Full Judgment Text
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PETITIONER:
STATE OF ARUNACHAL PRADESH
Vs.
RESPONDENT:
KHUDIRAM CHAKMA
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:
%
The citizenship Act, 1955:
Section 6A-Citizenship of persons covered by Assam Accord-
Persons of Indian origin known as Chakmas-Migrated to State
of Assam from specified territory before 1.1.1966-Shifted to
Arunachal Pradesh in 1966 and residing there since then-
Held, cannot be regarded as citizens of India.
Foreigners Act, 1946,
Section 3;
Foreigners’Order, 1948,
Clause 9 (2);
Foreigners Protection Order, 1958;
The Bengal Eastern Frontier Regulation, 1873, Clause 7:
Government’s power to declare any region as protected area-
Prohibition on acquisition of land or any interest thereon
by foreigners within protected area-Chakma refugees-Donation
of land by local Raja within inner line in State of
Arunachal Pradesh-Held, the donation deed was illegal.
Constitution of India, 1950:
Articles 14, 19(1)-(d), (e)-Rights to move freely throughout
the territory of India and to reside and settle any part
therein-Held, rights not avaliable to foreigners-Settling
Chakmas in a particular place is a matter of policy-Court
cannot enter into wisdom of such policy.
HEADNOTE:
The appellant in Civil Appeal No.481 of 1983, and thousands
of other families, known as Chakmas, migrated from the
erstwhile East Pakistan to Assam where they were given
shelter as refugees in 1964. In the year 1966 the
Government drew up the Chakma resettlement Schemes
whereunder they were allotted lands within the-North East
Frontier Agency, which later became State of Arunachal
Pradesh. The appellant and 56 other Chakma families strayed
away from the original settlement area and negotiated with
the local Raja who through an unregistered deed donated land
to them inside the inner line which was a protected area
under the Foreigners’ Protection Area Order 1958. Later,
the State Govenment received complaints that the
402
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Chakmas were making encroachment on lands of local people,
indulging in illegal collection of arms and ammunition and
establishing contacts with the extremist groups. An inquiry
into the matter was directed. The Government found it
necessary to shift them, and by order dated 15.2.1984
directed the appellant and the other Chakma families to
vacate the land and to shift to the original settlementarea
where other Chakma families were already‘ residing. The
appellant challenged the order before the High Court by
filing a writ petition which was dismissed. However, the
High Court, on humanitarian grounds, directed the State
Government to give adequate compensation to the Chakmas.
Both, the appellant and the State Government filed the
appeals by special leave.
It was contended on behalf of the appellant that the
appellant and the other Chakmas being of Indian origin and
having returned to Assam State in 1964, would be entitled to
citizenship under Section 6A of the Citizenship Act, 1955,
and by mere accident of their going to Arunachal Pradesh
they cannot lose their citizenship; and that the order dated
15.2.1984, besides being against the principles of natunal
justice, was violative of Article 14 of the Constitution as
it infringed the rights of the appellant and other Chakmas
under Articles 19(1) (d) and (e) of the Constitution.
Dismissing the appeal on behalf of the Chakmas and allowing
that of the State, this Court,
HELD : 1.1 The appellant and other Chakmas residing in
Arunachal Pradesh long before 1985 cannot be regarded as
citizens of India. [420- H]
1.2 Under Section 6-A of the Citizenship Act, 1955, which
was incorporated by the Amending Act, 1985 as a result of
Assam Accord, two conditions are required to be satisfied:
(1) Persons of Indian origin (undivided India) who came
before 1.1.1966 to Assam from the specified territory; and
(2) they have been "ordinarily resident" in Assam as it
existed in 1985 since their date of entry in Assam. [411 G-
H; 412 A]
1.3 Though the appellant and other Chakmas were of Indian
origin and came to Assam prior to 1.1.1966 from the then
East Pakistan, one of the specified territories but, in 1966
they shifted to the area within North East Frontier Agency
which later became State of Arunachal Pradesh, and at no
time was part of the Territory of the State of Assam though
was being administered by the Governors of Assam or the
President of India, as the case
403
may be. Besides, bt the North-Eastern Areas
(Reorganisation) Act, 1971, the territories of Arunachal
Pradesh were excluded from the purview of the Immigrants
(Explusion from Assam) Act, 1950. The appellant and the
other Chakmas were residing in Arunachal Pradesh long before
1985, and as such cannot be said to be "ordinarly resident"
in Assam as it existed in 1985 since their date of en try in
Assam. (420 A-F)
Smt. Shanno Devi v. Mangal Saini [1961] 1 SCR 576, relied
on.
1.4 If the law lays down certain conditions for acquiring
citizenship, the same cannot be disregarded. (421-A)
Kennedy v. Mendoza- Martinez 372 US. 144,159 [1963],
referred to.
Arstotle, Politics, III, 5, referred to.
2.The place where the Chakma families are residing is within
the inner line notified by the State Government. The place
is the protected one under the Foreigners’Protection Area
Order, 1958, wherein acquisition of any land or any interest
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thereon by any foreigner is prohibited as envisaged by
clause section 7 of the Bengal Eastern Frontier Regulation,
1873 and Clause 9(2) of the Foreigners’ Order 1948 issued
under Section 3 of the Foreigners Act, 1946. (410 DE)
2.2Accordingly, the donation deed through which the Raja
gave land to the appellant and the other Chakmas is
illegal.(421 D)
2.3Unlike article 21, rights under Articles 19(1) (d) and
(e) of the Constitution are unavailable to foreigners
because these rights are conferred only on the citizens and
are expressly withheld to foreigners. The machinery of
Article 14 cannot be invoked to obtain that fundamental
right.(424 E)
Indo-China Steam Navigation Co. v. Jasjit Singh, [1964]6 SCR
594 at 621 to 622, followed.
Louis De Raedt v. Union of Indian [1991] 3 SCC 554,
referredto.(412 CD)
404
3.1 Settling the Chakmas in a particular place is a matter
of policy. This Court cannot enter into the wisdom of such
a policy. Besides, the reasons for shifting the Chakma
families are : they are in illegal occupation of the
protected are, they are indulging in procurement of arms and
anununitions and other criminal activities; they are
associating with anti-social elements, and have been source
of constant trouble to the local tribals. Arunachal Pradesh
being a Border State is stategically important (424B,
423EFG)
4. In the instant case, the principles of natural justice
were fully complied with. It cannot he said that the order
dated 15.2.1984 for shifting the Chakmas came to be
issued like ’a bolt from the blue’. The record mentions
that before passing of the shifting order, notice after
notice were issued to chakma families to return to their
original place of settlement. Survey Reports for their
settlement were submitted and representation were made to
the authorities concerned who gave oral hearing to the
representatives of Chakmas. (412 GH)
Scheduled Caste and Weaker Section Welfare Association v.
State of Karnataka, [1991]2 SCC 604, inapplicable.
R. v. Secretary of Stale for the Home Department, [1991] 2
All ER 319 (CA); Brind v. Secretary of State [1991] 1 All ER
720 (HL); Council of Civil Service Unions v. Minister for
the Civil Service; (1984) 3 All ER 935 (HL); McInnes v.
onslow Farme & Anr., [1978] 3 All ER 211 (Ch. D) p. 219; JR
Vohra v. India Export House pvt. Ltd., [1985] 1 SCC 712;
Maharashtra State Board of Secondary & Higher Education v.
K.S. Gandhi, [1991] 2 SCC 716 and Satya Vir Singh v. Union
of India, [1985] 4 SCC 252, referred to.
5.1 In view of the Bengal Eastern Frontier Regulation, 1873
and Clause 9(2) of the Foreigners’Order 1948 the acquisition
of the land being illegal, the instant one is not a case for
award of compensation. (426-C)
5.2 However, having regard to the statement made on bahalf
of the State that the Chief Minister is ready to hear the
Chakmas, an opportunity be afforded to them by the Chief
Minister who may grant such relief as may be deemed fit. It
is made clear that it will be a post decisional hearing.
(426 D)
405
Blackburn and Taylor on the right to enjoy asyum in Hussan
Rightsior the 1990s, ’Equality and Discrimination under
International Law’ by Warwick Mckean, referred to.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2182/93 with
2181/93.
From the Judgment and Order dated 30.4.1992 of the Gauhati
High Court in Civil Rule No. 166 of 1984.
A.M. Mazumdar, Attorney General, Arunachal, K.K. Venugopal,
Shahid Rizvi and Ms. Manjula Gupta, Appellant in C.A. No.
2182 of 93 and for the Respondent in C.A. No. 2181/93.
Govind Mukhoty and S.K. Bhattacharya for the respondent in
C.A. No. 2182/93 and for the Appellant in C.A. No. 2181/93.
The Judgment of the Court was delivered by
MOHAN.J. Leave granted.
Both these civil appeals arise out of the judgment of the
Gauhati High Court dated 30th April, 1992 rendered in CR.
No. 166 of 1984. The short facts are as under:
The parties will be referred to as the appellant and the
State of Arunachal Pradesh.
The appellant alongwith his family members and other 56
families migrated to India on 30th March, 1964 from
erstwhile East Pakistan, now Bangladesh, due to disturbances
prevailing at that time. They took shelter in a government
camp at Abhayapur Block in Tirap District.
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.
Arunachal Pradesh was called NEFA (North East Frontier
Agency) prior to 1972. On 21st January, 1972 it was given
the status of Union Territory of
406
Arunachal Pradesh. It became a full fledged State on 20th
February, 1987, Geooraphically, 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
3,257 villages. There are 26 Major tribes. Broadly
speaking, the people in the State can be divided into three
cultural groups, on the basis of their socio-regional
affirmities.
i) The monpas and Sherdukpens of Tawang and West Kemeng
District;
ii)Khamptis and Singhphos inhabiting the entire easternpart
of the State-, and
iii)The Neotes and Wanchos adjoining, Negal and in the Tirup
District;
In the year 1966, the State Government drew the Scheme known
as Chakma Resettlement Scheme for these refugees. Areas
were earmarked for their settlement at different parts of
the State and accordingly they were asked to move to the
areas earmaked for them, In all, 5 Schemes were sanctioned
for their settlement (comprising of about 3100 families of
refugees) at the cost of more than Rs. 2 crores.
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 appellants
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 Nigrumong
Singpho of Damba for an area of one sq. mile of his private
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land and got the same from the said Singpho through an
unregistered deed dated 20th November, 1972.
The State would contend that the said transfer is illegal
because as per section 7 of the BEFR, 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
407
the said land and they have developed the area for
habitation purposes.
It is further alleged on behalf of the appellant that in
1975, 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 20.11.75 was
issued in his name. The Deputt Commissioner at kenosa
approved the transfer and the Extra Assistant Commissioner,
Miao by his memorandum No. MR S (A) n5/8648-51 dated 26.4.70
issued instructions against any attempt to allot the land to
other and generally against any eviction of the appellants
from the said land.
Some Deori families who were allotted lands in the adjacant
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 30.5.77 issued instructions to Ningronong Singpho
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.
After obtaining the donation from the Raja by dint of hard
labour they developed the jungle area which was a hillly
uneven tract of land. In view of the tremendous
agricultural success the Tirup District authorities granted
two Rice Hullar Units in the name of the appellant. The
Chakmas transformed the land into a truly self-sufficient
village.
In view of prosperity and growth of land the nearby
villagers sought to dislodge the appellant and families by
raising various disputes, one of which was that the place
cannot be utilised as refuge settlement and that they should
be shifted to another place. Circle Officer, Diyun issued
an order dated 15.2.84 directing the appellant to shift to
the vacant land at Gautampur and Maitripur villages latest
by 24th of February, 1984. The representation requesting
the Chief Minister of Arunachal Pradesh to interfere was of
no avail.
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, Singphos.
In order to investigate the matter fully, the Government,
vide its letter dated 4.4.1979, directed an enquiry into the
whole matter through a Committee compris-
408
ing of 9 persons with the Deputy Commissioner of the area as
the Chairman.
The said committee after the investigation submitted its
report on 11.6.79, stating therein that about 788 families
of Refugees (Chakmas, Deori, and Bhufia) have illegally
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encroached upon about 872 Hectares in Miao Sub Division
alone.
The said Committee observed that:-
"7. The fear of the local people regarding heavy growth of
population among the Chaknias has already been stated above
and it is also well known to the Government. But such fear
maybe true in the case of Deoris and Ahoms too because it
has been seen that in their case too the irpopulation is
increasing by leaps and bounds, for instance it is learnt
that when they were inducted there were only 6 Ahom families
and 32 Deoria, where as 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 entrents, the DCs office is said to be
taking up the issue of identity cards."
"9.2 Land is still available in Innano, Dumba and Modoi,
especially after the eviction of four Chakma villages during
March last. Singphos have been known to induct outsiders
not only without Govt.’s approval but also by various
undesirable mathods, 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 Chaknias in Jaipur village, 10
Deori families and some other from outside. It has also
been seen that in Innano 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
obviously with the understanding that the local people would
subseqently give them land for permanent resettlement."
The State received complaints that Chakma people were
indulging in illegal activities such as commission of
offences under various lands, collection of arms and
anununitions, establishing conteracts with the Extremist
groups, encroachment of adjoining areas. The State,
therefore, found it necessary to shift them to
409
a site where other Chakma families were already residing.
It was in these circumstances, by order dated 15.2.84, the
State directed the appellant and the other Chakmas to shift.
The said order is to the following effect:
"In connection to this office memoranodum No. LS-4/83/84/
2478-79 dated 6.2.84, the Chakma of Joypur village are
hereby directed to shift to the vacant land allotted at
Gautampur and Maitripur village latest by 25.2.1984.
This may be treated as final notice, failing whichlegal
action will be taken against the defaulters."
Questioning the correctness of the order CR No. 166 of 1984
was filed before the High Court of Gauhati:
It was urged:
(i) The petitioners are citizens of India.
(ii) Their fundamental rights have been infringed.
(iii) The impugned notice dated 15th of February, 1984
is illegal, arbitrary and had been issued in violation of
the principles of natural justice.
The High Court of Gauhati formulated three questions for
determination:
1. Whether the writ petitioner and the 56 chakma familes
now settled in Joypur village, Miao subdivision, 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
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Chakma people to move to another place.
3. Whether the impugned order dated 15.2.1984 is
arbitrary, devoid of reason and violative of the provisions
of the Constitution.
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
410
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.
The High Court, on an elaborate consideration of the
provisions of Citizenship Act, came to the conclusion that
language of Section 6-A of the Citizenship Act is very
clear. It states that person 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 fell under this category as
they stayed in Assam for a short while in 1964.
Accordingly, they will not be citizens of India.
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 thoreon 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.
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.
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 ammunation and were
actively, associating with anti-social elements Accordingly,
it was concluded that the impugned order is not devoid of
any reason.
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 S.L.P. (C) No.
12429 of 1992 while Khudiram Chakma has filed S.L.P. (C) No.
13767 of 1992.
411
Mr. Govind 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
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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 Nirunong Singpho of Dumba. That was
approved by the Deputy Commissioner as seen from memorandum
dated 26th of April, 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 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.
There was no notice before calling upon the appellants to
shift. This Court in Scheduled Caste and Weaker Section
Walfare Association v.State of Karnataka [1991] 2 SCC 604, a
case arising under karnataka Slum Areas (Improvement and
Clearance) Act, 1973, held that before eviction a slum
dweller does have a right to say. Therefore, it is
submitted that the principle of natural justice applies to
noncitizens also.
In Louis De Raedt v. Union of India [1991] 3 SCC 554 this
Court took the view that the fundamental rights are
available to foreigners as well, including Article 21 of the
Constitution.
Mr. K.K. Venugopal, learned senior counsel, appearing for
the State of Assam contends in opposition:
The appellants cannot claim to be citizens of India by
invoking Section 6-A of the Citizenship Act as amended and
incorporated on 7.12.85 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
satisifed simultaneously:
(i) The persons who are of Indian origin (viz. undivided
India) came before 1.1.66 to Assam from the specified
territory’, and
412
(ii) have been "ordinarily resident’ in Assam (as it existed
in 1985) since the date of their entry into Assam.
In so far as the appellants were residing in Miao sub-
division of Tirup 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 Saini [1961] 1 SCR 576 at 590.
It is true that this Court in Louis De Raedt (supra) took
the view that even foreigner has a fundamental right, but
that fundemental 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 Article 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 v.
Jasjit Singh [1964] 6 SCR 5 94 at 621 to 622 and Louis De
Readt (supra).
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The land donated in favour of the appellants by Raja
Nirunong Singpho of Dumba by donation deed dated 20.11.72 is
illegal. Section 7 of the Bengal Eastern Frontier
Regulation 1873 and clause 9 of the Foreigners under 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 goveming them. The decision
re-arding 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.
On the quesion of natural justice before passing the
impugned order dated 15.2.84 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 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 26.9.83. 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
induling in procuring arms and ammunition and were in close
contact with anti-social elements. Taking an overall view
of the matter, the impugned order
413
came to be passed. On ground realities, natural justice is
fully satisfied.
In support of the above submissions, the learned counsel
relied on the following cases:
(1991), 2 All ER 319 (CA) p. 331 A to 332 H, 334 A to J:
R.v. Secretary of State for the Home Department ex party
Cheblak.
[1991] 1 All ER 720 (HL), Lord Bridge of Harwich, p. 723 F
to 724G Lord Templeman, p. 725-J, 726-A to C.
Lord Ackner. p. 73 1-H 732G-H 735 F-J Lord Lowry, p. 737 D-
J. Brind v. Secretary of State
[1984] 3 All ER 935 (HL) Council of Civil
Service Unions v. Minister for the Civil
Service
[1978] 3 All ER 211 (Ch. D) p. 219, 223 A-J,
229 McInnes v. onslow Farne & Anr.
[1985] 1 SCC 712 at p. 722-723 para 12, 13 JR
Vohra v. India Export House Pvt. Ltd.
[1991] 2 SCC 716 at p. 738 para 20-22 Maharashtra State
Board of Secondary & Higher Education. v. KS. Gandhi
[1985] 4 SCC 252 at p. 263 Satya Vir Singh v. Union of India
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.
We will proceed to consider the correctness of the above
submissions
414
providing the necessary background and the factual matrix.
The history of the mountainous and multitribal north-east
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frontier region which is now known as Arunachal Pradesh
ascends for hundreds of years into the mists of tradition
and mythology. According to Puranic 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 Banna Raja, who
was defeated by Lord Krishnaat Tezpur (Assam). A Kalita
Kinu, Ramachandra, driven from his kingdom in the plains of
Assam, fled to the Dafla (now Nishan) foothills and
established there his capital of Mayapore, which is
identified with the ruins on the It a 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 single blow of his mighty axe,
still attracts the Hindu pilgrims from all over the counrty.
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 north-
east frontier region. The first import and 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 of 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 permit."
A Notification bearing No. 1486, dated June 21, 1876 was
issued by the Government of India, foreign Department to the
effect that the Governor General 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 North-East Frontier
Tract could be effected to under the Govemment of India’s
(Excluded and Partially Excluded Area) Order of 1936.
Under the effective provision of the Section 91 (i) of the
governmentoflndia 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 Frountier
Tract. In 1943. an adviser was appointed as the
administrative head with a purpose to develop the region
415
through gradual penetration of the administrative machinery.
Another change was effected in the administrative set-up on
the 26th of January 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 the paragraph 18 of the Sixth
Schedule to the Constitution and Part 8 of the Table 20 of
the Schedule, who served as the agent of the President of
the Union of the Republic of India.
In the course of administrative and political events
Arunachal Pradesh has travelled from the Tract to the Union
Territory. Under the provision of NorthEstern 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
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on January 21,1972. The Union Territory of Arunachal
Pradesh was placed under the charge of Chief Commissioner
during that year.
The year of 1975 also proved eventful for Arunachal Pradesh.
On 15 August, 1975, then existing Pradesh Council was
constituted into the Union Territory legislature. The panel
of then existing five counsellors was constituted into
provisional Council of Ministers. Consequent upon the above
change, the post of Chief Commissioner was further elevated
to the position of Leutenant Governor on 15 August, 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 nominated.
Earlier, Arunachal Pradesh had nominated a representative in
the 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.
On 20th of February, 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
the Assam though it was being administered by the Governor
of Assam or the President of India, as the case may be. The
following Charonological Statment of changes in the pattern
of Administration in NEFA occuring in P.N. Luthra’s
constitutional and Administrative Growth of the North-East
Frontier Agency is useful:-
416
1 2 3 4 5 6
1914 1919 1937 1947. 1950 1965
Adminis- Administ Adminis Adminis Admin- Admini
tered by ered by tered by tered by tered by tered
the Gove- the Gov- the Gov- the Gov- the Pre- as be-
rnment of ernment ernor of ernor of sident fore by
Assam of Assam Assam Assam through theGov-
with acting in acting on the Gover- erner
special his disc the nor of as agent
safe- retion advice of Assam as of the
guards. indepen- the Pro- his agent Presi-
dently of vincial acting in dentbut
the provi- Ministry, his disc- under
ncial Minis- retion the
try- underthe general
general supervi-
super- sion and
visionand control
control of the
of Mini- Minis-
try of try of
External Home
Affairs. Affairs.
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 Asswn. It’s capital is Itanagar. It is
the largest state areas wise (33,743 sq kms.) in the North-
East region even larger than Assam which is the most
populous. 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 3,257 villages. There ate 26 major tribes in
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Arunachal Pradesh. Broadly speaking, the people in the
state may be divided into three cultural groups on the basis
of their socio-regional affinities.
i) The Monpas and Sherdukpens of Tawang and West Kemeng
District;
ii) Khamptis and Singphos inhabiting the entire eastern
part of the State; and
417
iii) The Noetes and Wanchos adjoining Negaland in the Tirap
District.
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 Miao subdivision
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 sancitioned
for settlement of 3100 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 2 1st
January, 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 Singpho of Dumba, an
area of 1 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 notificaton in the
Official Gazette 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 very such prohibition."
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
418
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 very such extensions
Under Section 3 of the Foreigners Act of 1946, the central
Government may. by order, make provision for prohibiting
regulating or restricting the entrt of foreioners into
India. In exercise of power conferred under Section 3 of
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the said Act Foreigners Order of 1948 dated 10.2.48 was
issued. Under clause 9 of tile said Order the Central
Government or with prior sanction, a civil authority may, by
order, declareany 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
forging or any class of foreigners from entering or
remaining in the area, impose on 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 Foreigers Order of 1948 in sub-clause (2) prohibits the
acquisition of any land or anv interest thereon within the
prohibited area by any foreigner.
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
0rder of 1958 which includes the territory of arunachal
Pradesh.
Examined in this light, the donation by Raja is clearly
invalid.
However, the memorandum dated 26th of April, 1976 issued by
the Extra Assistant Commissioner Miao states that the
agreement between the ’appellant, Khudiram Chakma and the
local Raja dated 20.11.72 has been approved by the Deputy
Commissioner. That is again mentioned in the direction
given by the Executive Magistrate Miao on 30th of May, 1977.
The effect of approval by the Deputy Commissioner will be
considered later.
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:
419
"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 territorises 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 which a Tribunal constituted under
the Foreigners (Tribunals) Order, 1964 submits its opnion 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.
(3)to(8)............... (unnecessary)"
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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 1.1.66 to,
420
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.
The appellants were no doubt persons of Indian origin. They
came to Assam prior to 1. 1.66, namely, 3 1.3.64 from the
then East Pakistan, (presently Bangladesh) which is
undoubtedly one of the specified territories under Section 6
(1) (c).
Assam, as seen from 6A (a), means the territories included
in the State of Assam immediately before the commencement of
the Citizenship (Amendment) Act, 1985.
It is the common case that chama 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 6A. This
contention overlooks the fact 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, 197 1, the territories of Arunachal Pradesh were
excluded from the purview of the Immigrants (Expulsion from
Assam) Act of 1950.
Turning to Condition No. 2 the requirement is ordinarily
resident in Assam from the date of entry till the
incorporation of Section 6A, namely, 7.12.85. As to the
meaning of "ordinarily resident" we may refer to Smt.
Shanno Devi v. Mangal Saini [1961] 1 SCR 576. 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".
In so far 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.
Govind Mukhoty, learned counsel, that the accident of the
appellants living in Arunachal Pradesh should not deprive
them of citizenship. In this connection, it
421
is worthwhile to note that Secion 6A 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-Martinez 372 U.S. 144, 159 [1963]
"Citizenship is a most precious right."
Aristotle, Politics, III, 5 States thus:
"From earliest times, it has been such status alone that has
enabled the individual to share fully in the benafits of the
community in which he resides: "Compare Homer’s words, like
some dishonored 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.
If they are aliens, the donation deed dated 20th November,
1972 is illegal. The Raja did not obtain any permission for
sale from the Government. From the records it is also clear
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that the Rajs had been donating the lands and wag 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.
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 anti-
social activities. The Deputy Commissioner, Tirap District
on 19.8.81 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 ammunitions seized
from the possession of the Chakmas and are still kept in
Quarterguard. It is, therefore, requested to send us a
detailed report indicating datails of arms and ammunitions
seized.
422
2.It is further seen from your report regarding judicial
cases, submitted to this office, that there are altogether
76 cases registered upto 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
Govt."
A list of cases including ones under Section 302 I.P.C. and
other offences under Section 25A of the Arms Act is enclosed
to the letter quoted above.
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, 1 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 Sri
Ningronong Rajkumar (Singphoo) and the same was approved by
the then Deputy Commissioner, Khonsa in accordance with the
agreement adopted by Sri Rajkumar Singphoo dated 20th Novn2.
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 Govt. 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 accupied by
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anybody in spite of lying considerable
landless families in the said villages.
423
All documents created in regard to this matter are attached
herewith for favour of your kind perusal 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 greteful to you thereor
From the endorsement. it is also seen that two
representatives met the Deputy Commissioner on 13th
Februaty, 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.
On 16th of November, 1982 the Extra Assisstant Commissioner
called upon the Circle Officer, Diyum to issue notices to
the chakms families’staying at Joypur village to return to
their original place of settlement within 31.12.82. The
survey Reports for resettlement of these chakmas dated
27.4.83 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."
Thus, it will be clear that the reason for shifting these
chakma families are:
(1) 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 anti-social elements.
(iv) They have been source of constant/trouble to the other
tribals.
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.
424
Ruling in Scheduled Caste and Weaker Section Welfare
Association v. State of Karnataka [1991] 2 SCC 604 affording
a hearing to slum dwellers under the Karnataka Slum Areas
(Improvement and Clearance) Act, 1973, relied on by Mr.
Govind Mukhoty, learned counsel, has no application in the
above circumstances.
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. Cartainly, 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.
It is true that fundamental right is available to a
foreigner as held in Louis De Raedt v. Union of India [1991]
3 SCC 554 at 562.
"The next point taken on behalf of 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 country, as mentioned in
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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
Article 19 (1) (d) and (e) are expressly withheld to
foreigners.
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.
Blackburn and Taylor speaking on the right enjoy asylum in
Human Rights for the 1990 s state at page 51 as under:
"The most urgent need of a fugitive is a place of refuge.
His or her most fundamental right 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
425
to seek and enjoy in other cuntries’ asylum from
persecution, it seems tolerably clear, however, that the
right to enjoy asylum means no more than the right to enjoy
it if 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."
Warwick Mckean, dealing with the equality in the treatment
of aliens, states in Equality and Discrimination under
International Law at pace 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 nations 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 195-196 it is stated thus:
"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 nationals
remains unaffected then that act is dis-
criminatory and prohibited under international
law. As Fitzmaurice points out, it has long
been recognized that in certain matters, e.g.
426
the general treatment of foreigeners in a country, or
compensation for property which may be expropriated or
nationalized, non-discrimination as between
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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."
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 (2) of the Foreigners
Order 1948 we do not think this is a case for award of’
compenstion.
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.
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.
R.P. SLP (C) No. 13767/92 dismissed.
SLP (C) No. 12429/92 allowed.
427