Page No.# 1/6 GAHC010068582019 2025:GAU-AS:17550 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2588/2019 SANTOSH BISWAS S/O. LT. JOGESH BISWAS @ JOGESH CH. BISWAS, R/O. VILL.- TULSIBARI, P.S. RANGIA, DIST. KAMRUP(R), ASSAM. VERSUS THE UNION OF INDIA AND 7 ORS. THROUGH HOME SECY., MINISTRY OF HOME, GOVT. OF INDIA, NEW DELHI. 2:THE STATE OF ASSAM REP. BY THE SECY. DEPTT. OF HOME AFFAIRS GOVT. OF ASSAM DISPUR GHY.- 781006. 3:THE ELECTION COMMISSIONER ASSAM DISPUR GHY.- 6. 4:THE STATE CO-ORDINATOR NATIONAL REGISTRATION OF CITIZENS (NRC) BHANGAGARH GHY.-5. 5:THE DY. COMMISSIONER KAMRUP(R). Page No.# 2/6 6:THE SUPERINTENDENT OF POLICE (B) KAMRUP(R). 7:THE FOREIGNERS TRIBUNAL NO. 5 KAMRUP(R). 8:THE OFFICER-IN-CHARGE OF RANGIA P.S Advocate for the Petitioner : MR. H A SARKAR, Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ECI,SC, NRC BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 16.12.2025 (K.R. Surana, J) Heard Mr. H.A. Sarkar, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Ms. A. Verma, learned standing counsel for the FT and Border matters; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Sri Santosh Biswas, son of Late Jogesh Biswas @ Jogesh Ch. Biswas has assailed the impugned opinion dated 10.01.2019, passed by the learned Member, Foreigner’s Tribunal No. 5, Kamrup (R), Assam at Rangia, in R.F.T. Case No. 905R/2016, corresponding to Police Case No. 91/01, by which the petitioner was declared as an illegal migrant. 3. The petitioner on service of notice, appeared and filed his written Page No.# 3/6 statement amongst others, stating that the father of the petitioner had migrated to India from erstwhile East Pakistan prior to 1950 and obtained citizenship certificate in the year 1956 at Rangia. 4. Moreover, in support of his defence, the petitioner has examined himself as DW-1. He had also examined one Nepal Paul as DW-2, who is a co- resident of the same village. The petitioner has examined Chandradhar Kalita, Govt. Gaonburah of the village as DW-3, one Praneswar Patwari was examined as DW-4 and one Nikhil Biswas, projected brother of the petitioner was examined as DW-5. 5. Following documents were exhibited by the petitioner:- First page of un-registered agreement (Ext.1), the relevant entry in the back page [Ext.1(1)], registered sale deed exhibited on 01.09.1971 (Ext.2), order passed by the learned Foreigners Tribunal dated 26.06.1989, passed by the learned Foreigners Tribunal, Guwhati in M.F.T. Case No. 1726/88, 1727/88, 1728/88 and 1729/88 in respect of his brother and himself, namely, Ashok Biswas, Satish Biswas and himself together with their father Jogesh Biswas (since deceased), who had held to be not foreigners. The residence certificate was exhibited as Ext. 4 issued by the local Gaonburah on 17.12.2018, second page of the saving account passbook of the petitioner (Ext.5), Identity Card of Chandradhar Kalita (Ext.6), Admit card of High School leaving certificate of Akhil Ch. Biswas (Ext.7) and Elector Photo Identity Card, proved in original, of Nikhil Biswas (Ext. 8) 6. The learned Tribunal discarded all the exhibited documents as those Page No.# 4/6 documents do not establish that the petitioner was an Indian Citizen. In Ext.1, the date of exhibition of the agreement was not found and moreover, the same was un-registered agreement. The sale deed was of 01.09.1971, which was post cut-off date of 25.03.1971. As regards Ext.3, the same was discarded as principle of res judicata embodied in Section 11 of the CPC would not attracted to proceedings under Foreigners Act. The other documents were also discarded as they do not prove the existence of the petitioner prior to 25.03.1971. 7. The challenge to the impugned opinion is opposed by the learned standing counsel for the FT and Border matters on the ground that the opinion dated 26.06.1989 (Ext.3), relied upon by the petitioner, does not assign any reason to declare petitioner and other family members to be not a foreigners and no evidence was given in the said case to prove that the proceedees were not foreigners. 8. In so far as the applications of the principles of res judicata in proceedings before the Foreigners Tribunal, we may refer decision of Supreme Court of India in case of Abdul Kuddus Vs. Union of India & Ors., (2019) 6 SCC 604. The said decision was rendered on 17.05.2019. Accordingly, the opinion of the learned Tribunal that the principles of res judicata does not apply in the proceedings of Foreigners Tribunal is deemed to have been retrospectively over ruled. The said principles is also been followed by this Court in the case Jahir Ali Vs. Union of India, (2021) 3 GLR. 9. As the learned Tribunal did not doubt that the proceedee in the proceedings of M.F.T. Case No. 1729/88 was not the father of the petitioner or that the proceedee in M.F.T. Case No. 1728/88 is not the petitioner, as far Page No.# 5/6 as Ext. 3 is concerned the principles of res judicata will apply in respect of the petitioner. Accordingly, the impugned opinion is not found to be sustainable. 10. Accordingly, the opinion dated 10.01.2019, passed by the learned Member, Foreigner’s Tribunal No. 5, Kamrup (R), Assam at Rangia, in R.F.T. Case No. 905R/2016, corresponding to Police Case No. 91/01, is hereby set aside. 11. The matter is remanded back to the said learned Tribunal to consider the case of the petitioner afresh by giving him an opportunity to prove that the petitioner namely, Late Jogesh Biswas @ Jogesh Ch. Biswas, is one and same person in whose favour the previous opinion dated 26.06.1989 was passed by the learned Foreigners Tribunal, Guwahati in M.F.T. Case No. 1728/1988 and that he is the son of Late Jogesh Biswas @ Jogesh Ch. Biswas proceedee in M.F.T. Case No. 1729/1988. 12. If it is found that the present petitioner is same person, who was the procedee in the earlier proceedings, the present reference against the petitioner, referred to in the impugned opinion dated 10.01.2019, passed by the learned Member, Foreigner’s Tribunal No. 5, Kamrup (R), Assam at Rangia, in R.F.T. Case No. 905R/2016, corresponding to Police Case No. 91/01, shall be dropped. 13. The petitioner is on bail vide order dated 24.04.2019. The said bail is extended till 30.01.2026 within which time the petitioner shall appear before the learned Foreigners Tribunal No.5, Kamrup at Rangia and by producing a certified copy of the order present before the said learned Tribunal all the documents to establish that he is the procedee in the previous proceedings Page No.# 6/6 and that he is the son the proceedee in M.F.T. Case No. 1729/1988. 14. Extension of bail shall be subject to further orders that may be passed by the learned Tribunal. In the event if the petitioner is found to be an Indian, the conditions imposed of bail shall cease to operate and the bail bond would stand discharged. 15. The records of the Tribunal be sent back expeditiously along with a copy of this order, to be made a part of record by the said learned Tribunal. 16. The writ petition stands allowed to the extent as indicated above. JUDGE JUDGE Comparing Assistant