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2018 DIGILAW 68 (GAU)

Mainul Hoque v. Union of India

2018-01-12

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. AK Talukdar, learned counsel for the petitioner and Mr. HK Hazarika, learned Government Advocate, Assam. By filing this petition under Article 226 of the Constitution of India, petitioner seeks transfer of FT Case No. 187/2017, pending before the Foreigners Tribunal No. 2, Kamrup (M), Hedayarpur at Guwahati to any Foreigners Tribunal at Karimganj. 2. Be it stated that petitioner had earlier approached this Court with the grievance that he was marked as a Doubtful (D) voter in the electoral rolls of the year 2011. No consequential steps were taken pursuant to marking of the petitioner as a Doubtful (D) voter. The said writ petition was registered as WP (C) No. 155/2016 (Md. Mainul Hoque v. Union of India). 3. This Court by order dated 17.05.2016 had disposed of the said writ petition by directing the Chief Election Officer, Assam and Deputy Commissioner-cum-District Election Officer-cum-Electoral Registration Officer, Karimganj to take necessary consequential decision in respect of the petitioner after making due investigation, including giving an opportunity to the petitioner. 4. Thereafter, petitioner was informed by the Addl. Deputy Commissioner (Election Branch), Karimganj, vide letter dated 30.8.16 that pursuant to order of this Court dated 23.3.11, passed in WP(C) No. 1334/2009, the then Senior Superintendent of Police (Border), Guwahati City had intimated the office of the Deputy Commissioner, Karimganj, vide letter dated 26.03.2011 that a case was pending against the petitioner before the then Foreigners Tribunal at Kamrup (M), Guwahati, for which petitioner was marked as a Doubtful (D) voter. It was also mentioned that petitioner had admitted that he was residing at Guwahati near Byrnihat in the year 2010 in connection with his livelihood. Petitioner was, therefore, directed to approach the Foreigners Tribunal, Kamrup (M) at Guwahati. Thereafter, it has now come to light that FT Case No. 2397/2007 was pending before the Foreigners Tribunal No. 1, Kamrup (M), Guwahati. Following creation of additional Tribunals, the aforesaid reference has been re-registered as FT Case No. 187/2017 (State v. Md. Mainul Hoque) and is now pending before the Foreigners Tribunal No. 2, Kamrup (M) at Guwahati. In this connection, notice was issued to the petitioner on 21.07.2017 through the Superintendent of Police (Border), Karimganj. It is seen that an application was filed by the petitioner before the Foreigners Tribunal No. 2, Kamrup (M) at Guwahati for transfer of the reference to Foreigners Tribunal, Karimganj. In this connection, notice was issued to the petitioner on 21.07.2017 through the Superintendent of Police (Border), Karimganj. It is seen that an application was filed by the petitioner before the Foreigners Tribunal No. 2, Kamrup (M) at Guwahati for transfer of the reference to Foreigners Tribunal, Karimganj. Taking the view that a Foreigners Tribunal has got no power to transfer such reference, the application was rejected vide order dated 16.09.2017. 5. Aggrieved, present writ petition has been filed seeking the relief as indicated above. 6. Learned counsel for the petitioner submits that petitioner is a resident of village Hijim under Nilambazar Police Station in the district of Karimganj and, therefore, it would be inconvenient for him to appear before the Foreigners Tribunal at Guwahati for adducing evidence. Therefore, it would be in the interest of justice to transfer the reference from Guwahati to Karimganj, he submits. In this connection, learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in Anita Kushwaha v. Pushap Sudan, reported in (2016) 8 SCC 509 and contends that for the ends of justice, Court can always issue directions to transfer references from one Tribunal to another Tribunal. 7. On a query by the Court as to who had filed WP(C) No. 1339/2009, for what relief and what was the order passed in that case, reference to which was made by the Addl. Deputy Commissioner in his letter dated 30.08.2016, learned counsel for the petitioner submits that he has no information in this regard. 8. Learned counsel for the respondents opposes such prayer. 9. Submissions made by learned counsel for the parties have been considered. 10. This Court has held in a number of cases that the provisions or the principles governing Section 24 of the Code of Civil Procedure, 1908 would not be attracted to a proceeding before a Foreigners Tribunal, which is governed by the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, as amended. This Court has also held that situs of residence of the procedee or the inconvenience of a procedee would be no ground for transfer of a reference from one Foreigners Tribunal to another Foreigners Tribunal. 11. A proceeding before a Foreigners Tribunal is sui generis. It is neither a civil suit as is commonly understood nor it is a criminal trial. 11. A proceeding before a Foreigners Tribunal is sui generis. It is neither a civil suit as is commonly understood nor it is a criminal trial. There is no adjudication of lis between two litigants in an adversarial manner. The State through the Superintendent of Police (Border) makes a reference to the concerned Foreigners Tribunal seeking its opinion whether the procedee is a foreigner or not and if foreigner, to which stream. Reverting to Section 24 of the Code of Civil Procedure, 1908 we find that the said provision deals with transfer of suit, appeal or other proceeding pending before the High Court or the District Court to any Court sub-ordinate to it for trial or disposal; or withdraw any suit, appeal or other proceeding pending in any Court sub-ordinate to it and try or dispose of the same. Therefore, it is evident that provisions of Section 24 of the Code of Civil Procedure would be attracted only in case of a suit or appeal or other proceeding pending before a Court. It is the settled position that a Tribunal is not a Court A Foreigners Tribunal assigned the task of rendering an opinion on a reference made by the Superintendent of Police is certainly not a Court. 12. In so far the case of Anita Kushwaha (supra) is concerned, the issue before the Supreme Court was whether Supreme Court had the power to transfer a civil or criminal case pending in any court in the State of Jammu and Kashmir to a court outside that State and vice versa. It may be mentioned that under Section 1(3) of the Code of Civil Procedure, 1908, it is clearly stated that the Civil Procedure Code extends to the whole of India, except the State of Jammu and Kashmir and the State of Nagaland and tribal areas. Likewise, under Section 1(2) of the Code of Criminal Procedure, 1973, it is mentioned that the provisions of the Criminal Procedure Code would extend to the whole of India, except to the State of Jammu and Kashmir. It is in this context that the reference was made to the Constitution Bench of the Supreme Court to examine the above issue. Likewise, under Section 1(2) of the Code of Criminal Procedure, 1973, it is mentioned that the provisions of the Criminal Procedure Code would extend to the whole of India, except to the State of Jammu and Kashmir. It is in this context that the reference was made to the Constitution Bench of the Supreme Court to examine the above issue. Referring to the expansive meaning given to Article 21 of the Constitution of India as well as to right to access justice under Article 39 (d) of the Constitution of India, Supreme Court held that the provisions of Articles 32, 136 and 142 of the Constitution are wide enough to empower the Supreme Court to direct transfer of civil and criminal cases from the State of Jammu and Kashmir to outside the State of Jammu and Kashmir in appropriate situations, notwithstanding the fact that Civil Procedure Code and Criminal Procedure Code do not extend to the State of Jammu and Kashmir. This was the precise issue before the Supreme Court in Anita Kushwaha (supra). Endeavour of learned counsel for the petitioner to apply the said decision in the case of an opinion by a Foreigners Tribunal, in our considered view, is farfetched and does not stand to reason. Consequently, we are not inclined to entertain the writ petition. Writ petition is accordingly dismissed. Registry to inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps. A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.