The Gauhati High Court has held that a proceeding before one Foreigners' Tribunal cannot be transferred to another Foreigners' Tribunal in exercise of its powers under Article 226 of the Constitution of India.
Various persons had approached the High Court seeking transfer on the ground that the proceedings pending before the Tribunals, are located far away from the permanent place of residence of the petitioners. It was urged that, if these proceedings are allowed to continue or not transferred to their home district or home town, prejudice would be caused as the same creates physical and financial inconvenience to the proceedees to contest the reference cases by presenting witnesses for examination, who are various authorities and persons hailing from the native place, towards discharging their burden as not being foreigners, as required of them under section 9 of the Foreigners Act, 1946.
The bench comprising Justice Manojit Bhuyan and Justice Manish Choudhury noted that the provisions or the principles governing section 24 of the Code of Civil Procedure, 1908 would not be attracted in respect of proceeding before a Foreigners' Tribunal. It said:
"In the absence of any enabling provision derived from any statute and in view of the discussions above as regards the existence of jurisdictional fact being a sine qua non for assumption of jurisdiction by a Tribunal; the fact of non-application of the provisions of section 24 of the Code of Civil Procedure, 1908 in relation to proceedings before a Foreigners' Tribunal; the law with regard to the binding nature of a decision rendered by the Supreme Court of India vis-à-vis the scope and purport of Article 141 of the Constitution of India; the exclusivity of power of the Supreme Court of India under Article 142 of the Constitution of India and the context and the power under which the decision in Anita Kushwaha (supra) was rendered, this Court cannot entertain the prayer for transfer of proceedings made in the writ petitions."
Dismissing the petitions, the bench further observed:
"Access to justice as a fundamental right belonging to the petitioners do not pose any debate. Primary grounds urged for transfer is only with regard to inconvenience, physical and financial, faced by the parties and witnesses to travel distance to contest the reference cases. Indeed, the adjudicatory mechanism to be reasonably accessible in terms of distance and the same being affordable, are two of the main facets constituting the essence of access to justice. In individual and appropriate cases where financial and physical hardship caused to parties and witnesses on account of travel is taken up, the 1964 Order itself provides the balm by vesting with the Foreigners' Tribunal the power to entertain prayer for examination of witnesses and for production of documents by issuing Commissions."
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