Page No.# 1/8 GAHC010162692025 2025:GAU-AS:10140-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4279/2025 MD MAINUL HAQUE S/O LATE ABDUL BASIR @ A. BOSIR, VILL- JARIBOR, P.S.- LAHARIGHAT, DIST- MORIGAON, ASSAM VERSUS THE UNION OF INDIA AND 6 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI-110001 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006 3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001 4:THE DISTRICT COMMISSIONER MORIGAON DISTRICT MORIGAON ASSAM 5:THE SUPERINTENDENT OF POLICE (B) MORIGAON DISTRICT MORIGAON ASSAM Page No.# 2/8 6:THE OFFICER-IN-CHARGE MOIRABARI POLICE STATION VILL AND P.O.- MOIRABARI P.S.- MOIRABARI DIST- MORIGAON ASSAM 7:THE NODAL OFFICER OF THE NRC ASSAM BHANGAGARH GUWAHATI-78100 Advocate for the Petitioner : MR. D SUR, V.I. AO,MR S A REEYAZ,J U AHMED Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, NRC,SC, ECI,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 01.08.2025 (K.R. Surana, J) Heard Mr. D. Sur, learned counsel for the petitioner, who has appeared through video conferencing. Also heard Mr. P.S. Bhattacharyya, learned CGC; Ms. A. Verma, learned standing counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 23.05.2016, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. F.T.(C) 107/12, arising out of IM(D)T Case No. 177/03, dated 28.02.2003, by which the petitioner was declared as an illegal migrant of post 25.03.1971 Page No.# 3/8 stream. 3. From the materials available on record, it appears that the petitioner, namely, Md. Mainul Haque, had challenged the hereinbefore referred opinion dated 23.05.2016, by filing W.P.(C) 5122/2016. However, after considering all the materials, by a speaking order dated 07.03.2018, the said writ petition was dismissed by the Co-ordinate Bench of this Court. It is noticed that the said order dated 07.03.2018, of this Court, was assailed before the Supreme Court of India by filing Special Leave Petition (Civil) Diary No. 12074/2024 along with separate applications for condonation of delay; exemption from filing certified copy; exemption from filing OT (official translation); and condonation of delay in refilling/curing the defects. The Supreme Court of India, by order dated 03.05.2024, found the explanation for delay of 2109 days in filing and 10 days delay in refilling the Special Leave Petition insufficient and consequently, the said Special Leave Petition was dismissed. 4. The learned counsel for the petitioner has submitted that on two new grounds, the present writ petition has been filed. As submitted, the new grounds are: firstly, that the family tree has been now annexed to the writ petition; secondly, land documents have been now produced. It has been submitted that if new documents are not considered, the right of the petitioner under Article 21 of the Constitution of India would be violated and moreover, the petitioner shall loose his valuable citizenship right. 5. The learned counsel for the petitioner has submitted that after the impugned opinion was passed by the learned Foreigners Tribunal, the petitioner was apprehended and was lodged at the Transit Camp for more than Page No.# 4/8 2 (two) years. It has further been submitted that the earlier engaged counsel did not guide the petitioner to produce the link document or the land document and therefore, it is on wrong legal advice, the petitioner could not properly defend himself in the proceeding before the learned Foreigners Tribunal. Similarly, because of lack of proper legal advice, the opinion by the learned Foreigners Tribunal could not be properly assailed before this Court by filing W.P. (C) 5122/2016. Accordingly, it has been submitted that consequently, the opinion could not be successfully assailed before the Supreme Court of India. No other submissions were made. 6. In support of his submission, the learned counsel for the petitioner has cited the following cases, viz. (a) State of Assam & Ors. v. Moslem Mondal & Ors., 2013 (1) GLT 809, (b) Rafiq & Anr. v. Munshilal & Anr., (1981) 2 SCC 788, and (c) Samad Ali @ Samat Ali v. Union of India & Ors., 2012 (5) GLT 162. 7. The learned standing counsel for the FT and Border matters has opposed the maintainability of the writ petition on the ground that a second writ petition would not be maintainable and would be barred by the principles of res judicata. 8. Considered the materials available in the writ petition as well as the submissions made and cases cited at the bar. 9. On a careful perusal of the materials available on record, the Court has noticed that another reference proceeding was registered against the petitioner before the Foreigners Tribunal (2nd), Morigaon, being Case No. F.T. 2091/12, arising out of Police Reference F.T. Case No. 222/2011, dated Page No.# 5/8 29.11.2011. Though a copy of the order dated 13.10.2022, passed by the learned Foreigners Tribunal (2nd), Morigaon, in Case No. F.T. 2091/12 has been annexed to this writ petition as Annexure-17, but no submission was made by the learned counsel for the petitioner thereon. It is observed that in connection with the said proceeding, the petitioner had filed petition No. 155 dated 13.10.2022 before the said learned Tribunal, stating therein that another case bearing Case No. F.T. 107/12 was pending against him before the said learned Tribunal in connection with W.P.(C) 5122/2016. The said learned Tribunal, on perusal of the order dated 07.09.2016, passed by this Court in WP(C) 5122/2016, made an enquiry from the website of this Court and found that W.P. (C) 5122/2016 had already been disposed of by this Court by order dated 07.03.2018. Accordingly, the said learned Tribunal expressed its view that on the dismissal of the writ petition, the opinion dated 23.05.2016, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. F.T.(C) 107/12 was upheld. Accordingly, in connection with that petition No. 155, dated 13.10.2022, the learned Tribunal had held to the effect that apparently a false statement had been made by the petitioner before the said learned Tribunal. Accordingly, as the petitioner had already been declared to be a foreigner in connection with Case No. F.T.(C) 107/12, the proceeding of FT Case No. 2091/12 was held to be barred by res judicata and not proceeded with. 10. The cases cited by the learned counsel for the petitioner are not found to be authorities on the point that after dismissal of the writ petition and after dismissal of Special Leave Petition by the Supreme Court of India, on new grounds, a second writ petition would be maintainable before the High Court to assail the same opinion dated 23.05.2016, passed by the learned Member, Page No.# 6/8 Foreigners Tribunal (2nd), Morigaon in Case No. F.T.(C) 107/12, which was the cause of action in the earlier writ petition. 11. In the case of Tarun Hazarika V. State of Assam & Ors., (2015) 2 GLR 53: (2015) 0 Supreme(Gau) 1108, this Court has observed and hold as follows:- “3. Reading and re-reading the order extracted above unmistakably reveals that the dismissal of the writ petition of the petitioner was not exactly a dismissal in default of prosecution: it was a dismissal of the writ petition on merit as well. There is no dispute, nor can there be any dispute, that the dismissal was never challenged by the petitioner in appeal nor was an attempt made by him for restoration of the writ petition by projecting it to be dismissal in default of prosecution. It is well-established that the principle of res judicata is applicable to writ petitions.? See Direct Recruit Class II Engineering Officers Assn. v. State of Maharashtra, (1990) 2 SCC 715. The second writ petition on the same cause of action is not maintainable when it was open to the petitioner to claim the relief in the first writ petition which has been claimed in the second writ petition. After all, the doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. Even assuming that the writ petition was dismissed in default of prosecution and the second writ petition is not barred by the doctrine of res judicata also, but on the principle of Order IX, Rule 9, CPC, the petitioner is precluded from bringing this fresh writ petition in respect of the same cause of action.” 12. As per this Court’s website, the earlier/first writ petition of the petitioner, i.e. W.P.(C) 5122/2016, was registered before this Court on 29.08.2016. The said writ petition was dismissed by order dated 07.03.2018. Thus, during the pendency of the said writ petition, though the petitioner had sufficient time to produce additional documents before this Court when W.P.(C) 5122/2016 was pending before this Court, but there no document were produced. Thus, from the year 2012, when the Case No. F.T.(C) 107/12 was registered, the petitioner is found to have woken-up 13 (thirteen) years too late. Page No.# 7/8 13. The learned counsel for the petitioner has failed to produce any case law whereby law has been held that even after dismissal of the writ petition by this Court on merit and consequent dismissal of Special Leave Petition by the Supreme Court of India, in exercise of certiorari jurisdiction, it would be permissible for the High Court to entertain a second writ petition and consider new set of plea and documents, even after 7 (seven) years after the dismissal of the previous writ petition that was filed on same cause of action. If such a prayer is allowed, then the legislative intent engrained in Section 3(14) of the Foreigners (Tribunals) Order, 1964, providing that the reference is required to be answered within 60 (sixty) days, would be defeated. 14. This writ petition is held to be not maintainable in respect of same cause of action and this writ petition is held to be hit by the principles of res judicata as well as on the principles of issue estoppel. 15. It would be relevant to mention herein that on the ground of res judicata, the learned Member, Foreigners Tribunal (2nd), Morigaon, by order dated 13.10.2022, had already stayed the proceedings of Case No. F.T. 2091/12. Thus, if the opinion passed in Case No. F.T.(C) 107/12 is set aside, the petitioner, who is a declared foreign national, will continue to enjoy citizenship status by default. 16. It has been mentioned herein before that the Special Leave Petition (Civil) Diary No. 12074/2024, against the order of this Court has already been dismissed by the Supreme Court of India. This is yet another reason for not entertaining the writ petition filed under Article 226 of the Constitution of India. Page No.# 8/8 17. The learned counsel for the petitioner had not referred to the Foreigners Tribunal proceedings of Case No. F.T. 2091/12. However, having regard to the facts and circumstances of the case, the Court has refrained from imposing exemplary cost on the petitioner as well as on his learned counsel. 18. Accordingly, this writ petition is found to be without any merit and the same is dismissed without issuance of notice on the respondents. 19. The Registry shall communicate a copy of this order to the learned Member, Foreigners Tribunal (2nd), Morigaon to be made a part of the record of F.T. Case No. 107/12. JUDGE JUDGE. Comparing Assistant