Arunachal Pradesh Vs. Khudiram Charma  INSC 241
(27 April 1993)
S. (J) Mohan, S. (J) Venkatachalliah, M.N.(Cj)
1994 AIR 1461 1993 SCR (3) 401 1994 SCC Supl. (1) 615 JT 1993 (3) 546 1993
of the Court was delivered by S. MOHAN, J.- Leave granted.
Both these civil appeals arise out of the judgment of the Gauhati High Court
dated April 30, 1992 rendered in C.R. No. 166 of 1984.
The short facts are as under.
parties will be referred to as the appellant and the State of Arunachal Pradesh.
appellant along with his family members and other 56 families migrated to India on March 30, 1964 from erstwhile East Pakistan, now Bangladesh, due to disturbances prevailing at
that time. They took shelter in a Government camp Abhoypur Block in Tirap
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.
Pradesh was called NEFA (North-East Frontier Agency) prior to 1972. On January 21, 1972 it was given the status of Union Territory
of Arunachal Pradesh. It became a full-fledged State on February 20, 1987. Geographically, it is situated on
the north-east of India and has a long international border
with Bhutan, China and Burma (Burma presently called Myanmar). It is the largest State areawise in the north-east region, even
larger than Assam which is the most populous State.
The population of Arunachal Pradesh according to the 1981 census is 6.32 lakhs.
It is scattered over 12 towns and 3257 villages. There are 26 major tribes.
Broadly speaking, the people in 618 the State can be divided into three
cultural groups, on the basis of their socioregional affirmities.
The Monpas and Sherdukpens of Tawang and West Kemeng District;
and Singpos inhabiting the entire eastern part of the State; and
Neotes and Wanchos adjoining Nagaland in the Tirap District.
the year 1966, the State Government drew the Scheme known as Chakma
Resettlement Scheme for these refugees.
were earmarked for their settlement in different parts of the State and
accordingly they were asked to move to the areas earmarked for them. In all, 5
Schemes were sanctioned for their settlement (comprising about 3100 families of
refugees) at the cost of more than Rs 2 crores.
appellants along with 56 families were allotted lands in the villages of Gautampur
and Maitripur. There were already a good number of Chakma refugee families who
were allotted lands and were living there peacefully. The appellant instead of
residing in the said allotted areas under the Resettlement Scheme drawn by the
Government, strayed away from it and negotiated with the Local Raja namely Ningrunong
Singpo of Damba for an area of one sq.
of his private land and got the same from the said Singpo through an
unregistered deed dated November
State would contend that the said transfer is illegal because as per Section 7
of the BEFRT, 1873 (Regulation 5 of 1873) no person, who is not a native of the
District, would acquire any interest in the land or the produce of the land
beyond the inner line without the sanction of the State Government or such
officer as the State Government may appoint in this behalf. On the contrary,
the stand of the appellant is that since the date of donation they have been
residing and cultivating the said land and they have developed the area for
is further alleged on behalf of the appellant that in 1973, a village panchayat
of Joypur village was formed after election of the members. The appellant was
appointed as the Gaon-Bura of the village. This was with the approval of the
Government, in token of which a Sanad dated November 20, 1975 was issued in his name. The Deputy Commissioner at Kenonsa
approved the transfer and the Extra Assistant Commissioner, Miao by his
Memorandum No. MR 8(A)/75/8648-51, dated April 26, 1976 issued instructions against any
attempt to allot the land to other and generally against any eviction of the
appellants from the said land.
Some Deori families who were allotted lands in the adjacent area of Joypur
village attempted to encroach upon the lands of the appellant and on a
complaint lodged, the authorities concerned i.e. Executive Magistrate at Miao
by his letter dated May 30, 1977 issued instructions to Ningrunong Singpo Rajkumar
to turn out the extra families from the appellant's village with a direction to
the Circle Officer, Diyun to report compliance. It was after such intervention
that such outsiders in due course were expelled.
After obtaining the donation from the Raja by dint of hard labour they
developed the jungle area which was a hilly uneven tract of land. In view of
the + Bengal Eastem Frontier Regulation 619 tremendous agricultural success the
Tirap District Authorities granted two Rice Hullar Units in the name of the
appellant. The Chakmas transformed the land into a truly self-sufficient
view of prosperity and growth of land the nearby villagers sought to dislodge
the appellant and the families by raising various disputes, one of which was
that the place cannot be utilised as refugee settlement and that they should be
shifted to another place. Circle Officer, Diyun issued an order dated February
15, 1984 directing the appellant to shift to the vacant land at Gautampur and Maitripur
villages latest by February 24, 1984. The representation requesting the Chief
Minister of Arunachal Pradesh to interfere was of no avail.
The appellant after settling in this unauthorised land started committing
criminal and illegal activities. There were several complaints to the effect
that the appellant is encroaching upon the private lands illegally in
connivance with the local people, particularly, Singpos.
order to investigate the matter fully, the Government, vide its letter dated April 4, 1979, directed an inquiry into the whole
matter through a Committee comprising of 9 persons with the Deputy Commissioner
of the area as the Chairman.
The said Committee after due investigation submitted its report on June 11,
1979, stating therein that about 788 families of Refugees (Chakmas, Deori, and Bhutia)
have illegally encroached upon about 872 hectares in Miao Sub- Division alone.
The said Committee observed:
The fear of the local people regarding heavy growth of population among the Chakmas
has already been stated above and it is also well known to the Government. But
such fear may be true in the case of Deoris and Ahoms too because it has been
seen that in their case too their population is increasing by leaps and bounds,
for instance it is learnt that when they were inducted there were only 6 Ahom
families and 32 Deoris, whereas this has now increased to 23 and 106
respectively. We should, therefore, watch by one method or the other that flow
of Chakmas, Deoris and Ahoms does not at all take place. For this purpose
formal allotment of land to each family is very necessary and further in order
to guard against new entrants, the DC's office is said to be taking up the
issue of identity cards.
9.2. Land is still available in Innano, Dumba and Mudoi, especially
after the eviction of four Chakma villages during March last.
have been known to induct outsiders not only without Government's approval but
also by various undesirable methods, this has to be properly watched and if
found necessary we may have to give exemplary punishment to those who indulge
in such practice. Already there is some sign of dissension among the local
people due to the activities of one Nirunong of Kumchai village who was mainly
responsible for inducting Chakmas in Jaipur village, 10 Deori families and some
others from outside. It has also been seen that in Innao village there are six
tea garden tribals who have been living and working since the last 10 years
with Inner Line passes renewed from time to time but 620 obviously with the
understanding that the local people would subsequently give them land for
The State received complaints that Chakma people were indulging in illegal
activities such as commission of offences under various lands, collection of
arms and ammunition, establishing contacts with the extremist groups,
encroachment of adjoining areas. The State, therefore, found it necessary to
shift them to a site where other Chakma families were already residing.
was in these circumstances, by order dated February 15, 1984, the State directed the appellant
and the other Chakmas to shift. The said order is to the following effect:
connection to this Office Memorandum No. LS-4/83/84/2478-79, dated August 6,
1984, the Chakmas of Joypur village are hereby directed to shift to the vacant
land allotted at Gautampur and Maitripur villages latest by February 25, 1984.
may be treated as final notice, failing which legal action will be taken
against the defaulters."
Questioning the correctness of the order, C.R. No. 166 of 1984 was filed before
the High Court of Gauhati.
The petitioners are citizens of India.
Their fundamental rights have been infringed.
The impugned notice dated February 15, 1984
is illegal, arbitrary and had been issued in violation of the principles of
The High Court of Gauhati formulated three questions for determination:
Whether the writ petitioner and the 56 Chakma families now settled in Joypur
village, Miyo Sub-Division, Arunachal Pradesh are citizens of India or foreigners?
they are not citizens of India, whether the authorities concerned
have right to give direction to these Chakma people to move to another place?
Whether the impugned order dated February 15, 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 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 the language of Section 6-A of the Citizenship
Act is very clear. It states that persons who have come into Assam before January 1966 from the
specified territory and who have been ordinarily resident in Assam since the date of their entry shall
be deemed to be citizens. Admittedly, the petitioners therein would not fall
under this category as they 621 stayed in Assam for a short while in 1964. Accordingly, they will not be citizens of India.
the second question, the High Court referred to Section 7 of the Bengal Eastern
Frontier Regulation, 1873.
section specifically prohibits the acquisition of interest in land by other
than the natives of the district without the sanction of the State Government.
Admittedly, there was no sanction of the State Government in favour of the
petitioners under the said Regulation which is applicable to Arunachal Pradesh.
Besides, clause 9(2)(a) of the Foreigners Order, 1948 prohibits acquisition of
land or any interest thereon or within the prohibited area by any foreigner.
Clause 9(2)(b) states that the local authority may impose conditions regarding
acquisition of land or any interest thereof or any other matter deemed
necessary in the interest of public safety. There was no controversy that the
place where Chakmas were staying is within the inner line which is protected
area notified by the State Government.
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.
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
were indulging in procuring arms and ammunition and were actively associating
with anti-social elements.
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
State of Arunachal
Pradesh has preferred
SLP (C) No. 12429 of 1992 while Khudiram Chakma has filed SLP (C) No. 13767 of
Gobinda Mukhoty, learned counsel for the appellant urges that in 1947 the
appellants were Indian citizens. Because of the partition of the country they
went over to the then East
Pakistan, presently Bangladesh. But when they returned in 1964 to
the erstwhile Assam State they stayed there for some time and shifted to Arunachal
deprive them of the citizenship would be violative of Article 14 of the
Constitution of India. By mere accident of their going over to Arunachal Pradesh,
they cannot lose their citizenship. The learned counsel referred us to the
various provisions of the Citizenship Act, 1955. He urges that there is
evidence, in this case, of donation of lands in favour of these appellants by
Raja Ningrunong Singpo of Damba. That was approved by the Deputy Commissioner
as seen from memorandum dated April 26, 1976.
The appellant was appointed Gaon-Bura of Joypur village. In proof of that Sanad
was issued by the Deputy Commissioner. Again, the Executive Magistrate had directed
the Raja to turn out the extra families occupying lands at Joypur in the area
allotted to the appellants and other Chakmas. There is also evidence on record
to show that the Chakmas have been paying taxes including house tax. When that be
the position, there is no justification at all calling upon the appellants and
the other 56 families to shift.
There was no notice before calling upon the appellants to shift. This Court in
Scheduled Caste and Weaker Section Welfare Assn. v. State of 622 Karnataka1', a
case arising under Karnataka Slum Areas (Improvement and Clearance) Act, 1973,
held that before eviction a slum dweller does have a right to say.
it is submitted that the principle of natural justice applies to non-citizens
De Raedt v. Union of India 2 this Court took the view that the fundamental
rights are available to foreigners as well, including Article 21 of the
K.K. Venugopal, learned senior counsel, appearing for the State of Assam
contends in opposition:
appellants cannot claim to be citizens of India by invoking Section 6-A of the
Citizenship Act as amended and incorporated on December 7, 1985 in pursuance of
the Assam Accord. In order to get the benefit of Section 6-A two conditions
mentioned in sub-section (2) of the said section must be satisfied
persons who are of Indian origin (viz. undivided India) came before January 1, 1966 to Assam from the specified territory; and
been "ordinarily resident" in Assam (as it existed in 1985) since the date of their entry into Assam.
as the appellants were residing in Miao Sub- Division of Tirap District, Arunachal
Pradesh since 1968 they did not satisfy these conditions. As to what exactly is
the meaning of "ordinarily resident" could be seen from Shanno Devi
v. Mangal Sain3.
is true that this Court in Louis De Raedt- took the view that even a foreigner
has a fundamental right, but that fundamental right is confined only to Article
21 and does not include the right to move freely throughout and to reside and
stay in any part of the territory of India, as conferred under Articles
19(1)(d) and (e). Such a right is available only to the citizens. The
appellants being foreigners, cannot invoke Article 14 of the Constitution to
get the same right denied to them under Article 19 since Article 14 cannot
operate in regard to a right specifically withheld from non-citizens. In
support of this submission, reliance is placed on Indo-China Steam Navigation
Co. Ltd. v. Jasjit Singh, Addl. Collector of customs4 and Louis De Raedt2.
land donated in favour of the appellants by Raja Ningrunong Singpo of Damba by
donation deed dated November 20, 1972 is illegal. Section 7 of the Bengal
Eastern Frontier Regulation, 1873 and Clause 9 of the Foreigners Order, 1948,
which are applicable to Arunachal Pradesh, specifically prohibit such transfer
without prior permission of State Government. No such permission, in this case,
was obtained. The tribals of North-Eastern States are historically protected
races. Part X of the Constitution of India contains provisions and laws
governing them. The decision regarding settlement of foreigners is a matter of
policy. It is well-settled in law that the Court does not interfere in a matter
of governmental policy since it is for the Government to decide.
(1991) 2 SCC 604 2 (1991) 3 SCC 554: 1991 SCC (Cri) 886 3 (1961) 1 SCR 576,
590: AIR 1961 SC 58 : 22 ELR 469 4 (1964) 6 SCR 594, 621-22 : AIR 1964 SC 1140:
(1964) 2 Cri LJ 234 623 37.On the question of natural justice before passing
the impugned order dated February 15, 1984 the learned counsel, producing the
relevant material from the file, would urge that it is not correct to state
that the order came to be issued all of a sudden. There is abundant material to
show that the question of eviction was an ongoing process, right from 1978.
Many notices were issued over a period of years to shift to Villages Maitripur
and Gautampur. There were protests from Chakmas. From the file it is seen that
the appellant was aware of the shift order dated September 26, 1983. There was
also an oral hearing of the same. It was because of the complaints filed by the
residents of the locality against the appellant and in view of the report that
they were indulging in procuring arms and ammunition and were in close contact
with anti-social elements. Taking an overall view of the matter, the impugned
order came to be passed. On ground realities, natural justice is fully
support of the above submissions, the learned counsel relied on the following
Secretary of State for the Home Department ex parte Cheblak5.
Bridge of Harwich, pp. 723-F to 724-G; Lord Templeman, p. 725J, 726-A to C;
Lord Ackner, pp. 731-H, 732 G-H, 735 F-J; Lord Lowry, p. 737 D-J in Brind v.
Secretary of State for the Home Deptt.6 Council of Civil Service Unions v.
Minister for the Civil Service7. McInnes v. Onslow Farne8.
J. R. Vohra
v. India Export House Pvt. Ltd. 9 Maharashtra State Board of Secondary &
Higher Secondary Education v. K.S. Gandhi10. Satya Vir Singh v. Union of India
39.However, the learned counsel fairly conceded that the Chief Minister was
willing to hear the appellants or any representative of their group,
additionally, as a post- decisional hearing, even though they had full
opportunities over a period of four years. It is his submission that it must be
a post-decisional hearing as otherwise, if the decisions were against the
appellants a further round of litigation would be embarked upon.
will proceed to consider the correctness of the above submissions providing the
necessary background and the factual matrix.
history of the mountainous and multitribal north- east frontier region which is
now known as Arunachal Pradesh ascends for hundreds of years into the mists of
tradition and mythology. According to Pauranic legend, Rukmini, the daughter of
King Bhishmak, was carried away on the eve of her marriage by Lord Krishna
himself. The ruins of the fort at Bhalukpung are claimed by the Akas as the
original home of their ancestor Bhaluka, the grandson of Bana Raja, who was
defeated by Lord Krishna at Tezpur (Assam). A Kalita King, 5 (1991) 2 All ER 319, 331 A-332H, 334A-J (CA) 6
(1991) 1 All ER 720 (HL) 7 (1984) 3 All ER 935 (HL) 8 (1978) 3 All ER 211, 219,
223 A-J, 229 (Ch D) 9 (1985) 1 SCC 712, 722-723 (paras 12, 13) 10 (1991) 2 SCC
716, 730 (paras 20-22) 11 (1985) 4 SCC 252,263: 1986 SCC (L&S) 1 624 Ramachandra,
driven from his kingdom in the plains of Assam, fled to the Dafla (now Nishang)
foothills and established there his capital of Mayapore, which is identified
with the ruins on the Ita hill. A place of great sanctity in the beautiful
lower reaches of the Lohit River, the Brahmakund, where Parasuram opened a passage through
the hills with a single blow of his mighty axe, still attracts the Hindu
pilgrims from all over the country.
the year 1838, when the British took over the administrative control of Assam from the last Ahom King, Shri Purander
Singh, it was thought necessary to extend elementary regular administration to
the adjoining northeast frontier region. The first important step in this
direction was as such initiated with adoption of Regulation V of 1873
empowering the then Lieutenant-Governor of Assam to prescribe a Line, called 'Inner Line' with a view
"to bring the commercial relations of the hills with the plains under more
prevent the operation of speculators in 'Caoutchouc' (raw rubber),
prevent the spread of tea gardens, and
lay down rules for the possession of land and property beyond the 'Inner Line'
without special permits".
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 Government of India's (Excluded
and Partially Excluded Area) Order of 1936.
the effective provision of Section 91(1) of the Government of India Act, 1935,
the above Frontier Tract came to be known as Excluded Area of Assam. Again, the
1942 administrative change took place as a consequence of which Tirap Frontier
Tract was carved out of the Sadiya Frontier Tract. In 1943, an advisor was
appointed as the administrative head with a purpose to develop the region
through gradual penetration of the administrative machinery.
change was effected in the administrative set- up on January 26, 1950 when the
Government of Assam was relieved of its responsibility for looking after the
administration of the Excluded Area. However, the discretionary power was
vested in the Governor of Assam, under the provision of paragraph 18 of the
Sixth Schedule to the Constitution and Part B of the Table 20 of the Schedule,
who served as the agent of the President of the Union of the Republic of India.
the course of administrative and political events Arunachal Pradesh has travelled
from the Tract to the Union Territory. Under the provision of North-Eastern
Areas (Reorganisation) Act, 1971 (Central Act 81 of 1971), the present status
of Union Territory was granted to the erstwhile North-East Frontier Agency and
renamed as Arunachal Pradesh on January 21, 1972. The Union Territory of Arunachal
Pradesh was placed under the charge of Chief Commissioner during that year.
year of 1975 also proved eventful for Arunachal Pradesh. On August 15, 1975,
then existing Pradesh Council was constituted into the Union Territory
Legislature. The panel of then existing five counsellors was 625 constituted
into Provisional Council of Ministers.
upon the above change, the post of Chief Commissioner was further elevated to
the position of Lieutenant-Govemor on August 15, 1975. The first general
election to Arunachal Legislature was held in the month of February 1978. The Arunachal
Pradesh Legislative Assembly has 33 members in total, out of which 3 members
Arunachal Pradesh had nominated a representative in Parliament. By an Act of
the Government of India in 1971, the Union Territory was provided with one seat
each in Lok Sabha and Rajya Sabha, but these representatives were nominated by
the President of India.
present, Arunachal Pradesh enjoys two elective seats in the Lok Sabha based on
the universal franchise.
February 20, 1987 Arunachal Pradesh was made a full- fledged State. Thus, it
will be seen that at no time Arunachal Pradesh was part of the Territory of the
State of Assam though it was being administered by the Governor of Assam or the
President of India, as the case may be. The following Chronological Statement
of changes in the Pattern of Administration in NEFA occurring in P.N. Luthra's
Constitutional and Administrative Growth of the North-East Frontier Agency is
1 2 3
1914 1919 1937 Administered Administerd by the Administered by the by the Gover-
Government of Assam Governor of Assam ment of Assam with special safeguards
acting in his dis- cretion independe- ntly of the Provi- cial Ministry.
4 5 6
1947 1950 1965 Administered by Administered by the Administered as the Governor
of President through before by the Assam acting on the Governor of Governor as
agent the advice of the Assam as his agent of the President but provincial
Ministry acting in his des- under the general cretion under the supervision and
con- general supervision ntrol of the and control of Ministry of Home Ministry
of External Affairs.
Pradesh is situate in the North-East of India skirted by Bhutan in West, Tibet and China in North and North-East, Burma (Myanmar) in East and Assam in South. It consists of the sub-mountains and mountainous ranges
sloping to the plains of Assam. Its capital is Itanagar. It is the largest
State areawise (83,743 sq. kms.) in the North-East region even larger than
Assam which is the most populous State. Arunachal Pradesh is the most thinly
populated State in India. According to 1991 census the population of Arunachal
Pradesh is 6.32 lakh and is scattered over 12 towns and 3257 villages. There
are 26 major tribes in Arunachal Pradesh. Broadly speaking, the people in the
State may be divided into three cultural groups on the basis of their
The Monpas and Sherdukpens of Tawang and West Kemeng District;
and Singpos inhabiting the entire eastern part of the State; and (iii) The Noetes
and Wanchos adjoining Nagaland 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 Sub-Division in Tirap District, now within the State of Arunachal
Pradesh which was then known as North-East Frontier Agency (NEFA). In the years
1966-68 the then Government drew up the Chakma resettlement schemes.
5 schemes were sanctioned for settlement of 31 00 families at a cost of more
than Rupees Two crores. The appellants were allotted lands in the villages of Gautampur
and Maitripur. The other Chakmas were also staying there.
stated earlier, on January 21, 1972 NEFA was given the status of Union
Territory and was renamed as Arunachal Pradesh. The appellants strayed away
from the original settlement area allotted to them by the Government under the
schemes. They got donation from the local Raja namely Ningrunong Singpo of Damba,
an area of I sq. mile at Joypur Village which is inside the Inner Line. Earlier
we were referred to Bengal Eastern Frontier Regulation, 1873.
2 of the said Regulation states thus:
shall be lawful for the State Government to prescribe and from time to time to
alter by notification in the Official Gazette a line to be called 'The Inner
Line' in each or any of the above-named districts.
State Government may, by notification in the Arunachal Pradesh Gazette prohibit
all citizens of India or any class of such citizens or any persons residing in
or passing through such districts from going beyond such line without a pass
under the hand and seal of the Chief Executive Officer of such district or of
such other officer as he may, authorise to grant such pass; and the State
Government may, from time to time, cancel or vary such prohibition."
Clause 7 is important. That reads as follows:
shall not be lawful for any person, not being a native of the district
comprised in the preamble of this Regulation, to acquire any interest in land
or the product of land beyond the said 'Inner Line' without the sanction of the
State Government or such officer as the State Government shall appoint in this
interest so acquired may be dealt with as the State Government or its said
Officer shall direct.
State Government may also, by notification in the Arunachal Pradesh Gazette
extend the prohibition contained in this section to any class of persons,
natives of the said districts, and may from time to time in like manner cancel
or vary such extension."
Under Section 3 of the Foreigners Act of 1946, the Central Government may, by
order, make provision for prohibiting, regulating or restricting the entry of
foreigners into India. In exercise of power conferred
under Section 3 of the said Act Foreigners Order of 1948 dated February 10, 1948 was issued. Under 627 Clause 9 of
the said Order the Central Government or with prior sanction, a civil authority
may, by order, declare any area to be a protected area for the purposes of this
such declaration, the civil authority may, as to any protected area, prohibit
any foreigner or any class of foreigners from entering or remaining in the
area, impose on any foreigner or class of foreigners entering or being entered
in the area, such conditions as may be mentioned under Clause 9. Clause 9 of
the Foreigners Order of 1948 in sub-clause (2) prohibits the acquisition of any
land or any interest thereon within the prohibited area by any foreigner.
Under Clause 9 the authorities concerned, by an order, may prohibit any
foreigner from remaining in any part of the protected area as stated in the
Foreigners' Protected Area Order of 1958 which includes the territory of Arunachal Pradesh.
Examined in this light, the donation by Raja is clearly invalid.
However, the memorandum dated April 26, 1976
issued by the Extra Assistant Commissioner Miao states that the agreement
between the appellant, Khudiram Chakma and the local Raja dated November 20, 1972 has been approved by the Deputy
Commissioner. That is again mentioned in the direction given by the Executive
Magistrate Miao on May
30, 1977. The effect
of approval by the Deputy Commissioner will be considered later.
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:
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;
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;
territory' means the territories included in Bangladesh immediately before the commencement of the Citizenship
(Amendment) Act, 1985;
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;
person shall be deemed to have been detected to be a foreigner on the date on whic
h a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits
its opinion to the effect that he is a foreigner to the officer or authority
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.
628 (3) to (8) ... (unnecessary)."
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:
Persons who are of Indian origin (undivided India) came before January
1, 1966 to Assam from the specified territory; and
(ii) have been "ordinarily resident" in Assam as it existed in 1985 since their
date of entry in Assam.
The appellants were no doubt persons of Indian origin.
came to Assam prior to January 1, 1966, namely, March 31, 1964 from the then East Pakistan, (presently Bangladesh) which is undoubtedly one of the
specified territories under Section 6-A(1)(c).
60. Assam, as seen from Section 6-A(1)(a),
means the territories included in the State of Assam immediately before the
commencement of the Citizenship (Amendment) Act, 1985.
is the common case that Chakma people entered into Assam and stayed their for some time in Ledo
within Dibrugarh District. Thereafter they shifted to Miao, Arunachal Pradesh.
According to the appellant, since the territory of Arunachal
Pradesh in 1964 was
included in the State of Assam, they would be entitled to the benefit of
Section 6-A. This contention overlooks the fact that the Immigrants (Expulsion
from Assam) Act, 1950 (Act X of 1950) applied
to the territories presently forming part of Meghalaya, Nagaland and Arunachal
Pradesh. However, by the North-Eastern Areas (Reorganisation) Act, 1971, the
territories of Arunachal Pradesh were excluded from the purview of the Immigrants
(Expulsion from Assam) Act of 1950.
Turning to Condition No. 2 the requirement is ordinarily resident in Assam from the date of entry till the
incorporation of Section 6-A, namely, December 7, 1985. As to the meaning of
"ordinarily resident" we may refer to Shanno Devi (Smt) v. Mangal
Sain3. We find the following observations at page 590 apposite:
is not necessary that for every day of this period he should have resided in India.
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'."
Insofar as the appellants and the Chakmas were residing in Miao SubDivision of Tirap
District in Arunachal Pradesh long before 1985, they cannot be regarded as
citizens of India. We find it difficult to appreciate
the argument of Mr Gobinda Mukhoty, learned counsel, that the accident of the
appellants living in Arunachal Pradesh should not deprive them of citizenship.
In this connection, it is worthwhile to note that Section 6-A of the
Citizenship Act came to be incorporated by Amending Act as a result of Assam
Accord. If law lays down certain conditions for acquiring citizenship, we
cannot disregard the law. As laid down in Kennedy v. Mendoza-Martinez12
"Citizenship is a most precious right".
Aristotle, Politics, III, 5 states thus:
US 144, 159 : 9 L Ed 2d 644 (1963) 629 "From earliest times, it has been
such status alone that has enabled the individual to share fully in the
benefits of the community in which he resides: Compare Homer's words, 'like
some dishonoured stranger': he who is excluded from the honors of the State is
no better than an alien." That is the position of appellant and the other
they are aliens, the donation deed dated November 20, 1972 is illegal. The Raja did not obtain
any permission for sale from the Government. From the records it is also clear
that the Raja had been donating the lands and was indulging in anti-social activities
for which he was warned.
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 antisocial activities. The
Deputy Commissioner, Tirap District on March 19, 1981 wrote to the Extra Assistant
Commissioner, Miao as follows:
refer to your report under reference, wherein it is indicated that a large
number of arms and ammunition seized from the possession of the Chakmas and are
still kept in Quarter guard. It is, therefore, requested to send us a detailed
report indicating details of arms and ammunition seized.
is further seen from your report regarding judicial cases, submitted to this
office, that there are altogether 76 cases registered up to November 1979
against the Chakmas and most of them were related to theft, assault and
offences under Forest Act.
also therefore requested that more details on specific offences and results
thereof may be furnished urgently.
above two informations are urgently required by the Government."
list of cases including ones under Section 302 IPC and other offences under
Section 25-A of the Arms Act is enclosed to the letter quoted above.
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
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:
reference to the subject quoted above, I on behalf of the villagers of Joypur
village have the honour to draw your kind attention to the following few lines
for favour of your needful action.
being landless in Abhoypur village, a few villagers consisting of fifty-six
families have been settled in Joypur village in the year 1968 with the mutual
help of Shri Ningrunong Rajkumar (Singpo) and the same was approved by the then
Deputy Commissioner, Khonsa in accordance with the agreement adopted by Shri Rajkumar
Singpo dated November 20, 1972.
Now, the most regretful matter is that in spite of our permanent cultivation on
the area for long sixteen years keeping all conformities with the Government as
well as the neighbouring local people, we are being harassed by notice after
notice to shift from the area.
contrary, I am to state that the land where we have been directed to shift is
quite short and extremely unfit for cultivation due to which those vacant lands
are not yet occupied by anybody in spite of lying considerable landless
families in the said villages.
documents created in regard to this matter are attached herewith for favour of
your kind perusal and necessary action.
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.
shall remain grateful to you thereof."
From the endorsement, it is also seen that two representatives met the Deputy
Commissioner on February
13, 1984. Therefore,
there was an oral hearing. The above letter mentions notice after notice to
shift. It was alleged by a petition to the Chief Minister that the Extra
Assistant Commissioner had been paid handsomely to allow Chakma families to
stay on illegally.
November 16, 1982 the Extra Assistant Commissioner
called upon the Circle Officer, Diyum to issue notices to the Chakma families
staying at Joypur village to return to their original place of settlement
within December 31,
Survey Reports for resettlement of these Chakmas dated April 27, 1983 inter alia states:
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
Thus, it will be clear that the reason for shifting these Chakma families are:
They are in illegal occupation of the protected area.
They are indulging in procurement of arms and ammunition.
They are indulging in criminal activities and associating with antisocial
They have been source of constant trouble to the other tribals.
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.
Ruling in Scheduled Caste and Weaker Section Welfare Assn. v. State of Kamatakal affording a hearing to slum
dwellers under the Karnataka Slum Areas (Improvement and Clearance) Act, 1973,
relied on by Mr Gobinda Mukhoty, learned counsel, has no application in the
Even then what is that is sought to be done to the appellants? They are asked
to settle in Maitripur and Gautampur villages from Miao. Certainly, settling
the Chakmas in a particular place is a matter of policy. This Court cannot
enter into the wisdom of such a policy, in view of what has been stated above, Arunachal
Pradesh is strategically important with Bhutan in the West, Tibet and China in the North and North-East, Burma (Myanmar) in the East.
is true that fundamental right is available to a foreigner as held in Louis De Raedt
v. Union of India2: (SCC p. 562, para 13) "The next point taken on behalf
of the petitioners, that the foreigners also enjoy some fundamental rights
under the Constitution of this country, is also of not much help to them. The
fundamental right of the foreigner is confined to Article 21 for life and
liberty and does not include the right to reside and settle in this I country,
as mentioned in Article 19(1)(e), which is applicable only to the citizens of
this country." As such Articles 19(1)(d) and (e) are unavailable to
foreigners because those rights are conferred only on the citizens. Certainly,
the machinery of Article 14 cannot be invoked to obtain that fundamental right.
Rights under Articles 19(1)(d) and (e) are expressly withheld to foreigners.
Now we come to the humanitarian grounds which prompted the High Court of Gauhati
to direct compensation to the appellants in the event of their being evicted.
77. Blackburn and Taylor speaking on the right to enjoy asylum in Human Rights for
the 1990s state at page 51 as under:
most urgent need of a fugitive is a place of refuge. His or her most fundamental
righ t is to be granted asylum. The Universal Declaration of Human Rights
addressed this issue in deceptive language. To the inexpert reader there is
great comfort in Article 14(1) of that Declaration, which provides that:
has the right to seek and enjoy in other countries asylum from persecution', it
seems tolerably clear, however, that the right to enjoy asylum means no more
than the right to enjoy it if it is granted." Again at page 52 it is
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 page 194 as under:
has long been recognized that persons who reside on the territory of countries
of which they are not nationals possess a special status under international
law. States have traditionally reserved the right to expel them from their
territory and to refuse to grant them certain rights which are enjoyed by their
own nationals, e.g. the right to vote, hold public office or to engage in
political activities. Aliens may be prohibited from joining the civil service
or certain professions, or from owning some categories of property, and States
may place them under restrictions in the interests of national security or
public order. Nevertheless, once lawfully admitted to a territory, they are
entitled to certain minimum rights necessary to the enjoyment of ordinary
private life." At pages 195-96 it is stated thus:
"General international law provides that aliens should not be
discriminated against in their enjoyment of property rights once they have been
acquired. If alien property is nationalized whereas the property of national s
remains unaffected then that act is discriminatory and prohibited under
international law. As Fitzmaurice points out, it has long been recognized that
in certain matters, e.g. the general treatment of foreigners in a country, or
compensation for property which may be expropriated or nationalized,
non-discrimination as between persons of different nationality or against
foreigners as compared with persons of local nationality, amounts to a rule of
international law, the breach of which gives rise to a valid claim on the part
of the foreign government whose national is involved."
Certainly, if the acquisition had been legal, compensation could have been
awarded. But in view of the Bengal Eastern Frontier Regulation, 1873 and clause
9(3) of the Foreigners Order, 1948 we do not think this is a case for award of
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.
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.