Gauhati High Court
Page No.# 1/12 vs The Union Of India And 5 Ors on 31 October, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/12
GAHC010178702025
2025:GAU-AS:14786-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4801/2025
JAMIRUDDIN MOLLAH
S/O LATE ANOWAR MOLLAH, R/O VILL- PUB MAHCHARA, P.S.-
KACHUMARA, DIST- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME
AFFAIRS, GOVT. OF INDIA, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-
1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE HOME
DEPARTMENT
DISPUR
GUWAHATI-6
3:THE DISTRICT COMMISSIONER
BARPETA
P.O. AND DIST- BARPETA
ASSAM
PIN-781301
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O. AND DIST- BARPETA
ASSAM
PIN-781301
5:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
Page No.# 2/12
6:THE STATE CO-ORDINATOR OF NRC
ASSAM
HOUSEFED COMPLEX
2ND FLOOR
BANPHOOL NAGAR
DISPUR
GUWAHATI-
Advocate for the Petitioner : MR. A R SIKDAR, J A SIKDAR,MS M SARMA,MR. S I
TALUKDAR
Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, NRC,SC, F.T,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT & ORDER
(ORAL)
31.10.2025 (K.R. Surana, J) Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. S.K. Medhi, learned CGC; Ms. S. Katakey, learned standing counsel for the Election Commission of India; Mr. J. Payeng, learned standing counsel for FT, Border matters and NRC; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate.
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Jamiruddin Mollah, has assailed the order dated 20.06.2025, passed by the learned Member, Foreigners Tribunal 7 th, Barpeta, in F.T. Case No. 36/2019, thereby rejecting the prayer made by the petitioner vide petition no. 480 dated 20.06.2025, for quashing and/or dropping the proceeding Page No.# 3/12 against the petitioner on the ground of being barred by principles of res judicata, in view of opinion dated 30.09.2016, passed by the said learned Tribunal in F.T.(7th Tribunal) Case No. 127/2016 - Union of India v. Jamiruddin Mulla.
3) The learned counsel for the petitioner has submitted that the petitioner has suffered a similar proceeding previously, for which he has extensively referred to the said opinion dated 20.06.2025, passed by the same very Tribunal in F.T. Case No. 36/2019. It has been submitted that all the particulars of the petitioner can easily be verified by the learned Tribunal from the records of the said two proceeding and therefore. It has been submitted that the principles of res judicata applies in the proceedings before the Foreigners Tribunals. To supplement his submissions, the learned counsel for the petitioner has cited the following cases, viz., (i) Tarabanu Begum v. Union of India & Ors., 2025 (4) GLT (SC) 36 (para 5, 6, 7 and 9) , (ii) Swapan Dutta v. Union of India & Ors., Civil Appeal No. 6799/2025 , decided by the Supreme Court of India on 14.05.2025; (iii) Rejia Khatun @ Rezia Khatun v. Union of India & Ors., Civil Appeal No. (not provided in copy supplied)/2025 [arising out of SLP (Criminal) No. 12481/2023, decided by the Supreme Court of India on 11.02.2025; (iv) Sital Mandal & Ors. v. Union of India & Ors., 2022 (3) GLT 94 ,
(v) Abdul Kuddus v. Union of India & Ors., (2019) 6 SCC 604.
4) Opposing the prayer made in this writ petition the learned standing counsel for the FT, Border matters and NRC, has submitted in support of the impugned order by submitting that under the scheme of the Foreigners (Tribunals) Order, 1964, the Foreigners Tribunals are mandated to answer the reference. It is submitted that though some of the judicial pronouncements have decided that principles of res judicata applies in the proceedings before the Page No.# 4/12 Foreigners Tribunals, the provisions of CPC applies only for limited purpose under Order 4 of the Foreigners (Tribunals) Order, 1964, which does not include applicability of Section 11 CPC in the proceedings before the Foreigners Tribunals. In support of his submissions, he has cited the case of Jahir Ali v. The Union of India & Ors., W.P.(C) 3402/2020, decided by a Division Bench of this Court on 03.03.2021.
5) Examined the materials available on record. Also considered the submissions made by the learned counsel at the Bar and also considered the cited cases.
6) At the outset, it is a well settled position that the principles of res judicata applies in the proceedings before the Foreigners Tribunal, as held by the Supreme Court of India in the case of Abdul Kuddus (supra). The relevant observations of the Supreme Court of India is quoted below:-
"24. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. Thus, it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the Order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for re-determination of the same issue/question. This court in Shrimati Ujjambai v. State of Uttar Pradesh & Anr., AIR 1962 SC 1621 has held that the principles of res judicata equally apply to quasi-judicial bodies. Whenever a judicial or quasi-judicial Tribunal gives a finding on law or fact, its findings cannot be impeached collaterally or in a second round and are binding until reversed in appeal or by way of writ proceedings. The characteristic attribute of a judicial act or decision is that it binds, whether right or wrong. Thus, any error, either of fact or law, committed by such bodies cannot be controverted otherwise by way of an appeal or a writ unless the erroneous determination relates to the jurisdictional matter of that body."
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7) The decision of Abdul Kuddus (supra) has been followed in the case of Tarabanu Begum (supra). The decision of Tarabanu Begum (supra) has been followed in the case of Swapan Dutta (supra). The application of the principles of res judicata is reiterated in the case of Rejia Khatun @ Rezia Khatun (supra) and Sital Mandal (supra).
8) However, in the case of Jahir Ali (supra), this Court, by following the decision of the Supreme Court of India in the case of Abdul Kuddus (supra), had reiterated that principles of res judicata will apply in the proceedings before the Foreigners Tribunals. Nonetheless, the matter was remanded back to the Foreigners Tribunal with the following observations, that is quoted herein below:-
"16. Accordingly, for the reasons recorded above, we allow this petition by remanding the matter to the concerned learned Tribunal to consider the case of the petitioner afresh by giving him an opportunity to prove that the present petitioner, namely, Jahir Ali, aged about 52 years, S/O Nesar Ali @ Mesar Ali, R/O Ward No.6, PO & PS-Mangaldai, District-Darrang, Assam, is one and the same person in whose favour an opinion was earlier given by the same Tribunal on 15.07.2015 in F.T. Case No.771/2012 that he was not a foreigner.Accordingly, the opinion rendered on 22.11.2018 passed by the learned Foreigners' Tribunal(1st), Mangaldai, Darrang, in F.T. Case No.860/2007 is set aside."
9) Coming to the case presented in this writ petition, the proceedee in F.T.(7th Tribunal) Case No. 127/2016, which was decided by opinion dated 30.09.2016, passed by the said learned Tribunal is Jamiruddin Mulla, son of Anowar, resident of Village- Pub Mahchara, P.S. Tarabari, Dist. Barpeta. As per the contents of the said opinion, the proceedee was born in village- Choudhury Para, P.S. Boko, Dist. Kamrup. His grandfather is Sakman Mulla and father is Anowar Mulla and their names are enrolled in the voter list of 1966, 1970 and 1985. The proceedee claims that his name appears in the voter Page No.# 6/12 list of 1985 and 1989 along with his father, but wrongly written as Zoma Mulla and Zomar Mulla. The name of his mother is Mul Meher Bibi. On presentation of such facts, the said proceedee was declared to be not a foreigner.
10) The documents upon which the petitioner, namely, Jamiruddin Mollah has relied in this writ petition were not filed before the learned Foreigners Tribunal 7th, Barpeta in the proceedings of F.T. Case No. 36/2019. Except for the copy of opinion dated 30.09.2016, passed by the said learned Tribunal in F.T.(7th Tribunal) Case No. 127/2016, no other document was produced by the petitioner before the said learned Tribunal.
11) As per the contents of notice received by the petitioner, the name and other particulars of the proceedee is - Jamiruddin Mollah, son of Anowar Mollah, village- Pub Mahchara, P.S. Kasumara, Dist. Barpeta.
12) In the case of Sulochana Amma v. Narayanan Nair, AIR 1994 SC 152, the Supreme Court of India has held that an order or an issue which had arisen directly or substantially between the parties or their privies and decided finally by a competent Court or Tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding notwithstanding the fact that such Court of limited or special jurisdiction was not a competent Court to try the subsequent suit.
13) Therefore, in the opinion of the Court, in order to apply the principles of res judicata, it is the first and foremost requirement of the learned Foreigners Tribunal to determine whether the proceedee in the previous proceedings of F.T.(7th Tribunal) Case No. 127/2016 is the same person who is arrayed as the proceedee in F.T. Case No. 36/2019. Such a determination cannot Page No.# 7/12 happen unless the petitioner files his written statement and produces documents on which he intends to rely upon. Only thereafter, the learned Tribunal will be able to arrive at a satisfaction that both the proceedees are one and same person. The State respondents, if so advised, may also produce evidence before the learned Tribunal to show that the proceedees in both cases are two different persons. However, if the Tribunal arrives at a satisfaction that the proceedee in both cases are same, then the learned Foreigners Tribunal shall be bound to apply the principles of res judicata in light of the law well settled on the point.
14) The corollary question would also arise for determination in this case is whether this Court can examine the documents annexed to the writ petition and record its satisfaction that the proceedees in both the proceedings are one and same. At the outset, Court has to take into consideration that in this case, the Court is exercising certiorari jurisdiction and not appellate jurisdiction. Therefore, in the quest of the answer to the said query, the issue relating to limitations of the writ Court in exercising certiorari jurisdiction is seen to have been elaborately discussed and settled by the Supreme Court of India in the case of Central Council for Research in Auyrvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763, the scope of interference has been reiterated. Paragraph 77 thereof is quoted below:-
"77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non- exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
Page No.# 8/12 "26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
15) Moreover, on the point of when certiorari jurisdiction ought to be invoked, it would also be relevant to refer to paragraph nos. 20 to 23 of the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233: (1954) 0 Supreme(SC) 175, which are quoted below from 1954) 0 Supreme(SC) 175:-
"20. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath , AIR 1954 SC 215 (K), where it was observed that in this respect Article 227 went further than section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.
21. Then the question is whether there are proper grounds for the issue of certiorari in the present case. There was considerable argument before us as to the character and scope of the writ of certiorari and the conditions under which it could be issued. The question has been considered by this Court in Parry & Co. v. Commercial Employees Association, Madras , AIR 1952 SC 179 (L): - Veerappa Pillai v. Raman and Raman Ltd. . AIR 1952 SC 192 (M); - Ebrahim Aboobaker v. Custodian General of Evacuee Property New Delhi , AIR 1952 SC 319 (N),& quite recently in AIR 1954 SC 440(C). On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court Page No.# 9/12 or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings or fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari."
These propositions are well settled and and not in dispute.
22. (4) The further question on which there has been some controversy is whether a writ can be issued, when the decision of the inferior Court or Tribunal is erroneous in law. This question came up for consideration in- Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw , 1951-1 KB711 (O), and it was held that when a Tribunal made a "speaking order and the reasons given in that order in support of the decision were bad in law, certiorari could be granted. It was pointed out by Lord Goddard, C. J. that that had always been understood to be the true scope of the power. (1878) 4 AC 30 (D), and - Rex v. Nat Bell Liquors Ld , 1922-2 AC 128 (P), were quoted in support of this view. In 1878-4 AC 30 (D), Lord Cairns L. C. observed as follows :
"If there was upon the face of the order of the court of quarter sessions anything which showed that that order was erroneous, the Court of Queen s Bench might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the court found error upon the face of it, to put an end to its existence by quashing it".
In 1922-2 AC 128 (P), Lord Summer said:
"That supervision goes to two points; one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise".
The decision in 1951-1 KB 711 (O), was taken in appeal, and was affirmed by the Court of Appeal in - Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw , 952-1 KB 338 (Q). In laying down that an error of law was a ground for granting certiorari the learned Judges emphasised that it must be apparent on the face of the record. Denning, L. J. who stated the power in broad and general terms observed :
"It will have been seen that throughout all the cases there is one governing rule: certiorari is only available to quash a decision for error of law if the error Page No.# 10/12 appears on the face of the record ."
The position was thus summed up by, Morris, L. J. :
"It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision , or irregularity, or absence of, or excess of, jurisdiction where shown."
In AIR 1952 SC 192 (M), it was observed by this Court that under Article 226 the writ should be issued, "in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record .
In AIR 1954 SC 440 (C) , the law was thus stated :
"An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings , e. g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."
23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in - Batuk K. Vyas v. Surat Borough Municipality , AIR 1953 Bom 133 (R), that no error could be said to be apparent on the face of the record it was not self-evident, & if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self -evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or Page No.# 11/12 exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."
16) Therefore, in the absence of any determination by the learned Tribunal as to whether or not the proceedees in both cases is the same person or not, if this Court ventures to examine the documents of the petitioner, then this Court would be exercising an original jurisdiction, not vested on this Court while deciding a writ petition under certiorari jurisdiction.
17) Therefore, without undermining the applicability of the principles of res judicata as held by the Supreme Court of India in the cases cited by the learned counsel for the petitioner, the Court is persuaded to follow the directions issued by this Court in the case of Jahir Ali (supra), decided by the coordinate Bench of this Court. Paragraph 16 of the said case has been extracted and reproduced hereinbefore.
18) Accordingly, the Court is of the considered opinion that the ends of justice would be met by directing the petitioner to file his evidence and documents in terms of the impugned order dated 20.06.2025. Thereupon, the learned Member, Foreigners Tribunal 7 th, Barpeta shall give the petitioner an opportunity to prove that the present petitioner, namely, Jamiruddin Mollah, presently aged about 63 years, son of Anowar Mollah, resident of village- Pub Mahchara, P.S. Kasumara, Dist. Barpeta, Assam, is one and the same person in whose favour opinion dated 30.09.2016 was rendered by the learned Tribunal in F.T.(7th Tribunal) Case No. 127/2016 - Union of India v. Jamiruddin Mulla, declaring that he is not a foreigner.
19) It would be open to the State to establish that the petitioner is not the proceedee in F.T.(7th Tribunal) Case No. 127/2016.
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20) However, if it is found that the present petitioner is the same person who was the proceedee in F.T.(7 th Tribunal) Case No. 127/2016, the present proceeding of F.T. Case No. 36/2019 shall be dropped.
21) Subject to observations and directions contained in this order, the impugned order dated 20.06.2025, passed by the learned Member, Foreigners Tribunal 7th, Barpeta, in F.T. Case No. 36/2019 is found to warrant no interference.
22) Thus, this writ petition stands disposed of accordingly.
23) The parties are left to bear their own cost.
JUDGE JUDGE
Comparing Assistant