Res Judicata Not Attracted To Proceedings In Foreigners Tribunal If Previous Order Finding Petitioner 'Not Foreigner' Unreasoned: Gauhati High Court

"The principles of res judicata under the law requires two conditions precedent to be satisfied i.e., the earlier dispute must be between the same parties and secondly, the issue between the parties must be decided. The very condition that the issue must be decided requires that it must be decided by a reasoned order and not by an order merely depicting the view that the Foreigners Tribunal may have taken without any reason. From such point of view, we are unable to accept the plea of the petitioner that the subsequent proceeding against the petitioner...is barred by the principles of res judicata."

The petitioner was declared a foreigner who entered the State of Assam after March 25, 1971 by an order dated September 8, 2022 of the Foreigners Tribunal (II), Sonitpur in F.T.Case No.05/2019.

Being aggrieved by the impugned order of the tribunal, the petitioner approached the High Court.

The petitioner contended that there was an earlier round of proceeding against him in the same Foreigners Tribunal in F.T. Case No.102/2014 in which an opinion dated December 29, 2014 had already been rendered declaring the petitioner to be not a foreigner. Therefore, the petitioner submitted that a subsequent proceeding before the same Tribunal was barred by the principles of res judicata.

The Court noted that the opinion rendered by the Foreigners Tribunal in the previous round of litigation had not given any reason. "An unreasoned order is unacceptable in law, more so, when the said order is relied upon in a subsequent proceeding to take the plea of the subsequent proceeding being barred by the principles of res judicata,” it added.

However, the court remanded the matter back to the Tribunal to take up the records of both the cases and pass a reasoned order on the materials that was available in the two proceedings.

The court directed the petitioner to appeal before the Tribunal on April 6 and further stated that no coercive actions shall be taken against the petitioner till the reasoned order is passed by the Tribunal.

Case Title: Rafikul Islam v. The Union of India & 5 Ors.

Citation: 2023 LiveLaw (Gau) 34

Coram: Justice Achintya Malla Bujor Barua and Justice Robin Phukan

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