Page No.# 1/8 GAHC010059362022 2026:GAU- AS:13978-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2127/2022 ABDUL MUKIT S/O- LATE SAD UDDIN, VILL- DAYABASANA, P.O- KALIGANJ BAZAR, P.S- KARIMGANJ, DIST- KARIMGANJ, ASSAM, INDIA, PIN-788720 VERSUS THE UNION OF INDIA AND 8 ORS REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, SASTRI BHAWAN, NEW DELHI- 110001. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 3:THE DIRECTOR GENERAL OF POLICE(ADMIN) ASSAM ULUBARI GUWAHATI-07 4:THE SUPERINTENDENT OF POLICE (B) SIVASAGAR DIST- SIVASAGAR ASSAM PIN-785640 5:THE SUPERINTENDENT OF POLICE (B) KARIMGANJ Page No.# 2/8 DIST- KARIMGANJ ASSAM PIN-788710 6:THE DEPUTY COMMISSIONER SIVASAGAR DIST- SIVASAGAR ASSAM PIN-785640 7:THE DEPUTY COMMISSIONER KARIMGANJ DIST-KARIMGANJ ASSAM PIN-788710 8:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI INDIA PIN-110001 9:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA G.S ROD. BHANGAGARH GUWAHATI-05 DIST- KAMRUP (M Advocate for the Petitioner : MR H R A CHOUDHURY, MR J M SULAIMAN,MR. R A CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I., GA, ASSAM,SC, ECI,SC, F.T,SC, NRC BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 22.09.2026 (K.R. Surana, J) Heard Mr. F.U. Barbhuiyan, learned counsel appearing along with Mr. J.M. Page No.# 3/8 Sulaiman, learned counsel for the petitioner. Also heard Ms. L. Devi, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. N. Kalita, learned counsel on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for transfer of the proceedings of FT Case No. FT/SVR/400/2011, pending before the learned Member, Foreigners Tribunal, Jorhat to any learned Foreigners’ Tribunal in the district of Karimganj. 3. The learned counsel for the petitioner has submitted that the petitioner was residing temporarily for 2 (two) years in Sivsagar district at Gouri Sagar under Sivsagar Police Station to earn his livelihood while working as a mason, however, due to various problems, the petitioner had left Sivsagar and returned back to his hometown at Karimganj. It has been pleaded in paragraph 15 of the writ petition that the petitioner is surviving by a meagre earning as a daily labourer and he is maintaining his family of 2 (two) minor school going children. By referring to the statements made in paragraph 14 of the writ petition, it is submitted that the petitioner intends to tender evidence of his uncles and aunt, who are alive but they are senior citizens, aged about 90 (ninety) years, 80 (eighty) years and 70 (seventy) years, respectively and therefore, it is impossible for the senior citizens to travel for about 700 kilometres from Karimganj (now Sribhumi) to Jorhat to adduce evidence. Accordingly, it is submitted that this is a fit case for transfer of the proceedings from the learned Foreigners Tribunal, Jorhat to any learned Foreigners Tribunal in the district of Karimganj (now renamed as district Sribhumi). Page No.# 4/8 4. It is submitted that the Full Bench of this Court in the case of Makibur Rahman Vs. the Union of India & Ors., WP(C)/1296/2022, decided with other analogous matters on 25.04.2024, had referred to the proceedings of Mainul Hoque Vs. Union of India & Ors., Civil Appeal No. 1339/2019, decided by the Supreme Court of India, on 29.01.2019, by which transfer of proceeding from one Tribunal to another was allowed and held that the said order in the case of Mainul Hoque (supra) was passed under the facts of that case, and it was further held that the powers under Article 226 of the Constitution of India, cannot be generally invoked for transferring a proceeding from one Foreigners Tribunal to another, except under 2 (two) exceptional circumstances mentioned therein. The learned counsel for the petitioner has also referred to the decision of the Division Bench of this Court in the case of Ashadur Islam Vs. the Union of India & Ors., WP(C)/3644/2018, decided on 17.07.2018, wherein the proceeding was transferred from the learned Foreigners Tribunal, Jorhat to the learned Foreigners Tribunal, Hatsingimari, South Salmara. 5. Accordingly, it is submitted that as the Supreme Court of India in the case of Mainul Hoque (supra), had permitted the transfer of the proceeding before Foreigners Tribunals, and also as the Division Bench of this Court in the case of Ashadur Islam (supra) had allowed the transfer of the proceeding from one Foreigners Tribunal to another, taking into account the circumstances under which the present application is made, the learned counsel for the petitioner prays that the proceeding referred above should also be transferred. 6. In the said context, it is further submitted that as the burden of proof is on the petitioner, if the proceedings are not transferred, the petitioner would be prejudiced. Page No.# 5/8 7. Per contra, learned standing counsel for the FT and Border matters, has opposed the prayer. 8. It is submitted that the Full Bench had taken up the case of Makibur Rahman (supra) on the basis of reference made by the Division Bench of this Court and the Full Bench, after discussing several case laws on the point including the powers of general transfer and withdrawal, as provided under Section 24 of the Code of Civil Procedure, 1908, observed and held as follows :- “53. As regards the order dated 29.01.2019 of the Hon’ble Supreme Court in the case of Mainul Hoque (supra) is concerned, the Division Bench of this Court in the case of Shariful Islam (supra) had noted that the decision in Mainul Hoque (supra) was rendered by the Hon’ble Supreme Court by exercise of powers under Article 142 of the Constitution of India and further, no reasons were assigned by the Hon’ble Supreme Court and therefore, it was held that no law, as such, was laid down in the said decision. The said order which has been brought on record would show that the Hon’ble Supreme Court had passed the same by considering the counter-affidavit filed by the State and on “the facts of that case”. We are therefore, in agreement with the reasoning of the Division Bench in the case of Shariful (supra) that no ratio, as such can be said to have been laid down. 54. The petitioners have tried to rely upon the Foreigners Tribunals Order, 2006 and have contended that no difficulties would be faced by the State. However, in the case of Sarbananda Sonowal (II) Vs. Union of India, reported in (2007) 1 SCC 174, the aforesaid Foreigners Tribunals Order of 2006 has been quashed. The records reveal that the Government has determined the Foreigners Tribunals and such Foreigners Tribunals have been constituted district wise and in fact, in certain districts, there are more than one Foreigners Tribunal. However, the issue involved in this reference was not with regard to transfer from one Tribunal to another Tribunal within the same district but from one Tribunal to another Tribunal in a different district. 55. A contention has been raised on behalf of the petitioners that even though the statute provides for a Commission to record evidence, the same may not be an efficacious one and expenses would be involved. The said contention does not appeal to us in the context that the entire statute and the scheme is for detection and deportation of foreign nationals from the country in which such a suspect is given due Page No.# 6/8 opportunity to prove his or her citizenship by cogent, reliable and acceptable evidence which are supported by contemporaneous records. When the objective of the statute is directly connected with the integrity of the country which is undoubtedly a paramount public interest, we are of the view that provision of a Commission is only to facilitate a reasonable and adequate opportunity to a proceedee. We are also of the view that the referral order was in the context of a proceedee who was residing under the jurisdiction of the concerned Tribunal and after initiation of such proceedings, if a proceedee on his own volition leaves the said district, it would be against the equities even to consider a prayer for transferring a proceeding only for the convenience of such proceedee, that too, without any express powers being vested by law upon this Court. We are also of the view that the rights of a proceedee qua access to justice is not in any manner infringed as such proceedee has all the opportunity in law to defend himself/herself in the concerned Tribunal. 56. Though it is true that the power under Article 226 of the Constitution of India is an unbridled and unfettered power, there are self-imposed restrictions. Under the aforesaid powers, a High Court can issue prerogative writs and this jurisdiction is an extra-ordinary one. Such jurisdictions are not to be exercised in a routine manner. Further, it is only an equitable jurisdiction exercised by a Court under Article 226 of the Constitution of India and there is an obligation cast upon the Court to balance the equities. We are of the considered view that in the facts and circumstances of the cases, more particularly, taking the objective of the statute, the powers of this Court under Article 226 of the Constitution of India would not extend to direct transfer of a proceeding under the Foreigners Act, 1946 from one district to another. 57. We, accordingly hold that the views expressed by the learned Division Bench in the case of Shariful Islam (supra) do not require any re-consideration and is the correct view. 58. The reference is answered accordingly. 59. Having answered the reference in the manner indicated above, we would, however, like to make some clarifications. Though we have held that the powers under Article 226 of the Constitution of India cannot be generally invoked for transferring a proceeding from one Foreigners Tribunal to another, in exceptional circumstances, as indicated below, such considerations may be made. Such exceptional circumstances would be: i) When there is only one Foreigners Tribunal in a particular district and the Page No.# 7/8 same is not functioning due to non-availability of the Presiding Officer for a long period of time; or ii) When there is only one Foreigners Tribunal in a particular district and the Presiding Officer of the said Tribunal recuses from a particular case. It is further clarified that the said power may be exercised only for transferring such a proceeding to the appropriate Foreigners Tribunal in the adjacent district. 60. The aforesaid clarifications, in the form of exceptions are given to ensure that the right to access to justice is not fettered.” 9. Therefore, this Court took into account the decision of the Hon’ble Supreme Court in the case of Mainul Hoque (supra) and had decided the reference by holding that the power of the Court under Article 226 of the Constitution of India would not extend to direct transfer of a proceeding under the Foreigners Act, 1946, from one district to another and thereby, affirming the view taken by the Division Bench of this Court in the case of Shariful Islam & Anr. Vs. Union of India & Ors, WP(C)/2780/2019, decided on 07.06.2019. Therefore, notwithstanding the projection made in this writ petition and the reasons assigned to transfer the proceedings, this Court, bound by the decision of the Full Bench of this Court in the case of Makibur Rahman (supra), is of the considered opinion that in view of the law laid down by the Full Bench of this Court, a contrary view cannot be taken by this Bench. 10. Accordingly, the prayer made in this writ petition for transfer of the proceeding of FT Case No. FT/SRV/400/2011, pending before the learned Member, Foreigners Tribunal, Jorhat to any Foreigners Tribunal in the district of Sribhumi (earlier Karimganj) stands rejected. This writ petition is dismissed. There shall be no order as to costs. Page No.# 8/8 11. By an interim order passed on 07.04.2022, the proceeding before the learned Foreigners Tribunal, Jorhat was stayed. The said stay vide the order dated 07.04.2022 stands vacated. 12. The petitioner duly represented by his learned counsel shall appear before the learned Member, Foreigners Tribunal, Jorhat, on 16.11.2026, without any requirement of being served with a fresh notice for appearance. 13. On 16.11.2026, the petitioner, by producing a certified copy of this order, shall await for further directions to be issued by the said Foreigners Tribunal. 14. In the event the petitioner fails to appear within the time allowed, it would be open to the learned Tribunal to treat the petitioner as absent on call and pass appropriate order(s). 15. The learned standing counsel for the FT and Border matters, shall transmit a downloaded copy of this order to the concerned respondent authorities for the information. 16. Registry shall return the records received from the learned Tribunal. JUDGE JUDGE Comparing Assistant