# Al'. STATE OF ARUNACHAL PRADESH v. KHUDIRAM CHAKMA

- **Citation:** [1993] 3 S.C.R. 401
- **Court:** Supreme Court of India
- **Decided:** 1993-04-27
- **Case number:** Civil Rule No. 166of1984
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/al-state-of-arunachal-pradesh-v-khudiram-chakma-11855
- **Pages:** 26

## Headnote

Al'.
STATE OF ARUNACHAL PRADESH
A
v.
KHUDIRAM CHAKMA
APRIL 27, 1993
[M.N. VENKATACHALIAH, CJ ANDS. MOHANJ.)
B
The citizenship Act, 1955:
Section 6A-Citizenship of persons covered by Assam Accord-Persons of
Indian origin known as Chakmas-Migrated to State of Assam from specified
territory before 1.1. 1966-Shifted to Arunachal Pradesh in 1966 and residing c
there since then-Held, cannot be regarded as.citizens of India.
Foreigners Act, 1946,
,._.-
Sectron 3;
Foreigners' Order, 1948,
Clause 9 (2);
Foreigners Protection Order, 1958;
D
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 of Arunacha/
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 of poliq•-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
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
G
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
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
B
c
. original settlement area where other Chakma families were already residing.
The appellant challenged the order before the High Court by filing a writ
petition which was dismissed. However, the High Court, on humanitarian
grounds, directed the State Government to give adequate compensation to the
Chakmas. Both, the appellant and the State Government filed the appeals by
special leave.
It was contended on behalf of the appellant that the appellant and the
other Chakmas being 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 incorpoF
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 a

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Al'.
STATE OF ARUNACHAL PRADESH
A
v.
KHUDIRAM CHAKMA
APRIL 27, 1993
[M.N. VENKATACHALIAH, CJ ANDS. MOHANJ.)
B
The citizenship Act, 1955:
Section 6A-Citizenship of persons covered by Assam Accord-Persons of
Indian origin known as Chakmas-Migrated to State of Assam from specified
territory before 1.1. 1966-Shifted to Arunachal Pradesh in 1966 and residing c
there since then-Held, cannot be regarded as.citizens of India.
Foreigners Act, 1946,
,._.-
Sectron 3;
Foreigners' Order, 1948,
Clause 9 (2);
Foreigners Protection Order, 1958;
D
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 of Arunacha/
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 of poliq•-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
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
G
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
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
B
c
. original settlement area where other Chakma families were already residing.
The appellant challenged the order before the High Court by filing a writ
petition which was dismissed. However, the High Court, on humanitarian
grounds, directed the State Government to give adequate compensation to the
Chakmas. Both, the appellant and the State Government filed the appeals by
special leave.
It was contended on behalf of the appellant that the appellant and the
other Chakmas being 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 incorpoF
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
--
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- .
-
I.
STA TE 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.
1.4 If the law lays down certain conditions for acquiring citizenship, the
same cannot be disregarded. (421-A)
Kennedy v. Mendoza- Martinez 372U.S.144,159 [1963), referred to.
Arstotle, Politics, III, 5, referred to.
2. The place where the Chakma families are residing is within the inner
line 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,
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)
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)
Inda-China Steam Navigation Co. v. Jasjit Singh, [1964) 6 SCR 594.at
621 to 622, followed.
Louis De Raedrv. Union of India [1991]3SCC554,referredto.(412 CD)
B
c
D
E
F
G
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
v. India Export House pvt. Lid., [1985] 1SCC712; Maharashtra State Board of
Secondary & Higher Education v. K.S. Gandhi, [1991]2SCC 716and Satya Vir
F
Singh v. Union of India, [1985) 4 SCC 252, referr.ed to.
G
H
5.1 In view of the Bengal Eastern Frontier Regulation, 1873 and Clause
9(2) of the Foreigners' Order 1948, the acquisition of the land being illegal, the
instant one is not a case for award of compensation. (426-C)
5.2 However, having regard to the statement made on bahalf of the State
that the Chief Minister is ready to hear the Chakmas, an opportunity be
afforded to them by the Chief Minister who may grant such relief as may be
deemed fit. It is made clear that it will be a post decisional hearing. (426 D)
--
_..--.
---
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STA lE 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.
From the Judgment and Order dated 30.4.1992 of the Gauhati High Court in
Civil Rule No. 166of1984.
B
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.
·The Judgment of the Court was delivered by
MOHAN.J. Leave granted.
D
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
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.
F
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.
c
·i) The monpas and Sherdukpens ofTawang and West Kemeng District;
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
E
F
Resettlement Scheme for these refugees. Areas were earmarked for their settlement at different parts of the State and accordingly they were asked to move to the
areas earmaked for them, In all, 5 Schemes were sanctioned for their settlement
(comprising of about 3100 families of refugees) at the cost of more than Rs. 2.
crores.
The appellants along with 56 families were allotted lands in the villages of
Gautampur and Maitripur. There were already a good number of Chakma refugee
families who were allotted lands and were living there peacefully. The appellants
instead of residing in tht: said allotted areas under the Resettlement Scheme drawn
by the Government, st:ayed away from it and negotiated with the Local Raja
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
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.
B
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.
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
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
D
E
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
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.
G
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 comprisH
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
F
Nirunong ofKumchai village who was mainly responsible for inducting
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, encroachH ment of adjoining areas. The State, therefore, found it necessary to shift them to
-
I .. _
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
appellant and the other Chakmas to shift. The said order is to the following effect:
"In connection to this office memoranodum No. LS-4/83/84/
2478-79 dated 6.2.84, the Chakma of Joypur village are hereby
directed to shift to the vacant land allotted at Gautampur and
Maitripur village latest by 25.2.1984.
This may be treated as final notice, failing which
legal action will be taken against the defaulters."
Questiooing the correctness of the order CR No. 166of1984 was filed before
the High Court of Gauhati:
It was urged:
(i) The petitioners are citizens of India.
(ii) Their fundamental rights have been infringed.
(iii) The impugned notice dated 15th of February, 1984 is illegal, arbitrary
and had been issued .in -Violation of the principles of natural justice.
The High Court of Gauhati formulated three 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; .
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
A
B
c
D
E
F
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 CitizenB
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 acquisition 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 GovemD
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
E
, deemed necessary in the interest of public safety. There was no.controversy that
the place where chakmas were staying is within the inner line which is protected
area notified by the State Government.
In view of the facts, the High Court came 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 Government to give adequate compensation in the event of these chakmas being evicted
from the place. The State of Arunachal Pradesh has preferred S.L.P. (C) No. 12429
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
the appellants were Indian citizens. Because of the partition of the country they
went over to the then East Pakistan, presently Bangladesh. But when they returned
in 1964 to the erstwhile Assam State they stayed there for some time and shifted
to Arunachal Pradesh. To deprive them of the citizenship would be violative of
Article 14 of the Constitution of India. By mere accident of their going over to
Arunachal Pradesh, they cannot lose their citizenship. The learned counsel
referred us to the various provisions of the Citizenship Act, 1955. He urges that
there is evidence, in this case, of donation of lands in favour of these appellants by
Raja Nirunong Singpho of Dumba. That was approved by the Deputy Commissioner as seen from memorandum dated 26th of April, 1976. The appellant was
appointed Gaon-Bura of Joypur village. In proof of that Sanad was issued by the
Deputy Commissioner. Again, the Executive Magistrate had directed the Raja to
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.
There was no notice before calling upon the appellants to shift. This Court
in Scheduled Caste and Weaker Section Walfare Association v. State of Karnataka
[ 1991] 2 SCC 604, a case arising under karnataka Slum Areas (Improvement and
Clearance) Act, 1973, held that before eviction a slum dweller does have a right
to say. Therefore, it is submitted that the principle of natural justice applies to noncitizens also.
In Louis De 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
A
B
c
D
E
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
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
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(ii) have been "ordinarily resident" in Assam (as it existed in 1985) since the
date of their entry into Assam.
In so far as the appellants were residing in Miao sub-division of Tirup
District, Arunachal Pradesh since 1968 they did not satisfy these conditions. As
to what exactly is the meaning of"ordinarily resident" could be seen from Shanno
Devi v. Mangal Saini [1961] 1 SCR 576 at 590.
It is true that this Court in Louis De Raedt (supra) took the view that even
foreigner has a fundamental right, but that fundemental right is confined only to
Article 21 and does not include the right to move freely throughout and to reside
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.
G
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
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
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,
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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 724G 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
v. Secretary of State
( 1984) 3 All ER 935 (HL) Council of Civil Service Unions v. Minister/or
the Ci\.•il Service
[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.
(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
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
be a post decisional hearing as oilierwise, if ilie decisions were against U1e
appellants a further round of litigation would be embarked upon.
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G
We will proceed to consider the correctness of the above submissions
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(1993) 3 S.C.R.
A
providing the necessary background and the factual matrix.
B
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
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
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STA lE OF ~RUNACHAL PRADESH''· KHUDIRAM [MOHAN. J)
415
thruugh gradual penetration of the administrative machinery.
Another change was effected in the administrative set-up on the 26th of
January, 1950 when the Government of Assam was relieved of its responsibility
for looking after the administration of the Excluded Area. However, the discretionary power was vested in the Governor of Assam, under the provision of the
paragraph 18 of the Sixth Schedule to the Constitution and Part 8 of the Table 20
1Jf the Schedule, who served as the agent of the President of the Union of the
Republic of India.
A
B
In the course of administrative and political events Arunachal Pradesh has
travelled from the Tract to the Union Territory. Under the provision of Northc
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
Arunachal Pradesh was placed under the charge of Chief Commissio~er during
that year.
The year of 1975 also proved eventful for Arunachal Pradesh. On 15 August,
D
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 Parliament. 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 representatives were nominated by the President of India. But at present, Arunachal Pradesh
enjoys two elective seats in the Lok Sabha based on the Universal franchise.
"-
.·
On 20th of February, 1987 Arunachal Pradesh ~as made a full:-fledged State.
Thus, it will be seen that at no time Arunachal Pradesh was part of the Territory
of the State of the Assam though it was being administered by-the Governor of
Assam or the President 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:-
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B
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SUPREME COURT REPORTS
(1993) 3 S.C.R.
2
·3
4
5
6
1914
1919
1937
1947
1950
1965
AdminisAdminist
Adminis
Adminis
AdminAdmini
tered by
ered by
tered by
tered by
tered by
tered ·
the Goverthe Govthe Govthe Govthe Preas
benment of
ernment
emorof
emorof
sident
fore by
Assam
of Assam
Assam
Assam
through
the Govewith
acting in
acting on
the Govermer
special
his disc
the
nor of
as agent
saferetion
advice of
Assam as
of the
guards.
indepenthe Prohis agent
Presidently of
vincial
acting in
dent but
the provinMinistry,
his discunder
cial Minisretio,n
the
try.
under the
general
·general
supervisupersion and
vision and
control
control
of the
of MiniMinistry of
try of
External
Home .
Affairs.
Affairs.
Arunachal Pradesh is situate in the North-East of India skirted by Bhutan in
West, Tibet and China in North and North-East, Burma (Myanmar) in East and
Assam in South. It consists of the sub-mountains and mountainous ranges sloping
to the plains of 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.
i) The Monpas !lfld Sherdukpens of Tawang and West Kemens
District;
ii) Khamptis and Singphos inhabiting the entire eastern part of the
State; and·
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STA 1E 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.
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 subdivision in Tirap District, now within the State of Arunachal Pradesh which was
then known as North East Frontier Agency (NEFA). In the years 1966-68 the then
Government drew up the Chakma resettlement schemes. Altogether 5 schemes
were sancitioned for settlement of 3100 families at a cost of more than rupees two
crores. The appellants were allotted lands in the villages of Gautampur and
Maitripur. The 9Uier Chakmas were also staying there. As stated earlier, on 21st
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
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
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
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."
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
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SUPREME COURT REPORTS
(1993) 3 S.C.R.
State Government shall appoint in this behalf.
Any interest so acquired may be dealt with as the State Government
or its said officer shall direct.
The State Government may also, by notification in the Arunachal
Pradesh Gazette extend the prohibition contained in this section 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
D
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 ~lause 9.