1992 Supreme(Gau) 83

GAUHATI HIGH COURT
U.L.Bhat, D.K.Baruah, JJ.
Khudip Am Chakma -Appellant
Versus
Union Territory of Arunachal Pradesh -Respondent
Civil Rule No. 166 of 1984
Decided On : 30-04-1992

Foreigners do not have the right to reside and settle in India and the State Government has the authority to control their movement and stay.

Headnote:

FOREIGNERS - MOVEMENT AND STAY - REGULATION - CITIZENSHIP - ACQUISITION - SECTION 6A OF THE CITIZENSHIP ACT, 1955 - APPLICABILITY - BENGAL EASTERN FRONTIER REGULATION, 1873 - APPLICABILITY TO ARUNACHAL PRADESH - INNER LINE - PROHIBITION OF ACQUISITION OF LAND BY NON-NATIVES - FOREIGNERS ORDER, 1948 - PROTECTED AREA - PROHIBITION OF ENTRY AND STAY OF FOREIGNERS - AUTHORITY TO ISSUE ORDERS - VALIDITY - ARBITRARINESS - JUDICIAL REVIEW - FUNDAMENTAL RIGHTS - AVAILABILITY TO FOREIGNERS - ARTICLE 21 - RIGHT TO LIFE AND LIBERTY - RIGHT TO RESIDE AND SETTLE - ARTICLE 19(1)(E) - NOT APPLICABLE TO FOREIGNERS - COMPENSATION FOR MONEY AND LABOUR INVESTED IN LAND - OBLIGATION OF STATE GOVERNMENT - REVIEW OF DECISION TO SHIFT CHAKMAS - PERMISSIBILITY.

Fact of the Case:

Petitioner, Gaon Bura of Joypur Village, Diyun Circle of Miao Sub-Division, Tirap District, Arunachal Pradesh, filed a writ petition challenging the notice directing them to shift to vacant land at Gautompur and Moitripur Village in the district of Tirap, Arunachal Pradesh. The petitioner and other 56 families migrated to India on 30th March, 1964 from earstwhile East Pakistan, now Bangladesh due to disturbances and fear of disturbance, prevailing there at that time and took shelter in a Government camp. They were taken to Bettiah, Bihar and later to Abhayapur Block in Diyun Circle of Tirap District, Arunachal Pradesh in 1966. The petitioner and other families negotiated with local Raja, Ningrunong Singpho of Dhomba Basti, who donated one square mile area of his land in favour of the petitioner as per the Annexure 1 document dated 20.11.72. The petitioner was appointed Gaon Bura (Village Headman) of Miao Circle of Tirap District by the then Deputy Commissioner of Khonsa District by Annexure 2 order dated 20.11.75. By Annexure 2 letter dated 26.4.76, the then Extra Assistant Commissioner, KVR Chari, declared that the land donated by the Raja Ningrunoog Singpho of Joypur Village was approved by the Deputy Commissioner, Khonsa. The petitioner and other families developed the land and started cultivation. They also established a few small scale industries on the said land. Some Deori families who were also allotted lands adjacent to their land, attempted to encroach upon their land and therefore, a complaint was lodged before the authority concerned. On their complaint, the Executive Magistrate, Miao, by Annexure 4 order dated 30.5.77 informed the Raja, Ningrunong Rajkutomr of Joypur Village that the Chakma people would be allowed to continue to cultivate on the land under their occupation. He was father informed that some Deori families attempted to encroach upon the land, and therefore, he was directed to turn them out from the land allotted to Chakma people. Copies of this order were sent to the petitioner, the Circle Officer, Diyun and Gaonbura of Joypur Village. The petitioner averred that by dint of thair labour and efforts they developed the land and started cultivation. Besides, they also established a few small scale industries on the said land. On their achievement the people living in the adjoining areas became jealous and, therefore, attempted to dislodge them from the land in various ways. The petitioner as well as the other Chakma people made complaints to various authorities, but no action was taken by any authority. On the other hand, to their utter surprise, by impugned Annexure 5 order dated 15.2.84, the fourth respondent directed the Chakma people of Joypur Village to shift to the vacant land at Gautampur and Moitripur Village latest by 25.2.84. Copies of this order were also sent to the petitioner, the Deputy Commissioner, Tirap District, Khonsa and Extra Assistant Commissioner, Miao, for information and necessary action. On receipt of Annexure 5 order, the petitioner on behalf of Chakma people submitted a representation to the Chief Minister, Arunachal Pradesh, stating the entire facts and prayed for his intervention in the matter and also for direction to the authority to stay further proceedings in the matter of eviction and also to give formal settlement of the said land to them. In spite of the representation, no action was taken; hence the petitioner has filed this writ petition challenging the Annexure 5 order dated 15.2.84 praying for issue of a writ in the nature of Mandamus and/or Certiorari or Prohibition or any other appropriate writ or direction.

Finding of the Court:

The court held that the petitioner and other Chakma families are not citizens of India and therefore, they are foreigners. The State Government has the authority to control their movement and stay. The impugned Annexure 5 order dated 15.2.84 is not arbitrary, devoid of reason and violative of the provisions of Constitution. However, the State Government has an obligation to compensate the Chakmas for the money and labour invested by them in the land before they are removed from this land to be settled elsewhere. The State Government shall also make all arrangements for settling them in the alternative land by constructing houses and other structures and arranging for supply of drinking water before they are shifted.

Issues: 1. Whether the petitioner and 56 Chakma families now settled in Miao, 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 those Chakma people to move to another place? 3. Whether the impugned Annsxure 5 order dated 15.2.84 is arbitrary, devoid of reason aid violative of the provisions of Constitution.

Ratio Decidendi: 1. The petitioner and other Chakma families are not citizens of India as they cannot be regarded as citizens of India by birth under section 3 of the Citizenship Act, 1955 or by registration under section 5 of the Act or by naturalisation under section 6 of the Act. They also cannot be regarded as citizens of India by virtue of section 6A of the Act, 1955 as they entered India before 1st January, 1966 and have not been ordinarily resident in Assam since the dates of their entry into Assam till the incorporation of section 6A, i.e. 7.12.1985. 2. The State Government has the authority to control their movement and stay under Regulation 5 of 1873, Foreigners Act, 1946 and Foreigners Order, 1948. 3. The impugned Annexure 5 order dated 15.2.84 is not arbitrary, devoid of reason and violative of the provisions of Constitution as it was passed after due application of mind by the authority and for the purpose of maintaining peace and tranquility in the area.

Final Decision: The writ petition is disposed of as follows: (a) The court declined to quash Annexure 5 notice; (b) The court directed the State of Arunachal Pradesh to compensate the Chakmas represented by the petitioner for the money and labour invested by them in the present land before they are shifted to the alternate site and to make all arrangements for settling down them in the alternative land by constructing houses and other necessary structures and arranging for supply of drinking water before they are shifted to the alternate site; (c) The court held that this judgment shall not stand in the way of the Government reviewing its' earlier decision to shift the Chakmas from the existing land and allowing them to stay on in the land or any part of it, considering the public interest; (d) There shall be no order as to costs.