Foreigners Tribunal's Order Declaring A Person As Citizen Is Binding On Subsequent Proceedings Against Same Person: Gauhati High Court

The Gauhati High Court on Monday set aside an order passed by a Foreigners' Tribunal declaring a resident of Jorgah village, Sonitpur as a foreigner after noting that the concerned Tribunal had earlier declared him to be an Indian citizen but had subsequently passed an ex-parte order declaring him to be a foreigner.  

A Bench comprising Justices Kotiswar Singh and Malashri Nandi set aside the impugned ex-parte order and remanded the matter back to the concerned Foreigners' Tribunal. Accordingly, the Tribunal was directed to first determine as to whether the petitioner is the same person who had earlier been declared as an Indian Citizen and thus observed,

"Accordingly, this shall be the preliminary issue which is to be decided by the Foreigners Tribunal 1st Tezpur, in F.T.(D) Case No.3512/2012 as to whether the present proceedee is the same person who was earlier declared an Indian Citizen in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur and if it is found that the petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur, the present proceeding shall immediately be concluded in favour of the petitioner on the basis of the order passed in F.T.(D) Case No.8312/2012 on 31.08.2017 where the petitioner was declared an Indian citizen. If, however, the decision is otherwise, the petitioner will be at liberty to challenge this opinion as well as the other findings by approaching this Court again"

Background

In the instant case, one Md. Maynul @ Moinul Hoque had moved the instant plea against the impugned order of the Foreigners Tribunal, Tezpur No.1, Assam dated December 31, 2020 declaring him to be a foreigner of post-1971 stream.

The Court was apprised by the counsel appearing for the petitioner that the Foreigners Tribunal Tezpur 1st, Sonitpur vide order dated August 31, 2017 had held that the petitioner 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. However, the Foreigners Tribunal Tezpur No.1, Assam in the subsequent proceeding i.e. in F.T.(D) Case No.3512/2012 vide order dated December 31, 2020, had taken a view that the petitioner had neither submitted his representation nor adduced his evidence in support of his claim that he is an Indian Citizen and accordingly had failed to prove that he is an Indian citizen.

The Court was further apprised that although the petitioner had appeared before the Tribunal after receiving the notice, the reason for the petitioner's inability to appear before the Foreigners Tribunal, Tezpur No.1 on several occasions was because of ongoing COVID pandemic. Accordingly, it was prayed that the impugned order dated December 31, 2020 be set aside by remanding the matter to the Foreigners Tribunal especially in light of the earlier opinion preferred by the same Tribunal vide order dated August 31, 2017.

It was further contended that since there is a similarity in the names and particulars of the proceedee/petitioner in both the proceedings, the second proceeding in respect of F.T.(D) Case No.3512/2012 dated December 31, 20220 before the Foreigners Tribunal, Tezpur (1st), Assam is not sustainable in view of the Supreme Court decision in Abdul Kuddus v. Union of India as the principle of res judicata will be applicable for the subsequent proceeding.

Observations

Taking cognisance of the grievance raised, the Court observed that the Supreme Court in Abdul Kuddus v. Union of India had held 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.

"In the present case, since this aspect could not be considered by the Foreigners Tribunal as it was decided ex parte, we are also of the view that the matter requires to be decided afresh by the Tribunal keeping in mind the earlier opinion dated 31.08.2017 in the light of the decision in Abdul Kuddus (supra)", the Bench observed further.

The Court further clarified that 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.(D) Case No.8312/2012, the impugned order will be revived and the order of the Tribunal can be challenged by the petitioner both on the issue of the identity of the petitioner and other grounds raised in this petition.

Accordingly, the Court directed,

"We remand the matter to the Foreigners Tribunal, Tezpur (1st), Sonitpur, Assam by setting aside the impugned order 31.12.2020 passed by the Foreigners Tribunal, Tezpur No.1, Assam, in F.T.(D) Case No.3512/2012 to examine whether the petitioner is the same person who was proceded in F.T.(D) Case No.8312/2012by the Foreigners Tribunal, Tezpur 1st, Sonitpur. The Foreigners Tribunal Tezpur No.1, Sonitpur shall decide first as to whether the petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 or not, for which the petitioner shall appear before the Foreigners Tribunal on 14.02.2022 to enable the Tribunal to examine that he is the same person who was proceeded in F.T.(D) Case No.8312/2012."

The Court further averred that if it is found that the petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur, the present proceeding shall immediately be concluded in favour of the petitioner on the basis of the order passed in F.T.(D) Case No.8312/2012 on August 31, 2017 wherein the petitioner had been declared as an Indian citizen.

However, the Court ordered that since the nationality of the petitioner is already under dispute, he will remain on bail on furnishing a bail bond of Rs. 5,000/- 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", it was directed further.

Case Title: Md. Maynul v. Union of India 

Case Citation: 2022 LiveLaw (Gau) 2. 

Click Here To Read/Download Order