The Gauhati High Court in the case Rafikul Islam v. The Union of India & 5 Ors observed and has held that the principle of res judicata will not apply to a subsequent proceeding before the Foreigners Tribunal for determining weather a person is a foreigner or not, if earlier, the order of Tribunal had not given any reason as to why it was of the view that the person is not a foreigner.
The division bench comprising of Justice Achintya Malla Bujor Barua and Justice Robin Phukan in the case observed that the principles of res judicata under the law which requires two conditions which being precedent to be satisfied i.e., the earlier dispute between the parties must be between the same parties and secondly, the issue stated must be decided as stated by the parties.
Therefore, the condition where the issue must be decided requires that the same must be decided by a reasoned order and not by an order which is merely depicting the view that the Foreigners Tribunal may have taken without specifying any such reason. From such point of view, the said court is unable to accept the plea of the petitioner that the subsequent proceeding against the petitioner is being barred by the principle of res judicata.
However, it has also been declared by the petitioner that a foreigner who entered the State of Assam after March 25, 1971 by an order dated 08.09.2022 of the Foreigners Tribunal.
It has been contended by the petitioner that there was an earlier round of proceeding against him in the same Foreigners Tribunal wherein an opinion dated 29.12.2014 had already been rendered wherein it has been declared by the petitioner to be not a foreigner. Adding to it, it has been submitted by the petitioner that a subsequent proceeding before the same Tribunal was barred by the principles of res judicata.
It has also been noticed by the court that the opinion which is being rendered by the Foreigners Tribunal in the previous round of litigation had not given any reason.
The court observed and has remanded the matter back to the Tribunal to take up the records of both the cases and for passing a reasoned order on the materials that was being available in the two proceedings.
Accordingly, the court directed the petitioner for filing an appeal before the Tribunal on April 6 and further it has been stated by the court that no coercive actions shall be taken against the petitioner till the reasoned order is being passed by the Tribunal.
