Page No.# 1/8 GAHC010012752023 2026:GAU-AS:12642-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/447/2023 ASAN ALI @ ASHAN ALI S/O BAHEJ ALI @ BAHAJUDDIN @ BAHEJUDDIN, VILL.- UZIRER CHAR, PIN- 783121, P.S.- PANCHARATNA, DIST.- GOALPARA (ASSAM). VERSUS UNION OF INDIA AND 5 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME DEPTT., NEW DELHI- 1. 2:STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI- 6. 3:SUPERINTENDENT OF POLICE (BORDER) GOALPARA P.O. AND P.S.- GOALPARA DIST.- GOALPARA ASSAM PIN- 783101. 4:DEPUTY COMMISSIONER GOALPARA DIST.- GOALPARA ASSAM PIN- 783101. 5:THE ELECTION COMMISSION OF INDIA REP. Y THE CHIEF ELECTION COMMISSIONER Page No.# 2/8 NEW DELHI- 1. 6:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM ACHYUT PLAZA BHARALUPAR BHANGAGARH GUWAHATI- 5 Advocate for the Petitioner : MR. M H ANSARI, MR. B HUSSAIN,MR. S ALIM Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, ECI,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 31.08.2026 (K.R. Surana, J) Heard Mr. S. Alim, learned counsel for the petitioner. Also heard Ms. R. Deb, learned CGC; Ms. A. Verma, learned standing counsel for the FT and Border matters; Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State respondent. 2. In brief, the case of the petitioner is that by an opinion dated 29.12.2017, passed by the learned Member, Foreigners Tribunal No.8, Goalpara, in Case No. F.T.(8) 808/2016, arising out of I.M.(D).T Case No. 838/2001, the petitioner namely, Md. Asan Ali was declared to be not a foreigner. Thereafter, the petitioner suffered a second proceedings, before the same learned Tribunal. In the said proceedings by an opinion dated 02.04.2019, passed by the learned Member, Foreigners Tribunal 8th, Goalpara, in F.T. Case No. 901/18, declared to Page No.# 3/8 be a foreigner of post 25.03.1971 stream despite considering the earlier opinion dated 29.12.2017. 3. Accordingly, the subsequent opinion dated 02.04.2019, came to be challenged by the petitioner before this Court by filing WP(C)/5074/2019. A co- ordinate Bench of this Court, on examining the materials on record, was of the view that there is every likelihood that the petitioner is the same person who was proceeded in earlier proceedings in F.T. (8) Case No.808/2016. Accordingly, in light of the decision of the Supreme Court of India in the case of Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604, this Court was of the opinion that the second proceeding would be hit by the principles of res judicata as such the second proceedings would not lie. Resultantly, the matter was remanded back to the said learned Tribunal for a fresh consideration as to whether the present petitioner is the same person or not who was earlier proceeded in Case No. F.T. (8) 808/2016. The said learned Tribunal was directed that the aforesaid exercise shall be done after the hearing the petitioner as well as considering the materials available on record. It may be stated that the this Court had further observed that the learned Tribunal could not have made the observation on merit about the earlier proceedings as the earlier proceedings had attained finality and that unless the same is challenged by any of the parties before the competent authority, except its applicability. 4. On remand the learned Tribunal, registered Misc. Case No. 01/2021 and by order dated 30.06.2022, on comparative reading of the reference made in both cases, observed that the proceedee in respect of F.T. (8) 808/16 was Md. Asan Ali, son of Late Bahej Ali of village-Moukhowa Char under Pancharatna RPS, Goalpara and the proceedee in the present case in F.T. case No. 901/18, was Md. Asan Ali, son of Late Bahej Ali of vill-Fakirpara Majerchar, under Page No.# 4/8 Pancharatna RPS, Goalpara and that the proceedee in the earlier case was detected by the Enquiry Officer on 21.12.2001 and the later case was detected on 16.08.2003. The said learned Tribunal noted that the certified copies of documents which were submitted in the original was not found in the records of F.T. (8) 808/16, which was retuned back to the proceedee. Accordingly, on the ground that the present set of documents belong to Asn Ali son of Bahej Ali who is a resident of Uzirer char is completely different from the villages reflected by both the referral authority in respect of the proceedes in both cases. Accordingly, the learned Tribunal held that the petitioner had failed to establish that the proceedee, namely, Md. Asan Ali son of Late Bahej Ali of village- Moukhowa Char under Pancharatna RPS, Goalpara of Case No. F.T.(8) 808/2016 is the same person who was proceeded in F.T. Case No. 901/2018 is Md. Asan Ali son of Late Bahej Ali of vill-Fakirpara Majerchar, under Pancharatna RPS, Goalpara, held that the petitioner had failed to explain how he was reflected in two different villages within nearby same time span and not to speak of the third village emerge out of the documents on record. Accordingly, it was held that the principles of res judicata was not applicable in the present proceedings and as the opinion dated 02.04.2019 was not set aside by the Court, the same was made effective on the petitioner. 5. The learned counsel for the petitioner has made his submissions to oppose the impugned opinion. The learned standing counsel for the Border and FT matters has made her submissions to support the impugned opinion and consequent order dated 30.06.2022, passed in Misc. Case No. 01/2021. 6. On a perusal of records of both the proceedings, it is noted that in the proceedings of Case No. F.T.(8) 808/2016, the enquiry was ordered by the Superintendent of Police (B), Goalpara, in exercise of power conferred under Page No.# 5/8 Sub-Section 1 of the Section 8 of the Illegal Migrants (Determination) by Tribunals Act, 1983. The address of the petitioner was referred to as vill- Moukhowa Char, under Pancharatna RPS, Goalpara. 7. On a perusal of Tribunal’s record in so far as the proceedings of Case No. F.T.(8) 808/2016, at page no.13 thereof, which is part of the investigation by the concerned Enquiry Officer, it is a copy of the voter list of 1966 which is hand written by someone in course of the enquiry contains a remark by the SI of police of Goalpara RPS that on checking it is found that the voter list is not of petitoner’s parents as per calculation of age which is a note dated 10.02.2002. As per the said copy of the voter list, the name of the voter at serial no. 259, house no. 76, is Bahej Ali, 32 years, son of Mayed and the name of the second voter at serial no. 260 of house no. 76, is Achiron Nessa, 25 years, wife of Bahej. The voter list of 1966 was exhibited by the petitioner in the proceedings of F.T.(8) 808/16 as Ext.A bearing the same names of voter no.1 in respect of the voter list of 1966 with serial no.259 of house no.76. In the second proceedings of F.T. Case No.901/18, the petitioner has exhibited certified copy of electoral roll of 1966 bearing the name of his projected father and the projected mother appearing in serial nos. 259 and 260 against house no.76 of vill-Moukhowa Char as Ext.A. 8. Under the circumstances, when this Court by order dated 01.11.2021, passed in WP(C)/5074/2019, remanded the matter back for a fresh opinion by considering as to whether the present petitioner is the same person or not who was earlier proceeded in the Case No. F.T.(8) 808/16, learned Tribunal was required to hear the petitioner and consider the materials available on record. 9. Under the circumstances, when two villages referred to in of Moukhowa Char and Fakirpara Majerchar fall under the same police station and Page No.# 6/8 that the same set of documents were produced in both the cases in the electoral roll of 1966, 1985, 1997, 2011 which were also exhibited in the earlier case of F.T.(8) 808/2016, yet the learned Tribunal disbelieved the evidence only because of the lack of explanation as to how he was detected by the Enquiry Officer in two different villages. In the said regard, the Court is of the considered opinion that at least an opportunity ought to have been granted by the petitioner to explain the same. Moreover, the police station of the petitioner remains the same, mere change in the address from one village to the another will be of no consequence, the same set of documents are otherwise exhibited by the petitioner in both the cases and DW-2 in both the cases is also same. 10. The Court is inclined to make the aforesaid observation in view of the fact that at the time of the enquiry also in connection with F.T.(8) 808/16, not only petitioner referred to the voter list of 1966, the Enquiry Officer also referred to the same in his enquiry which bears credence to the plea of the petitioner that his parents resided in above referred village and that even if there was a shifting, was within the same police station. 11. This Court, while examining the challenge to the opinion passed by the Foreigners Tribunal, is exercising certiorari jurisdiction and not appellate or revisional jurisdiction. Therefore, the Court has no option but to remand the matter for the second time before the learned Member, Foreigners Tribunal No.8, Goalpara for fresh consideration in accordance with law. 12. As the matter is being remanded for the second time, the Court is inclined to observe that on the date of appearance, the petitioner shall submit his additional evidence to show and explain the shifting from one village to another, if necessary with supporting documents, if available. If such a prayer is made by the learned counsel for the petitioner and additional evidence is filed Page No.# 7/8 on his date of appearance, the said learned Tribunal shall take the same for consideration. 13. In order to facilitate the remand and a fresh opinion, the Court is inclined to set aside the impugned opinion dated 02.04.2019, passed by the learned Member, Foreigners Tribunal 8th, Goalpara as well as order dated 30.06.2022, passed by learned Member, Foreigners Tribunal 8th, Goalpara. 14. As prayed for learned standing counsel for the Border and FT matters, the Court is inclined to provide that in the event the learned Tribunal desires to call for a report from the concerned Superintendent of Police (Border) for verification and identification of the petitioner, it would be permissible. for the said learned Tribunal to do so. 15. The petitioner, namely, Asan Ali @ Ashan Ali, who is duly represented by his learned counsel, is directed to appear before the said learned Tribunal within the outer time limit of 30.09.2026 and by producing a certified copy of this order, file his additional evidence and documents, if so advised. 16. It is made clear that if the petitioner remains absent or does not appear within the outer date fixed for appearance, it would be open to the said learned Tribunal to treat the petitioner absent on call and pass appropriate orders on the basis of materials available on record. 17. It is further provided that on the date of appearance of the petitioner, he shall be ready and willing to take bail of such sum as may be deemed fit and proper by the learned Tribunal. It is provided that the bail so granted by the learned Tribunal shall be valid for a period of 30 (thirty) days from the date of the opinion that may be passed by the said learned Tribunal. Page No.# 8/8 18. The Registry shall return back both the Tribunals records expeditiously along with a copy of this order to be made a part of record by the said learned Tribunal. 19. The writ petition stands partly allowed with an order of remand to the extent as indicate above. 20. Parties shall have to bear their own cost. 21. The learned standing counsel for the FT and Border matter is at liberty to send a downloaded copy of this order to the concerned authorities. JUDGE JUDGE Comparing Assistant