Page No.# 1/9 GAHC010053802026 2026:GAU-AS:3891- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1576/2026 BAHAR ALI SON OF LATE DULU SHEIKH,R/O-VILL- LATABARI FAHURATALI, P.O. P.S.- SIPAJHAR, DIST- DARRANG,ASSAM, PIN- 784145. VERSUS THE UNION OF INDIA AND OTHRS REPRESENTED BY ITS SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF HOME AFFAIRS, NEW DELHI-110001.. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE SUPERINTENDENT OF POLICE (B) DARRANG MANGALDAI ASSAM 4:THE DISTRICT COMMISSIONER DARRANG MANGALDAI ASSAM 5:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001 Page No.# 2/9 6:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM BHANGAGARH GUWAHATI-05 DIST- KAMRUP (M Advocate for the Petitioner : MS S. MEHJABIN, MR. R ALI,MR M Z SHAH,MR G U AHMED Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, ECI,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 18.03.2026 (K.R. Surana, J) Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. B. Deka, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC, Ms. S. Katakey, learned standing counsel for the ECI and Ms. R.B.Bora, learned Junior Govt. Advocate. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 31.05.2018 passed by the learned Member, Foreigners Tribunal (4th), Darrang, Mangaldai, in F.T. 4th Case No.76/SPR/2017, [F.T. 1st Case No.1220/12, Ref. F.T. Case No. 232/07 dated 30.06.2007], by which the petitioner was declared to be a foreigner of post 25.03.1971 stream. The contents of the said opinion reveals that though the petitioner had filed his written statement, but he did not tender any evidence and therefore, the learned Tribunal, taking note of Order 3(4) of the Foreigners Page No.# 3/9 (Tribunals) Order, 1964 passed the opinion on account of failure of the petitioner to discharge his burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 3. As there is an inordinate delay of 8 years in assailing the said opinion, the learned counsel for the petitioner was asked to address the Court on the delay and laches. It has been submitted by the learned counsel for the petitioner that there is an inordinate delay in assailing the said opinion, but he places reliance on an earlier opinion dated 09.12.1999 passed by the learned Member, Foreigners Tribunal, Darrang, Mangaldoi, in F.T. Case No.1613 of 1998 (S.P. Enquiry No.6,988/98), by which the petitioner was held to be not a foreigner who entered Assam between 01.01.1966 and 25.03.1971. Accordingly, he was declared to be not a foreigner who entered Assam between the said dates. It is further submitted that, as there already existed an opinion declaring the petitioner to be not a foreigner, the petitioner was under a bona fide impression that his learned counsel would take care of the procedures and only in the month of November, 2025, when the State started taking action against the declared foreigners, he contacted his learned counsel and came to know about the opinion already rendered on 31.05.2018. 4. The learned Standing counsel for the FT and border matters has submitted that the previous opinion dated 09.12.1999 is absolutely a non-speaking order and without discussing the evidence, it has only been mentioned in the said opinion that, on a perusal of the Gaonburah certificate dated 28.04.1999, certifying that the petitioner Bahar Ali is the son of Dulu Seikh, whose name appears in the Electoral Roll of 1966, the petitioner was declared not to be a foreigner entering into Assam between 01.01.1966 and 25.03.1971. Accordingly, Page No.# 4/9 it is submitted that the said opinion is not sustainable either on facts or in law. 5. Accordingly, by referring to the decision of this Court in the case of Rafikul Islam vs. Union of India & Ors, 2023 (3) GLT 911 and Md. Amir Ali @ Amiruddin, WP (C) 1248 /2023, decided on 27.03.2023, it is submitted that if the opinion expressed by the Foreigners Tribunal is a non-speaking order without any discussion of facts or law, the principle of res judicata would not apply in respect of such orders. It is also submitted that in view of the inordinate delay in assailing the impugned opinion, no interference with the said opinion is called for. 6. Considering the materials available on record in this writ petition and in order to deal with the submissions made by the learned Standing Counsel for the FT and border matters, it would be appropriate to quote the opinion dated 09.12.1999. “Suspected foreigner of 66-71 category Bahar Ali is present. Perused the record. Perused the original copy of certificate dtd, 28.4.99 issued by the Gaioburha of Sanowa village, Mouza- Sipajhar, P.S. Sipajhar. Certify that Bahar Ali is the son of Dulu Seikh, whose name appears in the electoral roll of 1966, (as it appears from the certified copy of the electoral roll issued by the I. Ali, Electoral Registration Officer of 71 Rangamati L.A. Constituency). It appears from the above that Behar All is not a person who entered Assam in between 1-1-1966 and 25-3- 1971. Accordingly, it is declared that Bahar Ali is not a foreigner who entered into Assam in between the above two dates.” 7. From the above, although we find some force in the submissions made by the learned Standing Counsel for the FT and border matters that the previous opinion is based merely on a certificate dated 28.04.1999 issued by the Gaonburah which is contrary to the law laid down by this Court in a catena of Page No.# 5/9 cases wherein it is stated that the Gaonburah certificate or the oral testimony of the witness stating the procedee to be the son is inadmissible in evidence. If one needs any authority on the point, the decision of this Court in Kadbanu Begum vs. Union of India & Ors, (2018) 4 GLR 674, may be referred to. 8. Be that as it may, even assuming that the learned Standing Counsel for the FT and border matters is correct that the said opinion dated 09.12.1999 is a non-speaking order, yet the Court is bound by the observations made by the Full Bench of the Supreme Court of India in paragraph- 24 of the case of Abdul Kuddus vs. Union of India, (2019) 6 SCC 604: (2019) 0 Supreme (SC) 604, which is extracted herein under: “24. 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 redetermination of the same issue/question. This Court in Ujjam Bai v. State of U.P., AIR 1962 SC 1621, has held that the principles of resjudicata 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.” [extracted from (2019) 0 Supreme (SC) 604] 9. In paragraph-24 of the case of Abdul Kuddus (supra), the Supreme Court of India had referred to the judgment of Ujjam Bai vs. the State of U.P. and Page No.# 6/9 Ors., AIR 1962 SC 1621. The said judgment is by a 7 Judges Bench. In the aforesaid paragraph 24, the Supreme Court of India had clearly held that the characteristic attribute of a judicial act or decision is that it binds, whether right or wrong. Therefore, even if this Court may not agree with the nature of opinion expressed on 09.12.1999, but it has a binding character and therefore, the said opinion would still attract the principle of res judicata in the subsequent proceedings. 10. We hasten to add that notwithstanding any observations made in this order, it appears that the State has not questioned the said opinion dated 09.12.1999. This observation is made in view of the decision of this Court in the case of Rukia Begum Barbhuiya @ Rukia Begum vs- Union of India & Ors, 2023 (4) GLT 1208 , where this Court had discussed the law relating to Section 2 (1) of the Foreigners (Tribunals) Order and Section 2 (a) of the Foreigners Act, 1946 and Section 6-A of the Citizenship Act, 1955 and has held that the reference before the Tribunal can only be as to the ”foreigners” as defined in Order 2 (1) of the Foreigners (Tribunals) Order, 1964 read with Section 2 (a) of the Foreigners Act, 1946 as to whether a person is not a foreigner, notwithstanding that the reference was to the effect whether the procedee had entered the State of Assam between 01.01.1966 and 25.03.1971. We make it clear that the aforesaid observation shall not be construed as a finding of the court on the merit of the opinion dated 09.12.1999 passed by the learned Member, Foreigners Tribunal, Darang, Mangaldai in FT Case No.1613/1998 (S.P.Enquiry No.6,988/98). 11. In so far as the present case is concerned, notwithstanding that there is Page No.# 7/9 an inordinate delay and laches on the part of the petitioner to assail the opinion dated 31.05.2018 passed by the learned Member, Foreigners Tribunal (4th), Darrang, Mangaldai but as the principle of res judicata applies, the Court is of the considered opinion that the petitioner deserves a chance to participate in the proceedings of the subsequent case of F.T.4th Case No.76/SPR/2017. 12. It would now be appropriate to deal with the cases of Rafiqul Islam (supra) and Md.Amir Ali @ Amiruddin (supra) cited by the learned Standing counsel for the FT and border matters. It appears that when these two matters were decided, the Full Bench decision of the Supreme Court of India in the case of Abdul Kuddus (supra) was perhaps not placed before the Bench. Therefore, as the finding of the Full Bench of the Supreme Court of India in the case of Abdul Kuddus (supra), would bind this Court, the decisions in the case of Rafiqul Islam (supra) and Md.Amir Ali @ Amiruddin (supra), being contrary to the law laid down in paragraph-24 of the case of Abdul Kuddus (supra), the Court would be more inclined to follow the Full Bench decision of Supreme Court of India in the case of Abdul Kuddus (supra) . 13. As already indicated above, as the Court is of the view that the petitioner deserves one chance to participate in the proceedings of F.T. (4th) Case No.76/SPR/2017, the Court is inclined to pass the following orders: (a) The opinion dated 31.05.2018, passed by the learned Member, Foreigners Tribunal (4th), Darrang, Mangaldai in F.T. 4th Case No.76/SPR/2017, [F.T.1st Case No.1220/12, Ref. F.T. Case No. 232/07] is hereby set aside. (b) The petitioner, who is duly represented by his learned counsel is directed to appear before the said learned Tribunal on or before 30.04.2026 and apart Page No.# 8/9 from producing a certified copy of this order also file his evidence-on-affidavit and also the evidence-on-affidavit by any other witness, as the petitioner so desires. (c) On the appearance of the petitioner on 30.04.2026, the said learned Tribunal shall make an endeavour to dispose of the proceedings within the period of 60 (sixty) days prescribed under Order 3(14) of the Foreigners (Tribunals) Order, 1964, if required, by taking day-to-day proceedings. (d) In the event the petitioner fails to appear within the time allowed, or remains absent and unrepresented on any other date fixed, it would be permissible for the said learned Tribunal to treat the petitioner as absent on call, and pass such orders as it would deem fit and proper. 14. In view of the inordinate delay, we direct the petitioner to deposit a cost of Rs.5,000/- (Rupees Five Thousand only) before the Member Secretary, District Legal Services Authority, Darrang, Mangaldai within 30.04.2026 and produce a copy of the receipt of such deposit before the learned Foreigners Tribunal. 15. The payment of cost is made a precondition for setting aside this order. Therefore, in the event the cost is not paid, the learned Tribunal would have the liberty to refuse to accept the evidence-on-affidavit, unless the same is accompanied by a copy of the money receipt of deposit of such cost. 16. This order has been passed without issuance of notice on the respondents at the motion stage. Page No.# 9/9 17. This writ petition stands allowed to the extent as indicated above with costs against the petitioner as ordered above. JUDGE JUDGE Comparing Assistant