Gauhati High Court
Hiralal Mandal vs The Union Of India And 5 Ors on 14 November, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
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GAHC010015022021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.7952/2019
HIRALAL MANDAL
S/O. LT. AKALI MANDAL @ AKALI NAMUDAS
VILL. NEWLARBHITHA
P.S. SARTHEBARI
DIST. BARPETA
ASSAM
PIN-781352.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF HOME DEPTT.
NEW DELHI-01.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-06.
3:SUPERINTENDENT OF POLICE (B)
BARPETA
DIST. BARPETA
ASSAM
PIN-781315.
4:THE DY. COMMISSIONER
BARPETA
DIST. BARPETA
ASSAM
PIN-781315.
5:ELECTION COMMISSION OF INDIA
REP. BY CHIEF ELECTION COMMISSIONER NEW DELHI-01.
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6:STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM ACHYUT PLAZA
BHARALUPAR
BHANGAGARH
GUWAHATI-781005.
------------
Advocate for : MR. S ALIM Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 5 ORS.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE ARUN DEV CHOUDHURY order (oral) 14-11 -2022 [N. Kotiswar Singh, J] Heard Mr. S. Alim, learned counsel for the petitioner. Also heard Mr. P.K. Medhi, learned CGC appearing for respondent no.1; Mr. J. Payeng, learned Special Counsel, F.T. appearing for respondent nos. 3 and Mr. A.I., Ali, learned Standing Counsel, ECI, appearing for respondent no.5, Ms. L. Devi, learned Standing Counsel, NRC appearing for respondent nos.6 and Mr. M.K. Das, learned Government Advocate, Assam, appearing for respondent nos. 2 & 4.
2. The present petition has been filed by the petitioner, namely, Hiralal Mandal, son of Late Akali Mandal @ Akali Namudas, resident of village Newlarbhitha under Page No.# 3/8 P.S.-Sarthebari, Dist. Barpeta, Assam on being aggrieved by the impugned ex parte order dated 05.12.2018 passed by the Foreigners Tribunal-III, Barpeta, Assam, in F.T. Case No.1469 (III) of 2013, declaring the petitioner an illegal migrant under the Foreigners Act, 1946.
3. Learned counsel for the petitioner submits that earlier in another proceeding i.e. in F.T. (3rd Tribunal) Case No.126(III)/09, the Foreigners Tribunal-III, Barpeta by order dated 01.10.2009 had held that the proceedee, namely, Hiralal Mandal, son of Late Akali Mandal, resident of village Neularvita (Karagari) under P.S. Sarthebari, Dist. Barpeta had been able to discharge his onus to prove that he is not a foreigner but an Indian. Accordingly, the reference was answered in negative against the State and in favour of the petitioner/proceedee.
4. Perusal of the impugned order dated 05.12.2018 shows that after the notice was served upon the proceedee, the learned Tribunal fixed a number of dates for filing of written statement, which, however, could not be filed. Accordingly, since the proceedee did not file the written statement even after giving sufficient opportunities, the learned Tribunal proceeded with the matter ex parte.
5. Learned counsel for the petitioner submits that it is not a case that the petitioner was not willing to contest the claim before the Tribunal but because of communication gap with the petitioner's counsel the petitioner could not file the written statement. In Para-18 of the petition, the petitioner has specifically mentioned that the engaged counsel of the petitioner withdrew the vakaltanama at the time of Page No.# 4/8 the proceeding before the Tribunal without informing the petitioner.
6. Learned counsel for the petitioner submits that otherwise the petitioner has sufficient documents to prove that he is an Indian and it has been submitted that since the petitioner was declared an Indian by an earlier opinion dated 01.10.2009 passed in F.T. (3rd Tribunal) Case No.126(III)/09 by the Foreigners Tribunal-III, Barpeta, the subsequent proceeding would not lie. Learned counsel for the petitioner submits that the matter proceeded ex parte by the learned Foreigners Tribunal only because the petitioner could not file written statement though several opportunities were granted by the learned Tribunal and accordingly, the petitioner was declared a foreigner, thus, causing serious prejudice as regards his citizenship.
7. Mr. Payeng, learned Special Standing Counsel, FT, on the other hand, submits that that the petitioner only has to be blamed for the situation in which he has been placed now. He further submits that the records will prove that sufficient opportunities had been given to the petitioner to appear before the Foreigners Tribunal, however, he failed to appear before the learned Tribunal and as such, the learned Tribunal could not be faulted for ex parte order.
8. We have heard learned counsel for the parties and we have perused the LCR.
9. There is indeed an opinion rendered by the Foreigners Tribunal-III, Barpeta in F.T. (3rd Tribunal) Case No.126(III)/09, wherein the learned Tribunal had passed an opinion on 01.10.1009 and declared the procdeede therein, namely, Hiralal Mandal an Page No.# 5/8 Indian citizen by birth. In the subsequent proceeding i.e. in F.T. Case No.1469 (III) of 2013 the same Tribunal i.e. the Foreigners Tribunal III, Barpeta vide opinion dated 05.12.21018 had declared one Hiralal Mandal to be a foreigner as he failed to file the written statement. As regards the applicability of the res judicata, it is now well settled in view of the decision of the Hon'ble Supreme Abdul Kuddus vs Union of India (2019) 6 SCC 604 which has been followed by this Court from time to time, the principle of res judicata will also apply in a proceeding before the Foreigners Tribunal.
10. 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.
11. However, this is a question of fact which requires to be examined in so far as no records had been produced before the Tribunal in regard to the earlier proceeding.
12. In this regard, Mr. J. Payeng, learned Special Standing Counsel, submits that the proceedee in F.T. (3rd Tribunal) Case No.126(III)/09 and the proceedee in F.T. Case No.1469 (III) of 2013 are two different persons who stay in different locations and the same is required to be verified by the Tribunal. Mr. paying also submits that the issue of res jducata has to be brought into the first instance but not in the latter stage as has been done in the present case.
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13. Accordingly, this shall be the preliminary issue which is to be decided by the Foreigners Tribunal in F.T. Case No.1469 (III) of 2013 arising out of Police Ref. IMDT Case No.1213/2003 as to whether the present petitioner is the same person who was earlier declared an Indian Citizen in F.T. (3 rd Tribunal) Case No.126(III)/09 by the same Tribunal or not.
14. In view of above, without entering in the merit of the case we remand the matter to the Foreigners Tribunal-III, Barpeta, Assam to examine whether the petitioner is the same person who was proceded in F.T. (3 rd Tribunal) Case No.126(III)/09 by the Foreigners Tribunal-III Barpeta. Accordingly, the impugned ex parte order dated 05.12.2018 passed by the Foreigners Tribunal-III, Barpeta, Assam, in F.T. Case No.1469 (III) of 2013 is set aside.
The petitioner shall consequently appear before the Tribunal within a period of 1 (one) month from today and file his written statement by taking all the plea specially the plea of res jsudicata and the Tribunal after hearing the proceedee and the evidence that may be adduced by the proceedee will consider this issue of res judicata and pass a fresh order as per law.
15. If the Tribunal comes to the finding that the petitioner is the same person who was proceeded in F.T. (3rd Tribunal) Case No.126(III)/09 by the Foreigners Tribunal- III, Barpeta, the present proceeding shall immediately be concluded in favour of the petitioner after considering the order passed in F.T. (3 rd Tribunal) Case No.126(III)/09 Page No.# 7/8 on 01.10.2009 where the petitioner was declared an Indian citizen.
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. (3 rd Tribunal) Case No.126(III)/09, the Tribunal will proceed in accordance with law and pass a fresh opinion and such opinion of the Tribunal can be challenged by the petitioner both on the issue of identity of the petitioner and other grounds raised.
16. It is made clear that since the nationality of the petitioner is already under cloud, he 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), Barpeta during the pendency of the proceeding before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints of both hands and biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of Barpeta district without furnishing the details of the place of destination and his place of stay to the Superintendent of Police (Border), Barpeta including relevant contact/mobile number.
It is made clear that failure on the part of the petitioner to provide relevant mobile/contact number will warrant recalling of this bail order.
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), Barpeta for doing the needful.
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19. The LCR may be remitted forthwith to the concerned Tribunal.
JUDGE JUDGE Comparing Assistant