the same 84 No. Lahorighat Legislative Assembly Constituency.

38.10. The earlier opinion rendered by the learned Foreigners Tribunal, Dhemaji in Case No.FT/DMJ-1213/2007 on 22.08.2013 has attained finality and not challenged by the State, though in the present proceeding, the petitioner has produced additional documents in terms of other voters lists. However, in our view the additional documents will not be necessary, once we are satisfied with the similarity of identity of the proceedees in the two proceedings, that is that, they are the same and one person.

38.11. In the present case, we are satisfied that the present petitioner is the same person who was proceeded earlier in Case No.FT/DMJ- 1213/2007.

38.12. Under the circumstances, the present petition is allowed by setting aside the subsequent opinion dated 27.02.2019 rendered by the learned Foreigners Tribunal 3rd, Dhemaji, Jonai, Assam in F.T.(3) Case No.FT(DV)1275/16 [Ref: IM(DMJ) 1780/98].

38.13. As a result, the petitioner is to be declared not a foreigner but an Indian citizen in terms of the earlier opinion dated 22.08.2013 WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 passed by learned Foreigners Tribunal, Dhemaji in Case No.FT/DMJ-1213/2007.

39. WP(C) No.1816/2020 [Sahera Khatun vs. The Union of India & Ors.]

39.1. In this petition, the petitioner, Sahera Khatun, aged about 55 years , Daughter of Anju Miah @ Amzad Ali and wife of Abdul Bakki, Village-Rowmari, P.S.-Tarabari, District-Barpeta has challenged the impugned common order dated 21.01.2020 passed by the Foreigners Tribunal No.7th, Barpeta in F.T. Case No.69/2018 arising out of IM(D)T Case no.887/03 and F.T. Case No.432/2016 arising out of IM(D)T Case No.4882/1998 by which the Tribunal declared the petitioner a foreigner of post 25.03.1971 stream.

39.2. Learned counsel for the petitioner submits that the petitioner was already declared an Indian by birth vide impugned order dated

27.02.2015 passed in F.T.(2ND Tribunal) Case No.1419/2012 by the Foreigners Tribunal No.2nd, Barpeta. However, the Tribunal took the view that the issue in the aforesaid F.T. Case No.1419/2012 substantially is not the same with the issue in F.T. Case No.69/2018 and F.T. Case No.432/2016 and accordingly, on the basis of the evidence on record in the aforesaid subsequent F.T. Case No.69/2018 and F.T. Case No.432/2016 proceeded to pass the impugned order dated 21.01.2020 by declaring the petitioner to be a foreigner of post

25.03.1971.

39.3. It was observed by the learned Tribunal that since the petitioner failed to establish the linkage with her projected parents Anju Miah @ WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 Amzad Ali and Kanchan Mala, the petitioner cannot take the benefit of the order dated 27.02.2015 passed in F.T.(2ND Tribunal) Case No.1419/2012 by the Foreigners Tribunal No.2nd, Barpeta.

39.4. In view of the above, before we examine the merit of the case on the basis of the evidence adduced in this proceeding, we will first examine whether the issues raised in the earlier opinion dated

27.02.2015 in F.T.(2ND Tribunal) Case No.1419/2012 before the Foreigners Tribunal No.2nd, Barpeta are different from the issue raised in F.T. Case No.69/2018 and F.T. Case No.432/2016 as observed by the learned Tribunal.

39.5. In the earlier proceeding i.e. in F.T.(2ND Tribunal) Case No.1419/2012 Barpeta, the issue was whether the proceedee therein, namely, Sahera Begum wife of Bakki Mia, resident of Village-Roumari Pather, P.S.-Tarabari, Dist.-Barpeta was an illegal immigrant. In the said proceeding, the said proceedee Sahera Begum testified and also examined other witnesses. The Foreigners Tribunal No.2nd, Barpeta, on the basis of the evidence adduced therein took the view that the proceedee Sahera Begum was born and brought up in the Village- Karagari, P.S. & Dist.-Barpeta, Assam and her father‟s name is late Anju Miah, whose name appeared in the voters lists of 1965 and 1970 under 48 No. Bhawanipur LACT, Village-Karagari. The learned Tribunal also noted that she was married to one Bakki Miah (Abdul Bakki) and her name appeared in the voter lists of 1989 under 41 No. Bhawanipur LACT, village-Chenglimari and later on, she shifted her residence to Village-Roumari Pather and her name also appeared in the voter lists of

1994. The Tribunal also observed that the said proceedee‟s father was WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 a permanent resident of village-Karagari, P.S. & Dist.-Barpeta, Assam before 1965. Accordingly, the Tribunal took the view that she had been able to discharge her burden to prove that she is a citizen of this country and returned the reference in favour of the proceedee Sahera Begum. We will accordingly, examine as to whether the present proceedee, namely, Sahera Khatun is the same who was the proceedee in the earlier proceeding in F.T. Case No.1419/2012 for the purpose of considering the applicability of the principle of res judicata.

39.6. The description of the proceedee in F.T. Case No.69/2018 arising out of IM(D)T Case No.887/03 and F.T. Case No.432/2016 arising out of IM(D)T Case No.4882/1998 which were before the Foreigners Tribunal No.7th, Barpeta in which the impugned opinion has been passed, is as follows: Sahera Khatun, aged about 55 years , Daughter of Anju Miah @ Amzad Ali and wife of Abdul Bakki, Village- Rowmari, P.S.-Tarabari, District-Barpeta.

39.07. In the first proceeding i.e. in F.T.(2ND Tribunal) Case No.1419/2012 before the Foreigners Tribunal No.2nd, Barpeta where the favourable order was passed, the description of the proceedee is as follows: Sahera Begum wife of Bakki Mia, resident of Village-Roumari Pather, P.S.-Tarabari, Dist.-Barpeta.

39.08. Thus, it appears that the descriptions of the proceedees in all the proceedings appear to be similar. However, as an abundant caution, we would like to examine as to whether there are other WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 similarities as regards the evidences adduced in the aforesaid 2 (two) proceedings for our satisfaction.

39.9. As discussed above, in the first round i.e. in F.T.(2ND Tribunal) Case No.1419/2012 the proceedee had relied upon the voters lists of 1965 and 1970 in which her father‟s name appeared as late Anju Miah. In the subsequent second round i.e. in F.T. Case No.69/2018 and F.T. Case No.432/2016 also it was the plea of the petitioner that her father is Anju Sheikh @ Anju Miah @ Amzad Ali and her mother‟s name is Kanchan Mala and Falani Begum is her step mother. In the voters list of 1965 which was exhibited as Exhibit B, the name of Anju Miah, the projected father of the petitioner the name Anju Miah appeared under 48 No. Bhawanipur LAC, Mouza-Bhawanipur, Village-Kargari, P.S.- Barpeta. Similarly, in the voters lists of 1970 which was exhibited as Exhibit-C before the Tribunal, the name of Anju Miah again appeared in the said voters list under the same village Karagari. But, in the voters list of 1989 which was exhibited as Exhibit-A the name of one Amjat Ali appeared under the 41 No. Bhawanipur LAC, Mouza-Bijni, Village- Chenglimari, P.S.-Barpeta Road and in the voters lists of 1997, which was exhibited as Exhibit-D, the names of said Amjad Ali appeared under the 46 No. Sarukhetri LAC, Mouza-Pakka, Village-Naligaon, P.S. & Dist.-Barpeta with the petitioner‟s projected step mother Falani Begum. The names of the petitioner/proceedee appeared along with her husband Abdul Bakki under 41 no. Bhabanipur LAC, Mouza-Bijni, Village-Chenglimari, P.S.-Barpeta. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 In the earlier proceeding the said proceedee also stated that her family shifted to the residence to village-Roumari Pather and thereafter, her name appeared in the voters list of 1994.

39.10. In the second proceedings also i.e. in F.T. Case No.69/2018 and F.T. Case No.432/2016, the petitioner stated that she was born and brought up at village Karagari and then, she had shifted to village Chenglimari and thereafter, to village Roumari sometime in the year 1994 due to Bodo agitation and her name also appeared in the voters list of 1994.

39.11. The petitioner also filed additional documents in the second round of proceedings about her parents and other relatives.

39.12. From the perusal of the impugned order dated 21.01.2020 passed by the Foreigners Tribunal No.7th, Barpeta in F.T. Case No.69/2018 and F.T. Case No.432/2016, it is evident that the Tribunal was not convinced with the plea taken by the proceedee that she is the daughter of Anju Miah, primarily for the reason that while the name of her projected father was recorded in the voters lists of 1965 and 1970 as Anju Miah, it was recorded as Amjad Ali in the voters list of 1997 and as such, the Tribunal held that the petitioner failed to prove that she is the daughter of Anju Miah whose name was recorded in the voters lists of 1965 and 1970.

39.13. As regards the plea of res judicata, the Tribunal had given a categorical finding in Para-49 of the opinion dated 21.01.2020 by stating that the issue in F.T.(2ND Tribunal) Case No.1419/2012 is substantially different from the issue in F.T. Case No.69/2018 and F.T. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 Case No.432/2016. For coming to such a conclusion the Tribunal observed that in the enquiry report the name of the father of the proceedee is shown as Amzad Ali though she claims that her father is Anju Miah as recorded in the voters lists of 1965 and 1970. The said opinion and finding in Para-49 is reproduced herein below: “In this case, O.P. relied on the certified copy of the judgment dated 27.02.2015 passed in F.T. Case No.1419/2012 declaring O.P./2nd party Shera Khatun is an Indian citizen by birth. In that reference proceeding after perusal of the documentary evidence on record, the Tribunal rendered an opinin that Anju Miya name appears in the voter lists of 1965 and 1970 under 48 No. Bhabanipur LAC. Coming to the present reference, the Inquiry Officer in Form-I and Form-II recorded Sahera Begam father name is Amjad Ali. The issue in F.T. Case No.1419/2012 is substantially not the same issue in F.T. Case No.69/18 and 432/16. Having seen the said, that it has already been discussed and conclusively held that O.P. have failed to establish her linkage that she is the offspring of Anju Miya and as a result, the opinion dated 27.02.2015 would come to aid for O.P. only when O.P. can satisfactorily and conclusively demonstrate linkage with her projected parents Anju Miya and Kanchan Mala. Therefore, the linkage not having been established as required under the law, the O.P. cannot claim the benefit of the order dated 27.02.2015 passed in F.T. Case No.1419/2012.”

39.14. However, we are of the view that the aforesaid approach of the Tribunal is not correct. If the petitioner is able to demonstrate before the Tribunal that she is the same person who was proceeded in the earlier proceeding i.e. F.T.(2ND Tribunal) Case No.1419/2012, there would be no need to examine the subsequent proceeding on merit in view of the applicability of the principle of res judicata.

39.15. However, in the impugned order dated 21.01.2020 what appears to have been done is that rather than trying to ascertain as to whether the present proceedee is the same person who was proceeded in earlier proceeding i.e. F.T.(2ND Tribunal) Case No.1419/2012, the WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 Tribunal proceeded to examine the matter on merit and thereafter, held that the earlier opinion is not applicable as the issues were different.

39.16. It is not correct to say that the issue in the earlier first proceeding in F.T. (2nd Tribunal) Case No.1419/12 is different from the the subsequent proceeding in Case No.F.T.69/2018, F.T.432/2016. In fact, these are same i.e. to find out whether the proceedees were foreigners or not. There is no difference in the issues. Further, it is also clearly seen from the evideneces on record that the proceedees in all these proceedings are same, in which event, the matter could be concluded by holding the view that the petitioner is not a foreigner in terms of the earlier opinion dated 27.02.2015 and the learned Tribunal could not have proceeded to examine as to whether the petitioner had been able to establish her linkage with the said Anju Miah. The issue of establishing her linkage with Anju Miah would arise only when the earlier opinion is held to be in respect of some other person and not the same. If it is the same person then the principle of res judicata will be applicable. Accordingly, for the reasons discussed above, we allow this petition by setting aside the impugned order dated 21.01.2020 passed in Case No.F.T.69/2018, F.T.432/2016 by learned Foreigners Tribunal No.7, Barpeta, Assam. Resultantly, the petitioner, Sahera Begum, daughter of Anju Miah @ Amzad Ali, wife of Abdul Bakki of village Rowmari, P.S.- Tarabari, District- Barpeta, Assam will be declared to be an Indian in WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 terms of earlier opinion dated 27.02.2015 passed in F.T.(2nd Tribunal) Case No.1419/12 which has attained finality and not challenged by the State.

40. WP(C) No. 3514/2021 [Nal Mia @ Lal Mia Vs. The Union of India and 6 Ors.]

40.1. In this petition [WP(C) No.3514/2021], the petitioner, Nal Mia @ Lal Mia, aged about 36 years, son of Late Mamud Ali, resident of Village- Bamunpara, P.S.-Mankachar, District- South Salmara Mankachar, Assam has challenged impugned order dated

26.04.2021 passed by the learned Foreigners Tribunal, Kamrup (M) No.2 at Guwahati in F.T. Case No.1448/2015 by which the learned Tribunal rejected the plea of the petitioner to drop F.T. Case No.1448/2015 and thereafter fixed the matter for filing written statement on 20.05.2021.

40.2. The petitioner submitted before the learned Foreigners Tribunal, Kamrup (M) 2nd, Guwahati in F.T. Case No.1448/2015 that the petitioner, Nal Mia @ Md. Lal Mia had already been declared as an Indian vide opinion dated 06.03.2017 passed in F.T. Case No.280/2015 and accordingly, prayed before the learned Tribunal to drop the proceeding in F.T. Case No.1448/2015 on the ground that the principle of res judicata is applicable as decided by the Hon‟ble Supreme Court in Abdul Kuddus. However, vide impugned order dated 26.04.2021 passed in F.T. Case No.1448/2015, the learned Tribunal held that the case cannot be dropped merely based on the submission of the petitioner that he had been declared an Indian on earlier occasion and even there be similarity in name and address of the present petitioner WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 and the suspect of F.T. Case No.1448/2015, without examining documents and witnesses and it cannot be concluded that person named in the present F.T. Case No.1448/2015 is the same person who was declared as Indian vide order dated 06.03.2017 in F.T. Case No.280/2015, and accordingly, rejected the plea of the petitioner to drop the F.T Case No.1448/2015 and fixed the matter for written statement on 20.05.2021.

40.3. Vide impugned order dated 26.04.2021, the learned Tribunal while giving the aforesaid conclusion also made certain observations about the applicability of Abdul Kuddus in the light of dismissal of the SLP by the Hon‟ble Supreme Court challenging the order passed by the Division Bench of this Court in W.P No. 3362/2018 [Shahjahan Ali Vs. Union of India and Ors.]

40.4. We are of the view that it will not be necessary for the Tribunal to examine the said issue again based on the decision of this Court in Shahjahan Ali (Supra) in the light of our discussion made above. Shahjahan Ali was decided on the basis of Amina Khatoon, which is no more a good law, in view of the decision of Abdul Kuddus and as such, cannot be relied upon anymore. We, accordingly, direct that whenever a proceedee takes the plea of applicability of res judicata on the ground that he had been already declared not a foreigner but an Indian by Foreigners Tribunal in an earlier proceeding. The Tribunal has to take up it as the preliminary issue before going into the merit of the case and the proceedee in the subsequent proceeding has to show that he is the same person who was proceeded earlier. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 In the present proceeding, the Tribunal has to first determine whether the petitioner is the same person who was proceeded in the earlier proceeding. Thus, the scope of examination is confined only to the issue whether the petitioner is the same person who was proceeded earlier or not. For that purpose, there can be examination of evidences in the form of oral documents and evidences to arrive at such a satisfaction. If the Tribunal on such examination comes to a conclusion that the present proceedee is the same person who was proceeded in the earlier proceeding, there is no need to go into the merit of the case any further, by way of filling any written statement and documents etc.

40.5. Thus, if the learned Tribunal comes to conclusion based on the evidence that may be adduced by the present petitioner/proceedee relevant to the determination of the preliminary issue, that he is the same person who was proceeded earlier in the proceeding before the learned Foreigners Tribunal on the plea of applicability of res judicata, the subsequent proceeding shall be closed without any further examination, but on the basis of the earlier opinion declaring the person to be not a foreigner.

40.6. We would also like to remind the learned Tribunal that in spite of burden of proof cast on the proceedee as provided under Section 9 of the Foreigners Act, 1946, the standard of proof required “preponderance of probability” and not proof beyond all reasonable doubts. Therefore, if the petitioner is able to establish on the basis of preponderance of probabilities that he is the same person who was proceeded earlier in whose favour a favourable opinion was rendered WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 that he is not a foreigner, the Tribunal has to close the present proceeding.

40.7. In the present case, the learned Tribunal has not yet decided this issue as to whether the present petitioner is the same person who was earlier proceeded in F.T. Case No.280/2015 in which the said proceedee was declared to be an Indian vide order dated 06.03.2017.

40.8. Accordingly, we dispose of this petition with the direction to the learned Foreigners Tribunal, Kamrup (M) 2nd, Guwahati to consider this plea as to whether the present petitioner, Nal Mia @ Md. Lal Mia is the same person who proceeded earlier in F.T. Case No.280/2015.

40.9. We have also noted that in the earlier proceeding in F.T. Case No.280/2015, the proceedee was described as Lal Mia @ Nal Mia, son of Mamud Ali Seikh, Resident of Bamunpara, P.S. Mankachar, District- Dhubri [P/A C/O Runu Ali, Birubari, P.S. Paltanbazar]. In the present proceeding in F.T. Case No.1448/2015, the proceedee has been described as Nal Mia @ Md. Lal Mia, Son of (Lt.) Mamud Ali Sk., village- Bamunpara, P.S.- Mankachar, District- South Salmara Mankachar, Hatsingimari, Assam and as such there is close resemblance as far as the identity of the both the proceedees are concerned.

40.10. Be that as it may, the learned Foreigners Tribunal, Kamrup (M) 2nd will examine this preliminary issue as to whether the present petitioner Nal Mia @ Lal Mia is the same person who was proceeded earlier in F.T. Case No.280/2015 and if the learned Foreigners Tribunal comes to a conclusion that he is the same person who was proceeded in F.T. Case No.280/2015, the subsequent proceeding in F.T. Case No. WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021 1448/2015 shall be closed without any further enquiry as directed above. If the finidng is otherwise, the matter will be proceeded in accordance with law. JUDGE JUDGE Comparing Assistant WP(C) Nos.2099, 2601, 4610, 8491, 8493/2018, WP(C) Nos.822, 2239, 8189, 8235/2019, WP(C) No.1816/2020 & WP(C) No.3514/2021