Case BriefsHigh Courts

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]

Case BriefsHigh Courts

Allahabad High Court: A transfer application was filed under Section 24 of Code of Civil Procedure before a Single Judge Bench of Anjani Kumar Mishra, J. for transfer of Motor Vehicles Claim petition pending before the Motor Vehicles Claim Tribunal.

A motor vehicle claim was filed before motor vehicle tribunal in order to receive compensation. The petitioner filed an application for transfer of matter pending before the tribunal. The question before the court was whether an application under the Motor Vehicles Act could be transferred under Section 24 of Code of Civil Procedure. For resolving the above dispute relevant provisions of Motor Vehicles Act were referred to. It was viewed that the Tribunal had been created under Section 165 of the Motor Vehicles Act by the State Government.

Under Rule 221 of U.P. Motor Vehicle Rules, 1998 which mentions the cases where Code of Civil Procedure could be applied suggested that the Code has no application in the matter under Section 24 by virtue of the nature of the Act to be a complete code in itself. Section 24 states the general power to transfer matter pending in a court subordinate to High Court or District Court. Court referred to the case of Ethiopian Airlines v. Ganesh Narain Saboo, 2011 (8) SCC 539 and viewed the Act to be specific and special thus giving limited applicability to the Code. The Tribunal was formed under a special Act which was sufficient in itself and cannot be said to be subordinate. Therefore, the transfer application was dismissed being not maintainable. [Shankar Lal v. Asha Devi,2018 SCC OnLine All 2545, order dated 12-11-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Sahidullah Munshi, J. allowed an application under Section 24 CPC for transfer of a child custody case arising out of Section 7, 8 and 25 of the Guardians and Wards Act, 1890.

The application was filed by the mother of the child for transfer of the case from the Court of District Judge, Alipore to the Court of District Judge, Paschim Medinipur. The petitioner was married to the respondent. In 2016, she filed a complaint against the petitioner under Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act. The respondent filed an application for custody of the child born from the wedlock under Sections 7, 8, and 25 of the Guardians and Wards Act. Subsequently, the petitioner filed the present petition.

The High Court perused Section 9 of the Act of 1890 and observed that territorial jurisdiction of the court in matters of guardianship applications lie where the child ordinarily resides. In the present case, based on the facts, it was clear that the child ordinarily resided with the mother at Paschim Medinipur. The Court was of the view that the child could not be expected to travel 100 km to Alipore on every date of hearing. In such circumstances and in view of Section 9, the Court held that it would be appropriate to transfer the proceedings from the Court of District Judge, Alipore to the Court of District Judge, Paschim Medinipur. Orders were made accordingly. The petition was, thus, allowed. [Ruhi Sahina v. Syed Masidur Rahman, 2018 SCC OnLine Cal 5758, dated 28-08-2018]