Dismissed

Shahjahan Ali v. the Union of India and 13 Ors.

Gauhati HC5 Jun 2018WP(C)/3362/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging an adverse opinion by a Foreigners Tribunal. The petitioner was directed to file a written statement before the Tribunal, as the court found no immediate cause for interference at that stage, noting a previous opinion in his favor.

What did the court decide?

Writ petition dismissed; direction to file written statement before the Tribunal.

Shahjahan Ali Vs the Union of India… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/7

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GAHC010106952018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 3362/2018

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1:SHAHJAHAN ALI

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S/O. AMAN ALI @ IMAN ALI SK., VILLAGE- CHARUA BAKHRA, JUNGLE BLOCK, P.O. CHAPAR, P.S. CHAPAR, DISTRICT- DHUBRI ASSAM PIN-783374

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VERSUS

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1:THE UNION OF INDIA AND 13 ORS.

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REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-01.

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2:THE ELECTION COMMISSIONER OF INDIA REPRESENTED BY COMMISSIONER NEW DELHI-01.

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3:THE STATE OF ASSAM REPRESENTED BY CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GHY-6.

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4:THE STATE CO-ORDINATOR NRC ASSAM BHANGAGARH GHY.-05.

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5:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GHY-06. 6:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GHY-05.

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Page No.# 2/7

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7:THE DEPUTY COMMISSIONER DHUBRI ASSAM PIN- 783301. 8:THE SUPERINTENDENT OF POLICE (B) DHUBRI ASSAM PIN- 783301. 9:THE DEPUTY COMMISSIONER KAMRUP(M) ASSAM PIN- 780001 10:THE COMMISSIONER OF POLICE (B) KAMRUP(M) ASSAM PIN- 780001. 11:THE OFFICER-IN-CHARGE CHAPAR POLICE STATION DIST.- DHUBRI ASSAM PIN- 783375. 12:THE OFFICER-IN-CHARGE GEETA NAGAR POLICE STATION DIST.- KAMRUP(M) ASSAM PIN- 780001. 13:THE ELECTORAL REGISTRATION OFFICER (ERO) 27TH BILASIPARA EAST LAC BILASIPARA PIN- 783348. 14:THE FOREIGNERS TRIBUNAL NO. 2 KAMRUP(M) GUWAHATI- 780003

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Advocate for the Petitioner : MR. M U MONDAL

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Advocate for the Respondent : ASSTT.S.G.I.

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Page No.# 3/7

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BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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ORDER

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Date : 05-06-2018

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(Ujjal Bhuyan, J.)

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Heard Mr. M.U. Mondal, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, FT.

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By filing this petition under Article 226 of the Constitution of India, petitioner has assailed the legality and correctness of the order dated 02.05.2018 passed by the Foreigners Tribunal No.2, Kamrup (Metro) at Guwahati rejecting the application filed by the petitioner in FT Case No.1838/2015 for dropping of proceeding on the ground that in an earlier proceeding being FT Case No.28/2017 petitioner was declared to be not a foreigner.

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When the writ petition was moved on 29.05.2018, this Court observed that prima facie the matter appeared to be covered by the decision of this Court in Mustt. Amina Khatoon Vs. Union of India , WP(C) No.7399/2015 and other connected cases , decided on 19.04.2018 where it has been held that as a legal proposition, principle of res judicata embodied in Section 11 of the Code of Civil Procedure, 1908 would not be attracted to a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.

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Learned counsel for the petitioner submits that there has to be a finality in so far proceeding against a proceedee is concerned. A proceedee cannot be subjected to endless proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. In this case, petitioner was declared to be not a foreigner in FT Case No.28/2017. Therefore, it was not justified on the part of the State to have made a fresh reference resulting in registration of FT Case No.1838/2015 despite contrary opinion rendered by the Tribunal. This would amount to a great deal of harassment to the poor proceedee.

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On the other hand, Mr. Payeng, learned Special Counsel submits that in view of the decision of this Court in Amina Khatoon (supra), this petition is misconceived. Petitioner can raise all the issues before the Tribunal in his written statement. Therefore, no case for interference is made out.

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Page No.# 4/7

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Submissions made by learned counsel for the parties have been considered.

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From the documents placed on record, it is seen that on a reference made by the Deputy Commissioner of Police (Border), Guwahati City corresponding to Gitanagar Police Station Case No.658/2016, FT Case No.28/2017 was registered against the petitioner before the Foreigners Tribunal No.3, Kamrup (Metro), Guwahati. This reference was contested by the petitioner whereafter Tribunal passed the order dated 09.06.2017 answering the reference against the State by opining that petitioner was not a foreigner.

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In so far the related reference is concerned, from the notice dated 09.03.2018 (page 42-43), it is seen that the said reference is relatable to Police Case No.227/2015 which resulted in registration of FT Case No.1838/2015. Therefore, related reference was made and registered at an earlier point of time.

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When a reference was already made in the year 2015 which was pending before the Tribunal, we fail to understand as to why a second reference was made in the year 2016 which was expeditiously disposed of on 09.06.2017 in favour of the petitioner virtually rendering the original reference made in the year 2015 redundant.

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Adverting to the order dated 09.06.2017, we find that in paragraph 4 of the aforesaid order, Tribunal had discussed the various documents exhibited by the petitioner. Thereafter in paragraph 5 of the said order, an abrupt conclusion was recorded that Tribunal had no hesitation to opine that Aman Ali @ Iman Ali Sk, father of the petitioner, was an Indian citizen and, therefore, petitioner cannot be said to be a foreigner. Without much deliberation, we can say at least this much that there was no proper appreciation of evidence by the Tribunal. Facts-in-issue before the Tribunal was whether Aman Ali @ Iman Ali Sk whom the petitioner claimed to be his father was a citizen of India or not and secondly, whether petitioner was the son of said Aman Ali @ Iman Ali Sk.

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Having regard to the mandate of Section 9 of the Foreigners Act, 1946, burden was on the proceedee to prove the above facts-in-issue by adducing cogent, reliable and admissible evidence.

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As noticed above, the order dated 09.06.2017 was bereft of any reasoning and an abrupt unreasoned conclusion was reached.

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Page No.# 5/7

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In Amina Khatoon (supra), the following question of law arose for consideration before this Court:-

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“ Whether the plea of res judicata as provided under Section 11 of the Code of Civil Procedure, 1908 would be attracted to a proceeding under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964?”

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This Court vide order dated 19.04.2018 has held that as a legal proposition, principle of res judicata embodied in Section 11 of the Code of Civil Procedure, 1908 would not be attracted to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order. This Court has held as under:-

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“ 71. In contradistinction, an opinion rendered by a Foreigners Tribunal upon a reference made to it by the referral authority under paragraph 2(1) of the Foreigners Tribunals Order remains an opinion even after the Central Government acts on it and takes steps for expulsion of the declared foreigner under Section 3 of the Foreigners Act based on such opinion. It does not change its character from opinion to judgment upon execution. In Mainul Hoque (supra), this Court has held that a Foreigners Tribunal assigned the task of rendering an opinion on a reference made to it by the Superintendent of Police (Border) is not a Court. Therefore, a Member of Foreigners Tribunal is not a judge. Viewed in the above context, a negative opinion rendered by a Foreigners Tribunal opining that the proceedee is not a foreigner is not a judgment and cannot bind the Central Government or the delegated authority i.e., the jurisdictional Superintendent of Police (Border) for all times to come and certainly cannot debar them from seeking a fresh opinion, if circumstances so warrant.

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72. Therefore, an opinion rendered by a Foreigners Tribunal is not a judgment. Foreigners Tribunal is only to render an opinion on the reference made to it but the ultimate decision rests with the Central Government under Section 3 of the Foreigners Act. If the Central Government or the delegated authority, which in the case of Assam is the Superintendent of Police (Border), finds that the negative opinion rendered was contrary to the materials on record or there was no proper appreciation of the materials on record or if new materials emerge against a suspect or if the opinion of a Foreigners Tribunal is palpably wrong, can the Central Government or the Superintendent of Police (Border) be debarred from seeking a fresh opinion from a Foreigners Tribunal? For example, we may take up the case of Md. Amiruddin, petitioner in WP(C) No.797/2017. In his case, the earlier Member of Foreigners Tribunal, Hojai in Case No. FT/H/303/2013 (State Vs. Amiruddin) after summing up the testimony of the proceedee and describing the exhibits, opined that the proceedee was not a foreigner. The opinion was rendered as under:-

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“ I have gone through and examined all documents, produced and exhibited by the respondent very carefully and considering all these above, I give my opinion that the respondent Md.

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Page No.# 6/7

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Amiruddin, son of late Ambor Ali is not a foreigner.”

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72.1. There was no appreciation of the evidence tendered by the proceedee – whether the evidence were admissible? Whether the documents were proved? Whether there was relevancy of evidence? No reasons were mentioned and no reasonings given while rendering the aforesaid opinion. Such an opinion is no opinion at all in the eye of law and on the basis of such an opinion, neither the Central Government nor the delegated authority, i.e., the jurisdictional Superintendent of Police (Border) can be debarred from seeking a fresh opinion.

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73. In the light of what we have discussed above and particularly having regard to the fact that State of Assam is facing external aggression and security and integrity of the nation has been threatened on account of large scale illegal migration of foreigners from Bangladesh into Assam, to hold that principle of res judicata would be applicable to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order would be self-defeating and against the overarching public policy, i.e., to ensure national security and to protect the integrity of the nation.

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74. It naturally follows that a Foreigners Tribunal cannot decline to render an opinion on the ground of res judicata. If a previous opinion favourable to the proceedee is placed before the Foreigners Tribunal by a proceedee, Foreigners Tribunal will consider the same (provided it is found to be genuine and proved) and thereafter render its opinion. If the subsequent opinion is adverse to the proceedee and is challenged by the proceedee in a proceeding under Article 226 of the Constitution of India, then the High Court will consider both the opinions while examining the correctness of the latter. Each challenge would have to be decided on case to case basis.

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75. Though the principle of res judicata is based on public policy, the same will stand subsumed under the overarching public policy governing a sovereign nation while dealing with illegal foreigners under the Foreigners Act and the Foreigners (Tribunals) Order.

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78. For all the aforesaid reasons, we hold that as a legal proposition, principle of res judicata embodied in Section 11 of the Code would not be attracted to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order.”

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As held in Amina Khatoon (supra), a Foreigners Tribunal cannot decline to render an opinion on the ground of a previous opinion. If a previous opinion favourable to a proceedee is placed before a Foreigners Tribunal by a proceedee, the Foreigners Tribunal will consider the same provided it is found to be genuine and proved and thereafter render its opinion. If the subsequent opinion is adverse to the proceedee and is challenged by a proceedee before the High Court under Article 226 of the Constitution of India, then certainly High Court will consider both the opinions while examining the correctness of the latter. As has been held in

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Page No.# 7/7

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Amina Khatoon (supra), each challenge would have to be decided on case to case basis.

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In so far submission of Mr. Mondal is concerned, we feel that it is hypothetical and the issue does not arise before us. It is the intent and object of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 that there should be a correct rendering of opinion in so far citizenship of a proceedee is concerned. As held in Amina Khatoon (supra), an untenable and legally unsustainable opinion cannot debar the State from questioning the citizenship status of a suspect for all times to come if there are good grounds for doing so.

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Adverting to the present case, we find that the case is fixed for filing of written statement. Petitioner can raise all possible grounds as may be admissible in law in his written statement in addition to the material facts whereafter the Tribunal will proceed with the reference in accordance with law. Beyond that, no further observation would be required. In such circumstances, we are not inclined to interfere in this matter.

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Writ petition is accordingly dismissed.

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Registry to inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for taking follow-up steps.

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Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC, Assam.

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JUDGE JUDGE

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Comparing Assistant

Shahjahan Ali v. the Union of India and 13 Ors.

Case brief

What is this about?

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Shahjahan Ali v. the Union of India and 13 Ors.

Case brief

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