Gauhati High Court
Mustt Asiron Bibi@ Mst Achiran Nessa vs The Union Of India And 5 Ors on 20 June, 2022
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GAHC010117822022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4042/2022
MUSTT ASIRON BIBI@ MST ACHIRAN NESSA
W/O- LATE AKASH ALI @ AKKACHA ALI,
R/O- VILLAGE JORGARH, P.S- TEZPUR,
DIST- SONITPUR, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, GRIHA MANTRALAYA,
SASTRI BHAWAN, NEW DELHI- 110001.
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
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 COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
BHANGAGARH
GUWAHATI-05
DIST- KAMRUP (M)
5:THE DEPUTY COMMISSIONER
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P.O AND P.S- TEZPUR
PIN-784001
DIST- SONITPUR
ASSAM
6:THE SUPERINTENDENT OF POLICE (B)
P.O AND P.S- TEZPUR
PIN-784001
DIST- SONITPUR
ASSA
Advocate for the Petitioner : MD. I HUSSAIN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR Order (ORAL) 20-06-2022 [N. Kotiswar Singh, CJ (Acting)] Heard Md. I. Hussain, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. D. Choudhury, learned Asstt. SGI, for respondent no.1; Ms. A. Verma, learned Special Standing Counsel, F.T. appearing for respondent no.6; Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos.2 & 5, Mr. A. Bhuyan, learned Standing Counsel, ECI appearing for respondent no.3 and Ms. L. Devi, learned Standing Counsel, NRC, appearing for respondent no.4.
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2. Considering the nature of the case, which is based on the applicability of the principle of res judicata, we are inclined to dispose of this petition at this stage without issuing any formal notice to the respondents.
3. The present petition has been filed by the petitioner, namely, Mustt Asiron Bibi @ Mst. Achiran Nessa, on being aggrieved by the impugned ex parte order dated 08.12.2021 passed by the Foreigners Tribunal, Tezpur (1 st) in F.T.(D) Case No.3441/2012 corresponding to Police Enquiry No.2868/1999 declaring the petitioner a foreigner of post 1971 stream. The Foreigners Tribunal mentioned that the proceedee (petitioner herein) was absent on various occasions, though notice was duly served upon her and she entered appearance by filing an application stating that the proceedee could not appear before the Tribunal because of her illness, but after that, the proceedee did not appear before the Tribunal though several opportunities were granted to her and accordingly, the Tribunal proceeded ex parte against the petitioner vide impugned order dated 08.12.2021. The Tribunal on the basis of the materials available on record held that the petitioner is a foreigner of the post 1971 stream.
4. Learned counsel for the petitioner has taken a preliminary plea in assailing this opinion dated 08.12.2021 passed by the Foreigners Tribunal that this proceeding will not lie as the petitioner was already declared an Indian by the Foreigners Tribunal (1 st), Sonitpur, Tezpur in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013 vide its opinion dated 22.01.2015. Learned counsel for the petitioner submits that since the petitioner was earlier declared an Indian, she did not appear before the Tribunal bonafide believing that it may not be necessary as she had already been declared an Indian by the Foreigners Tribunal (1 st), Sonitpur, Tezpur in F.T. Case No.71/2014. Further, as she belongs to below poverty line Page No.# 4/8 category, she could not arrange the fees of her engaged counsel and in the process, the Foreigners Tribunal, Tezpur (1st) passed the impugned ex parte order dated 08.12.2021 in F.T. (D) Case No.3441/2012, declaring the petitioner a foreigner who entered Assam (India) illegally on or after 25.03.1971, though according to the petitioner, she was earlier declared an Indian.
5. Learned counsel for the petitioner submits that as far as the applicability of the principle of res judicata in a proceeding before the Foreigners Tribunal is concerned, the same is settled that if a proceedee was already declared an Indian in a procceding before the Foreigners Tribunal, unless the same is interfered by the competent forum, the same will be binding on subsequent proceeding against the same person in terms of the decision of the Hon'ble Supreme Court passed in Abdul Kuddus vs. Union of India (2019) 6 SCC 604 and the decision rendered by this Court in WP(C) No.2099/2018 (Sital Mandal vs. Union of India and Ors.) on 28.04.2022 and other analogous matters and as such, if any such application is made by the applicant in the subsequent proceeding, the Tribunal is duty bound to examine the same to ascertain as to whether the proceedee is the same person who was proceeded earlier before the Tribunal in which a favourable opinion was passed by the Tribunal declaring him/her to be an Indian.
6. Now, the obvious question in the present proceeding would be as to whether the petitioner who was declared a foreigner by the impugned ex parte order dated 08.12.2021 passed by the Foreigners Tribunal, Tezpur (1 st) in F.T.(D) Case No.3441/2012 corresponding to Police Enquiry No.2868/1999 is the same person who was proceeded in F.T. Case No.71/2014 by the Foreigners Tribunal (1st), Sonitpur, Tezpur in which an opinion was Page No.# 5/8 rendered on 22.01.2015 declaring the proceedee therein as an Indian. If the present petitioner is the same person who was proceeded in F.T. Case No.71/2014 then the subsequent proceeding would not lie and accordingly, the decision in the subsequent proceeding also cannot be sustained in law.
7. In order to appreciate the submission advanced by the learned counsel for the petitioner, we have examined both the impugned orders i.e. impugned ex parte order dated 08.12.2021 passed by the Foreigners Tribunal, Tezpur (1 st) in F.T.(D) Case No.3441/2012 corresponding to Police Enquiry No.2868/1999 and the order dated 22.01.2015 passed by the Foreigners Tribunal (1st), Sonitpur, Tezpur in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013.
8. In the earlier opinion rendered by the Foreigners Tribunal (1 st), Sonitpur, Tezpur in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013 on 22.01.2015, the proceedee has been described as Mustt Asiron Bibi, W/o Late Akash Ali, Village-Jorgarh, P.S.-Tezpur, District- Sonitpur and in the present proceeding i.e. F.T.(D) Case No.3441/2012, the petitioner has been described as Mst. Achiran Nessa, W/o- Akkacha Ali, R/o Jorgarh, P.S.-Tezpur, Dist.- Sonitpur, Assam.
9. On examination of the above descriptions of the two proceedees respectively, it is clearly evident that there are similarities in the descriptions except for minor differences in spelling of the names of the proceedee and her husband. In the first proceeding, the proceedee and her husband's names have been shown as ' Mustt Asiron Bibi, W/o Late Akash Ali' but in the second proceeding, their names have been shown as ''Mst. Achiran Nessa, W/o- Akkacha Ali'. The discrepancy appears because of the way the letter "s" is pronounced in the Page No.# 6/8 State of Assam.
10. In our opinion, it may not be necessary to evaluate the opinion passed in F.T.(D) Case No.3441/2012 corresponding to Police Enquiry No.2868/1999 by the Foreigners Tribunal, Tezpur (1st) by us at this stage in this proceeding, as the opinion was passed ex parte and moreover, it is the responsibility of the Tribunal to find out as to whether the present petitioner is the same person who was proceeded earlier and declared an Indian on 22.01.2015 in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013 by the Foreigners Tribunal (1st), Sonitpur, Tezpur.
11. Since we have found similarities in the names and descriptions of the proceedees as mentioned above, we are of the view that these aspect should be examined by the Tribunal, more so, when the earlier opinion rendered by the Foreigners Tribunal (1 st), Sonitpur, Tezpur in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013 could not be brought to the notice of the Foreigners Tribunal, Tezpur (1st) as the order was passed ex parte by the Tribunal. It has been clearly mentioned in Abdul Kuddus (supra) that if there had been an order by the Foreigners Tribunal in favour of a person determining the citizenship, the said decision will be binding on subsequent proceedings against the same person and there cannot be another proceeding to re-determine the citizenship of the person, by applying the principle of res judicata.
12. Accordingly, we are satisfied that even if the matter was proceeded ex parte, the petitioner did not get the opportunity to appear before the Tribunal and explain that there is an impugned order passed by the Foreigners Tribunal (1 st), Sonitpur, Tezpur in F.T. Case No.71/2014 declaring her to be an Indian. Accordingly, in our opinion the matter should be Page No.# 7/8 remanded for reconsideration before the Foreigners Tribunal. Further, in the matter relating to determination of the citizenship, such an issue in our view ought to be decided on merit rather than by way of default as has happened in the present case. In the present case we find that there was no effective hearing of the petitioners before the impugned order was passed as it was proceeded ex parte.
13. Accordingly, the Foreigners Tribunal, Tezpur (1st) shall decide first as to whether the present proceedee in F.T.(D) Case No.3441/2012 corresponding to Police Enquiry No.2868/1999 is the same person who was earlier declared an Indian citizen by the Foreigners Tribunal (1st), Sonitpur, Tezpur in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013 on 22.01.2015 and if it is found that the petitioner is the same person who was proceeded in the aforeisaid F.T. Case No.71/2014 by the Foreigners Tribunal (1 st), Sonitpur, Tezpur, the present proceeding shall immediately be concluded in favour of the petitioner on the basis of the order passed in by the Foreigners Tribunal (1st), Sonitpur, Tezpur in F.T. Case No.71/2014 and in such an event, the impugned order dated 08.12.2021 passed in F.T.(D) Case No.3441/2012 corresponding to Police Enquiry No.2868/1999 declaring the petitioner a foreigner stand superseded by the subsequent order passed in term of this order passed by us.
14. Only when the Tribunal comes to a finding that the present proceedee is not the same person who was proceeded and was found to be an Indian in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013, the impugned order dated 08.12.2021 will stand and the subsequent order of the Tribunal in terms of the order can be challenged by the petitioner both on the issue of identity of the petitioner and other grounds raised in this petition.
Page No.# 8/8 The petitioner may file written statement, necessary documents and adduce evidence to prove that the petitioner is an Indian and not a foreigner.
15. In view of the above, without entering in the merit of the case, we remand the matter to the Foreigners Tribunal, Tezpur (1 st), to examine whether the petitioner is the same person who was proceeded in F.T. Case No.71/2014 arising out of S.P. Case No.139/2013 by the Foreigners Tribunal (1st), Sonitpur, Tezpur.
16. It is also made clear that since the nationality of the petitioner is already under cloud, she will remain on bail on furnishing a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Sonitpur during the pendency of the proceeding before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of Sonitpur district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Sonitpur.
17. With the above observations and directions, the writ petition stands disposed of.
18. Copy of this order be furnished to the Superintendent of Police (B), Sonitpur for doing the needful.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant