Gauhati High Court
Bikash Dey vs The Union Of India And 5 Ors on 16 September, 2021
Bench: N. Kotiswar Singh, Manish Choudhury
Page No.# 1/6
GAHC010140632021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4611/2021
BIKASH DEY
S/O LATE PROBHAT CHANDRA DEY, PASCHIM KHAGRABARI, DIST.
COOCHBEHAR, WEST BENGAL, PRESENTLY RESIDING AT FATASHIL
GAURI SARMA COLONY, P.O. AND P.S. BHARALUMUKH, DIST. KAMRUP
(M), GUWAHATI 781009
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF
HOME AFFAIRS, NEW DELHI 110001
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN ASHOKA ROAD NEW DELHI 110001
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
HOME DEPT.
DISPUR
GHY 06
4:THE DEPUTY COMMISSIONER
KAMRUP (M)
DIST. KAMRUP (M)
ASSAM.
5:THE SUPERINTENDENT OF POLICE (B)
KAMRUP (M)
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DIST. KAMRUP (M)
ASSAM.
6:THE NATIONAL REGISTER OF CITIZEN
REPRESENTED BY THE STATE COORDINATOR
ASYUT PLAZA BHANGAGARH
GUWAHATI 05
DIST. KAMRUP (M)
ASSAM
Advocate for the Petitioner : MR. S K CHAKRABORTY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE MANISH CHOUDHURY
:: O R D E R ::
16.09.2021 [N. Kotiswar Singh, J] Heard Mr. S.K. Chakraborty, learned counsel for the petitioner. Also heard Ms. L. Devi, learned learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Ms. Devi also appears for respondent No. 6 as the learned Standing Counsel, NRC; Mr. A. Bhuyan, learned Standing Counsel, ECI for respondent No.2; Ms. A. Verma, learned special counsel, FT, appearing for respondent Nos.3, 4 and 5.
2. Considering the nature of the case, we are of the opinion that the present petition can be disposed of at the motion stage itself.
3. The present petition has been filed by the petitioner, namely, Bikash Dey, S/o Late Probhat Chandra Dey, Paschim Khagrabari, District West Bengal, presently residing at Fatashil Gauri Sarma Colony, P.O. & P.S. Bharalumukh, District Kamrup (Metro), Guwahati, Assam being aggrieved of the notice dated 13.03.2020 issued by the Foreigners Tribunal No.5, Kamrup (M), Guwahati in DV Case No. 348 of 2019 by which the petitioner was directed to appear in person or through his appointed advocate before the Tribunal on 19.06.2020 and submit his written statement and other relevant documents as per the provisions of Section 9 Page No.# 3/6 of Foreigners Act, 1946.
4. The aforesaid notice dated 13.03.2020 issued to the petitioner reads as follows:
"NOTICE Police Case No. 3062/99 F. Case No. F.T./Kamrup (Metro) D.V. 348/2019 State (Represented by Police Commissioner, Gauhati City)
-Vs-
To Sri Bikash Dey S/o- Lt. Prabhat Dey R/o- G.S. Colony P.S.-Bharalumukh Dist.- Kamrup (M), Assam An allegation has been raised against you by a competent authority that you migrated to Assam illegally without any valid document after 25th March, 1971. Since you could not produce any valid document to establish your Indian citizenship in course of the enquiry carried out against you, a suspicion arose on your citizenship. Hence, you are hereby informed that if you want to claim your Indian citizenship, you shall have to appear in person or through your appointed advocate before the Tribunal on 19.06.2020 and submit your written statement and other relevant documents as per the provisions of section 9 of Foreigners Act, 1946. Be it mentioned here that you will have to remain present physically on all the dates fixed by this Tribunal to answer the aforementioned allegation raised against you. Since it is necessary to get your written statement within a short period for an early disposal of allegation raised against you, you will not be allowed multiple dates for the hearing on your demand and hence, if you do not appear before the Tribunal on the date fixed or remain absence even after taking time by appearing in the Tribunal, the case will be decided ex-parte.
Given under my hands and seal on this 13th March, 2020.
Memo No. F.T./Kamrup (Metro) D.V.-384/2019 Page No.# 4/6 The Police Commissioner, Kamrup (Metro) and the Bharalumukh P.S. are hereby informed to serve this notice immediately."
5. Learned counsel for the petitioner submits that the petitioner entered appearance before the Tribunal through his engaged counsel on 30.07.2020 along with a petition. The Tribunal vide order dated 30.07.2020 fixed the matter on 23.09.2020 for filing of documents. On 23.09.2020, the petitioner filed a petition before the Tribunal stating that he was earlier proceeded by the said Tribunal in FT Case No. 2107 of 2016, where he contested the case by filing written statement and by adducing evidence and the Tribunal vide judgment and opinion that 29.05.2017 declared the petitioner an Indian citizen and the reference was accordingly, decided in favour of the petitioner. The petitioner, accordingly, prayed that the issue raised in the second proceeding was already decided in favour of him and became final in FT Case No. 2107 of 2016 and therefore, the notice dated 13.03.2020 issued in D.V. Case No. 348 of 2019 was apparently sent to him by mistake and requires to be recalled. However, vide order dated 23.09.2020, the Tribunal directed him to file documents to prove his nationality and the next date was fixed on 09.12.2020.
6. It has been submitted that in the order dated 23.09.2020 the Tribunal did not mention of the petition filed by the petitioner on 23.09.2020 which accompanied the judgment and opinion dated 29.05.2017. The petitioner on the next date 09.12.2020 filed another petition along with the copy of the judgment and opinion dated 29.05.2017 passed in FT Case No.2107/2016 stating that on 23.09.2020 the petitioner had filed petition annexing the judgment and opinion dated 29.05.2017 passed in FT Case No. 2107/2016 by which the petitioner was declared Indian citizen and the reference was answered in negative. Accordingly, the petitioner prayed for recalling the notice dated 13.03.2020. However, the Tribunal did not modify the said order dated 23.09.2020 and fixed the matter on 12.01.2021. Being aggrieved, the petitioner has approached this Court.
7. Learned counsel for the petitioner submits that in earlier proceeding in F.T. Case No. 2107/2016 [Corresponding Police Case No. 405/12] the Foreigners' Tribunal No.5, Kamrup (Metro) vide order dated 29.05.2017 held that the petitioner/proceedee is an Indian citizen and accordingly, the reference was answered in negative against the State and in favour of the petitioner/proceedee. However, the Foreigners' Tribunal No.5 kamrup (Metro) in the Page No.# 5/6 subsequent proceeding in DV No. 348/2019 directed the petitioner to produce the copy of the documents as exhibited in FT Case No. 2107/2016 and fixed the date 12.01.2021 for filing the documents.
8. Learned counsel for the petitioner submits that the issue raised in DV Case No. 348 of 2019 has already been decided in his favour in the previous proceeding in F.T. Case No. 2107/2016 [Corresponding Police Case No. 405/12]. Therefore, the Foreigners Tribunal could not have re-opened the issue afresh for decision and the Tribunal ought to have allowed the prayer made by the petitioner by recalling the notice dated 13.03.2020 issued to him on the plea taken by the petitioner that he had already been declared an Indian citizen by an earlier proceeding mentioned above and further the Tribunal should not have ordered for submission of documents to prove his nationality once again.
9. Learned counsel for the petitioner has submitted on the strength of the decision rendered by the Hon'ble Supreme Court in Abdul Kuddus Vs. Union of India & Ors ., [(2019) 6 SCC 604] that as the proceeding before the Foreigners' Tribunal is quasi judicial, the principle of res judicata will also be applicable.
10. Ms. A. Verma, learned special counsel, FT, has fairly admitted to the aforesaid legal position in view of the decision of the Hon'ble Supreme Court in Abdul Kuddus (supra).
11. Accordingly, we are of the opinion that in view of the decision of the Hon'ble Supreme Court in Abdul Kuddus (supra), if there had been an earlier 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, it is directed that it shall be the preliminary issue which is to be decided by the Foreigners' Tribunal in the present proceeding as to whether the present petitioner is the same person who was earlier declared an Indian citizen in F.T. Case No. 2107/2016 [Corresponding Police Case No. 405/12] by the learned Member, Foreigners' Tribunal No.5, Kamrup (Metro) vide order dated 29.05.2017 and if it is found that the petitioner is the same person who was proceeded in F.T. Case No. 2107/2016 [Corresponding Police Case No. 405/12] by the Foreigners' Tribunal No.5, Kamrup (Metro), the present proceeding shall immediately be concluded with the declaration that the petitioner is an Indian citizen in terms of the earlier order dated 29.05.2017 passed in F.T. Case No. 2107/2016 by the Foreigners' Page No.# 6/6 Tribunal, No.5, Kamrup (Metro).
Only when the Tribunal comes to a finding that the present petitioner/proceedee is not the same person who was proceeded and was found to be an Indian in F.T. Case No. 2107/2016 [Corresponding Police Case No. 405/12], the proceeding will continue in DV Case No.348/2019, by giving all the opportunities to the petitioner to prove his case in accordance with law.
13. Accordingly, with the above observation, the present petition is disposed of by directing the Foreigners Tribunal No.5, Kamrup (Metro) to decide this preliminary issue as to whether the petitioner is the same person who was proceeded against in F.T. Case No. 2107/2016 [Corresponding Police Case No. 405/12] or not.
14. The Foreigners' Tribunal No.5, Kamrup(Metro) shall accordingly, decide the preliminary issue as to whether the present petitioner is the same person or not, in both the proceedings before the Foreigners' Tribunal in F.T. Case No. 2107/2016 [Corresponding to Police Case No. 405/12] as well as DV Case No.348/2019 for which the petitioner shall appear before the Foreigners' Tribunal No.5, Kamrup(Metro) on or before 19.10.2021 to enable the Tribunal to examine as to whether the present petitioner is the same person before the Tribunal in the aforesaid two proceedings in the light of the observations made above.
JUDGE JUDGE Comparing Assistant