Justice Manoj Misra and Justice K.V. Viswanathan held – “ Once it is not in dispute that on a previous reference the Tribunal after giving
The Supreme Court set aside a Gauhati High Court order which had refused to quash a case before the Foreigners Tribunal, holding that the subsequent proceeding against the appellant was barred by the principle of res judicata, as she had already been declared not to be a foreigner in an earlier case.
A bench of Justice Manoj Misra and Justice K.V. Viswanathan held –
“ Once it is not in dispute that on a previous reference the Tribunal after giving opportunity to both sides, on appraisal of evidence, found the appellant not a foreigner, the only course available for the respondent was either to challenge the order before the High Court or seek for its recall on grounds permissible for recall. As no provision for review exists, at least not shown to us, so long the earlier order stands, it is not open to initiate fresh proceedings as the same would be hit by principles of res judicata as held by this Court in Abdul Kuddus (supra). In our view, therefore, the subsequent proceedings were nothing but an abuse of the process of law, and therefore, the High Court ought to have interdicted the same.”
In 2016, the appellant, one Tarabhanu Khatoon @ Tarabhanu Bibi, had been proceeded against under the Foreigners Act, 1946, on allegations that she had entered Assam after 25 March 1971 – the cut-off date after which a person who entered Assam from Bangladesh (then East Pakistan) is considered a foreigner. That proceeding before Foreigners Tribunal, Nalbari at Mukalmua, culminated in a final order on 31 August 2016 holding that that the appellant was not a foreigner.
The Tribunal noted that no witnesses were examined on behalf of the State. The appellant had relied on documentary and oral evidence to show that her parents were Indian citizens, with their names recorded in the voter lists of 1966 and 1970. She had also submitted that she married one Chanu Seikh in 1979 and had been casting her vote since 1985. The Tribunal found the documents and witness testimonies credible and held that the appellant had discharged the burden of proof under Section 9 of the Foreigners Act, 1946. It declared that the appellant was not a foreigner.
Despite this, a fresh notice was issued to the appellant on 15 December 2018, calling upon her to show cause again as to why she should not be declared a foreigner. This notice led to the registration of a case in 2018. She appellant challenged this second proceeding through a Writ Petition before the Gauhati High Court.
While the High Court acknowledged that the appellant had been previously declared not to be a foreigner, it disposed of the writ petition with the observation that she could raise all pleas before the Tribunal in the subsequent proceeding. Thus, she challenged this order before the Supreme Court.
Senior Advocate PV Surendranath for the appellant argued that once the earlier proceeding had concluded in her favour and attained finality, there was no justification to initiate a fresh case on the same grounds. He relied on the Supreme Court’s decision in Abdul Kuddus v. Union of India, where it was held that the findings of a Foreigners Tribunal are binding and operate as res judicata.
Advocate Debojit Borkakati for the State of Assam contended that the earlier Tribunal order was cryptic and did not properly analyse the evidence and therefore was not binding.
The Supreme Court rejected this argument. It stated that the only available legal course for the State was to either challenge the earlier order before the High Court or seek its recall. The Court noted that no provision for review had been shown to it, and as long as the earlier order stood, a second proceeding on the same issue was not permissible.
The Court held that the fresh proceedings initiated in 2018 were an abuse of the process of law and quashed the case. It allowed the appeal and set aside the High Court’s order dated 31 May 2023 to the extent it had refused to quash the second proceeding.
