The petitioner challenged a second proceeding initiated against her by the Foreigners Tribunal declaring her a foreigner, despite an earlier tribunal opinion finding she was not a foreigner. The court allows the petition, setting aside the second opinion as violating the Supreme Court ruling that the principle of res judicata applies to Foreigners Tribunal proceedings. As the petitioner's identity was the same in both proceedings and the tribunal made no finding she was different than the earlier proceedee, the second proceeding against the same person cannot be sustained. The petitioner must be released if detained under the second, now set aside, opinion.

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GAHC010211782021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6727/2021
HASINA BHANU @ HASNA BHANU
D/O. LT. NAYAN KHA @ NAYAN KHAN, W/O. AYEN ALI, PERMANENT R/O.
VILL. NO.3 SHYAMPUR, P.S. SHYAMPUR, P.S. SHYAMPUR, DIST. DARRANG,
ASSAM, PIN-784115.
VERSUS
THE UNION OF INDIAAND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI, PIN-110001.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-781006.
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE STATE ELECTION COMMISSIONER
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI-781006.
4:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS
(NRC) ASSAM
ACHYUT PLAZA
BHARALUPAR
BHANGAGARH
P.O. BHANGAGARH
GUWAHATI-781005
DIST. KAMRUP (M)
ASSAM.

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5:THE DEPUTY COMMISSIONER
DARRANG AT MANGALDAI
P.S. AND P.O. MANGALDAI
DIST. DARRANG
ASSAM
PIN-784125.
6:THE SUPDT. OF POLICE (B)
DARRANG AT MANGALDAI
P.S. AND P.O. MANGALDAI
DIST. DARRANG
ASSAM
PIN-784125
Advocate for the Petitioner : MR Z HUSSAIN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 13-12-2021
(N. Kotiswar Singh, J.)
Heard Mr. Z. Hussain, learned counsel for the petitioner. Also heard Ms. A. Verma,
learned Special Counsel, FT.
2. Considering the nature of the case, we are of the view that the present petition can be
disposed of at this stage without calling for the records.
3. The case of the petitioner is that the petitioner was earlier proceeded before the
Foreigners Tribunal No.4, Darrang, Mangaldai in FT 4th Case No.297/2015 in which vide order
dated 17.08.2016, the petitioner was declared to be not a foreigner/illegal migrant of any
stream. Accordingly, the reference was answered in the negative and in favour of the
proceedee.
4. It has been submitted that in spite of the said opinion, the petitioner was again
proceeded subsequently and a separate proceeding was initiated against the petitioner vide

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FT-4th
Case No.463/SHYM/2017 by the same Tribunal where the impugned opinion dated
18.03.2021 was rendered by declaring the petitioner to be a foreigner of 25.03.1971 stream.
5. It has been submitted by the learned counsel for the petitioner that the present
proceeding, even if initiated, cannot be sustained in view of the decision of Hon’ble Supreme
Court in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604, in which it has been held
that the principle of res judicata will be applicable even in a proceeding before the Foreigners
Tribunal. That issue has already been settled and this Court in a number of decisions has
already applied the aforesaid decision and interfered with the subsequent proceeding initiated
by the Foreigners Tribunal against the same proceedee.
6. In view of above, we are of the opinion that the second proceeding as well as the
second impugned opinion dated 18.03.2021 passed FT-4th
Case No.463SHYM/2017 cannot be
sustained.
7. In the earlier proceeding, the person who was proceeded was Hasina Bhanu, W/o.
Ayan Ali, Vill-Shyampur Chapari, PS. Shyampur, Dist. Darrang, Assam and in the second
proceeding, the proceedee is Hasina Bhanu, W/o. Md. Ayen Ali, Vill. No.3 Shyampur, PS.
Shyampur, Dist. Darrang, Assam. In fact, in the second proceeding, the petitioner had
apprised the Tribunal of the passing of the earlier opinion dated 17.08.2016. However, the
Tribunal continued the second proceeding by making the following observation:-
“Mere perusal of the aforesaid Hon’ble Supreme Court judgment (supra) the
Hon’ble Supreme Court has rendered in the decision on the issue as to whether the
Foreigners Tribunal constituted under Foreigners (Tribunal) Order, 1964 is “competent
authority” within the meaning of sub-para (2) to paragraph-3 of the Schedule to the
2003 Rules; Paragraph-3 of the Schedule to the 2003 Rules discuss with the manner of
scrutiny of application filed by any person for inclusion of his name in the National
Register of Citizens. That Hon’ble Supreme Court in aforesaid judgment has held
opinion/or of Foreigners Tribunal as binding and hence the principle of res judicata
would apply on within deciding the term “competent authority” as mentioned in sub-
para (2) of para 3 of the Schedule to the 2003 Rules and that contents. It is for
reason, I have rendered my opinion in this present reference case.”

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8. In the teeth of the decision of the Hon’ble Supreme Court in Abdul Kuddus (supra),
where it has been held that the principle of res judicata will be applicable even in a
proceeding before the Foreigners Tribunal, we are unable to understand how the Tribunal
proceeded to examine the matter and made the aforesaid observation.
9. Be that as it may, we are of the opinion that in view of the decision of the Hon’ble
Supreme Court in Abdul Kuddus (supra), the Tribunal could not have proceeded with the
matter and, as such, the second proceeding would be illegal being violative of the mandate of
law under Article 141 of the Constitution of India whereunder, the law declared by the
Hon’ble Supreme Court will be binding on every Court and Tribunal.
10. Since the identity of the petitioner in the earlier proceeding and the impugned second
proceeding is the same and there is no finding by the Tribunal that the present petitioner is
different from the earlier proceedee, we are of the view that the second impugned opinion in
respect of the same person cannot not be sustained.
11. For the reasons discussed above, we allow the present petition by setting aside the
impugned second opinion dated 18.03.2021 passed in FT-4th Case No.463/SHYM/2017 by the
Foreigners Tribunal-4th
, Darrang, Mangaldai and if the petitioner has been detained in terms
of the aforesaid opinion, she shall be released forthwith.
JUDGE JUDGE
Comparing Assistant