Supreme Court of India
STATE OF ARUNACHAL PRADESHversusKHUDIRAM CHAKMA
- Citation
- 1993 INSC 168
- Decided
- 27 April 1993
- Disposal
- Case Partly allowed
- Bench
- M N VENKATACHALIAH
Holding
The Chakmas are not citizens of India under Section 6A and are therefore foreigners; the donation deed is illegal and the order directing them to shift is valid.
Summary
The Chakma refugees, who migrated from East Pakistan to Assam in 1964 and were later shifted to the North‑East Frontier Agency (now Arunachal Pradesh) in 1966, were allotted land under a government resettlement scheme but subsequently occupied land donated by a local Raja inside a protected inner‑line area. The State directed them to vacate and return to the original settlement, citing illegal occupation, arms trafficking and criminal activities. The Chakmas challenged the order, claiming citizenship under Section 6A of the Citizenship Act (as amended by the Assam Accord) and invoking Articles 14 and 19 of the Constitution. The Supreme Court held that they did not satisfy the "ordinarily resident" requirement of Section 6A and therefore were foreigners; consequently, the donation deed was illegal and the order to shift was valid. The Court also found that natural‑justice requirements had been met and denied any compensation. The State’s appeal was allowed and the Chakmas’ appeal dismissed.
Issues considered
- Whether the Chakma refugees qualify as citizens of India under Section 6A of the Citizenship Act, 1955 (as amended).
- Whether the land donation by the local Raja is valid under the Bengal Eastern Frontier Regulation, 1873 and the Foreigners' Protection Area Order, 1958.
- Whether the order directing the Chakmas to shift violates Articles 14, 19(1)(d) and 19(1)(e) of the Constitution.
- Whether the principles of natural justice were complied with in the issuance of the shifting order.
- Whether the Chakmas are entitled to compensation for the alleged illegal acquisition of land.
Legislation cited
- Bengal Eastern Frontier Regulation, 1873s. Section 7
- Citizenship Act, 1955s. 6A
- Constitution of Indias. Article 14, s. Article 19(1)(d), s. Article 19(1)(e), s. Article 21
- Foreigners Act, 1946s. 3
- Foreigners Order, 1948s. Clause 9(2)
- Foreigners Protection Order, 1958
- Immigrants (Expulsion from Assam) Act, 1950
- North-Eastern Areas (Reorganisation) Act, 1971
Subjects
citizenshipforeignersAssam AccordChakma refugeesinner lineprotected arealand donationnatural justiceconstitutional rightsArticle 14Article 19compensationArunachal Pradesh
Judgment
STATE OF ARUNACHAL PRADESH A
v.
KHUDIRAM CHAKMA
APRIL 27, 1993
B
[M.N. VENKATACHALIAH, CJ ANDS. MOHANJ.)
The citizenship Act, 1955:
Section 6A-Citizenship ofpersons 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 c
there since then-Held, cannot be regarded as.citizens of India.
Foreigners Act, 1946,
,._.-
Sectron 3;
Foreigners' Order, 1948,
D
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-Chakina E
refugees-Donation of lcmd by local Raja within inner line in State ofArunacha/
Pradesh-Held, the donation deed was illegal.
. Constit11tion of India, 1950:
Articles 14, 19( 1)-(d), (e)-Rights to mavefreely throughout the territof)'
of India and to reside and settle any part therein-Held, rights not avaliable to F
foreigners-Settling Ghakmas in a particular place is ,a-matter ofpoliq•-Court
cannot enter into wisdom of such policy.
The appellant in Civil Appe?I 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
G
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 H
Area Order 1958. Later, the State Govenment received complaint.'> that the
401
Al'.
402 SUPREME COURT REPORTS (1993) 3 S.G:.R.
A 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 settlement area where other Chakma families were already residing.
B 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.
c
It was contended on behalf of the appellant that the appellant and the
other Chakmas being oflndian 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
D against the principles ofnatunal justice, was vi~lative of Article 14 of ttie
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
E 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- Hl
1.2 Under Section 6-A of the Citizenship Act, 1955, which was incorpo-
---
F rated 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. (411G-H;412-A]
G
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 t~e State of Assam though was being
-.
H administered by the Go\•ernors of Assam or the President oflndia, as the case
STATE OF ARUNACHAL PRADESH v. KHUDIRAM 403
may be. Besides, by the North-Eastern Areas (Reorganisation) Act, 1971, the A
territories of Arunachal Pradesh were excluded from the purview of the
Immigrants (Explosion 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 entry in Assam. (420 A-F)
- Smt. Shanno Devi v. Mangat Saini [1961) 1 SCR 576, relied on.
B
1.4 If the law lays down certain conditions for acquiring citizenship, the
same cannot be disregarded. (421-A)
c
Kennedy v. Mendoza- Martinez 372U.S.144,159 [1963), referred to.
Arstotle, Politics, III, 5, referred to.
D
I.
2. The place where the Chakma families are residing is within the inner
line noti~ed 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 thereon by any foreigner is prohibited as envisaged by clause
section 7 of the Bengal Eastern Frontier Regulation, 1873 afid Clause 9(2) of
the Foreigners' Order 1948 issued under Section 3 of the Foreigners Act, E
1946. (410 DE)
2.2 Accordingly, the donation deed through which the Raja gave land to
the appellant and the other Chakmas is illegal.(421 D)
F
2.3 Unlike 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)
G
Inda-China Steam Navigation Co. v. Jasjit Singh, [1964) 6 SCR 594.at
621 to 622, followed.
Louis De Raedrv. Union ofIndia [1991]3SCC554,referredto.(412 CD)
H
404 SUPREME COURT REPORTS [1993) 3 S.C.R.
A 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 ammunitions
and other criminal activities; they are associating with anti-social elements,
and have been source of constant trouble to the local tribals. Arunachal
B 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 be 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
C 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 ~ettlement were submitted and representation were made
to the authorities concerned who gave oral hearing to the representatives of
Chakmas. (412 GH)
D
Scheduled Caste and Weaker Section Welfare Association v. State of
Kamataka, [1991) 2 SCC 604, inapplicable.
R. v. Secretary of State for the Home Department, [1991) 2All ER 319
E (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 Fame & Ahr., [1978) 3 All ER 211 (Ch. D) p. 219; JR Voltra
F
v. India Export House pvt. Lid., [1985] 1SCC712; Maharashtra State Board of
Secondary & Higher Education v. K.S. Gandhi, [1991]2SCC 716and Satya Vir
Singh v. Union of India, [1985) 4 SCC 252, referr.ed 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)
G
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)
H
STAlE OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J] 405
Blackbum and Taylor on the right to enjO)' asylum in Human Rights for the A
i990s, 'Equality and Discrimination under International LOw' by Warwick
Mckean, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2182/93 with
2181/93.
B
From the Judgment and Order dated 30.4.1992 of the Gauhati High Court in
Civil Rule No. 166of1984.
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 C
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.
D
·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. 166of1984. The short facts are as E
. 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 F
--- to India on 30th March, 1964 from emwhile 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 G
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 H
406 . SUPREME COURT REPORTS [1993] 3 S.C.R.
A Arunachal Pradesh. ll beca·ne a full tledged Slate on 20th February_, 1987,
Geographically, it is situated ~n the north-east oflndia and has a long international
border with Bhutan, China and Burma(Burma presenlly called Myanmar). It is the
largest State areawise in the r.orth-east region, even larger than Assam which is the
most populous State. The po ;mlation of Arunachal Pradesh, according to the 1981
census is 6.32 lakhs. It is sca.ttered over 12 towns and 3,257 villages. There are 26
B Major tribes. Broadly spealdng, 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 ofTawang and West Kemeng District;
c ii)Khamptis and Singhphos inhabiting the entire eastern part of the State;
and
-
iii)The Neotes a•1d Wanchos adjoining Negaland in the Tirup District;
D In the year r966, the State Government drew the Scheme known as Chakma
Resettlement Scheme for these refugees. Areas were earmarked for their settle-
ment 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.
E
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 tht: said allotted areas under the Resettlement Scheme drawn
by the Government, st:ayed away from it and negotiated with the Local Raja
F
namely Nigrumong Singpho of Damba for an area of one sq. mile of his private
1and and got the same from the said Singptio through an unregistered deed dated
20th November, 1972.
The State would contend that the said transfer is illegal because as per section
G 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, ttie stand of the
H appellant is that s~nce the date of donation they have been residing and cultivating
.)
STA TE OF ARUNACHAL PRADESH"· KHLTDIRAM [MOHAN. J) 407
the said land and they have aeveloped the area for habitation purposes. A
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
B
Deputy Commissioner at kenosa approved the transfer and the Extra Assistant
Commissioner, Miao by his memorandum No. MR S (M n5/8648-5 l dated
26.4. 76 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 c
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 tha1-·such outsiders in
due course were expelled. D
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. Iq 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
E
a truly self-sufficient village.
In view of prosperity and growth of land the nearby villagers sought to
dislndge the appellant and families by raising various disputes, one of which was
that (he place cannot be utilised as refugee settlement and that they should be
shifted to another place. Circle Ofticer, Diyun issued an order dated 15.2.84 F
directing the appellant to shift to the vacant land at Gautampur and Maitripur
viilages 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 un~uthorised land started committing
G
criminal and illegal activities. There were several complaints to the effect that the
appellant is encroaching upon the private lands illegally in COfmivance with the
local people, particularly, Singphos.
In orderto investigate the matter fully, the Government, vi de its letter dated
4.4.1979, directed an enquiry into the whole matter through a Committee compris- H
408 SUPREME COURT REPORTS [1993) 3 S.C.R.
A 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 Bhutia)
have illegally encroached upon about 872 Hectares in Miao Sub Division alone.
B The said Committee observed that:-
"7. The fear of the local people regarding heavy growth of
population among the Chakmas has already been stated above and it is
also well known to the Government. But such fear may be true in the case
of Deoris and Ahoms too because it has been seen that in their case too
c theirpopqlation 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
....... D formal allotment of land to each family is very necessary and further iii
order to guard aga.inst 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.
E 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 ofKumchai village who was mainly responsible for inducting
F
Chakmas in Jaipur village, IO 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 l 0 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
G 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 ammunitions, establishing conteracts .with the Extremist groups, encroach-
H ment of adjoining areas. The State, therefore, found it necessary to shift them to
STA 1E OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J) 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
A
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 B
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 which
legal action will be taken against the defaulters."
c
Questiooing the correctness of the order CR No. 166of1984 was filed before
the High Court of Gauhati:
It was urged:
D
(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. E
The High Court of Gauhati formulated three questimls 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; . F
.._
I
2. If they are not citizens of India, Whether .the authorities concerned have
right to give direction to these Chakma people to tnove to another place.
3. Whetherthe-impugnedorderdated 15.2.1984 is arbitrary, devoid ofreason
and violative of the provisions of the Constitution. G
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 H
410 SUPREME COURT REPORTS [1993) 3 S.C.R.
A 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 Citizen-
B ship 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
196.6 from the specified territory and who fiave 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.
c
On the second question, the High Court referred to Section 7 of the Bengal
Eastern Frontier Regulation, 1873. That section specifically prohibits the acqui-
sition of interest ii1 land by other than the natives of the district without the sanction
of the State Government. Admittedly, there was no sanction of the State Govem-
D ment 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
E 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 10 the conclusion that the
petitioners had no right to seek a permanent place of abode in that area. The
F 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 ammunition and were
actively, associating with anti-social elements Accordingly, it was concluded that
G the impugned order is not devoid of any reason.
lastly, the High Court, on humanitarian grounds, directed the State Govern-
ment 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
H of 1992 while Khudiram Chakma has filed S.L.P. (C) No. 13767 of 1992.
STAIB OF ARUNACHAL PRADESH"· KHIJDIRAM [MOHAN, J] 411
Mr. Govind Mukhoty, learned counsel for the appellant urges that in 1947 A
the appellants were Indian citizens. Because of the partition of the country they
went over to the then East Pakistan, presently Bangladesh. But when they returned
in 1964 to the erstwhile Assam State they stayed there for some time and shifted
to Arunachal Pradesh. To deprive them of the citizenship would be violative of
Article 14 of the Constitution of India. By mere accident of their going over to
Arunachal Pradesh, they cannot lose their citizenship. The learned counsel
B
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 Commis-
sioner 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 c
Deputy Commissioner. Again, the Executive Magistrate had directed the Raja to
tum 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. D
There was no notice before calling upon the appellants to shift. This Court
in Scheduled Caste and Weaker Section Walfare Association v. State ofKarnataka
[ 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 non-
E
citizens also.
In Louis De Raedr 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. F
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
G
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 sun-section (2) of the said Section must be satisifed simultaneously:
(i) The persons who are of Indian origin (viz. undivided India) came beofre
1.1.66 to Assam from the specified territory; and lf
412 SUPREME COURT REPORTS [1993] 3 S.C.R.
A (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
B
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
c 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-Clzina Steam Navigation Co v. Jasjit Singh [1964] 6 SCR 594 at
D 621 to 622 and Louis De Readt (supra).
The land donated in favour of the appellants by Raja Nirunong Singpho of
Dumba by donation deed dated 20.1 l. 72 is illegal. Section 7 of the Bengal Eastern
Frontier Regulation 1873 and clause 9 of the Foreigners under 1948, which are
E 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
F Government to decide.
On the quesion of natural justice before passiQg 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
G
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 fi.le 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
H 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
STA TE OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J] 413
came to be passed. On ground realities, natural justice is fully satisfied. A
In support of the above submissions, the learned counsel relied on the
following cases:
(1991), 2All ER319 (CA) p. 331Ato332 H, 334 A to J:R .v. Secretary of B
State for the Home Department ex party Cheblak.
(1991] 1 All ER 720 (HL), Lord Bridge of Harwich, p. 723 F to 724-
G Lord Templeman, p. 725-J, 726-A to C.
'~
~
Lord Ackner, p. 731-H 732G-H 735 F-J Lord Lowry, p. 737 D-J. Brind
c
v. Secretary of State
( 1984) 3 All ER 935 (HL) Council of Civil Service Unions v. Minister/or
the Ci\.•il Service
D
[1978] 3 All ER 211 (Ch. D) p. 219, 223 A-J, 229
Mcinnes v. onslow Fame & Anr.
(1985] 1SCC712 at p. 722-723 para 12, 13 JR Vohra v. Jndia Export
House Pvt. Ltd.
E
(1991] 2 SCC 716 at p. 738 para 20-22 Maharashtra State Board of
..._
,
Secondary & Higher Education. v. K.S. Gandhi
(1985] 4 SCC 252 at p. 263 Satya Vir Singh v. Union of India
F
However, U1e learned counsel fairly conceded iliat U1e Chief Minister
was willing to hear ilie appellants or any representative of U1eir group,
additionally, as a post-decisional hearing, even though ·iliey had full
opportunities over. a period of four years. It is his submission that it must G
be a post decisional hearing as oilierwise, if ilie decisions were against U1e
appellants a further round of litigation would be embarked upon.
We will proceed to consider the correctness of the above submissions H
- ff
414 SUPREME COURT REPORTS (1993) 3 S.C.R.
A providing the necessary background and the factual matrix.
The history of the mountainous and multitribal north-east frontier region
which is now known as Arunachal Pradesh ascends for hundreds of years into the
mists of tradition and mythology. According to Puranic legend, Rukmini, the
daughter of king Bhishmak, was carried away on the eve of her marriage by Lord
B
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 Krishna at Tezpur (Assam). A Kalila Kinu, Ramachandra, driven
from his kingdom in the plains of Assam, fled to the Dafla (now Nishan} foothills
and established there his capital ofMayapore, which is identified with the ruins on
.c 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
counrty.
In the year 1838, when the British took over the administrative control of
D Assam from the last Ahom king, Shri Purander Singh, it was thought necessary to
extend elementary regul!lf administration to the adjoining north-east frontier
region. The first importahd 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
E commercial relatiuns 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 ofland and_
property beyond the 'Inner Line' without special permit."
A Notification bearing No. 1486, dated June 21, 1876 was issued by the
F 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 ~and 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 underthe Government of India's (Excluded and Partially
G Excluded Area) Order of 1936.
Under the effective provision of the Section 91 (i) of the Government oflndia
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
H 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
STA lE OF ~RUNACHAL PRADESH''· KHUDIRAM [MOHAN. J) 415
thruugh gradual penetration of the administrative machinery. A
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 discretion-
ary power was vested in the Governor of Assam, under the provision of the
B
paragraph 18 of the Sixth Schedule to the Constitution and Part 8 of the Table 20
1Jf 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 North-
Estern Areas (Reorganisation) Act, 1971 (Central Act 81of1971), the present
status of Union Territory was granted to the erstwhile North-East Frontier Agency
am! renamed as Arunachal Pradesh on January 21,1972. The Union Terprory of
c
Arunachal Pradesh was placed under the charge of Chief Commissio~er during
that year.
D
The year of 1975 also proved eventful for Arunachal Pradesh. On 15 August,
1'>75. then existing Pradesh Council was constituted into the Union Territory
Lcgislatiure. The panel of then existing five counsellors was constituted into
Prnvisional Council of Ministers. Consequent upon the above change, the post of
Chief Commissioner was further elevated to the p0sition ofLeutenant Governor E
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 Parlia-
ment. By an Act of the Governemt of India in 1971, the: Union Territory was~ F
provided with one !\Cat-each in Lok Sabha and Rajya Sabha, but these representa-
tives 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 ~as made a full:-fledged State.
G
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 oflndia, 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:- H
416 SUPREME COURT REPORTS (1993) 3 S.C.R.
A 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 Gover- the Gov- the Gov- the Gov- the Pre- as be-
nment of ernment emorof emorof sident fore by
B Assam of Assam Assam Assam through the Gove-
with acting in acting on the Gover- mer
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 dent but
c the provin- Ministry, his disc- under
cial Minis- retio,n the
try. under the general
·general supervi-
super- sion and
D vision and control
control of the
of Mini- Minis-
try of try of
External Home
.
Affairs. Affairs.
E
Arunachal Pradesh is situate in the North-East of India skirted by Bhutan in
West, Tibet and China in North and North-East, Burma (Myanmar) in East and
Assam in South. It consists of the sub-mountains and mountainous ranges sloping
to the plains of Assam. It's capital is Itanagar. It is the largest state areasw.ise
(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.
Accordi~g to 1991 census the population of Arunachal Pradesh is 6.32 Iakh and
is scattered over 12 towns and 3,257 villages. There are 26 major tribes in
Arunachal Pradesh. Broadly speaking, the people in the state may be divided into
three cultural groups on the basis of their socio-regional affinities.
G
i) The Monpas !lfld Sherdukpens of Tawang and West Kemens
District;
ii) Khamptis and Singphos inhabiting the entire eastern part of the
ff, State; and·
STA1E OF ARUNACHAL PRADESH i·. KHUDIRAM [MOHAN, J] 417
iii) The Noetes and Wanchos adjoining Negaland in the Tirap A
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.
B
Being iefugees they were given shelter in government camps at Ledo within the
district ofDibrugarh, Assam. Lateron 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. 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 9Uier Chakmas were also staying there. As stated earlier, on 21st
c
January, 19'72 NEFA ~as 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 D
Joypur village which is inside the Inner Line. Earlier we were referred to Bengal
I
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
E
called "The inner Line" in each or any of the above named districts.
The State Government may, by notification in .the Arunachal
Pradesh Gazetfo 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 passunder the hand and seal F
of the Chief Executive Officer of such district or of such other
officer as he may, au1horise·to grant such pass; and the State
Government may, from time to time, cancel or very suc:h prohibi.-
tion."
G
Clause 7 isjmportant. 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 II
418 SUPREME COURT REPORTS (1993) 3 S.C.R.
A 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
B
Pradesh Gazette extend the prohibition contained in this section tn
any class of persons, natives of the said districts, and may from time
to time in like manner cancel or very such extension ...
Under Section 3 of the Foreigners Act of 1946, the Central Gove;,nment may.
C by order, make provision for prohibiting regulating or restricting the entry Llf ....
foreigners into India. In exercise of power conferred under Section 3 of the said Act
Foreigners Order of 1948 dated 10.2.48 was issued. Under clause 9 of the said
Order the Central Government or with prior sanction. a civil authority may. hy
order, declare any area to be a protected area forthe purposes of this order. On such
declaration, the civil authority may, as to any protected area, prohibit any foreigner
D 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 ~lause 9. Cla'use 9 of the Foreigners Order
of 1948 in .sub-clause (2) pl".(])hl'lili~s the acquisition of any land or any interest
thereon within the prohibfred :ar.ea by any foreigner.
E
Un~er Clause 9 .the authorities concerned, by an order, may l?mhihit any
foreigner from iemaining in any part of the pmtected area as stated in th~
l\oreign·ers-Protected Area Orderof 1958 whic'h indudes the territory of Arunachal
Pradesh.
.,F Examined in this light, the donation by Raja is clearly invalid.
However, the memorandum dated 26th of April, 1976 issued bf the Extra
Assistant Commissioner Miao states that the agreement between the appellant.
· Khudiram Chakma and the local Raja dated 20. l l. 72 has been appro\'ed by the
-
Deputy Commissioner. That is again mentioned in the direction given by the
G Executive Magistrate Miao on 30th of May, 1977. The effect of approval by the
Depcty Commissioner will be considered later.
.'
• ,1-, . . .
•
1
'. ·In
this facttiai background, the question arises whether the appellants could
claiin citizenship under'Secion 6-A of Citizenship Act of 1955. We will now
H ex.tract the said Section: '·
STA TE OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J) 419
"6-A. Special Provisions as to the citizenship of persons covered by A
the Assam Accord:- ( 1) For the purposes of this section:
(a) "Assain" means the territories included in the State of Assilln
immediately before the commencement of the Citizenship (Ameriil~
ment) Act, 1985;
B
(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) Oi"der 1964 by a Tribunal
constituted under the said Order;
c
(c) "specified territory" means the territorises included in Bangladesh
immediately before the commencement of the Citizenship (Amend-
ment) Act, 1985;
(d) a person shall be deemed to be of Indian origin, if he, or either
D
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 E
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 lst day of January, 1966 to
Assam from the specified territory (including such of those whose
riames were. included in the electoral rolls used for the purposes of
F
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
!st day of January, 1966.
G
(3) to (8) .............. .......................... (unnecessary)"
As rightly urged by Mr. K.K. Venugopal, learned counsel for the State of
Assam, two conditions are required lo be salisfied under sub-section (2). They are:
(i) Persons who are of Indian origin (u'ndivided India) came before 1.1.66 to. H
420 SUPREME COURT REPORTS [1993) 3 S.C.R.
A Assam from the specified territory; and
(ii) have been "ordinarily resident" in assam as it existed in 1985 since their
date of entry in Assa.rn.
The appellants were no doubt persons of Indian origin. They came to Assam
B
prior to 1.1.66, namely, 31.3.64fromthe then East Pakistan, (presently Bangladesh)
which is undoubtedly one of the specified territories under Sectio~ 6 (1) (c).
Assam, as seen from 6A (a), means the territories included in the State of
Assam immediately before the commencement of the Citizen~hip (Amendment)
C Act, 1985.
It is the copunon 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
D 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 partofMeghalaya, Nagaland andArunachal Pradesh .
.However, by the North-Eastern Areas (Reorganisation) Act, 1971, the territories
of Arunachal Pradesh were excluded from the purview of the Immigrants (Expul-
E sion 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. l 2.85. 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:
--
F
"It is not necessary that for every da)\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
G break".
In so far as the appellants and the chakmas were residing in Miao sub-
division ofTirap 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
H Arunachal Pradesh should not deprive them of citizenship. In this connection. it
STAIB OFARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J] 421
is worthwhile to note that Secion 6A of the Citizenship Act came to be incorpo- A
rated 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."
B
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." c
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 D
records it is also clear that the Rajs had been donating the lands and was indulging
in anti-social activities for which he was warned. We do not know how the Deputy
Commissioner or the Extra Assistant Commissioner ever approve of this donation
without there being an express authorisation by the State. It is an admitted fact that
the place where the chakma families are residing is within the inner line notified
by the State Government. Therefore, the argument that they have cleared the forest E
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. F
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 Cotnmissioner, 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 G
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.
H
422 SUPREME COURT REPORTS (1993) 3 S.C.R.
A 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.
B
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.
c
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 Commis-
D sioner 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 favourof yourneedful action.
E
That, being landless in Abhoypur Village, a few Villagers consist-
ing 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 Com-
missioner, Khonsa in accordance with the agreement adopted by Sri
F 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 conformi-
ties with the Govt. as well as the neighbouring local people, we are
G 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 shiftis quite short and extremely unfit for cultivation due
to which those vacant lands are not yet accupied by aaybody in spite
ff of Lying considerable landless families in the said villages.
STA TE OF ARL::-..'ACHAL PRADESH v. KHUDIRAM [MOHAN. J] 423
All documonts created in regard to this matter are attached herewith A
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.
B
I shall remain greteful to you thereof'
From the endorsoment, 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 c
petition to the Chief Minister that the Extra Assistant Commissioner had been paid
handsomely to al,low chakma families to stay on illegally.
On 16th of November, 1982 the Extra Assisstant Commis!Koner called upon
the Circle Qfficer, Di yum to issue notices to the chakms families staying atJoypur
D
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 respec-
ti vd y which are liable for settlement of Chakma settlers." E
Thus, it will be clear that the reason for shifting these chakma families are:
(I) They are in illegal occupation of the protected area.
F
(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
G
after notice proposing to evict which was resisted. Therefore, as rightly urged-by
Mr. K.K. Venugopal, learned coufisel~ on ground realities, the plea of natural
justice is fully satisfied. H
424 SUPREME COURT REPORTS [1993) 3 S.C.R.
A Ruling in Scheduled Caste and Weaker Section Welfare Associatio~ v. State
of Kamataka [ 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
B 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, ArunaJ:!tal
Pradesh is strategically important with Bhutan in the West, Tibet and China in the
North and North-East, Burma (Myanmar) in the East.
c
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
D country, is also of not much help to them. The fundme~~ 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 countr)r, as mentioned
in Article 19 (l) (e) which is applicable only to the citizens of this
country."
E
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 (l) (d)
and (e) are expressly withheld to foreigners.
F 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.
Blackbum and Taylor speaking on the right enjoy asylum in Human Rights
G 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
H ( 1) of that Declaration, which provides that 'Everyone has the right
STAIB OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J] 425
to seek and enjoy in other cuntries· asylum from persecution, it A
seems tolerably clear, hqwever, thattherighttoenjoyasylummeans
no more than the right to enjoy it if is granted."
Again at page 52 i,t is stated thus:
B
"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, equall.Y a state which has granted him
asylum must not later return him to the country whence he came. c
Moreover, the Article carries considerable moral authority and
cmtrodies the legal prerequisite of regional declarations and instru-
ments."
Warwick Mckean, dealing with the equality in the treatment of aliens, states
in Equality and Discrimination under International Law at page 194 as under: · D
"It has long been recognized that persons who reside on the territory
of countries of which they are11ot 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 E
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 civii service or certain profes-
sions, or from owning some categories ()f property, and states may
place them
' - under restrictions in the interests_.__,.--of nations! security or
'
public order. Nevertheless, once lawfully ·admitted to a territory, F
they are entitled to certain minimum rights necessary to the enjoy-
ment of ordinary private life.'r
At pages 195-19.6 it is stated thus:
G
"General international law provides that aliens should not be
discriminated against in their enjoyment of property rights once
they have been a~quired. If alian 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. H
426 SUPREME COURT REPORTS (1993) 3 S.C.R.
A the general treatment of foreigners in a country, or compensation for
property which may be exproprited or nationalized, non-discrimi-
nation as between persons of different nationality or against for-
eigners as compared with persons of local nationality, amounts to
a rule of international law, the breach of which gives rise to avalid
claim on the part of the foreign government whose national is
B involved."
Certainly, if the acquii;tion had been legal, compensstion could ha'"e hcen
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
c 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 Chier Minister is ready to hear the Respondents (appellants
hj!rein) or any representative of their group. Accordingly we direct that an
.D 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.
Accordinlgy 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.
E 12429of1992 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.
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