Full Judgment Text
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PETITIONER:
STATE OF ARUNACHAL PRADESH
Vs.
RESPONDENT:
KHUDIRAM CHARMA
DATE OF JUDGMENT27/04/1993
BENCH:
MOHAN, S. (J)
BENCH:
MOHAN, S. (J)
VENKATACHALLIAH, M.N.(CJ)
CITATION:
1994 AIR 1461 1993 SCR (3) 401
1994 SCC Supl. (1) 615 JT 1993 (3) 546
1993 SCALE (2)682
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
S. MOHAN, J.- Leave granted.
2. Both these civil appeals arise out of the judgment of
the Gauhati High Court dated April 30, 1992 rendered in C.R.
No. 166 of 1984. The short facts are as under.
3. The parties will be referred to as the appellant and
the State of Arunachal Pradesh.
4. The appellant along with his family members and other
56 families migrated to India on March 30, 1964 from
erstwhile East Pakistan, now Bangladesh, due to disturbances
prevailing at that time. They took shelter in a Government
camp Abhoypur Block in Tirap District.
5. The appellant and other 56 families are known as
Chakmas of the erstwhile East Pakistan. They being the
refugees were given shelter in Government camp at Ledo in
the District of Dibrugarh, Assam. Later on, in 1966, they
were shifted to the camp at Miao within the State of
Arunachal Pradesh.
6. Arunachal Pradesh was called NEFA (North-East Frontier
Agency) prior to 1972. On January 21, 1972 it was given the
status of Union Territory of Arunachal Pradesh. It became a
full-fledged State on February 20, 1987. Geographically, it
is situated on the north-east of India and has a long
international border with Bhutan, China and Burma (Burma
presently called Myanmar). It is the largest State areawise
in the north-east region, even larger than Assam which is
the most populous State. The population of Arunachal
Pradesh according to the 1981 census is 6.32 lakhs. It is
scattered over 12 towns and 3257 villages. There are 26
major tribes. Broadly speaking, the people in
618
the State can be divided into three cultural groups, on the
basis of their socioregional affirmities.
(i) The Monpas and Sherdukpens of Tawang and
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West Kemeng District;
(ii) Khamptis and Singpos inhabiting the
entire eastern part of the State; and
(iii) the Neotes and Wanchos adjoining
Nagaland in the Tirap District.
7. In the year 1966, the State Government drew the Scheme
known as Chakma Resettlement Scheme for these refugees.
Areas were earmarked for their settlement in different parts
of the State and accordingly they were asked to move to the
areas earmarked for them. In all, 5 Schemes were sanctioned
for their settlement (comprising about 3100 families of
refugees) at the cost of more than Rs 2 crores.
8. The appellants along with 56 families were allotted
lands in the villages of Gautampur and Maitripur. There
were already a good number of Chakma refugee families who
were allotted lands and were living there peacefully. The
appellant instead of residing in the said allotted areas
under the Resettlement Scheme drawn by the Government,
strayed away from it and negotiated with the Local Raja
namely Ningrunong Singpo of Damba for an area of one sq.
mile of his private land and got the same from the said
Singpo through an unregistered deed dated November 20, 1972.
9. The State would contend that the said transfer is
illegal because as per Section 7 of the BEFRT, 1873
(Regulation 5 of 1873) no person, who is not a native of the
District, would acquire any interest in the land or the
produce of the land beyond the inner line without the
sanction of the State Government or such officer as the
State Government may appoint in this behalf. On the
contrary, the stand of the appellant is that since the date
of donation they have been residing and cultivating the said
land and they have developed the area for habitation
purposes.
10. It is further alleged on behalf of the appellant that
in 1973, a village panchayat of Joypur village was formed
after election of the members. The appellant was appointed
as the Gaon-Bura of the village. This was with the approval
of the Government, in token of which a Sanad dated November
20, 1975 was issued in his name. The Deputy Commissioner at
Kenonsa approved the transfer and the Extra Assistant
Commissioner, Miao by his Memorandum No. MR 8(A)/75/8648-51,
dated April 26, 1976 issued instructions against any attempt
to allot the land to other and generally against any
eviction of the appellants from the said land.
11. Some Deori families who were allotted lands in the
adjacent area of Joypur village attempted to encroach upon
the lands of the appellant and on a complaint lodged, the
authorities concerned i.e. Executive Magistrate at Miao by
his letter dated May 30, 1977 issued instructions to
Ningrunong Singpo Rajkumar to turn out the extra families
from the appellant’s village with a direction to the Circle
Officer, Diyun to report compliance. It was after such
intervention that such outsiders in due course were
expelled.
12. After obtaining the donation from the Raja by dint of
hard labour they developed the jungle area which was a hilly
uneven tract of land. In view of the
+ Bengal Eastem Frontier Regulation
619
tremendous agricultural success the Tirap District
Authorities granted two Rice Hullar Units in the name of the
appellant. The Chakmas transformed the land into a truly
self-sufficient village.
13.In view of prosperity and growth of land the nearby
villagers sought to dislodge the appellant and the families
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by raising various disputes, one of which was that the place
cannot be utilised as refugee settlement and that they
should be shifted to another place. Circle Officer, Diyun
issued an order dated February 15, 1984 directing the
appellant to shift to the vacant land at Gautampur and
Maitripur villages latest by February 24, 1984. The
representation requesting the Chief Minister of Arunachal
Pradesh to interfere was of no avail.
14. The appellant after settling in this unauthorised land
started committing criminal and illegal activities. There
were several complaints to the effect that the appellant is
encroaching upon the private lands illegally in connivance
with the local people, particularly, Singpos.
15. In order to investigate the matter fully, the
Government, vide its letter dated April 4, 1979, directed an
inquiry into the whole matter through a Committee comprising
of 9 persons with the Deputy Commissioner of the area as the
Chairman.
16. The said Committee after due investigation submitted
its report on June 11, 1979, stating therein that about 788
families of Refugees (Chakmas, Deori, and Bhutia) have
illegally encroached upon about 872 hectares in Miao Sub-
Division alone.
17. The said Committee observed:
"7. The fear of the local people regarding
heavy growth of population among the Chakmas
has already been stated above and it is also
well known to the Government. But such fear
may be true in the case of Deoris and Ahoms
too because it has been seen that in their
case too their population is increasing by
leaps and bounds, for instance it is learnt
that when they were inducted there were only 6
Ahom families and 32 Deoris, whereas this has
now increased to 23 and 106 respectively. We
should, therefore, watch by one method or the
other that flow of Chakmas, Deoris and Ahoms
does not at all take place. For this purpose
formal allotment of land to each family is
very necessary and further in order to guard
against new entrants, the DC’s office is said
to be taking up the issue of identity cards.
9.2. Land is still available in Innano, Dumba
and Mudoi, especially after the eviction of
four Chakma villages during March last.
Singpos have been known to induct outsiders
not only without Government’s approval but
also by various undesirable methods, this has
to be properly watched and if found necessary
we may have to give exemplary punishment to
those who indulge in such practice. Already
there is some sign of dissension among the
local people due to the activities of one
Nirunong of Kumchai village who was mainly
responsible for inducting Chakmas in Jaipur
village, 10 Deori families and some others
from outside. It has also been seen that in
Innao village there are six tea garden tribals
who have been living and working since the
last 10 years with Inner Line passes renewed
from time to time but
620
obviously with the understanding that the
local people would subsequently give them land
for permanent resettlement."
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18. The State received complaints that Chakma people were
indulging in illegal activities such as commission of
offences under various lands, collection of arms and
ammunition, establishing contacts with the extremist groups,
encroachment of adjoining areas. The State, therefore,
found it necessary to shift them to a site where other
Chakma families were already residing.
19. It was in these circumstances, by order dated February
15, 1984, the State directed the appellant and the other
Chakmas to shift. The said order is to the following
effect:
"In connection to this Office Memorandum No.
LS-4/83/84/2478-79, dated August 6, 1984, the
Chakmas of Joypur village are hereby directed
to shift to the vacant land allotted at
Gautampur and Maitripur villages latest by
February 25, 1984.
This may be treated as final notice, failing
which legal action will be taken against the
defaulters."
20. Questioning the correctness of the order, C.R. No. 166
of 1984 was filed before the High Court of Gauhati.
21. It was urged:
(i) The petitioners are citizens of India.
(ii) Their fundamental rights have been
infringed.
(iii) The impugned notice dated February 15,
1984 is illegal, arbitrary and had been issued
in violation of the principles of natural
justice.
22. The High Court of Gauhati formulated three questions
for determination:
(1) Whether the writ petitioner and the 56
Chakma families now settled in Joypur village,
Miyo Sub-Division, Arunachal Pradesh are
citizens of India or foreigners?
(2) If they are not citizens of India,
whether the authorities concerned have right
to give direction to these Chakma people to
move to another place?
(3) Whether the impugned order dated
February 15, 1984 is arbitrary, devoid of
reason and violative of the provisions of the
Constitution?
23. While urging the first question it was contended that
the petitioner and the other Chakma families came to Assam
in 1964 and stayed there for some time. They were shifted
to Miao Sub-Division in Arunachal Pradesh. In 1964, the
territory of Arunachal Pradesh was included in Assam. Since
they stayed in Assam they must be deemed to be citizens of
India within the meaning of Section 6-A of the Citizenship
Act, 1955 as amended in 1985. They also contended that
proviso to Section 2 of Immigrants (Expulsion from Assam)
Act, 1950 would also protect them.
24. The High Court, on an elaborate consideration of the
provisions of Citizenship Act, came to the conclusion that
the language of Section 6-A of the Citizenship Act is very
clear. It states that persons who have come into Assam
before January 1966 from the specified territory and who
have been ordinarily resident in Assam since the date of
their entry shall be deemed to be citizens. Admittedly, the
petitioners therein would not fall under this category as
they
621
stayed in Assam for a short while in 1964. Accordingly,
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they will not be citizens of India.
25. On the second question, the High Court referred to
Section 7 of the Bengal Eastern Frontier Regulation, 1873.
That section specifically prohibits the acquisition of
interest in land by other than the natives of the district
without the sanction of the State Government. Admittedly,
there was no sanction of the State Government in favour of
the petitioners under the said Regulation which is
applicable to Arunachal Pradesh. Besides, clause 9(2)(a) of
the Foreigners Order, 1948 prohibits acquisition of land or
any interest thereon or within the prohibited area by any
foreigner. Clause 9(2)(b) states that the local authority
may impose conditions regarding acquisition of land or any
interest thereof or any other matter deemed necessary in the
interest of public safety. There was no controversy that
the place where Chakmas were staying is within the inner
line which is protected area notified by the State
Government.
26. In view of the facts, the High Court came to the
conclusion that the petitioners had no right to seek a
permanent place of abode in that area. The authority had
every right requiring them to shift.
27. On the third question, after going through the various
files produced by the State Government, in the court, the
High Court found various complaints against these Chakmas.
They were indulging in procuring arms and ammunition and
were actively associating with anti-social elements.
Accordingly, it was concluded that the impugned order is not
devoid of any reason.
28. Lastly, the High Court, on humanitarian grounds,
directed the State Government to give adequate compensation
in the event of these Chakmas being evicted from the place.
The State of Arunachal Pradesh has preferred SLP (C) No.
12429 of 1992 while Khudiram Chakma has filed SLP (C) No.
13767 of 1992.
29. Mr Gobinda Mukhoty, learned counsel for the
appellant urges that in 1947 the appellants were Indian
citizens. Because of the partition of the country they went
over to the then East Pakistan, presently Bangladesh. But
when they returned in 1964 to the erstwhile Assam State they
stayed there for some time and shifted to Arunachal Pradesh.
To deprive them of the citizenship would be violative of
Article 14 of the Constitution of India. By mere accident of
their going over to Arunachal Pradesh, they cannot lose
their citizenship. The learned counsel referred us to the
various provisions of the Citizenship Act, 1955. He urges
that there is evidence, in this case, of donation of lands
in favour of these appellants by Raja Ningrunong Singpo of
Damba. That was approved by the Deputy Commissioner as seen
from memorandum dated April 26, 1976. The appellant was
appointed Gaon-Bura of Joypur village. In proof of that
Sanad was issued by the Deputy Commissioner. Again, the
Executive Magistrate had directed the Raja to turn out the
extra families occupying lands at Joypur in the area
allotted to the appellants and other Chakmas. There is also
evidence on record to show that the Chakmas have been paying
taxes including house tax. When that be the position, there
is no justification at all calling upon the appellants and
the other 56 families to shift.
30. There was no notice before calling upon the
appellants to shift. This Court in Scheduled Caste and
Weaker Section Welfare Assn. v. State of
622
Karnataka1’, a case arising under Karnataka Slum Areas
(Improvement and Clearance) Act, 1973, held that before
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eviction a slum dweller does have a right to say.
Therefore, it is submitted that the principle of natural
justice applies to non-citizens also.
31.In Louis De Raedt v. Union of India 2 this Court took
the view that the fundamental rights are available to
foreigners as well, including Article 21 of the
Constitution.
32.Mr K.K. Venugopal, learned senior counsel, appearing
for the State of Assam contends in opposition:
33.The appellants cannot claim to be citizens of India by
invoking Section 6-A of the Citizenship Act as amended and
incorporated on December 7, 1985 in pursuance of the Assam
Accord. In order to get the benefit of Section 6-A two
conditions mentioned in sub-section (2) of the said section
must be satisfied simultaneously:
(i)The persons who are of Indian origin
(viz. undivided India) came before January 1,
1966 to Assam from the specified territory;
and
(ii) have been "ordinarily resident" in Assam
(as it existed in 1985) since the date of
their entry into Assam.
34. Insofar as the appellants were residing in Miao Sub-
Division of Tirap District, Arunachal Pradesh since 1968
they did not satisfy these conditions. As to what exactly
is the meaning of "ordinarily resident" could be seen from
Shanno Devi v. Mangal Sain3.
35.It is true that this Court in Louis De Raedt- took the
view that even a foreigner has a fundamental right, but that
fundamental right is confined only to Article 21 and does
not include the right to move freely throughout and to
reside and stay in any part of the territory of India, as
conferred under Articles 19(1)(d) and (e). Such a right is
available only to the citizens. The appellants being
foreigners, cannot invoke Article 14 of the Constitution to
get the same right denied to them under Article 19 since
Article 14 cannot operate in regard to a right specifically
withheld from non-citizens. In support of this submission,
reliance is placed on Indo-China Steam Navigation Co. Ltd.
v. Jasjit Singh, Addl. Collector of customs4 and Louis De
Raedt2.
36.The land donated in favour of the appellants by Raja
Ningrunong Singpo of Damba by donation deed dated November
20, 1972 is illegal. Section 7 of the Bengal Eastern
Frontier Regulation, 1873 and Clause 9 of the Foreigners
Order, 1948, which are applicable to Arunachal Pradesh,
specifically prohibit such transfer without prior permission
of State Government. No such permission, in this case, was
obtained. The tribals of North-Eastern States are
historically protected races. Part X of the Constitution of
India contains provisions and laws governing them. The
decision regarding settlement of foreigners is a matter of
policy. It is well-settled in law that the Court does not
interfere in a matter of governmental policy since it is for
the Government to decide.
1 (1991) 2 SCC 604
2 (1991) 3 SCC 554: 1991 SCC (Cri) 886
3 (1961) 1 SCR 576, 590: AIR 1961 SC 58 : 22 ELR 469
4 (1964) 6 SCR 594, 621-22 : AIR 1964 SC 1140: (1964) 2 Cri
LJ 234
623
37.On the question of natural justice before passing the
impugned order dated February 15, 1984 the learned counsel,
producing the relevant material from the file, would urge
that it is not correct to state that the order came to be
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issued all of a sudden. There is abundant material to show
that the question of eviction was an ongoing process, right
from 1978. Many notices were issued over a period of years
to shift to Villages Maitripur and Gautampur. There were
protests from Chakmas. From the file it is seen that the
appellant was aware of the shift order dated September 26,
1983. There was also an oral hearing of the same. It was
because of the complaints filed by the residents of the
locality against the appellant and in view of the report
that they were indulging in procuring arms and ammunition
and were in close contact with anti-social elements. Taking
an overall view of the matter, the impugned order came to be
passed. On ground realities, natural justice is fully
satisfied.
38.In support of the above submissions, the learned
counsel relied on the following cases:
R. v. Secretary of State for the Home
Department ex parte Cheblak5.
Lord Bridge of Harwich, pp. 723-F to 724-G;
Lord Templeman, p. 725J, 726-A to C; Lord
Ackner, pp. 731-H, 732 G-H, 735 F-J; Lord
Lowry, p. 737 D-J in Brind v. Secretary of
State for the Home Deptt.6
Council of Civil Service Unions v. Minister
for the Civil Service7. McInnes v. Onslow
Farne8.
J. R. Vohra v. India Export House Pvt. Ltd. 9
Maharashtra State Board of Secondary & Higher
Secondary Education v. K.S. Gandhi10. Satya
Vir Singh v. Union of India
39.However, the learned counsel fairly conceded that the
Chief Minister was willing to hear the appellants or any
representative of their group, additionally, as a post-
decisional hearing, even though they had full opportunities
over a period of four years. It is his submission that it
must be a post-decisional hearing as otherwise, if the
decisions were against the appellants a further round of
litigation would be embarked upon.
40.We will proceed to consider the correctness of the
above submissions providing the necessary background and the
factual matrix.
41.The history of the mountainous and multitribal north-
east frontier region which is now known as Arunachal Pradesh
ascends for hundreds of years into the mists of tradition
and mythology. According to Pauranic legend, Rukmini, the
daughter of King Bhishmak, was carried away on the eve of
her marriage by Lord Krishna himself. The ruins of the fort
at Bhalukpung are claimed by the Akas as the original home
of their ancestor Bhaluka, the grandson of Bana Raja, who
was defeated by Lord Krishna at Tezpur (Assam). A Kalita
King,
5 (1991) 2 All ER 319, 331 A-332H, 334A-J (CA)
6 (1991) 1 All ER 720 (HL)
7 (1984) 3 All ER 935 (HL)
8 (1978) 3 All ER 211, 219, 223 A-J, 229 (Ch D)
9 (1985) 1 SCC 712, 722-723 (paras 12, 13)
10 (1991) 2 SCC 716, 730 (paras 20-22)
11 (1985) 4 SCC 252,263: 1986 SCC (L&S) 1
624
Ramachandra, driven from his kingdom in the plains of Assam,
fled to the Dafla (now Nishang) foothills and established
there his capital of Mayapore, which is identified with the
ruins on the Ita hill. A place of great sanctity in the
beautiful lower reaches of the Lohit River, the Brahmakund,
where Parasuram opened a passage through the hills with a
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single blow of his mighty axe, still attracts the Hindu
pilgrims from all over the country.
42.In the year 1838, when the British took over the
administrative control of Assam from the last Ahom King,
Shri Purander Singh, it was thought necessary to extend
elementary regular administration to the adjoining northeast
frontier region. The first important step in this direction
was as such initiated with adoption of Regulation V of 1873
empowering the then Lieutenant-Governor of Assam to
prescribe a Line, called ’Inner Line’ with a view (1) "to
bring the commercial relations of the hills with the plains
under more stringent control, (2) to prevent the operation
of speculators in ’Caoutchouc’ (raw rubber), (3) to prevent
the spread of tea gardens, and (4) to lay down rules for the
possession of land and property beyond the ’Inner Line’
without special permits".
43.A notification bearing No. 1486, dated June 21, 1876
was issued by the Government of India, Foreign Department to
the effect that the GovernorGeneral was pleased to prohibit
all British subjects from going beyond the inner line
without a pass under the hand and seal of Deputy
Commissioner. After covering the hilly areas
administratively, the whole of tribal region was divided
into two Frontier Tracts in 1915. By 1937, the
administrative status of NorthEast Frontier Tract could be
effected to under the Government of India’s (Excluded and
Partially Excluded Area) Order of 1936.
44.Under the effective provision of Section 91(1) of the
Government of India Act, 1935, the above Frontier Tract came
to be known as Excluded Area of Assam. Again, the 1942
administrative change took place as a consequence of which
Tirap Frontier Tract was carved out of the Sadiya Frontier
Tract. In 1943, an advisor was appointed as the
administrative head with a purpose to develop the region
through gradual penetration of the administrative machinery.
45.Another change was effected in the administrative set-
up on January 26, 1950 when the Government of Assam was
relieved of its responsibility for looking after the
administration of the Excluded Area. However, the
discretionary power was vested in the Governor of Assam,
under the provision of paragraph 18 of the Sixth Schedule to
the Constitution and Part B of the Table 20 of the Schedule,
who served as the agent of the President of the Union of the
Republic of India.
46.In the course of administrative and political events
Arunachal Pradesh has travelled from the Tract to the Union
Territory. Under the provision of North-Eastern Areas
(Reorganisation) Act, 1971 (Central Act 81 of 1971), the
present status of Union Territory was granted to the
erstwhile North-East Frontier Agency and renamed as
Arunachal Pradesh on January 21, 1972. The Union Territory
of Arunachal Pradesh was placed under the charge of Chief
Commissioner during that year.
47.The year of 1975 also proved eventful for Arunachal
Pradesh. On August 15, 1975, then existing Pradesh Council
was constituted into the Union Territory Legislature. The
panel of then existing five counsellors was
625
constituted into Provisional Council of Ministers.
Consequent upon the above change, the post of Chief
Commissioner was further elevated to the position of
Lieutenant-Govemor on August 15, 1975. The first general
election to Arunachal Legislature was held in the month of
February 1978. The Arunachal Pradesh Legislative Assembly
has 33 members in total, out of which 3 members are
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nominated.
48.Earlier, Arunachal Pradesh had nominated a
representative in Parliament. By an Act of the Government
of India in 1971, the Union Territory was provided with one
seat each in Lok Sabha and Rajya Sabha, but these
representatives were nominated by the President of India.
But at present, Arunachal Pradesh enjoys two elective seats
in the Lok Sabha based on the universal franchise.
49.On February 20, 1987 Arunachal Pradesh was made a full-
fledged State. Thus, it will be seen that at no time
Arunachal Pradesh was part of the Territory of the State of
Assam though it was being administered by the Governor of
Assam or the President of India, as the case may be. The
following Chronological Statement of changes in the Pattern
of Administration in NEFA occurring in P.N. Luthra’s
Constitutional and Administrative Growth of the North-East
Frontier Agency is useful:
1 2 3
1914 1919 1937
Administered Administerd by the Administered by the
by the Gover- Government of Assam Governor of Assam
ment of Assam with special safeguards acting in his dis-
cretion independe-
ntly of the Provi-
cial Ministry.
4 5 6
1947 1950 1965
Administered by Administered by the Administered as
the Governor of President through before by the
Assam acting on the Governor of Governor as agent
the advice of the Assam as his agent of the President but
provincial Ministry acting in his des- under the general
cretion under the supervision and con-
general supervision ntrol of the
and control of Ministry of Home
Ministry of External Affairs.
Affairs.
50. Arunachal Pradesh is situate in the North-East of India
skirted by Bhutan in West, Tibet and China in North and
North-East, Burma (Myanmar) in East and Assam in South. It
consists of the sub-mountains and mountainous ranges sloping
to the plains of Assam. Its capital is Itanagar. It is the
largest State areawise (83,743 sq. kms.) in the North-East
region even larger than Assam which is the most populous
State. Arunachal Pradesh is the most thinly populated State
in India. According to 1991 census the population of
Arunachal Pradesh is 6.32 lakh and is scattered over 12
towns and 3257 villages. There are 26 major tribes in
Arunachal Pradesh. Broadly speaking, the people in the
State may be divided into three cultural groups on the basis
of their socio-regional affinities.
626
(i) The Monpas and Sherdukpens of Tawang and
West Kemeng District;
(ii) Khamptis and Singpos inhabiting the
entire eastern part of the State; and
(iii) The Noetes and Wanchos adjoining
Nagaland in the Tirap District.
51. This is the history of Arunachal Pradesh, a rich land
and poor people. It was in the year 1964 thousands of
Chakma families migrated from the then East Pakistan to
India. The appellant along with other 56 families also
migrated to India. Being refugees they were given shelter
in government camps at Ledo within the district of
Dibrugarh, Assam. Later on they were shifted to the camp at
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Miao Sub-Division in Tirap District, now within the State of
Arunachal Pradesh which was then known as North-East
Frontier Agency (NEFA). In the years 1966-68 the then
Government drew up the Chakma resettlement schemes.
Altogether 5 schemes were sanctioned for settlement of 31 00
families at a cost of more than Rupees Two crores. The
appellants were allotted lands in the villages of Gautampur
and Maitripur. The other Chakmas were also staying there.
As stated earlier, on January 21, 1972 NEFA was given the
status of Union Territory and was renamed as Arunachal
Pradesh. The appellants strayed away from the original
settlement area allotted to them by the Government under the
schemes. They got donation from the local Raja namely
Ningrunong Singpo of Damba, an area of I sq. mile at Joypur
Village which is inside the Inner Line. Earlier we were
referred to Bengal Eastern Frontier Regulation, 1873.
Clause 2 of the said Regulation states thus:
"It shall be lawful for the State Government
to prescribe and from time to time to alter by
notification in the Official Gazette a line to
be called ’The Inner Line’ in each or any of
the above-named districts.
The State Government may, by notification in
the Arunachal Pradesh Gazette prohibit all
citizens of India or any class of such
citizens or any persons residing in or passing
through such districts from going beyond such
line without a pass under the hand and seal of
the Chief Executive Officer of such district
or of such other officer as he may, authorise
to grant such pass; and the State Government
may, from time to time, cancel or vary such
prohibition."
52. Clause 7 is important. That reads as
follows:
"It shall not be lawful for any person, not
being a native of the district comprised in
the preamble of this Regulation, to acquire
any interest in land or the product of land
beyond the said ’Inner Line’ without the
sanction of the State Government or such
officer as the State Government shall appoint
in this behalf.
Any interest so acquired may be dealt with as
the State Government or its said Officer shall
direct.
The State Government may also, by notification
in the Arunachal Pradesh Gazette extend the
prohibition contained in this section to any
class of persons, natives of the said
districts, and may from time to time in like
manner cancel or vary such extension."
53. Under Section 3 of the Foreigners Act of 1946, the
Central Government may, by order, make provision for
prohibiting, regulating or restricting the entry of
foreigners into India. In exercise of power conferred under
Section 3 of the said Act Foreigners Order of 1948 dated
February 10, 1948 was issued. Under
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Clause 9 of the said Order the Central Government or with
prior sanction, a civil authority may, by order, declare any
area to be a protected area for the purposes of this order.
On such declaration, the civil authority may, as to any
protected area, prohibit any foreigner or any class of
foreigners from entering or remaining in the area, impose on
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any foreigner or class of foreigners entering or being
entered in the area, such conditions as may be mentioned
under Clause 9. Clause 9 of the Foreigners Order of 1948 in
sub-clause (2) prohibits the acquisition of any land or any
interest thereon within the prohibited area by any
foreigner.
54. Under Clause 9 the authorities concerned, by an order,
may prohibit any foreigner from remaining in any part of the
protected area as stated in the Foreigners’ Protected Area
Order of 1958 which includes the territory of Arunachal
Pradesh.
55. Examined in this light, the donation by Raja is clearly
invalid.
56. However, the memorandum dated April 26, 1976 issued by
the Extra Assistant Commissioner Miao states that the
agreement between the appellant, Khudiram Chakma and the
local Raja dated November 20, 1972 has been approved by the
Deputy Commissioner. That is again mentioned in the
direction given by the Executive Magistrate Miao on May 30,
1977. The effect of approval by the Deputy Commissioner
will be considered later.
57. In this factual background, the question arises whether
the appellants could claim citizenship under Section 6-A of
Citizenship Act of 1955. We will now extract the said
section:
"6-A. Special provisions as to the
citizenship of persons covered by the Assam
Accord.- (1) For the purposes of this section:
(a) ’Assam’ means the territories included
in the State of Assam immediately before the
commencement of the Citizenship (Amendment)
Act, 1985;
(b) ’detected to be a foreigner’ means
detected to be a foreigner in accordance with
the provisions of the Foreigners Act, 1946 (31
of 1946) and the Foreigners (Tribunals) Order,
1964 by a Tribunal constituted under the said
order;
(c) ’specified territory’ means the
territories included in Bangladesh immediately
before the commencement of the Citizenship
(Amendment) Act, 1985;
(d) a person shall be deemed to be of Indian
origin, if he, or either of his parents or any
of his grandparents was born in undivided
India;
(e) a person shall be deemed to have been
detected to be a foreigner on the date on whic
h
a Tribunal constituted under the Foreigners
(Tribunals) Order, 1964 submits its opinion to
the effect that he is a foreigner to the
officer or authority concerned.
(2) Subject to the provisions of sub-
sections (6) and (7), all persons of Indian
origin who came before the 1st day of January,
1966 to Assam from the specified territory
(including such of those whose names were
included in the electoral rolls used for the
purposes of the General Election to the House
of the People held in 1967) and who have been
ordinarily resident in Assam since the dates
of their entry into Assam shall be deemed to
be citizens of India as from the 1st day of
January, 1966.
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(3) to (8) ... (unnecessary)."
58. As rightly urged by Mr K.K. Venugopal, learned counsel
for the State of Assam, two conditions are required to be
satisfied under sub-section (2). They are:
(i) Persons who are of Indian origin
(undivided India) came before January 1, 1966
to Assam from the specified territory; and
(ii) have been "ordinarily resident" in Assam
as it existed in 1985 since their date of
entry in Assam.
59. The appellants were no doubt persons of Indian origin.
They came to Assam prior to January 1, 1966, namely, March
31, 1964 from the then East Pakistan, (presently Bangladesh)
which is undoubtedly one of the specified territories under
Section 6-A(1)(c).
60. Assam, as seen from Section 6-A(1)(a), means the
territories included in the State of Assam immediately
before the commencement of the Citizenship (Amendment) Act,
1985.
61. It is the common case that Chakma people entered into
Assam and stayed their for some time in Ledo within
Dibrugarh District. Thereafter they shifted to Miao,
Arunachal Pradesh. According to the appellant, since the
territory of Arunachal Pradesh in 1964 was included in the
State of Assam, they would be entitled to the benefit of
Section 6-A. This contention overlooks the fact that the
Immigrants (Expulsion from Assam) Act, 1950 (Act X of 1950)
applied to the territories presently forming part of
Meghalaya, Nagaland and Arunachal Pradesh. However, by the
North-Eastern Areas (Reorganisation) Act, 1971, the
territories of Arunachal Pradesh were excluded from the
purview of the Immigrants (Expulsion from Assam) Act of
1950.
62. Turning to Condition No. 2 the requirement is
ordinarily resident in Assam from the date of entry till the
incorporation of Section 6-A, namely, December 7, 1985. As
to the meaning of "ordinarily resident" we may refer to
Shanno Devi (Smt) v. Mangal Sain3. We find the following
observations at page 590 apposite:
"It is not necessary that for every day of
this period he should have resided in India.
In the absence of the definition of the words
’ordinarily resident’ in the Constitution it
is reasonable to take the words to mean
,resident during this period without any
serious break’."
63. Insofar as the appellants and the Chakmas were residing
in Miao SubDivision of Tirap District in Arunachal Pradesh
long before 1985, they cannot be regarded as citizens of
India. We find it difficult to appreciate the argument of
Mr Gobinda Mukhoty, learned counsel, that the accident of
the appellants living in Arunachal Pradesh should not
deprive them of citizenship. In this connection, it is
worthwhile to note that Section 6-A of the Citizenship Act
came to be incorporated by Amending Act as a result of Assam
Accord. If law lays down certain conditions for acquiring
citizenship, we cannot disregard the law. As laid down in
Kennedy v. Mendoza-Martinez12 "Citizenship is a most
precious right".
64. Aristotle, Politics, III, 5 states thus:
12 372 US 144, 159 : 9 L Ed 2d 644 (1963)
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"From earliest times, it has been such status
alone that has enabled the individual to share
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fully in the benefits of the community in
which he resides: Compare Homer’s words, ’like
some dishonoured stranger’: he who is excluded
from the honors of the State is no better than
an alien." That is the position of appellant
and the other 56 families.
65. If they are aliens, the donation deed dated November
20, 1972 is illegal. The Raja did not obtain any permission
for sale from the Government. From the records it is also
clear that the Raja had been donating the lands and was
indulging in anti-social activities for which he was warned.
We do not know how the Deputy Commissioner or the Extra
Assistant Commissioner ever approve of this donation without
there being an express authorisation by the State. It is an
admitted fact that the place where the Chakma families are
residing is within the inner line notified by the State
Government. Therefore, the argument that they have
cleared the forest and reclaimed the land and as such
would be entitled to a permanent abode, cannot be accepted.
66. Now we come to the validity of the impugned order. Mr
K.K. Venugopal, learned counsel has filed various notings
and the orders from the relevant files. From the files it
is clear that there have been complaints against Chakmas
that they were procuring arms and ammunition and indulging
in antisocial activities. The Deputy Commissioner, Tirap
District on March 19, 1981 wrote to the Extra Assistant
Commissioner, Miao as follows:
"Please refer to your report under reference,
wherein it is indicated that a large number of
arms and ammunition seized from the possession
of the Chakmas and are still kept in Quarter
guard. It is, therefore, requested to send us
a detailed report indicating details of arms
and ammunition seized.
2. It is further seen from your report
regarding judicial cases, submitted to this
office, that there are altogether 76 cases
registered up to November 1979 against the
Chakmas and most of them were related to
theft, assault and offences under Forest Act.
It is also therefore requested that more
details on specific offences and results
thereof may be furnished urgently.
3. The above two informations are urgently
required by the Government."
67. A list of cases including ones under Section 302 IPC
and other offences under Section 25-A of the Arms Act is
enclosed to the letter quoted above.
68. The Chakmas also encroached upon the neighbouring area
by unfair means and created trouble to the local people. An
appeal was made to the Chief Minister in 1980 itself that
because of these criminal activities they should be removed.
It is not correct to state that the impugned notice came to
be issued like ’a bolt from the blue’. The following letter
of the appellant addressed to the Deputy Commissioner speaks
eloquently:
"With reference to the subject quoted above, I
on behalf of the villagers of Joypur village
have the honour to draw your kind attention to
the following few lines for favour of your
needful action.
That, being landless in Abhoypur village, a
few villagers consisting of fifty-six families
have been settled in Joypur village in the
year 1968 with the mutual help of Shri
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Ningrunong Rajkumar (Singpo) and the same was
approved by the then Deputy Commissioner,
Khonsa in accordance with the agreement
adopted by Shri Rajkumar Singpo dated November
20, 1972.
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Now, the most regretful matter is that in
spite of our permanent cultivation on the area
for long sixteen years keeping all
conformities with the Government as well as
the neighbouring local people, we are being
harassed by notice after notice to shift from
the area.
On the contrary, I am to state that the land
where we have been directed to shift is quite
short and extremely unfit for cultivation due
to which those vacant lands are not yet
occupied by anybody in spite of lying
considerable landless families in the said
villages.
All documents created in regard to this matter
are attached herewith for favour of your kind
perusal and necessary action.
Under the circumstances stated here, I
earnestly pray and request you afresh to look
into the matter and thereby revoke the
shifting order at an early date.
I shall remain grateful to you thereof."
69. From the endorsement, it is also seen that two
representatives met the Deputy Commissioner on February
13, 1984. Therefore, there was an oral hearing. The above
letter mentions notice after notice to shift. It was
alleged by a petition to the Chief Minister that the Extra
Assistant Commissioner had been paid handsomely to allow
Chakma families to stay on illegally.
70. On November 16, 1982 the Extra Assistant Commissioner
called upon the Circle Officer, Diyum to issue notices to
the Chakma families staying at Joypur village to return to
their original place of settlement within December 31, 1982.
The Survey Reports for resettlement of these Chakmas dated
April 27, 1983 inter alia states:
"Survey had been done in Maitripur and
Gautampur areas where they have found 110
acres and 245 acres respectively which are
liable for settlement of Chakma settlers."
71. Thus, it will be clear that the reason
for shifting these Chakma families are:
(i) They are in illegal occupation of the
protected area.
(ii) They are indulging in procurement of
arms and ammunition.
(iii) They are indulging in criminal
activities and associating with antisocial
elements.
(iv) They have been source of constant
trouble to the other tribals.
72. As regards notice, it is seen from the above, that the
very appellant had notice after notice proposing to evict
which was resisted. Therefore, as rightly urged by Mr K.K.
Venugopal, learned counsel, on ground realities, the plea of
natural justice is fully satisfied.
73. Ruling in Scheduled Caste and Weaker Section Welfare
Assn. v. State of Kamatakal affording a hearing to slum
dwellers under the Karnataka Slum Areas (Improvement and
Clearance) Act, 1973, relied on by Mr Gobinda Mukhoty,
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learned counsel, has no application in the above
circumstances.
74. Even then what is that is sought to be done to the
appellants? They are asked to settle in Maitripur and
Gautampur villages from Miao. Certainly, settling the
Chakmas in a particular place is a matter of policy. This
Court cannot enter into the wisdom of such a policy, in view
of what has been stated above, Arunachal Pradesh is
strategically important with Bhutan in the West, Tibet and
China in the North and North-East, Burma (Myanmar) in the
East.
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75. It is true that fundamental right is available to a
foreigner as held in Louis De Raedt v. Union of India2: (SCC
p. 562, para 13)
"The next point taken on behalf of the
petitioners, that the foreigners also enjoy
some fundamental rights under the Constitution
of this country, is also of not much help to
them. The fundamental right of the foreigner
is confined to Article 21 for life and liberty
and does not include the right to reside and
settle in this I country, as mentioned in
Article 19(1)(e), which is applicable only to
the citizens of this country."
As such Articles 19(1)(d) and (e) are unavailable to
foreigners because those rights are conferred only on the
citizens. Certainly, the machinery of Article 14 cannot be
invoked to obtain that fundamental right. Rights under
Articles 19(1)(d) and (e) are expressly withheld to
foreigners.
76. Now we come to the humanitarian grounds which prompted
the High Court of Gauhati to direct compensation to the
appellants in the event of their being evicted.
77. Blackburn and Taylor speaking on the right to enjoy
asylum in Human Rights for the 1990s state at page 51 as
under:
"The most urgent need of a fugitive is a place
of refuge. His or her most fundamental righ
t
is to be granted asylum. The Universal
Declaration of Human Rights addressed this
issue in deceptive language. To the inexpert
reader there is great comfort in Article 14(1)
of that Declaration, which provides that:
’Everyone has the right to seek and enjoy in
other countries asylum from persecution’, it
seems tolerably clear, however, that the right
to enjoy asylum means no more than the right
to enjoy it if it is granted."
Again at page 52 it is stated thus:
"Article 14 of the Universal Declaration of
Human Rights, which speaks of the right to
enjoy asylum, has to be interpreted in the
light of the instrument as a whole; and must
be taken to mean something. It implies that
although an asylum-seeker has no right to be
granted admission to a foreign State, equally
a State which has granted him asylum must not
later return him to the country whence he
came. Moreover, the Article carries
considerable moral authority and embodies the
legal prerequisite of regional declarations
and instruments."
78. Warwick McKean, dealing with the equality in the
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treatment of aliens, states in Equality and Discrimination
under International Law at page 194 as under:
"It has long been recognized that persons who
reside on the territory of countries of which
they are not nationals possess a special
status under international law. States have
traditionally reserved the right to expel them
from their territory and to refuse to grant
them certain rights which are enjoyed by their
own nationals, e.g. the right to vote, hold
public office or to engage in political
activities. Aliens may be prohibited from
joining the civil service or certain
professions, or from owning some categories of
property, and States may place them under
restrictions in the interests of national
security or public order. Nevertheless, once
lawfully admitted to a territory, they are
entitled to certain minimum rights necessary
to the enjoyment of ordinary private life."
At pages 195-96 it is stated thus:
632
"General international law provides that
aliens should not be discriminated against in
their enjoyment of property rights once they
have been acquired. If alien property is
nationalized whereas the property of national
s
remains unaffected then that act is
discriminatory and prohibited under
international law. As Fitzmaurice points out,
it has long been recognized that in certain
matters, e.g. the general treatment of
foreigners in a country, or compensation for
property which may be expropriated or
nationalized, non-discrimination as between
persons of different nationality or against
foreigners as compared with persons of local
nationality, amounts to a rule of
international law, the breach of which gives
rise to a valid claim on the part of the
foreign government whose national is
involved."
79. Certainly, if the acquisition had been legal,
compensation could have been awarded. But in view of the
Bengal Eastern Frontier Regulation, 1873 and clause 9(3) of
the Foreigners Order, 1948 we do not think this is a case
for award of compensation.
80. Though we have held that the principles of natural
justice have been fully complied with in this case, we
record the statement made by learned counsel for the State
that the Chief Minister is ready to hear the respondents
(appellants herein) or any representative of their group.
Accordingly we direct that an opportunity be afforded to the
appellants by the Chief Minister and grant such relief as he
deems fit. We make it clear that it will be a post-
decisional hearing.
81. Accordingly we dismiss civil appeal arising out of SLP
(C) No. 13767 of 1992 filed by Khudiram Chakma while civil
appeal arising out of SLP (C) No. 12429 of 1992 filed by
State of Arunachal Pradesh is allowed. However, there shall
be no order as to costs.
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