Appeal Nos
218293 with 218193
From the Judgment and Order dated 3041992 of the Gauhati High Court in Civil Rule No 166 of 1984
AM Mazumdar Attorney General Arunachal KK Venugopal Shahid Rizvi and Ms Manjula Gupta Appellant in CA No 2182 of 93 and for the Respondent in CA No 218193
Govind Mukhoty and SK Bhattacharya for the respondent in CA No 218293 and for the Appellant in CA No 218193
The Judgment of the Court was delivered by MOHANJ
Leave granted
Both these civil appeals arise out of the judgment of the Gauhati High Court dated 30th April 1992 rendered in CR
No 166 of 1984
The short facts are as under The parties will be referred to as the appellant and the State of Arunachal Pradesh
The appellant alongwith his family members and other 56 families migrated to India on 30th March 1964 from erstwhile East Pakistan now Bangladesh due to disturbances prevailing at that time
They took shelter in a government camp at Abhayapur Block in Tirap District
The appellant and other 56 families are known as Chakmas of the erstwhile East Pakistan
They being the refugees were given shelter in government camp at Ledo in the District of Dibrugarh Assam
Later on in 1966 they were shifted to the Camp at Miao within the State of Arunachal Pradesh
Arunachal Pradesh was called NEFA North East Frontier Agency prior to 1972
On 21st January 1972 it was given the status of Union Territory of 406 Arunachal Pradesh
It became a full fledged State on 20th February 1987 Geooraphically it is situated on the north east of India and has a long international border with Bhutan China and Burma Burma presently called Myanmar
It is the largest State areawise in the north east region even larger than Assam which is the most populous State
The population of Arunachal Pradesh according to the 1981 census is 632 lakhs
It is scattered over 12 towns and 3257 villages
There are 26 Major tribes
Broadly speaking the people in the State can be divided into three cultural groups on the basis of their socio regional affirmities
i The monpas and Sherdukpens of Tawang and West Kemeng District iiKhamptis and Singhphos inhabiting the entire easternpart of the State  and iiiThe Neotes and Wanchos adjoining Negal and in the Tirup District In the year 1966 the State Government drew the Scheme known as Chakma Resettlement Scheme for these refugees
Areas were earmarked for their settlement at different parts of the State and accordingly they were asked to move to the areas earmaked for them In all 5 Schemes were sanctioned for their settlement comprising of about 3100 families of refugees at the cost of more than Rs 2 crores
The appellants along with 56 families were allotted lands in the villages of Gautampur and Maitripur
There were already a good number of Chakma refugee families who were allotted lands and were living there peacefully
The appellants instead of residing in the said allotted areas under the Resettlement Scheme drawn by the Government strayed away from it and negotiated with the Local Raja namely Nigrumong Singpho of Damba for an area of one sq
mile of his private land and got the same from the said Singpho through an unregistered deed dated 20th November 1972
The State would contend that the said transfer is illegal because as per section 7 of the BEFR 1873 Regulation 5 of 1873 no person who is not a native of the District would acquire any interest in the land or the produce of the land beyond the inner line without the sanction of the State Government or such officer as the State Government may appoint in this behalf
On the contrary the stand of the appellant is that since the date of donation they have been residing and cultivating 407 the said land and they have developed the area for habitation purposes
It is further alleged on behalf of the appellant that in 1975 a village panchayat of Joypur village was formed after election of the members
The appellant was appointed as the Gaon Bura of the village
This was with the approval of the Government in token of which a sanad dated 201175 was issued in his name
The Deputt Commissioner at kenosa approved the transfer and the Extra Assistant Commissioner Miao by his memorandum No MR S A n58648 51 dated 26470 issued instructions against any attempt to allot the land to other and generally against any eviction of the appellants from the said land
Some Deori families who were allotted lands in the adjacant area of Joypur village attempted to encroach upon the lands of the appellant and on a complaint lodged the authorities concerned ie Executive Magistrate at Miao by his letter dated 30577 issued instructions to Ningronong Singpho Rajkumar to turn out the extra families from the appellant s village with a direction to the Circle Officer Diyun to report compliance
It was after such intervention that such outsiders in due course were expelled
After obtaining the donation from the Raja by dint of hard labour they developed the jungle area which was a hillly uneven tract of land
In view of the tremendous agricultural success the Tirup District authorities granted two Rice Hullar Units in the name of the appellant
The Chakmas transformed the land into a truly self sufficient village
In view of prosperity and growth of land the nearby villagers sought to dislodge the appellant and families by raising various disputes one of which was that the place cannot be utilised as refuge settlement and that they should be shifted to another place
Circle Officer Diyun issued an order dated 15284 directing the appellant to shift to the vacant land at Gautampur and Maitripur villages latest by 24th of February 1984
The representation requesting the Chief Minister of Arunachal Pradesh to interfere was of no avail
The appellant after settling in this unauthorised land started committing criminal and illegal activities
There were several complaints to the effect that the appellant is encroaching upon the private lands illegally in connivance with the local people particularly Singphos
In order to investigate the matter fully the Government vide its letter dated 441979 directed an enquiry into the whole matter through a Committee compris 408 ing of 9 persons with the Deputy Commissioner of the area as the Chairman
The said committee after the investigation submitted its report on 11679 stating therein that about 788 families of Refugees Chakmas Deori and Bhufia have illegally encroached upon about 872 Hectares in Miao Sub Division alone
The said Committee observed that 7
The fear of the local people regarding heavy growth of population among the Chaknias has already been stated above and it is also well known to the Government
But such fear maybe true in the case of Deoris and Ahoms too because it has been seen that in their case too the irpopulation is increasing by leaps and bounds for instance it is learnt that when they were inducted there were only 6 Ahom families and 32 Deoria where as this has now increased to 23 and 106 respectively We should therefore watch by one method or the other that flow of Chakmas Deoris and Ahoms does not at all take place
For this purpose formal allotment of land to each family is very necessary and further in order to guard against new entrents the DCs office is said to be taking up the issue of identity cards 92 Land is still available in Innano Dumba and Modoi especially after the eviction of four Chakma villages during March last
Singphos have been known to induct outsiders not only without Govt
s approval but also by various undesirable mathods this has to be properly watched and if found necessary we may have to give exemplary punishment to those who indulge in such practice
Already there is some sign of dissension among the local people due to the activities of one Nirunong of Kumchai village who was mainly responsible for inducting Chaknias in Jaipur village 10 Deori families and some other from outside
It has also been seen that in Innano village there are six tea garden tribals who have been living and working since the last 10 years with Inner Line passes renewed from time to time but obviously with the understanding that the local people would subseqently give them land for permanent resettlement
 The State received complaints that Chakma people were indulging in illegal activities such as commission of offences under various lands collection of arms and anununitions establishing conteracts with the Extremist groups encroachment of adjoining areas
The State therefore found it necessary to shift them to 409 a site where other Chakma families were already residing
It was in these circumstances by order dated 15284 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 48384 2478 79 dated 6284 the Chakma of Joypur village are hereby directed to shift to the vacant land allotted at Gautampur and Maitripur village latest by 2521984
This may be treated as final notice failing whichlegal action will be taken against the defaulters
 Questioning the correctness of the order CR No 166 of 1984 was filed before the High Court of Gauhati It was urged i The petitioners are citizens of India
ii Their fundamental rights have been infringed
iii The impugned notice dated 15th of February 1984 is illegal arbitrary and had been issued in violation of the principles of natural justice
The High Court of Gauhati formulated three questions for determination 1
Whether the writ petitioner and the 56 chakma familes now settled in Joypur village Miao subdivision Arunachal Pradesh are citizens of India or foreigners 2
If they are not citizens of India whether the authorities concerned have right to give direction to these Chakma people to move to another place
Whether the impugned order dated 1521984 is arbitrary devoid of reason and violative of the provisions of the Constitution
While urging the first question it was contended that the petitioner and the other Chakma families came to Assam in 1964 and stayed there for some time
They were shifted to Miao Sub Division in Arunachal Pradesh
In 1964 the territory of Arunachal Pradesh was included in Assam
Since they stayed in Assam 410 they must be deemed to be citizens of India within the meaning of Section 6 A of the 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  came to the conclusion that language of Section 6 A of the is very clear
It states that person who have come into Assam before January 1966 from the specified territory and who have been ordinarily resident in Assam since the date of their entry shall be deemed to be citizens
Admittedly the petitioners therein would not fell under this category as they stayed in Assam for a short while in 1964
Accordingly they will not be citizens of India
On the second question the High Court referred to Section 7 of the Bengal Eastern Frontier Regulation 1873
That section specifically prohibits the acquisition of interest in land by other than the natives of the district without the sanction of the State Government
Admittedly there was no sanction of the State Government in favour of the petitioners under the said Regulation which is applicable to Arunachal Pradesh
Besides clause 9 2 a of the Foreigners Order 1948 prohibits acquisition of land or any interest thoreon or within the prohibited area by any foreigner
Clause 9 2 b states that the local authority may impose conditions regarding acquisition of land or any interest thereof or any other matter deemed necessary in the interest of public safety
There was no controversy that the place where chakmas were staying is within the inner line which is protected area notified by the State Government
In view of the facts the High Court came to the conclusion that the petitioners had no right to seek a permanent place of abode in that area
The authority had every right requiring them to shift
On the third question
after going through the various files produced by the State Government in the court the High Court found various complaints against these chakmas
They were indulging in procuring arms and ammunation and were actively associating with anti social elements Accordingly it was concluded that the impugned order is not devoid of any reason
Lastly the High Court on humanitarian grounds directed the State Government to give adequate compensation in the event of these chakmas being evicted from the place
The State of Arunachal Pradesh has preferred SLP C No 12429 of 1992 while Khudiram Chakma has filed SLP C No 13767 of 1992
411 Mr Govind Mukhoty learned counsel for the appellant urges that in 1947 the appellants were Indian citizens
Because of the partition of the country they went over to the then East Pakistan presently Bangladesh
But when they returned 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 
He urges that there is evidence in this case of donation of lands in favour of these appellants by Raja Nirunong Singpho of Dumba
That was approved by the Deputy Commissioner as seen from memorandum dated 26th of April 1976
The appellant was appointed Gaon Bura of Joypur village
In proof of that Sanad was issued by the Deputy Commissioner
Again the Executive Magistrate had directed the Raja to turn out the extra families occupying lands at Joypur in the area allotted to the appellants and other Chakmas
There is also evidence on record to show that chakmas have been paying taxes including house tax
When that be the position there is no justification at all calling upon the appellants and the other 56 families to shift
There was no notice before calling upon the appellants to shift
This Court in Scheduled Caste and Weaker Section Walfare Association vs
State of Karnataka   a case arising under karnataka Slum Areas Improvement and Clearance Act 1973 held that before eviction a slum dweller does have a right to say
Therefore it is submitted that the principle of natural justice applies to noncitizens also
In Louis De Raedt vs Union of India  this Court took the view that the fundamental rights are available to foreigners as well including Article 21 of the Constitution
Mr KK 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 as amended and incorporated on 71285 in pursuance of the Assam Accord
In order to get the benefit of Section 6 A two conditions mentioned in sub section 2 of the said Section must be satisifed simultaneously i The persons who are of Indian origin viz undivided India came before 1166 to Assam from the specified territory  and 412 ii have been ordinarily resident  in Assam as it existed in 1985 since the date of their entry into Assam
In so far as the appellants were residing in Miao sub division of Tirup District Arunachal Pradesh since 1968 they did not satisfy these conditions
As to what exactly is the meaning of ordinarily resident could be seen from Shanno Devi vs Mangal Saini  at 590
It is true that this Court in Louis De Raedt supra took the view that even foreigner has a fundamental right but that fundemental right is confined only to Article 21 and does not include the right to move freely throughout and to reside and stay in any part of the territory of India as conferred under Article 191 d and e
Such a right is available only to the citizens
The appellants being foreigners cannot invoke Article 14 of the Constitution to get the same right denied to them under Article 19 since Article 14 cannot operate in regard to a right specifically withheld from non citizens
In support of this submission reliance is placed on Indo China Steam Navigation Co vs Jasjit Singh 94 at 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 201172 is illegal
Section 7 of the Bengal Eastern Frontier Regulation 1873 and clause 9 of the Foreigners under 1948 which are applicable to Arunachal Pradesh specifically prohibit such transfer without prior permission of State Government
No such permission in this case was obtained
The tribals of North eastern States are historically protected races
Part x of the Constitution of India contains provisions and laws goveming them
The decision re arding settlement of foreigners is a matter of policy
It is well settled in law that the Court does not interfere in a matter of governmental policy since it is for the Government to decide
On the quesion of natural justice before passing the impugned order dated 15284 the learned counsel
 producing the relevant material from the file would urge that it is not correct to state that the order came to be issued all of a sudden
There is abundant material to show that the question of eviction was an ongoing process
right from 1978
Many notices were issued over a period of years to shift to villages Maitripur and Gautampur
There were protests from chakmas
From the file it is seen that the appellant was aware of the shift order dated 26983
There was also an oral hearing of the same
It was because of the complaints filed by the residents of the locality against the appellant and in view of the report that they were induling in procuring arms and ammunition and were in close contact with anti social elements
Taking an overall view of the matter the impugned order 413 came to be passed
On ground realities natural justice is fully satisfied
In support of the above submissions the learned counsel relied on the following cases p 331 A to 332 H 334 A to J Rv
Secretary of State for the Home Department ex party Cheblak
  Lord Bridge of Harwich p 723 F to 724G Lord Templeman p 725 J 726 A to C Lord Ackner
p 73 1 H 732G H 735 F J Lord Lowry p 737 D J Brind vs Secretary of State  Council of Civil Service Unions vs Minister for the Civil Service D p 219 223 A J 229 McInnes vs onslow Farne  Anr
 at p 722 723 para 12 13 JR Vohra vs India Export House Pvt Ltd at p 738 para 20 22 Maharashtra State Board of Secondary  Higher Education
vs KS
Gandhi at p 263 Satya Vir Singh vs Union of India However the learned counsel fairly conceded that the Chief Minister was willing to hear the appellants or any representative of their group additionally as a post decisional hearing even though they had full opportunities over a period of four years
It is his submission that it must be a post decisional hearing as otherwise if the decisions were against the appellants a further round of litigation would be embarked upon
We will proceed to consider the correctness of the above submissions 414 providing the necessary background and the factual matrix
The history of the mountainous and multitribal north east frontier region which is now known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology
According to Puranic legend Rukmini the daughter of king Bhishmak was carried away on the eve of her marriage by Lord Krishna himself
the ruins of the fort at Bhalukpung are claimed by the Akas as the original home of their ancestor Bhaluka the grandson of Banna Raja who was defeated by Lord Krishnaat Tezpur Assam
A Kalita Kinu Ramachandra driven from his kingdom in the plains of Assam fled to the Dafla now Nishan foothills and established there his capital of Mayapore which is identified with the ruins on the It a hill
A place of great sanctity in the beautiful lower reaches of the Lohit River the Brahmakund where Parasuram opened a passage through the hills with a single blow of his mighty axe still attracts the Hindu pilgrims from all over the counrty
In the year 1838 when the British took over the administrative control of Assam from the last Ahom king Shri Purander Singh it was thought necessary to extend elementary regular administration to the adjoining north east frontier region
The first import and step in this direction was as such initiated with adoption of Regulation V of 1873 empowering the then Lieutenant Governor of Assam to prescribe a Line called Inner Line  with a view 1 to bring the commercial relations of the hills with the plains under more stringent control 2 to prevent of operation of speculators in caoutchouc raw rubber 3 to prevent the spread of tea gardens and 4 to lay down rules for the possession of land and property beyond the Inner Line  without special permit
 A Notification bearing No 1486 dated June 21 1876 was issued by the Government of India foreign Department to the effect that the Governor General was pleased to prohibit all British Subjects from going beyond the inner line without a pass under the hand and seal of Deputy Commissioner
After covering the hilly areas administratively the whole of tribal region was divided into two Frontier Tracts in 1915
By 1937 the administrative status of North East Frontier Tract could be effected to under the Govemment of India s Excluded and Partially Excluded Area Order of 1936
Under the effective provision of the Section 91 i of the governmentoflndia Act 1935 the above Frontier Tract came to be known as Excluded Area of Assam
Again the 1942 administrative change took place as a consequence of which Tirap Frontier Tract was carved out of the Sadiya Frountier Tract
In 1943
an adviser was appointed as the administrative head with a purpose to develop the region 415 through gradual penetration of the administrative machinery
Another change was effected in the administrative set up on the 26th of January 1950 when the Government of Assam was relieved of its responsibility for looking after the administration of the Excluded Area
However the discretionary power was vested in the Governor of Assam under the provision of the paragraph 18 of the Sixth Schedule to the Constitution and Part 8 of the Table 20 of the Schedule who served as the agent of the President of the Union of the Republic of India
In the course of administrative and political events Arunachal Pradesh has travelled from the Tract to the Union Territory
Under the provision of Central Act 81 of 1971 the present status of Union Territory was granted to the erstwhile North East Frontier Agency and renamed as Arunachal Pradesh on January 211972
The Union Territory of Arunachal Pradesh was placed under the charge of Chief Commissioner during that year
The year of 1975 also proved eventful for Arunachal Pradesh
On 15 August 1975 then existing Pradesh Council was constituted into the Union Territory legislature
The panel of then existing five counsellors was constituted into provisional Council of Ministers
Consequent upon the above change the post of Chief Commissioner was further elevated to the position of Leutenant Governor on 15 August 1975
The first general election to Arunachal Legislature was held in the month of February 1978
The Arunachal Pradesh Legislative Assembly has 33 members in total out of which 3 members are nominated
Earlier Arunachal Pradesh had nominated a representative in the Parliament
By an Act of the Government of India in 1971 the Union Territory was provided with one seat each in Lok Sabha and Rajya Sabha but these representatives were nominated by the President of India
But at present Arunachal Pradesh enjoys two elective seats in the Lok Sabha based on the Universal franchise
On 20th of February 1987 Arunachal Pradesh was made a full fledged State
Thus it will be seen that at no time Arunachal Pradesh was part of the Territory of the State of the Assam though it was being administered by the Governor of Assam or the President of India as the case may be
The following Charonological Statment of changes in the pattern of Administration in NEFA occuring in PN Luthra s constitutional and Administrative Growth of the North East Frontier Agency is useful 416 1 2 3 4 5 6 1914 1919 1937 1947
1950 1965 Adminis Administ Adminis Adminis Admin Admini tered by ered by tered by tered by tered by tered the Gove the Gov the Gov the Gov the Pre as be rnment of ernment ernor of ernor of sident fore by Assam of Assam Assam Assam through theGov with acting in acting on the Gover erner special his disc the nor of as agent safe retion advice of Assam as of the guards
indepen the Pro his agent Presi dently of vincial acting in dentbut the provi Ministry his disc under ncial Minis retion the try underthe general general supervi super sion and visionand control control of the of Mini Minis try of try of External Home Affairs
Affairs
Arunachal Pradesh is situate in the North East of India skirted by Bhutan in West Tibet and China in North and North East Burma Myanmar in East and Assam in South
It consists of the sub mountains and mountainous ranges sloping to the plains of Asswn
It s capital is Itanagar
It is the largest state areas wise 33743 sq kms in the North East region even larger than Assam which is the most populous
Arunachal Pradesh is the most thinly populated state in India
According to 1991 census the population of Arunachal Pradesh is 632 lakh and is scattered over 12 towns and 3257 villages
There ate 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 and Sherdukpens of Tawang and West Kemeng District ii Khamptis and Singphos inhabiting the entire eastern part of the State and 417 iii The Noetes and Wanchos adjoining Negaland in the Tirap District
This is the history of Arunachal Pradesh a rich land and poor people
It was in the year 1964 thousands of chakma families migrated from the then East Pakistan to India
The appellant along with other 56 families also migrated to India
Being refugees they were given shelter in government camps at Ledo within the district of Dibrugarh Assam
Later on they were shifted to the camp at Miao subdivision in Tirap District now within the State of Arunachal Pradesh which was then known as North East Frontier Agency NEFA
In the years 1966 68 the then Government drew up the Chakma resettlement schemes
Altogether 5 schemes were sancitioned for settlement of 3100 families at a cost of more than rupees two crores
The appellants were allotted lands in the villages of Gautampur and Maitripur
The other Chakmas were also staying there
As stated earlier on 2 1st January 1972 NEFA was given the status of Union Territory and was renamed as Arunachal Pradesh
The appellants strayed away from the original settlement area allotted to them by the Government under the schemes
They got donation from the local Raja namely Ningrunong Singpho of Dumba an area of 1 sq mile at Joypur village which is inside the Inner Line
Earlier we were referred to Bengal Eastern Frontier Regulation 1873
Clause 2 of the said Regulation states thus It shall be lawful for the State Government to prescribe and from time to time to alter by notificaton in the Official Gazette line to be called The inner Line in each or any of the above named districts
The State Government may by notification in the Arunachal Pradesh Gazette prohibit all citizens of India or any class of such citizens or any persons residing in or passing through such districts from going beyond such line without a pass under the hand and seal of the Chief Executive Officer of such district or of such other officer as he may authorise to grant such pass  and the State Government may from time to time cancel or very such prohibition
 Clause 7 is important
That reads as follows It shall not be lawful for any person not being a Native of the district comprised in the preamble of this Regulation to acquire any interest in land or the product of land beyond the said Inner Line without the sanction of the State Government or such officer as the 418 State Government shall appoint in this behalf
Any interest so acquired may be dealt with as the State Government or its said officer shall direct
The State Government may also by notification in the Arunachal Pradesh Gazette extend the prohibition contained in this section to any class of persons natives of the said districts and may from time to time in like manner cancel or very such extensions Under Section 3 of the of 1946 the central Government may
by order make provision for prohibiting regulating or restricting the entrt of foreioners into India
In exercise of power conferred under Section 3 of the said Act Foreigners Order of 1948 dated 10248 was issued
Under clause 9 of tile said Order the Central Government or with prior sanction a civil authority may by order declareany area to be a protected area for the purposes of this order
On such declaration the civil authority may as to any protected area prohibit any forging or any class of foreigners from entering or remaining in the area impose on any foreigner or class of foreigners entering or being entered in the area
such conditions as may be mentioned under clause 9
Clause 9 of the Foreigers Order of 1948 in sub clause 2 prohibits the acquisition of any land or anv interest thereon within the prohibited area by any foreigner
Under Clause 9 the authorities concerned by an order may prohibit any foreigner from remaining in any part of the protected area as stated in the Foreigners Protected Area 0rder of 1958 which includes the territory of arunachal Pradesh
Examined in this light the donation by Raja is clearly invalid
However the memorandum dated 26th of April 1976 issued by the Extra Assistant Commissioner Miao states that the agreement between the appellant Khudiram Chakma and the local Raja dated 201172 has been approved by the Deputy Commissioner
That is again mentioned in the direction given by the Executive Magistrate Miao on 30th of May 1977
The effect of approval by the Deputy Commissioner will be considered later
In this factual background the question arises whether the appellants could claim citizenship under Section 6 A of of 1955
We will now extract the said Section 419 6 A Special Provisions as to the citizenship of persons covered by the Assam Accord 1 For the purposes of this section a Assam means the territories included in the State of Assam immediately before the commencement of the citizenship Amendment Act 1985 b detected to be a foreigner means detected to be a foreigner in accordance with the provisions of the 31 of 1946 and the Foreigners Tribunals Order 1964 by a Tribunal constituted under the said Order c specified territory means the territorises included in Bangladesh immediately before the commencement of the Citizenship Amendment Act 1985 d a person shall be deemed to be of Indian origin if he or either of his parents or any of his grandparents was born in undivided India e a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners Tribunals Order 1964 submits its opnion to the effect that he is a foreigner to the officer or authority concerned
2 Subject to the provisions of sub sections 6 and 7 all persons of Indian origin who came before the 1st day of January 1966 to Assam from the specified territory including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967 and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January 1966
3to8   unnecessary As rightly urged by Mr KK Venugopal learned counsel for the State of Assam two conditions are required to be satisfied under sub section 2
They are i Persons who are of Indian origin undivided India came before 1166 to 420 Assam from the specified territory and ii have been ordinarily resident in assam as it existed in 1985 since their date of entry in Assam
The appellants were no doubt persons of Indian origin
They came to Assam prior to 1 166 namely 3 1364 from the then East Pakistan presently Bangladesh which is undoubtedly one of the specified territories under Section 6 1 c
Assam as seen from 6A a means the territories included in the State of Assam immediately before the commencement of the Citizenship Amendment Act 1985
It is the common case that chama people entered into Assam and stayed their for some time in Ledo within Dibrugarh District
Thereafter they shifted to Miao Arunachal Pradesh
According to the appellant since the territory of Arunachal Pradesh in 1964 was included in the State of Assam they would be entitled to the benefit of Section 6A
This contention overlooks the fact the Immigrants Expulsion from Assam Act 1950 Act X of 1950 applied to the territories presently forming part of Meghalaya Nagaland and Arunachal Pradesh
However by the  197 1 the territories of Arunachal Pradesh were excluded from the purview of the Immigrants Expulsion from Assam Act of 1950
Turning to Condition No 2 the requirement is ordinarily resident in Assam from the date of entry till the incorporation of Section 6A namely 71285
As to the meaning of ordinarily resident we may refer to Smt
Shanno Devi vs Mangal Saini  We find the following observations at page 590 apposite It is not necessary that for every day of this period he should have resided in India
In the absence of the definition of the words  ordinarily resident in the constitution it is reasonable to take the words to mean resident during this period without any serious break
In so far as the appellants and the chakmas were residing in Miao subdivision of Tirap District in Arunachal Pradesh long before 1985 they cannot be regarded as citizens of India
We find it difficult to appreciate the argument of Mr Govind Mukhoty learned counsel that the accident of the appellants living in Arunachal Pradesh should not deprive them of citizenship
In this connection it 421 is worthwhile to note that Secion 6A of the came to be incorporated by Amending Act as a result of Assam Accord
If law lays down certain conditions for acquiring citizenship we cannot disregard the law
As laid down in Kennedy vs Mendoza Martinez   159 1963 Citizenship is a most precious right
 Aristotle Politics III 5 States thus From earliest times it has been such status alone that has enabled the individual to share fully in the benafits of the community in which he resides Compare Homer s words like some dishonored stranger  he who is excluded from the honors of the state is no better than an alien
 That is the position of appellant and the other 56 families
If they are aliens the donation deed dated 20th November 1972 is illegal
The Raja did not obtain any permission for sale from the Government
From the records it is also clear that the Rajs had been donating the lands and wag indulging in anti social activities for which he was warned
We do not know how the Deputy Commissioner or the Extra Assistant Commissioner ever approve of this donation without there being an express authorisation by the State
It is an admitted fact that the place where the chakma families are residing is within the inner line notified by the State Government
Therefore the argument that they have cleared the forest and reclaimed the land and as such would be entitled to a permanent abode cannot be accepted
Now we come to the validity of the impugned order
Mr KK Venugopal learned counsel has filed various notings and the orders from the relevant files
From the files it is clear that there have been complaints against chakmas that they were procuring arms and ammunition and indulging in anti social activities
The Deputy Commissioner Tirap District on 19881 wrote to the Extra Assistant Commissioner Miao as follows Please refer to your report under reference wherein it is indicated that a large number of arms and ammunitions seized from the possession of the Chakmas and are still kept in Quarterguard
It is therefore requested to send us a detailed report indicating datails of arms and ammunitions seized
422 2It 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
3The above two informations are urgently required by the Govt
 A list of cases including ones under Section 302 IPC and other offences under Section 25A of the Arms Act is enclosed to the letter quoted above
The chakmas also encroached Upon the neighbouring area by unfair means and created trouble to the local people
An appeal was made to the Chief Minister in 1980 itself that because of these criminal activities they should be removed
It is not correct to state that the impugned notice came to be issued like a bolt from the blue
The following letter of the appellant addressed to the Deputy Commissioner speaks eloquently With reference to the subject quoted above 1 on behalf of the villagers of Joypur Village have the honour to draw your kind attention to the following few lines for favour of your needful action
That being landless in Abhoypur Village a few Villagers consisting of fifty six families have been settled in Joypur Village in the year 1968 with the mutual help of Sri Ningronong Rajkumar Singphoo and the same was approved by the then Deputy Commissioner Khonsa in accordance with the agreement adopted by Sri Rajkumar Singphoo dated 20th Novn2
Now the most regretful matter is that in spite of our permanent cultivation on the area for long sixteen years
keeping all conformities with the Govt
as well as the neighbouring local people we are being harassed by notice after notice to shift from the area
On the contrary I am to state that the land where we have been directed to shift is quite short and extremely unfit for cultivation due to which those vacant lands are not yet accupied by anybody in spite of lying considerable landless families in the said villages
423 All documents created in regard to this matter are attached herewith for favour of your kind perusal necessary action
Under the circumstances stated here I earnestly pray and request you afresh to look into the matter and thereby revoke the shifting order at an early date
I shall remain greteful to you thereor From the endorsement
it is also seen that two representatives met the Deputy Commissioner on 13th Februaty 1984
Therefore there was an oral hearing
The above letter mentions notice after notice to shift
It was alleged by a petition to the Chief Minister that the Extra Assistant Commissioner had been paid handsomely to allow chakma families to stay on illegally
On 16th of November 1982 the Extra Assisstant Commissioner called upon the Circle Officer Diyum to issue notices to the chakms families staying at Joypur village to return to their original place of settlement within 311282
The survey Reports for resettlement of these chakmas dated 27483 inter alia states Survey had been done in Maitripur and Gautampur areas where they have found 110 acres and 245 acres respectively which are liable for settlement of Chakma settlers
 Thus it will be clear that the reason for shifting these chakma families are 1 They are in illegal occupation of the protected area
ii They are indulging in procurement of arms and ammunition
iii They are indulging in criminal activities and associating with anti social elements
iv They have been source of constanttrouble to the other tribals
As regards notice it is seen from the above that the very appellant had notice after notice proposing to evict which was resisted
Therefore as rightly urged by Mr KK Venugopal learned counsel on ground realities the plea of natural justice is fully satisfied
424 Ruling in Scheduled Caste and Weaker Section Welfare Association vs State of Karnataka  affording a hearing to slum dwellers under the Karnataka Slum Areas Improvement and Clearance Act 1973 relied on by Mr Govind Mukhoty learned counsel has no application in the above circumstances
Even then what is that is sought to be done to the appellants They are asked to settle in Maitripur and Gautampur villages from Miao
Cartainly settling the chakmas in a particular place is a matter of policy
This Court cannot enter into the wisdom of such a policy in view of what has been stated above Arunachal Pradesh is strategically important with Bhutan in the West Tibet and China in the North and North East Burma Myanmar in the East
It is true that fundamental right is available to a foreigner as held in Louis De Raedt vs Union of India  at 562
The next point taken on behalf of petitioners that the foreigners also enjoy some fundamental rights under the Constitution of this country is also of not much help to them
The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country as mentioned in Article 19 1 e which is applicable only to the citizens of this country As such Articles 19 1 d and e are unavailable to foreigners because those rights are conferred only on the citizens
Certainly the machinery of Article 14 cannot be invoked to obtain that fundamental right
Rights under Article 19 1 d and e are expressly withheld to foreigners
Now we come to the humanitarian grounds which prompted the High Court of Gauhati to direct compensation to the appellants in the event of their being evicted
Blackburn and Taylor speaking on the right enjoy asylum in Human Rights for the 1990 s state at page 51 as under The most urgent need of a fugitive is a place of refuge
His or her most fundamental right is to be granted asylum
The Universal Declaration of Human Rights addressed this issue in deceptive language
To the inexpert reader there is great comfort in Article 14 1 of that Declaration which provides that Everyone has the right 425 to seek and enjoy in other cuntries  asylum from persecution it seems tolerably clear however that the right to enjoy asylum means no more than the right to enjoy it if is granted
 Again at page 52 it is stated thus Article 14 of the Universal
Declaration of Human Rights which speaks of the right to enjoy asylum has to be interpreted in the light of the instrument as a whole and must be taken to mean something
It implies that although an asylum seeker has no right to be granted admission to a foreign state equally a state which has granted him asylum must not later return him to the country whence he came
Moreover the Article carries considerable moral authority and embodies the legal prerequisite of regional declarations and instruments
 Warwick Mckean dealing with the equality in the treatment of aliens states in Equality and Discrimination under International Law at pace 194 as under It has long been recognized that persons who reside on the territory of countries of which they are not nationals possess a special status under international law
States have traditionally reserved the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals eg the right to vote hold public office or to engage in political activities
Aliens may be prohibited from joining the civil service or certain professions or from owning some categories of property and states may place them under restrictions in the interests of nations security or public order
Nevertheless once lawfully admitted to a territory they are entitled to certain minimum rights necessary to the enjoyment of ordinary private life
 At pages 195 196 it is stated thus General international law provides that aliens should not be discriminated against in their enjoyment of property rights once they have been acquired
If alien property is nationalized whereas the property of nationals remains unaffected then that act is dis criminatory and prohibited under international law
As Fitzmaurice points out it has long been recognized that in certain matters eg 426 the general treatment of foreigeners in a country or compensation for property which may be expropriated or nationalized non discrimination as between persons of different nationality or against foreigners as compared with persons of local nationality amounts to a rule of international law the breach of which gives rise to a valid claim on the part of the foreign government whose national is involved Certainly if the acquisition had been legal compensation could have been awarded
But in view of the Bengal Eastern Frontier Regulation 1873 and clause 9 2 of the Foreigners Order 1948 we do not think this is a case for award of  compenstion
Though we have held that the principles of natural justice have been fully complied with in this case we record the statement made by learned counsel for the State that the Chief Minister is ready to hear the Respondents appellants herein or any representative of their group
Accordingly we direct that an opportunity be afforded to the appellants by the Chief Minister and grant such relief as he deems fit
We make it clear that it will be a post decisional hearing
Accordingly we dismiss civil appeal arising out of SLP C No 13767 of 1992 filed by Khudiram Chakma while civil appeal arising out of SLPC No12429 of 1992 filed by State of Arunachal Pradesh is allowed
Howeverthere shall be no order as to costs
RP SLP C No 1376792 dismissed
SLP C No 1242992 allowed


Summary:
The respondent a Central Government employee who was transferred from one place to another challenged the order of transfer on the grounds that his wife was also employed at the same place in a Central Government office his children were also studying there he himself had suffered backbone fracture injuries some time ago the guidelines contained in Government of India OM dated 341986 had not been kept in mind while ordering his transfer some other officials who had been serving at the same place for a longer period than the respondent had been allowed to continue and his transfer was due to the mischief of his Controlling Officer
In the counter affidavit filed by the appellants it was submitted that the transfer was ordered on administrative grounds and was unexceptionable
 A Single Member of the Central Administrative Tribunal quashed the order of transfer on the ground that the power of transfer was not an unfettered one but was circumscribed by various circulars guidelines contained in the administrative instructions issued by the Government and an order of transfer could be interdicted if it was discriminatory that in the matter of considering transfer of an individual officer the Office Memorandum dated 341986 educational dislocation of the children and health groundif present deserved special consideration and that in view of the facts and circumstances of the case the transfer order in question in respect of the respondent was mala fide
428 Allowing the appeal preferred by the Union of India and others this Court HELD 11 An order of transfer is an incidence of Government servie
Who should be transferred where is a matter for the appropriate authority to decide
Unless the order of transfer is vitiated by malafides or is made in violation of statutory provisions the Court cannot interfere with it
There is no doubt that while ordering the transfer the authority must keep in mind the guidelines issued by the Government on the subject
Similarly if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration
The guidelines say that as far as possible the husband and the wife must be posted at the same place
The said guideline however does not confer upon the government employee a legally enforceable right
Executive instructions issued by the Government are in the nature of guidelines
They do not have statutory force
430 C E 12
There is no dispute that the respondent is liable to transfer anywhere in India
It is not the case of the respondent that the order of his transfer was vitiated by mala fides on the part of the authority making the order though the Tribunal says so merely because certain guidelines issued by the Central Government were not followed
The immediate superior of unit against whom mischief had been attributed by the respondent has nothing to do with his transfer
430 F 21
The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters as is evident from Article 323 A of the Constitution
The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A
The Administrative Tribunal is not an Appellate Authority sitting in judgment over the order of transfer
It cannot substitute its own judgment for that of the authority competent to transfer
430 H431 A 22
In the instant case the Tribunal has dearly exceeded its jurisdiction in interfering with the order of transfer
The order of the Tribunal reads as if it were sifting in appeal over the order of transfer made by the Senior Administrative Officer competent authority
431 B Bank of India vs Jagjit Singh Mehta   explained