MAKIBUR RAHMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) Sanjay Kumar Medhi, J 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)/2780/2019 (Shariful Islam @ Soriful Islam and Anr. Vs. Union of India &Ors.), reported in (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, reported in (2016) 8 SCC 509.