Gauhati High Court: A Division Bench of Manojit Bhuyan and Manish Choudhury, JJ. dismissed a writ petition seeking transfer of proceedings from one Foreigners’ Tribunal to another Foreigners’ Tribunal, for being devoid of merits. 

The writ petition seeking the aforesaid transfer was filed on the following grounds:

  1. The Tribunals were located far away from the permanent place of residence of petitioners which caused them physical and financial inconvenience, in presenting their witnesses for examination. 
  1. Access to justice, being a basic and inalienable human right and a facet of right to life guaranteed under Article 21 of the Constitution, the Tribunal dealing with citizenship status of petitioners must be reasonably accessible in terms of distance, and the petitioners’ access to the adjudicatory process must be affordable.
  1. Foreigners’ Tribunals, which are created under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, are unlike other Tribunals created under Article 323A and 323B of the Constitution of India. 
  1. Foreigners’ Tribunals are more like Courts of Executive Magistrates, where opinion is rendered in a summary procedure, and cases before it can be transferred. Thus, Section 24 of the Code of Civil Procedure, 1908 could not create any embargo in the transfer of a proceeding from one Foreigners’ Tribunal to another.

The issue, in this case, was that when a Foreigners’ Tribunal is given to decide a reference received from the registering authority of that district or part thereof, can another Tribunal of a different district, not ordinarily having the jurisdiction to decide such a reference emanating from the other district, assume jurisdiction to decide the reference and whether the High Court, in exercise of its powers under Article 226 of the Constitution, can confer such jurisdiction to the other Foreigners’ Tribunal to decide a transferred reference.

The Court, relying on Mamoni Rajkumari v. State of Assam, 2017 SCC OnLine Gau 998 and State of Assam v. Moslem Mondal, 2013 SCC OnLine Gau 1 observed that a Foreigners’ Tribunal discharged quasi-judicial functions and thus provisions governing Section 24 CPC would not be attracted in a proceeding before it. 

It was opined that inconvenience caused to witnesses in travelling a long distance to contest the reference cases could be eased as para 4(c) of the  Foreigners’ (Tribunals) Order vested the Foreigners’ Tribunals with the power to entertain prayer for the examination of witnesses and for production of documents by issuing Commissions. 

Ruling on the main issue of the case, the Court held that in absence of any enabling provision to transfer a reference case from one Foreigners’ Tribunal to another, and in view of conclusion that the existence of jurisdictional fact was a sine qua non for assumption of jurisdiction by a Tribunal, a petition for transfer of proceedings could not be allowed. [Shariful Islam v. Union of India, 2019 SCC OnLine Gau 2420, decided on 07-06-2019]

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