Can High Court Transfer Proceeding From One Foreigners Tribunal To Another In Assam? Gauhati High Court Larger Bench To Decide

It was the case of petitioners that since they are not permanent residents of the districts where the proceedings are pending, their cases may be transferred to the Foreigners Tribunals located in their respective districts of which they are permanent residents, so as to enable them to effectively contest the proceedings for the purpose of establishment of their citizenship.

The division bench of Justice N. Kotiswar Singh and Justice Arun Dev Choudhury said since the petitioners have sought transfer of the proceedings from the Foreigners Tribunal - where the proceedings have been initiated, to Foreigners Tribunal located in the districts where they are permanently residents, "nothing prevents the High Court for directing transfer of a proceeding from one Foreigners Tribunal to another Foreigners Tribunal in the interest of justice”.

The court disagreed with the decision of another division bench in Shariful Islam @ Soriful Islam and Anr. vs. the Union of India and Ors. and a connected batch of writ petitions WP(C) No.2780/2019. The bench in those cases had held that, “as far as to exercise the powers under Article 226 of the Constitution of India is concerned, in absence of any enabling provision derived from any statute, and since the existence of jurisdictional fact being sina qua non for assumption of jurisdiction by a Tribunal, and as Section 24 of the CPC is not applicable in relation to a proceeding before the Foreigners Tribunal, and in view of lack of any such equivalent power of the High Court as conferred to the Supreme Court under Article 142 of the Constitution of India, the High Court cannot entertain the prayer of transfer of proceedings of the Foreigners Tribunal.”

The bench headed by Justice Singh said the court in Shariful Islam has mixed up ‘jursidiction fact’ with the ‘territorial jurisdiction’. 

“If we delink “territorial jurisdiction” from “jurisdictional fact”, there can be no difficulty for directing transfer of a proceeding from one Foreigners Tribunal to another Foreigners Tribunal. Each and every Foreigners Tribunal constituted and operating in the State of Assam under the Foreigners (Tribunals) Order, 1964 has the competency and jurisdiction to decide this issue as to whether a person is a foreigner within the meaning of Section 6A(3) of Citizenship Act, 1955," it added.

The bench discussed Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 where the Supreme Court has held that access to justice being fundamental right, the apex court by invoking power under Article 32 can enforce such a right by issuing necessary directions including direct transfer of cases from a Court to another Court. 

The bench headed by Justice Singh said that the decision of the Supreme Court in Anita Kushwaha certainly endows power to the High Court under Article 226 of the Constitution of India to enforce an important fundamental right, that is, to access to justice, which includes that mechanism must be functional, accessible in terms of distance, and such process of adjudication must be affordable to the 'proceedees', which, it said, are grounds generally taken for transfer of a proceeding from one Foreigners Tribunal to another Foreigners Tribunal.

“As regards the power of this Court under Article 226 of the Constitution of India, to transfer any proceeding, we are of the view that in absence of any bar provided under the 1964 Order or the Foreigners Act, 1946, the extraordinary power conferred on the High Court to permit transfer of a proceeding from one Foreigners Tribunal to another Foreigners Tribunal cannot be disabled if it subserves the interest of justice," the court said.

The court said in a given situation if it is found that a person has been greatly prejudiced due to his inability to gather documents and witnesses to prove his case before a Foreigners Tribunal because of long distance between the place where he ordinarily he resides and where the proceeding has been initiated, the high court can direct transfer of the proceeding from one Foreigners Tribunal to the Foreigners Tribunal located near or the place where the person ordinarily resides.

Case Title: Jonglu Ali @ Janglu Ali v. The Union of India and 5 Ors.

Coram: Justice N. Kotiswar Singh and Justice Arun Dev Choudhury

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