Md Abdul Rahman @ Abdul Rahman v. Union of India and 8 Ors

ORDER Date : 02.08.2023 (A.M. Bujor Barua, J)

Heard Mr. A.S. Tapader, learned counsel for the petitioner and Ms. L. Devi, learned counsel for the respondents No. 1 and 5, being the Union of India and Page No.# 3/5 the State Co-ordinator of NRC, respectively. Also heard Ms. A. Verma, learned counsel for the respondents No. 2, 3, 8 and 9, being the authorities in the Home Department; Mr. A.I. Ali, learned counsel for the respondent No. 4, being the Election Commission of India and Ms. K. Phukan, learned counsel for the respondents No. 6 and 7, being the Deputy Commissioner, Sonitpur and the Deputy Commissioner, Biswanath, respectively.

¶2The petitioner Md. Abdul Rahman @ Abdul Rahman was earlier referred to the Foreigners' Tribunal No. 2, Sonitpur, Tezpur for rendering an opinion as to whether he is a foreigner under the Foreigners Act, 1946 and accordingly F.T. Case No. 65/2015 was registered wherein the Tribunal had rendered its opinion dated 20.01.2016 declaring the petitioner to be not a foreigner. Thereafter, the petitioner was again referred to the Foreigners' Tribunal No. 6, Tezpur, Sootea for rendering an opinion as to whether he is a foreigner under the Foreigners Act, 1946 and accordingly F.T.C.(6) Case No. 137/2017 was registered and the Tribunal had served notice dated 30.08.2017 upon the petitioner for his appearance. Being aggrieved by the subsequent notice dated 30.08.2017, this writ petition is instituted.

¶3In the writ proceeding, the petitioner relies upon the voters' list of 1966 of village Katerati, Mouza Sootea in the present Biswanath district which contains the name of Jash Muddin son of Posha at Sl. No. 2523. It is claimed that Jash Muddin is the father of the petitioner. To substantiate the same, reliance is also placed upon the voters' list of 1993 of village Katerati in the present Biswanath district which contains the name of Abdul Rahman son of Jsumuddin at Sl. No.

¶628It is claimed that Abdul Rahman of the voters' list of 1993 of village Katerati is the petitioner himself. The petitioner also claims that by another opinion dated 20.01.2016 in F.T. Case No. 65/2015 before the Foreigners' Page No.# 4/5 Tribunal No. 2, Sonitpur, Tezpur, the petitioner was declared to be not a foreigner and accordingly, a claim is also made that the present proceeding is barred by the principle of res judicata.

¶4Although the principle of res judicata is applicable in the proceedings before the Foreigners' Tribunal as per the judgment of the Hon'ble Supreme Court in the case of Abdul Kuddus Vs. Union of India and Ors., reported in

(2019) 6 SCC 604, we have also examined the opinion dated 20.01.2016 where the Tribunal had merely recorded the materials that may have been produced by the proceedee and thereupon arrived at its conclusion that in the view of the Tribunal the proceedee is an Indian citizen. However no reason is forthcoming in the opinion of the Tribunal as to why the Tribunal had arrived at its conclusion that the petitioner is an Indian citizen.

¶5In order to attract the principle of res judicata in the earlier proceeding, it must be between the same parties and it also must be decided between the parties. In the absence of any reasoned conclusion, we cannot accept that in the opinion dated 20.01.2016 there was a decision in favour of the petitioner. Consequently, we do not accept the plea of res judicata by the petitioner, however, from the voters' lists of 1966 and 1993 of village Katerati, it appears that the petitioner can discharge the burden under Section 9 of the Foreigners Act, 1946.

¶6In view of the above, we remand the matter back to the Foreigners' Tribunal No. 6, Tezpur, Sootea to examine the aforesaid voters' lists of 1966 and 1993 of village Katerati. The petitioner to produce the complete and continuous voters' lists from the year 1966 to 1993 of village Katerati before the Tribunal and if the voters' lists so produced give an indication that the petitioner is an Indian citizen, the Tribunal may pass a reasoned order. Page No.# 5/5

¶7The petitioner to appear before the Tribunal on 08.09.2023. Till the reasoned order is passed, no coercive action be taken against the petitioner. Writ petition stands disposed of as indicated above. Send back the LCR forthwith.

J U D G E J U D G E Comparing Assistant

PageoNo.#o1/5 GAHC010054382018 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1669/2018o MDoABDULoRAHMANo@oABDULoRAHMANo S/OoLT.oJASUMoUDDINo VILL-oKATARATIo P.S.oSOOTEAo DIST.oBISWANATH,oASSAM VERSUSo UNIONoOFoINDIAoANDo8oORS.o TOoBEoREP.oBYoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oHOMEo DEPARTMENT,oNORTHoBLOCK,oNEWoDELHI-1. 2:THEoSTATEoOFoASSAM oTOoBEoREP.oBYoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFo ASSAM oHOMEoDEPARTMENT o DISPUR oGUWAHATI-06. 3:ADDITIONALoDIRECTORoGENERALoOFoPOLICE oASSAMo(BORDER) oBHANGAGARH oGUWAHATI-05. 4:ELECTIONoCOMMISSIONoOFoINDIA oREP.oBYoSECRETARY oNIRVASANoSADAN oNEWoDELHI-1. Page No.# 2/5 5:NATIONAL REGISTRAR OF CITIZENS-NRC STATE CO-ORDINATOR ACHUYT PLAZA BHANGAGARH GUWAHATI-2 ASSAM 6:DEPUTY COMMISSIONER SONITPUR ASSAM 7:DEPUTY COMMISSIONER BISWANATH ASSAM 8:SUPERINTENDENT OF POILICE (BORDER) SONITPUR ASSAM 9:SUPERINTENDENT OF POLICE (BORDER) BISWANATH ASSA Advocate for the Petitioner : MR. A S TAPADER Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN