Gauhati High Court
Minoti Ghosh vs Union Of India And 4 Ors on 20 June, 2022
Page No.# 1/8
GAHC010274302019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8400/2019
MINOTI GHOSH
D/O. LT. JAGADISH GHOSH, W/O. SRI KAJAL GHOSH, R/O. DHAKUAKHANA
BALIGAON, P.O., P.S. AND MOUZA- DHAKUAKHANA, DIST. LAKHIMPUR,
ASSAM, PIN-787055.
VERSUS
UNION OF INDIA AND 4 ORS.
THROUGH THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI-110001.
2:THE STATE OF ASSAM
THROUGH THE SECRETARY
GOVT. OF ASSAM HOME DEPTT.
DISPUR
GUWAHATI-781006.
3:THE DY. COMMISSIONER
LAKHIMPUR DISTRICT
P.O. AND P.S. NORTH LAKHIMPUR
PIN-787001.
4:SUPERINTENDENT OF POLICE (B)
LAKHIMPUR DISTRICT
P.O. AND P.S. NORTH LAKHIMPUR
PIN-787001.
5:OFFICER IN CHARGE
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DHAKUAKHANA POLICE STATION
P.O. DHAKUAKHANA
DIST. LAKHIMPUR
ASSAM
PIN-787055
Advocate for the Petitioner : MR G P BHOWMIK
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON'BLE MR. JUSTICE L. S. JAMIR Order (ORAL) 20-06-2022 [N. Kotiswar Singh, CJ (Acting)] Heard Mr. B. Chowdhury, 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.4 & 5; Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos.2 & 3.
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, Smt. Minati Ghosh, on Page No.# 3/8 being aggrieved by the impugned order dated 29.06.2019 passed by the Foreigners Tribunal, Lakhimpur (1st), North Lakhimpur, in Lakhimpur FT- (1 st) Case No.3042/2011 declaring the petitioner a foreigner of post 1971 stream.
4. Learned counsel for the petitioner has taken a preliminary plea in assailing this opinion dated 29.06.2019 passed by the Foreigners Tribunal, Lakhimpur (1 st), North Lakhimpur, in Lakhimpur FT- (1st) Case No.3042/2011 that this opinion will not lie as the petitioner was already declared an Indian by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur in LFT Case No.268/07 vide its opinion dated 10.03.2009.
5. Learned counsel for the petitioner submits that as far as the applicability of the 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 and a favourable opinion was passed by the Tribunal declaring him/her to be an Indian.
6. Now, the obvious question would be as to whether the petitioner who was declared a foreigner by the impugned order dated 29.06.2019 in Lakhimpur FT- (1st) Case No.3042/2011 Page No.# 4/8 by the Foreigners Tribunal, Lakhimpur (1 st), North Lakhimpur is the same person who was proceeded in LFT Case No.268/07 before the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur in which an opinion was rendered on 10.03.2009 declaring the proceedee therein as an Indian. If the present petitioner is the same person who was proceeded in LFT Case No.268/07 then the subsequent proceeding would not lie and accordingly, the decision in the subsequent proceeding also could not be sustained in law. In order to appreciate the submission advanced by the learned counsel for the petitioner, we have examined both the impugned orders i.e. the order dated 29.06.2019 passed by the Foreigners Tribunal, Lakhimpur (1st), North Lakhimpur, in Lakhimpur FT- (1 st) Case No.3042/2011 and the order dated 10.03.2009 passed by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur in LFT Case No.268/07.
7. In the earlier opinion rendered by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur in LFT Case No.268/07 on 10.03.2009, the proceedee has been described as Smt. Minoti Ghosh, aged about 28 years, daughter of Lt. Jagadish Ghosh, W/o Kajal Ghosh, Vill.- Baligaon, P.S.-Dhakuakhena, Dist.-Lakhimpur, Assam and in the present proceeding i.e. Lakhimpur FT- (1st) Case No.3042/2011, the petitioner has been described as Smt. Minati Ghosh, Daughter of Late Jagadish Ghosh, W/o-Sri Kajal Ghosh, R/o Bengali Patti, P.S.- Dhakuakhana, Dist.-Lakhimpur.
8. From the perusal of the above two descriptions of the proceedees respectively, there are similarities in the descriptions except the name of the village. In the first proceeding, name of the village has been shown as ' Baligaon' but in the second proceeding, the village name has been shown as 'Bengali Patti'. Learned counsel for the petitioner submits that Page No.# 5/8 Baligaon is also known as Bengali Patti. Further, we have also noted that in the first proceeding the proceedee had relied on a voters list of 1966 in which the name of the petitioner's father appeared as Jagadish Chandra Ghosh under Sl. No.182 Alipurduar Legislative Assembly Constituency, West Bengal and in the second proceeding also the petitioner had relied on the voter list of 1966 (Exhibit-2) in which name of one voter Ghosh Jagadish Chandra (whom the petitioner claims to be her father), son of Late Kalimohan, Age- 48 years under Sl. No.182 Alipurduar LAC, West Bengal. Thus, without going into other evidences, we find that there are similarities in the identity of the two proceedees. Though the Tribunal in the present proceeding had discussed in detail about the various documents and evidences those were adduced by the petitioner and came to the conclusion that the petitioner is a foreigner who came to Indian (Assam) illegally from the specified territory of Bangladesh after 25.03.1971, in our opinion, it may not be necessary to evaluate the opinion and finding passed in Lakhimpur FT- (1st) Case No.3042/2011 by the Foreigners Tribunal, Lakhimpur (1st), North Lakhimpur by us at this stage, as 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 in LFT Case No.268/07 by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur.
9. Accordingly, since we have found similarities in the name and description 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-II, Lakhimpur, North Lakhimpur in LFT Case No.268/07 was brought to the notice of the Foreigners Tribunal, Lakhimpur (1 st), North Lakhimpur but the Tribunal did not consider the Page No.# 6/8 said aspect in the second proceeding at all. 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.
10. Accordingly, this shall be the preliminary issue which is to be decided by the Foreigners Tribunal in Lakhimpur FT- (1 st) Case No.3042/2011 as to whether the present proceedee is the same person who was earlier declared an Indian Citizen in LFT Case No.268/07 by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur and if it is found that the petitioner is the same person who was proceeded in LFT Case No.268/07 by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur, the present proceeding shall immediately be concluded in favour of the petitioner after considering the order passed in LFT Case No.268/07 on 10.03.2009 where the petitioner was declared an Indian citizen and in such an event, the impugned order dated 29.06.2019 passed in Lakhimpur FT- (1st) Case No.3042/2011 declaring the petitioner a foreigner will be superseded by the subsequent order passed in term of this order.
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 LFT Case No.268/07, the impugned order dated 29.06.2019 will stand and the order of the Tribunal can be challenged by the petitioner both on the issue of identity of the petitioner and other grounds raised in this petition.
11. In view of the above, without entering in the merit of the case, we remand the matter to the Foreigners Tribunal, Lakhimpur (1 st), North Lakhimpur, to examine whether the Page No.# 7/8 petitioner is the same person who was proceeded in LFT Case No.268/07 by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur.
We are also making it clear that we are not setting aside the impugned order dated 29.06.2019 passed by the Foreigners Tribunal, Lakhimpur (1 st), North Lakhimpur, in Lakhimpur FT- (1st) Case No.3042/2011 at this stage as it is yet to be ascertained by the Tribunal as to whether the present petitioner is the same person or not. If the petitioner is the same person, the opinion of the Foreigners Tribunal, Lakhimpur (1 st), North Lakhimpur cannot be sustained and will stand set aside without any further order from this Court.
12. The petitioner shall appear before the Foreigners Tribunal on 21.07.2022 to enable the Tribunal to examine that she is the same person who was proceeded in LFT Case No.268/07 by the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur. However, if the Tribunal finds that the petitioner is not the same person, the impugned order will stand as far as the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur is concerned and the petitioner would be at liberty to challenge the said order about the identity of the proceedee along with the grounds already taken in this petition before the said Tribunal.
13. It is 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), Lakhimpur 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 Lakhimpur district without furnishing the details of the place of destination and necessary Page No.# 8/8 information including contact number to the Superintendent of Police (Border), Lakhimpur.
14. With the above observations and directions, the writ petition stands disposed of.
15. Copy of this order be furnished to the Superintendent of Police (B), Lakhimpur for doing the needful.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant