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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