Page No.# 1/9 GAHC010238232022 2025:GAU-AS:1404-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7632/2022 MD. MAINUL HAQUE S/O. LT. ABDUL BASIR @ A. BOSIR, VILL. JARIBOR, P.S. BHURAGAON, DIST. MORIGAON, ASSAM. VERSUS THE UNION OF INDIA AND 6 ORS REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NEW DELHI-01, INDIA. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-06. 3:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM ACHYUT PLAZA BHANGAGARH GUWAHATI-05 ASSAM. 4:THE ELECTION COMMISSION OF INDIA TO BE REP. BY THE COMMISSIONER NIRVACHAN SADAN ASHOKA ROAD DELHI-110001. Page No.# 2/9 5:THE DEPUTY COMMISSIONER MORIGAON DIST. MORIGAON ASSAM. 6:THE SUPDT. OF POLICE (B) MORIGAON DIST. MORIGAON ASSAM. 7:THE OFFICER IN CHARGE MOIRABARI POLICE STATION VILL P.O. P.S. MOIRABARI DIST. MORIGAON ASSAM Advocate for the Petitioner : MR. Z HAMMAD, MR E AHMED Advocate for the Respondent : DY.S.G.I., MR. J HANDIQUE SC REVENUE DEPT GOVT OF ASSAM,GA, ASSAM,SC, F.T,SC, ECI,SC, NRC BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 11.02.2025 (K.R. Surana, J) Heard Mr. Z. Hammad, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned CGC; Mr. D. Mazumdar, learned Additional Advocate General for the State, assisted by Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. H. Kuli, 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. Page No.# 3/9 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 13.10.2022, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. F.T. 2091/12, arising out of Police Reference F.T. Case No. 222/2011 dated 29.11.2011. 3. The challenges in this writ petition is with regard to the directions contained in the said opinion, calling upon the Deputy Commissioner, Morigaon (now District Commissioner Morigaon) and the Superintendent of Police (Border), Morigaon to lodge the petitioner in detention pursuant to he has being declared as a foreigner vide opinion dated 23.05.2016, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No.FT (C) 107/12. 4. In brief, the case of the petitioner is that notwithstanding the earlier opinion dated 23.05.2016, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. FT (C) 107/12, he was served with another notice for appearance in connection with Case No. F.T. 2091/2012, which was issued by the learned Member, Foreigners Tribunal (2nd), Morigaon. Accordingly, on 13.10.2022, which was the date fixed for appearance, the petitioner had entered appearance and on being asked about the previous opinion in Case No. FT (C) 107/12, the petitioner answered in the affirmative. However, the learned Tribunal took the view that the statement of the petitioner that the proceedings of WP(C) 5122/2016 was pending, arrived at a conclusion that the petitioner has made a false statement before the learned Tribunal, and accordingly, as he was already declared as a foreigner in Case No.FT (C) 107/12, and in view of dismissal of WP(C) 5122/2016, by order dated 07.03.2018, direction was issued by the learned Tribunal vide impugned order dated 13.10.2022 to the two authorities referred above to take the petitioner in detention immediately. Page No.# 4/9 Moreover, the Tribunal had further held that the present case, i.e., Case No. F.T. 2091/2012, was barred by the principle of res judicata as the petitioner was already declared to be a foreigner in Case No.FT (C) 107/12. Accordingly, the petitioner has put to challenge the said order dated 13.10.2022, with a further prayer to remand the matter back to the learned Tribunal to consider the case of the petitioner by adducing fresh documents and to examine the witnesses in support of his citizenship. 5. In support of his submission, the learned counsel for the Petitioner has produced a copy of a letter vide memo No. PLB.49/2004/Pt/83, dated 04.09.2021. It would be appropriate to extract the relevant portion of the said letter hereinbelow: “Madam/Sir. With reference to the subject cited above, I am directed to inform you that in the performance assessment exercise carried out by the State Judicial Department on the basis of randomly selected samples of opinions rendered by Learned Members of Foreigners Tribunals, the Judicial Department has viewed with seriousness the passing of consequential directions/orders by Learned Members while rendering opinion. Relevant portions of Judicial Department's views are quoted below:- · "Noted that consequential order for deletion of names from voter list, arrest and detention of the declared foreigners, passed. This may not be necessary · "Noted that consequential order for deportation etc. of the declared foreigners, passed. This may not be a correct approach." · "But consequential order/direction have been issued, while giving opinion. This may not be a correct approach." In view of the above, you are requested to kindly adhere to the views of the Judicial Department while passing opinion.” 6. Referring to above, it is submitted that it is the view of the Government of Assam, Political (B) Department that consequential orders to arrest proceeding and to keep the proceedee in detention or consequential Page No.# 5/9 orders for deportation was not a correct approach for the Tribunal. Accordingly, it is submitted that the consequential direction in the impugned opinion to have the petitioner arrested and taken into detention was uncalled for. 7. Per contra, the learned Additional Advocate General for the State has submitted that as the purported Government letter dated 04.09.2021 has been produced today for the first time by the learned counsel for the petitioner, he would require some instructions from the competent authorities before he make any submission thereon. However, it has been submitted that insofar as the legality of the second proceedings under the Foreigners (Tribunals) Order, 1964, it is well settled that subsequent proceedings is hit by the principles of res judicata. Moreover, it has been submitted that as the petitioner has already been declared as a foreigner, the legal requirement is that the petitioner cannot be allowed to move freely within the Country. 8. It may be mentioned that one of the submissions of the counsel for the petitioner was that in the earlier opinion dated 23.05.2016, the evidence tendered by the petitioner was not well discussed and therefore, he has prayed for allowing the subsequent proceeding to be remanded for a fresh decision. 9. In connection with the principles of res judicata, it is well settled that for the principles of res judicata to apply, there must be a prior decision between the same parties that is reasoned and supported by evidence. However, in the present case in hand, the legality of the opinion dated 23.05.2016, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. FT (C) 107/12 was assailed by the petitioner by filing a writ petition, which was registered as WP(C) 5122/2016, which was dismissed by the Division Bench of this Court by an order dated 07.03.2018. Therefore, for all intents and Page No.# 6/9 purposes, the previous opinion dated 23.05.2016, has attained finality. Under such circumstances, it would not be within the competence of this Court, which is a coordinate Bench to the Bench deciding WP(C) 5122/2016, to once again venture into the correctness or otherwise of the earlier opinion dated 23.05.2016, by which the petitioner was declared to be a foreigner. Therefore, the Court is of the considered opinion that insofar as the earlier opinion dated 23.05.2016 in Case No. FT (C) 107/12 is concerned, the same has attained finality. 10. Under such circumstances, we would refer to the decision of the Supreme Court of India in the case of Abdul Kuddus v. Union of India, (2019) 0 Supreme SC 604, which is also reported in AIR 2019 SC 2834, wherein after a thorough discussion on the Foreigners Act 1946, the Citizenship Act 1955, and the provisions of Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, it was held that the opinion rendered by a Foreigners Tribunal is a quasi-judicial order and not an administrative order. Accordingly, it was held that the principles of the res judicata would apply in the subsequent proceedings. Paragraph 19 and 20 of the case of Abdul Kuddus (supra) as extracted from (2019) 0 Supreme SC 604 is extracted below: “19. The procedure prescribed by the post 2012 amendment under the 1964 Order mandates compliance with the principles of natural justice. All the allegations and grounds are required to be served by the Tribunal in the form of a show cause notice to the person who is alleged to be a foreigner [see paragraph 60 in Sarbananda Sonowal (II) (supra)]. Thereupon, the person has to be given a reasonable opportunity to file representation and also produce evidence. The Tribunal has been authorised to consider and allow prayer for production and examination of the witnesses which can be refused if found to be vexatious, or made with the intent to cause delay, etc. The evidence produced by the Superintendent of Police can also be recorded. The person concerned has to be heard before the Tribunal gives its opinion. The person concerned may appear in person or can be represented by a legal practitioner or an authorised representative. Opinion is to be given within a period of Page No.# 7/9 sixty days after the reference from the competent authority. No doubt, the Rules do not prescribe and require an opinion of the Tribunal to be a detailed judgment, nevertheless, it is obvious that the opinion rendered must state the facts and reasons for drawing the conclusions. It is a decision and an order. Fixing time limits and recording of an order rather than detailed judgment is to ensure that these cases are disposed of expeditiously and in a time bound manner. The opinion by the Foreigners Tribunal is a quasi-judicial order and not an administrative order. The expression `quasi-judicial order' means a verdict in writing which determines and decides contesting issues and question by a forum other than a court. The determination has civil consequences. Explaining the meaning of quasi-judicial body in Indian National Congress (I) v. Institute of Social Welfare & Ors., (2002) 5 SCC 685, it was held that when any body of persons has a legal authority to determine questions affecting the rights of subjects and a duty to act judicially, such body of persons constitute a quasi- judicial body and decision given by them is a quasi-judicial decision. It would also be a quasi-judicial order if the statute empowers an authority to decide the lis not between the two contesting parties but also when the decision pre-judicially affects the subject as against the authority, provided that the authority is required by the statute to act judicially. Further, what differentiates an administrative act from the quasi-judicial act is that a quasi judicial body is required to make an enquiry before arriving at a conclusion. In addition, an administrative authority is the one which is dictated by policy and expediency whereas a quasi-judicial authority is required to act according to the rules. 20. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. Thus, it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the Order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for re-determination of the same issue/question. This court in Shrimati Ujjambai v. State of Uttar Pradesh & Anr., AIR 1962 SC 1621 has held that the principles of res judicata equally apply to quasi-judicial bodies. Whenever a judicial or quasi-judicial Tribunal gives a finding on law or fact, its findings cannot be impeached collaterally or in a second round and are binding until reversed in appeal or by way of writ proceedings. The characteristic attribute of a judicial act or decision is that it binds, whether right or wrong. Thus, any error, either of fact or law, committed by such bodies cannot be controverted otherwise by way of an appeal or a writ unless the erroneous determination relates to the jurisdictional matter of that body. In Dr. J.J. Page No.# 8/9 Merchant & Ors. v. Shrinath Chaturvedi, (2002) 6 SCC 635, when the learned counsel had pleaded that the National Consumer Disputes Redressal Commission cannot examine complicated questions of facts which require examination and cross- examination of experts including doctors and that the procedure followed for determination of consumer disputes being summary in nature is not suitable for determination of complicated questions, this court rejected these contentions and held that under the Consumer Protection Act, 1986, for a summary trial, an exhaustive procedure conforming to the principles of natural justice is provided. Merely because the trial is summary in nature cannot be a ground to reject it as unjust or unfair. Further, it was held in Rajesh Kumar & Ors. v. DY. CIT & Ors., (2007) 2 SCC 181, that when civil or evil consequences ensue by reason of an act done by the statutory authority, principles of natural justice must be followed. The Act and power of judicial review vested with the constitutional courts provide sufficient safeguards, in the present context.” 11. Accordingly, insofar as the impugned opinion dated 13.10.2022, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. F.T. 2091/2012 is concerned, one part of the said opinion, thereby declaring that the principles of res judicata have application in respect of the petitioner, who was already declared to be a foreigner vide opinion dated 23.05.2016, passed by the same learned Tribunal in Case No. FT (C) 107/12 and the application of the principles of res judicata does not warrant any interference and the challenge to that part of the opinion fails. 12. However, insofar as the direction by the said learned Tribunal to the Superintendent of Police (Border), Morigaon and to the Deputy Commissioner, Morigaon (now District Commissioner, Morigaon) to take the proceedee in detention is completely unwarranted as the learned Foreigners Tribunal could not have issued the warrant of detention when no warrant of arrest was pending in connection with the previous proceeding. Accordingly, the said part of the order for taking the petitioner in detention should have been left to the authorities competent to do so. Page No.# 9/9 13. Although the learned counsel for the petitioner has submitted that in the meanwhile, the petitioner has been released from the District Jail, Morigaon, where he was in detention, the directions contained in the impugned opinion to take the petitioner into detention is not found sustainable and said part of the order is interfered with and the same is set aside and quashed, without affecting any other part of the said opinion. 14. Accordingly, this petition stands party allowed insofar as the directions contained in the opinion dated 13.10.2022 is concerned for taking the petitioner into custody. However, it is clarified that the other part of the opinion, holding to the second proceeding to be barred by the principles of res judicata does not warrant any interference from this Court. To that extent, the said part of the opinion is held to be sustainable. 15. Accordingly, this writ petition stands partly allowed to the extent as indicated above. 16. The records of the Tribunal be sent back. JUDGE JUDGE Comparing Assistant