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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MANASH RANJAN PATHAK, SANJAY KUMAR MEDHI, MITALI THAKURIA, JJ.
Makibur Rahman S/o Late Soukat Ali – Petitioner
Versus
The Union of India and Others – Respondents
W.P. (C) Nos. 1296, 1614, 3448, 4279, 4282 of 2022
Decided On : 25-04-2024
1. The present reference has been made to this Bench on the issue of the power of the High Court in exercising of Article 226 of the Constitution of India to transfer a proceeding from one Foreigners Tribunal to another by doubting the correctness of the view expressed by an earlier Division Bench which had held that taking into consideration the statute holding the field on the aspect of detection and deportation of foreigners/illegal migrants and the objective of such statute, the power of transfer of proceedings cannot be read into Article 226 of the Constitution of India.
2. Before taking into account the issue which has been referred to this Bench, it would be convenient if the background facts of these cases which have led for referring this matter are placed on record.
3. A Division Bench of this Court had decided WP (C) No. 2780/2019 [Shariful Islam @ Soriful Islam and Another vs. Union of India and Others, (2019) 8 GLR 322]. The issue raised therein was whether a writ court can transfer a proceeding from one Foreigners Tribunal to another at the instance of an applicant against whom such proceeding under Foreigners Act, 1946 has been initiated. The Division Bench in the aforesaid case has held that the powers under Article 226 of the Constitution of India cannot be extended or include power to transfer such a proceeding. The Division Bench had relied and referred to a number of case laws, including the decision of the Hon’ble Supreme Court rendered in the case of Anita Khushwaha vs. Pushap Sudan, (2016) 8 SCC 509.
4. Subsequently, a similar issue was raised before another Division Bench of this Court in a bunch of other cases. The said Division Bench in the said cases had passed an order dated 27.12.2022 whereby, the opinion rendered earlier in the case of Shariful Islam (supra) has not been agreed to and accordingly, the issue has been referred to a larger Bench. It may, however, be mentioned that in the said bunch of cases, there was WP (C) No. 7309/2019 with IA (C) No. 1643/2021 (Jonglu Ali @ Janglu Ali vs. Union of India and Others) which incidentally was first in the chronological order of the bunch of cases. This Bench has, however, noticed that though the said case was a part of the referral order, the challenge was with regard to a final order dated 11.03.2010 passed by the learned Foreigners Tribunal, Jorhat in Case No. JFT/1767/2006 and in the said writ petition, the IA(C) No. 1643/2021 was filed seeking transfer of the case. In the said IA however, there was no order of the Court. Under such circumstance, this Bench had passed an order dated 07.12.2023 segregating the aforesaid writ petition and the IA from the bunch of cases.
5. We have heard Shri J. Ahmed, learned counsel for the petitioner in WP (C) No. 3448/2022 and Shri P. Rahman, learned counsel for the petitioners in WP (C) No. 1296, 1614, 4279 and 4282 of 2022. Also heard Shri A. Kalita, learned Standing Counsel, Home and Political Department, Assam; Shri R.K.D. Choudhury, learned Dy. SGI for the Union of India; Shri P. Sarma, learned Government Advocate, Assam as well as Shri A.I. Ali, learned Standing Counsel, Election Commission of India (ECI).
6. Shri Ahmed, learned counsel for the petitioner in WP (C) No. 3448/2022 submits that to arrive at a fair and just conclusion, certain facts of the case are required to be noted. The petitioner in this case claims to be a resident of South Salmara, who, however, was working for gain at Sivasagar when the proceeding against him was initiated under the Foreigners Act, 1946 and the Rules framed thereunder in the Foreigners Tribunal, Sivasagar. The petitioner had appeared and filed his written statement followed by his examination-in-chief by way of affidavit. However, the rest of the evidence could not be filed as in the meantime, the petitioner had come to South Salmara. It is submitted that the petitioner would face hardships and inconvenience in defending himself in the trial before the Foreigners Tribunal at
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