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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. Kotiswar Singh, Nani Tagia, JJ.
Sital Mandal, Son of late Mangal Mandal – Appellant
Versus
The Union of India, Represented by the Secretary to the Government of India – Respondent
WP(C) Nos.2099, 2601, 4610, 8491, 8493 of 2018, 822, 2239, 8189, 8253 of 2019, 1816 of 2020, 3514 of 2021
Decided on : 28-04-2022
Constitution of India, 1950 - Article 5, 6, 7, 8, 9, 141, 142, 226 - Civil Procedural Code, 1908 – Section 11, 24 – Indian Penal Code, 1860 - Section 304B - Foreigners Act, 1946 - Section 3, 9 - Citizenship Act, 1955 - Section 3, 6-A, 6-A(3), 6-A (1) (e) - Foreigners (Tribunals) Order, 1964 - National Register of Citizens, 1951 - Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 - NDPS Act, 1985 - Section 35 - POCSO Act, 2012 - Section 29 - Scrutiny of applications – Appeal - Principle of res judicata - Orbiter dicta - Applicability of res judicata - Dowry death - Whether present petitioner is same person who was proceeded earlier in F.T. (Nal) Case since issues before learned Tribunal in both proceedings are same, i.e., whether proceedees are foreigners or not - Whether principle of res judicata will be applicable in subsequent proceeding or not - Whether present proceedee is same person who was proceeded in earlier two proceedings in which favourable orders were passed – In spite of burden of proof cast on the proceedee as provided under Section 9 of the Foreigners Act, 1946, the standard of proof required is "preponderance of probability" and not proof beyond all reasonable doubts (Para 40.6).
Finding of the Court :
Court are of view that it will not be necessary for Tribunal to examine said issue again based on decision of this Court in (Supra) in light of our discussion made above - He was decided on basis, which is no more a good law, in view of decision and as such, cannot be relied upon anymore - Court, accordingly, direct that whenever a proceedee takes plea of applicability of res judicata on ground that he had been already declared not a foreigner but an Indian by Foreigners Tribunal in an earlier proceeding - Tribunal has to take up it as preliminary issue before going into merit of case and proceeded in subsequent proceeding has to show that he is same person who was proceeded earlier - In present proceeding, Tribunal has to first determine whether petitioner is same person who was proceeded in earlier proceeding - Thus, scope of examination is confined only to issue whether petitioner is same person who was proceeded earlier or not - For that purpose, there can be examination of evidences in form of oral documents and evidences to arrive at such a satisfaction - If Tribunal on such examination comes to a conclusion that present proceedee is same person who was proceeded in earlier proceeding, there is no need to go into merit of case any further, by way of filling any written statement and documents etc - Court would also like to remind learned Tribunal that in spite of burden of proof cast on proceedee as provided under Section 9 of Foreigners Act, 1946, standard of proof required is "preponderance of probability" and not proof beyond all reasonable doubts - Therefore, if petitioner is able to establish on basis of preponderance of probabilities that he is same person who was proceeded earlier in whose favour a favourable opinion was rendered that he is not a foreigner, Tribunal has to close present proceeding.
Result : Writ petition allowed
JUDGMENT :
N. Kotiswar Singh, J.
Heard Mr. B.C. Das, learned counsel for the petitioners in WP(C) No.2099/2018 and WP(C) No.2601/2018; Mr. A.R. Sikdar, learned counsel for the petitioner in WP(C) Nos.4610/2018, 8491/2018, 8493/2018, 822/2019; Mr. F.U. Barbhuiya, learned counsel for the petitioner in WP(C) No. 2239/2019; Mr. K.M. Hassan, learned counsel appearing for the petitioner in WP(C) No.8189/2019; Mr. M. Khan, learned counsel appearing for the petitioners in WP(C) No.8253/2019 & WP(C) No.3514/2021 and Mr. H. Ali, learned counsel for the petitioner in WP(C) No.1816/2020.
Also heard Mr. A. Kalita and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal for the State respondents; Mr. A.I. Ali, learned Standing Counsel, ECI; Ms. U. Das, learned Additional Senior Govt. Advocate, Assam; Mr. A.K. Dutta, learned Central Government Counsel and Ms. L. Devi, learned Standing Counsel, NRC.
2. The common theme which runs through this batch of writ petitions is the applicability of the principle of res judicata. The petitioners contend based on the decision in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604 [Abdul Kuddus for short] that the subsequent proceedings before the Foreigners Tribunals challenged in these petitions are barred by res judicata. Though many such petitions have been already allowed by this Court on the basis of the decision in Abdul Kuddus, learned Special Counsel for the Foreigners Tribunal submits that the law laid down by this Court in Amina Khatoon Vs. Union of India, (2018) 4 Gau LR 643 [Amina Khatoon for short] in which it was held that res judicata is not applicable in the proceeding before the Foreigners Tribunal will continue to hold the field, as the said decision has not yet been overruled by the Hon’ble Supreme Court till date. Neither it has been challenged before the Hon’ble Supreme Court so far.
3. The contention of the Special Counsel is based on the following premises.
3.1. It has been submitted that the issue before the Hon’ble Supreme Court in Abdul Kuddus was about the perceived conflict between sub-para (2) to Para 3 and Para 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards)Rules, 2003 (2003 Rules for short) which related to denial of registration by the NRC authorities and not relating to any decision of the Tribunal declaring any procedee to be a foreigner, and as such any observation by the Hon’ble Supreme Court about res judicata is merely an orbiter dicta and the decision in Abdul Kuddus will be confined to the facts of the case.
It has been submitted that in the said case before the Hon’ble Supreme Court, no decision of the Foreigners Tribunal declaring a person to be a foreigner was challenged. On the other hand, the issue of res-judicata was pointedly decided by this Court in Amina Khatoon that res-judicata is not applicable in the proceedings before the Foreigners Tribunals. Further, applicability of res judicata before the Foreigners Tribunal was not the specific issue raised nor considered in Abdul Kuddus.
It has been also submitted that the judgment of Amina Khatoon was neither challenged nor brought to the notice of the Hon’ble Supreme Court. Thus, the decision in Amina Khatoon has remained unchallenged and as such, will continue to be binding and hold the field.
3.2. It has been further submitted that a Special Leave to Appeal No.19253 of 2018 was filed before the Hon’ble Supreme Court against a decision of this Court in Shahjahan Ali Vs. Union of India & Ors, [Writ Petition No. 3362 of 2018] relying on the decision Amina Khatoon that the principle of res judicata is not applicable in a proceeding before the Foreigners Tribunal. The Hon’ble Supreme Court dismissed the said SLP. According to the learned Special Counsel, dismissal by the Hon’ble Supreme Court of the SLP preferred against decision in Shahjahan Ali (supra) affirms the decision rendered in Amina Khatoon that res-judicata is not applicable.
3.3. Further, relying on the
Point of Law : POCSO - In spite of burden of proof cast on the proceedee as provided under S. 9 of Foreigners Act, 1946, the standard of proof required is "preponderance of probability" and not proof....
The principle of res judicata applies to proceedings before the Foreigners' Tribunal, and the earlier opinion of the Tribunal has a binding effect.
The principle of res judicata applies to quasi-judicial decisions, requiring reasoned orders for binding effect in subsequent proceedings.
The burden of proof on the suspect to establish citizenship and the consequences of failing to discharge that burden, as well as the requirement for reasoned orders in cases before the Foreigners' Tr....
The burden of proving citizenship lies with the individual claiming it, and mere oral testimony is inadequate without corroborating documentary evidence.
The need for coordinated investigations and joint proceedings for closely related individuals to avoid conflicting opinions and ensure fair determination of citizenship status.
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