Guwahati: The Gauhati HC has set aside an order passed by a Foreigners’ Tribunal (FT) declaring a resident in Sonitpur district a foreigner after considering the fact that the tribunal had declared him an Indian citizen but subsequently passed an ex-parte order declaring the same individual a foreigner.

A Bench of the High Court comprising Justice N. Kotiswar Singh and Justice Malashri Nandi set aside the ex-parte order and remanded the matter back to the concerned FT.

The Bench also directed the FT to determine whether the petitioner was the same person who had earlier been declared an Indian citizen.  

“Accordingly, this shall be the preliminary issue which is to be decided by the Foreigners Tribunal Tezpur (1st), in F.T.(D) Case No.3512/2012 as to whether the present proceedee is the same person who was earlier declared an Indian citizen in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur. If it is found that the petitioner is the same person who was proceeded in F.T.(D) Case No.8312/2012 by the Foreigners Tribunal Tezpur (1st), Sonitpur, the present proceeding shall immediately be concluded in favour of the petitioner on the basis of the order passed in F.T.(D) Case No.8312/2012 on 31.08.2017 where the petitioner was declared an Indian citizen,” the Court observed.

“If, however, the decision is otherwise, the petitioner will be at liberty to challenge this opinion as well as the other findings by approaching this Court again,” it observed.

The petitioner, Md. Maynul alias Moinul Hoque, a resident of Jorgah village under Tezpur police station in Sonitpur district, had moved the plea against the impugned order of the FT dated December 31, 2020 declaring him to be a foreigner of the post-1971 stream.

The Court was apprised by the counsel appearing for the petitioner that the FT vide order dated August 31, 2017 had held that the petitioner had been able to discharge his onus to prove that he is not a foreigner but an Indian.

Accordingly, the reference was answered in the negative against the State and in favour of the petitioner. However, the concerned FT in the subsequent proceeding had taken a view that the petitioner had neither submitted his representation nor adduced his evidence in support of his claim that he is an Indian citizen and accordingly had failed to prove that he is an Indian citizen.

The counsel for the petitioner thereafter submitted that although the petitioner had appeared before the Tribunal after receiving the notice, the reason for the petitioner’s inability to appear before the FT on several occasions was because of ongoing COVID pandemic. As such, it was submitted that the ex parte order dated December 31, 2020 be set aside by remanding the matter to the FT, more particularly, in the light of the earlier opinion referred by the same Tribunal vide order dated August 31, 2017.

It was further contended that since there is a similarity in the names and particulars of the petitioner in both the proceedings, the second proceeding in respect of F.T.(D) Case No.3512/2012 dated December 31, 20220 before the Foreigners Tribunal, Tezpur (1st), Assam is not sustainable in view of the Supreme Court decision in Abdul Kuddus v. Union of India as the principle of res judicata will be applicable for the subsequent proceeding.

The Court further observed that the Supreme Court in Abdul Kuddus v. Union of India had held that if there had been an order by the FT in favour of a person determining the citizenship, the said decision will be binding on subsequent proceedings against the same person and there cannot be another proceeding to re-determine the citizenship of the person, by applying the principle of res judicata.

“In the present case, since this aspect could not be considered by the FT as it was decided ex parte, we are also of the view that the matter requires to be decided afresh by the Tribunal keeping in mind the earlier opinion dated 31.08.2017 in the light of the decision in Abdul Kuddus (supra),” it observed. Attachments

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