Md Maynul @ Moinul Hoque @ Md. Moinul vs Union Of India And 6 Ors

N. Kotiswar Singh, J

Heard Mr. A. Paul, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury,

learned Asstt. SGI for respondent no.1 & 4 and ; Ms. A. Verma, learned Special Standing Counsel, F.T. appearing for respondent nos.6 & 7; Mr. A.

Bhuyan, learned Standing Counsel, ECI, appearing for respondent no.2 and Ms. U. Das, learned Government Advocate, Assam, appearing for

respondent nos.3 & 5.

Considering the nature of the case, we are of the opinion that the present petition can be disposed of at the motion stage itself without issuing any

formal notice to the respondents.

The present petition has been filed by the petitioner, namely, Md. Maynul @ Moinul Hoque @ Md. Moinul, son of late Faizuddin, resident of village

Jorgarh under P.S.:Tezpur, Dist.:Sonitpur, Assam on being aggrieved by the impugned ex parate order dated 31.12.2020 passed by the Foreigners

Tribunal, Tezpur No.1, Assam, in F.T.(D) Case No.3512/2012, declaring the petitioner to be a foreigner of post 1971 stream.

Learned counsel for the petitioner submits that earlier in another proceeding i.e. in F.T. (D) Case No.8312/2012, the Foreigners Tribunal Tezpur 1st,

Sonitpur by order dated 31.08.2017 had held that the petitioner, namely, Md. Moinul @ Moinul Hoque, son of Late Foizuddin (Abdul Hussain), resident

of village Jorgarh under P.S.Tezpur, Dist. Sonitpur, Assam had been able to discharge his onus to prove that he is not a foreigner but an Indian.

Accordingly, the reference was answered in negative against the State and in favour of the petitioner/proceedee. However, the Foreigners Tribunal

Tezpur No.1, Assam in the subsequent proceeding i.e. in F.T.(D) Case No.3512/2012 took a view that the proceedee neither submitted his

representation nor adduced his evidence in support of his claim that he is an Indian Citizen and accordingly, failed to prove that he is an Indian citizen.

The Learned counsel for the petitioner submits that though the petitioner had appeared before the Tribunal after receiving the notice, the reason for

the petitioner’s inability to appear before the Foreigners Tribunal, Tezpur No.1 on several occasions was because of ongoing COVID pandemic

and as such, it has been submitted that the said ex parte order dated 31.12.2020 may be set aside by remanding the matter to the Foreigners Tribunal,

more particularly, in the light of the earlier opinion referred by the same Tribunal on 31.08.2017 in F.T.(D) Case No.8312/2012.

According to the learned counsel for the petitioner since there is a similarity in the names and particulars of the proceedee in both the proceedings,

the second proceeding in respect of F.T.(D) Case No.3512/2012 before the Foreigners Tribunal, Tezpur (1st), Assam could not be sustainable in

terms of the decision of the Hon’ble Supreme Court passed in Abdul Kuddus vs Union of India (2019) 6 SCC 604, as the proceeding before the

Foreigners Tribunal, Tezpur (1st), Assam in respect of F.T.(D) Case No.3512/2012 is quasi judicial and the principle of res judicata will be applicable

in this proceeding.

It has been clearly mentioned in Abdul Kuddus (supra) that if there had been an order by the Foreigners Tribunal 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 Foreigners Tribunal 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).

Only when the Tribunal comes to a finding that the present proceedee is not the same person who was proceeded and was found to be an Indian in

F.T.(D) Case No.8312/2012, the impugned order will be revived and the order of the Tribunal can be challenged by the petitioner both on the issue of

identity of the petitioner and other grounds raised in this petition.

In view of above, without entering in the merit of the case we remand the matter to the Foreigners Tribunal, Tezpur (1st), Sonitpur, Assam by

setting aside the impugned order 31.12.2020 passed by the Foreigners Tribunal, Tezpur No.1, Assam, in F.T.(D) Case No.3512/2012 to examine

whether the petitioner is the same person who was proceded in F.T.(D) Case No.8312/2012by the Foreigners Tribunal, Tezpur 1st, Sonitpur. The

Foreigners Tribunal Tezpur No.1, Sonitpur shall decide first as to whether the petitioner is the same person who was proceeded in F.T.(D) Case

No.8312/2012 or not, for which the petitioner shall appear before the Foreigners Tribunal on 14.02.2022 to enable the Tribunal to examine that he is

the same person who was proceeded in F.T.(D) Case No.8312/2012 .

Accordingly, this shall be the preliminary issue which is to be decided by the Foreigners Tribunal 1st Tezpur, 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 and 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.

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 is made clear that since the nationality of the petitioner is already under cloud, he will remain on bail on furnishing a bail bond of Rs. 5,000/-

(Rupees five thousand) with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Sonitpur during the

pendency of the proceeding before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints

and biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of Sonitpur district without furnishing the details of the

place of destination and necessary information including contact number to the Superintendent of Police (Border), Sonitpur.

With the above observations and directions, the writ petition stands disposed of.

Copy of this order be furnished to the Superintendent of Police (B), Sonitpur for doing the needful.