Al'.

STATE OF ARUNACHAL PRADESH A

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;

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

the inner line which was a protected area under the Foreigners' Protection H Area Order 1958. Later, the State Govenment received complaint.'> that the

A Chakmas were making encroachment on lands of local people, indulging in illegal collection of arms and ammunition and establishing contacts with the extremist groups. An inquiry into the matter was directed. The Government found it necessary to shift them, and by order dated 15.2.1984 directed the appellant and the other Chakma families to vacate the land and to shift to the

. original settlement area where other Chakma families were already residing.

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 vilative of Article 14 of ttie

Constitution as it infringed the rights of the appellant and other Chakmas under Articles 19(1) (d) and (e) of the Constitution.

Dismissing the appeal on behalf of the Chakmas and allowing that of the E State, this Court,

HELD: 1.1 The appellant and other Chakmas residing in Arunachal Pradesh long before 1985 cannot be regarded as citizens of India. [420- Hl

1.2 Under Section 6-A of the Citizenship Act, 1955, which was incorpo- F rated by the Amending Act, 1985 as a result of Assam Accord, two conditions are required to be satisfied: (1) Persons of Indian origin (undivided India) who came before 1.1.1966 to Assam from the specified territory; and (2) they have been "ordinarily resident" in Assam as it existed in 1985 since their date of entry in Assam. (411G-H;412-A]

G 1.3 Though the appellant and other Chakmas were of Indian origin and came to Assam prior to 1.1.1966 from the then East Pakistan, one of the specified territories but, in 1966 they shifted to the area within North East Frontier Agency which later became State of Arunachal Pradesh, and at no time was part of the Territory of te 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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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 notied 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)

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.

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.

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.

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.

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

A Arunachal Pradesh. ll becane a full tledged Slate on 20th February_, 1987, Geographically, it is situated n the north-east oflndia and has a long international border with Bhutan, China and Burma(Burma presenlly called Myanmar). It is the largest State areawise in the r.orth-east region, even larger than Assam which is the most populous State. The po ; mlation of Arunachal Pradesh, according to the 1981 census is 6.32 lakhs. It is sca.ttered over 12 towns and 3,257 villages. There are 26 B Major tribes. Broadly spealdng, the people in the State can be divided into three cultural groups, on the basis of their socio-regional affirmities.

i) The monpas and Sherdukpens ofTawang and West Kemeng District;

ii)Khamptis and Singhphos inhabiting the entire eastern part of the State; and

iii)The Neotes a•1d Wanchos adjoining Negaland in the Tirup District;

D In the year r966, the State Government drew the Scheme known as Chakma

Resettlement Scheme for these refugees. Areas were earmarked for their 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 snce 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.

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.

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

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 unuthorised 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.

In orderto investigate the matter fully, the Government, vi de its letter dated 4.4.1979, directed an enquiry into the whole matter through a Committee compris- H

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, encroach- H ment of adjoining areas. The State, therefore, found it necessary to shift them to

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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

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 H

A they must be deemed to be citizens of India within the meaning of Section 6-A of the Citizenship Act, 1955 as amended in 1985. They also contended that proviso to Section 2 of Immigrants (Expulsion from Assam) Act, 1950 would also protect them.

The High Court, on an elaborate consideration of the provisions of Citizen- B ship Act, came to the conclusion that language of Section 6-A of the Citizenship Act is very clear. It states that person who have come into Assam before January 196.6 from the specified territory and who fiave been ordinarily resident in Assam since the date of their entry shall be deemed to be citizens. Admittedly, the petitioners therein would not fell under this category as they stayed in Assam for a short while in 1964. Accordingly, they will not be citizens of India. c

On the second question, the High Court referred to Section 7 of the Bengal Eastern Frontier Regulation, 1873. That section specifically prohibits the 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 Govem- D ment in favour of the petitioners under the said Regulation which is applicable to Arunachal Pradesh. Besides, clause 9 (2) (a) of the Foreigners Order 1948 prohibits acquisition of land or any interest thoreon or within the.prohibited area by any foreigner. Clause 9 (2) (b) states that the local authority may impose conditions regarding acquisition of land or any interest thereof or any other matter

, deemed necessary in the interest of public safety. There was no.controversy that 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

Article 21 of the Constitution.

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

(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.

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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STA TE OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J] 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:

(1991), 2All ER319 (CA) p. 331Ato332 H, 334 A to J:R .v. Secretary of B State for the Home Department ex party Cheblak.

(1991] 1 All ER 720 (HL), Lord Bridge of Harwich, p. 723 F to 724- G Lord Templeman, p. 725-J, 726-A to C.

Lord Ackner, p. 731-H 732G-H 735 F-J Lord Lowry, p. 737 D-J. Brind

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.

We will proceed to consider the correctness of the above submissions H

A providing the necessary background and the factual matrix.

The history of the mountainous and multitribal north-east frontier region which is now known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology. According to Puranic legend, Rukmini, the daughter of king Bhishmak, was carried away on the eve of her marriage by Lord 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.

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 Commissioer during that year.

The year of 1975 also proved eventful for Arunachal Pradesh. On 15 August,

1 '>75. then existing Pradesh Council was constituted into the Union Territory Lcgislatiure. The panel of then existing five counsellors was constituted into Prnvisional Council of Ministers. Consequent upon the above change, the post of Chief Commissioner was further elevated to the p0sition ofLeutenant Governor E on 15 August. 1975. The first general election to Arunachal Legislature was held in the month of February, 1978. The Arunachal Pradesh Legislative Assembly has 33 members in total, out of which 3 members are nominated.

Earlier, Arunachal Pradesh had nominated a representative in the 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:-

ff,

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 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 provin- Ministry, his discunder cial Minisretio, n the try. under the general general supervisupersion and vision and control control of the of Mini- Ministry 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.

Accordig 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

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, au1horiseto 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

• ,1-, ...

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. Cla'use 9 of the Foreigners Order of 1948 in .sub-clause (2) pl".(])hl'lilis the acquisition of any land or any interest thereon within the prohibfred :ar.ea by any foreigner.

Uner Clause 9 .the authorities concerned, by an order, may l?mhihit any foreigner from iemaining in any part of the pmtected area as stated in th~ l\oreigners-Protected Area Orderof 1958 whic'h indudes the territory of Arunachal Pradesh.

. , F Examined in this light, the donation by Raja is clearly invalid .

. '

However, the memorandum dated 26th of April, 1976 issued bf the Extra Assistant Commissioner Miao states that the agreement between the appellant. Khudiram Chakma and the local Raja dated 20. l l. 72 has been appro\'ed by the Deputy Commissioner. That is again mentioned in the direction given by the G Executive Magistrate Miao on 30th of May, 1977. The effect of approval by the Depcty Commissioner will be considered later .

• 1

'. In this facttiai background, the question arises whether the appellants could claiin citizenship under'Secion 6-A of Citizenship Act of 1955. We will now H ex.tract the said Section: ' ·

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STA TE OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J) 419

"6-A. Special Provisions as to the citizenship of persons covered by the Assam Accord:- ( 1) For the purposes of this section:

(a) "Assain" means the territories included in the State of Assilln immediately before the commencement of the Citizenship (Ameriil~

ment) Act, 1985;

(b) "detected to be a foreigner" means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of

1946) and the Foreigners (Tribunals) Oi"der 1964 by a Tribunal constituted under the said Order;

( c) "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 lst day of January, 1966 to Assam from the specified territory (including such of those whose riames were. included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the !st day of January, 1966.

(3) to (8) .............. . ......................... (unnecessary)"

As rightly urged by Mr. K.K. Venugopal, learned counsel for the State of Assam, two conditions are required lo be salisfied under sub-section (2). They are:

(i) Persons who are of Indian origin (u'ndivided India) came before 1.1.66 to.

A Assam from the specified territory; and

(ii) have been "ordinarily resident" in assam as it existed in 1985 since their date of entry in Assa.rn.

The appellants were no doubt persons of Indian origin. They came to Assam prior to 1.1.66, namely, 31.3.64fromthe then East Pakistan, (presently Bangladesh) which is undoubtedly one of the specified territories under Sectio~ 6 (1) (c).

Assam, as seen from 6A (a), means the territories included in the State of Assam immediately before the commencement of the Citizenhip (Amendment) C Act, 1985.

It is the copunon case that chakma people entered into Assam and stayed their for some time in Ledo within Dibrugarh District. Thereafter they shifted to Miao, Arunachal Pradesh. According to. the appellant, since the territory of D Arunachal Pradesh in 1964 was included in the State of Assam, they would be entitled to the benefit of Section 6A. This contention overlooks the fact the Immigrants (Expulsion from Assam) Act, 1950 (Act X of 1950) applied to the territories presently forming partofMeghalaya, Nagaland andArunachal Pradesh . .However, by the North-Eastern Areas (Reorganisation) Act, 1971, the territories of Arunachal Pradesh were excluded from the purview of the Immigrants (Expul- E sion from Assam) Act of 1950.

Turning to Condition No. 2 the requirement is ordinarily resident in Assam from the date of entry till the incorporation of Section 6A, namely, 7. l 2.85. As to the meaning of "ordinarily resident" we may refer to Smt. Shanno Devi v. Mangal Saini [ 1961] 1 SCR 576. We find the following observations at page 590 apposite:

"It is not necessary that for every da)\ of this period he should have resided in India. In the absence of the definition of the words

ordinarily resident" in the constitution it is reasonable to take the words to mean "resident during this period without any serious break".

In so far as the appellants and the chakmas were residing in Miao subdivision ofTirap District in Arunachal Pradesh long before 1985, they cannot be regarded as citizens of India. We find it difficult to appreciate the argument of Mr.

Govind Mukhoty. learned counsel. that the accident of the appellants living in H Arunachal Pradesh should not deprive them of citizenship. In this connection. it

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STAIB OFARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J] 421

is worthwhile to note that Secion 6A of the Citizenship Act came to be incorpo- A rated by Amending Act as a result of Assam Accord. If law lays down certain conditions for acquiring citizenship, we cannot disregard the law. As laid down in Kennedy v. Mendoza-Martinez 372 U.S. 144, 159 [1963] "Citizenship is a most precious right."

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 was indulging in anti-social activities for which he was warned. We do not know how the Deputy Commissioner or the Extra Assistant Commissioner ever approve of this donation without there being an express authorisation by the State. It is an admitted fact that the place where the chakma families are residing is within the inner line notified by the State Government. Therefore, the argument that they have cleared the forest and reclaimed the land and as such would be entitled to a permanent abode, cannot be accepted.

Now we come to the validity of the impugned order. Mr. K.K. Venugopal, learned counsel has filed various notings and the orders from the relevant files.

F From the files it is clear that there have been complaints against chakmas that they were procuring arms and ammunition and indulging in anti-social activities. The Deputy Cotnmissioner, Tirap District on 19.8.81 wrote to the Extra Assistant Commissioner, Miao as follows:

"Please refer to your report under reference, wherein it is_ indicated 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.

2. It is further seen from your report regarding judicial cases, submitted to this office, that there are altogether 76 cases registered upto November, 1979 against the Chakmas and most of them were related to theft, assault and offences under Forest Act. It is also therefore requested that more details on specific offences and results thereof may be furnished urgently.

3. The above two informations are urgently required by the Govt."

A list of cases including ones under Section 302 I.P.C. and other offences under Section 25A of the Arms Act is enclosed to the letter quoted above.

The chakmas also encroached upon the neighbouring area by unfair means and created trouble to the local people. An appeal was made to the Chief Minister in 1980 itself that because of these criminal activities they should be removed. It is not correct to state that the impugned notice came to be issued like 'a bolt from the blue.' The following letter of the appellant addressed to the Deputy Commis- D sioner speaks eloquently:

"With reference to the subject quoted above, 1 on behalf of the villagers of Joypur Village have the honour to draw your kind attention to the following few lines for favourof yourneedful action.

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 shiftis quite short and extremely unfit for cultivation due to which those vacant lands are not yet accupied by aaybody in spite of Lying considerable landless families in the said villages.

STA TE OF ARL::-..'ACHAL PRADESH v. KHUDIRAM [MOHAN. J] 423

All documonts created in regard to this matter are attached herewith A for favour of your kind perusal necessary action.

Under the circumstances stated here, I earnestly pray and request you afresh to look into the matter and thereby revoke the shifting order at an early date.

I shall remain greteful to you thereof'

From the endorsoment, it is also seen that two representatives met the Deputy Commissioner on 13th Februaty, 1984.- Therefore, there was an oral hearing. The above letter mentions notice after notice to shift. It was alleged by a petition to the Chief Minister that the Extra Assistant Commissioner had been paid handsomely to al, low chakma families to stay on illegally.

On 16th of November, 1982 the Extra Assisstant Commis!Koner called upon the Circle Qfficer, Di yum to issue notices to the chakms families staying atJoypur village to return to their original place of settlement within 31.12.82. The survey Reports for resettlement of these chakmas dated 27.4.83 inter alia states:

survey had been done in Maitripur and Gautampur areas where they have found 110 acres and 245 acres respecti vd y which are liable for settlement of Chakma settlers."

Thus, it will be clear that the reason for shifting these chakma families are:

(I) 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 constant/trouble 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. K.K. Venugopal, learned coufisel~ on ground realities, the plea of natural

justice is fully satisfied.

A Ruling in Scheduled Caste and Weaker Section Welfare Associatio~ v. State

of Kamataka [ 1991] 2 SCC 604 affording a hearing to slum dwellers under the Karnataka Slum Areas (Improvement and Clearance) Act, 1973, relied on by Mr.

Govind Mukhoty, learned counsel, has no application in the above circumstances.

Even then what is that is sought to be done to the appellants? They are asked to settle in Maitripur and Gautampur villages from Miao. Cartainly, settling the chakmas in a particular place is a matter of policy. This Court cannot enter into the wisdom of such a policy, in view of what has been stated above, ArunaJ:!tal Pradesh is strategically important with Bhutan in the West, Tibet and China in the North and North-East, Burma (Myanmar) in the East.

It is true that fundamental right is available to a foreigner as held in Louis De Raedt v. Union of India [1991] 3 SCC 554 at 562.

"The next point taken on behalf of petitioners, that the foreigners also enjoy some fundamental rights under the Constitution of this country, is also of not much help to them. The fundme~~ right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this countr)r, as mentioned in Article 19 (l) (e) which is applicable only to the citizens of this country."

As such Articles 19 (1) (d) and (e) are unavailable to foreigners because those rights are conferred only on the citizens. Certainly, the machinery of Article 14 cannot be invoked to obtain that fundamental right. Rights under Article 19 (l) (d) and (e) are expressly withheld to foreigners.

Now we come to the humanitarian grounds which prompted the High Court of Gauhati to direct compensation to the appellants in the event of their being evicted.

Blackbum and Taylor speaking on the right enjoy asylum in Human Rights G for the 1990 s state at page 51 as under:

"The most urgent need of a fugitive is a place of refuge. His or her most fundamental right is to be granted asylum. The Universal Declaration of Human Rights addressed this issue in deceptive language. To the inexpert reader there is great comfort in Article 14 ( 1) of that Declaration, which provides that 'Everyone has the right

STAIB OF ARUNACHAL PRADESH v. KHUDIRAM [MOHAN, J] 425

to seek and enjoy in other cuntries asylum from persecution, it A seems tolerably clear, hqwever, thattherighttoenjoyasylummeans no more than the right to enjoy it if is granted."

Again at page 52 i, t is stated thus:

"Article 14 of the Universal Declaration of Human Rights, which speaks of the right to enjoy asylum, has to be interpreted in the light of the instrument as a whole; and must be taken to mean something.

It implies that although an asylum seeker has no right to be granted admission to a foreign state, equall.Y a state which has granted him asylum must not later return him to the country whence he came.

Moreover, the Article carries considerable moral authority and cmtrodies the legal prerequisite of regional declarations and instruments."

Warwick Mckean, dealing with the equality in the treatment of aliens, states in Equality and Discrimination under International Law at page 194 as under:

 D

"It has long been recognized that persons who reside on the territory of countries of which they are11ot nationals possess a special status under international law. States have traditionally reserved the right to expel them from their territory and to refuse to grant them certain E rights which are enjoyed by their own nationals, e.g. the right to vote, hold public office or to engage in political activities. Aliens may be prohibited from joining the civii service or certain professions, or from owning some categories ()f property, and states may place them under restrictions in the interests of nations! security or

- ' _.__,.-- public order. Nevertheless, once lawfully admitted to a territory, F they are entitled to certain minimum rights necessary to the enjoyment of ordinary private life.'r

At pages 195-19.6 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 aquired. If alian property is nationalized whereas

the property of nationals remains unaffected then that act is discriminatory and prohibited under international law. As Fitzmaurice points out, it has long been recognized that in certain matters, e.g.

the general treatment of foreigners in a country, or compensation for property which may be exproprited 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 avalid claim on the part of the foreign government whose national is involved."

Certainly, if the acquii; tion had been legal, compensstion could ha'"e hcen awarded. But in view of the Bengal Eastern Frontier Regulation. 1873 and clause 9 (2) of the Foreigners Order 1948 we do not think this is a case for award of c compenstion.

Though we have held that the principles of natural justice have been fully complied with in this case. we record the statement made by learned counsel for the State that the Chier Minister is ready to hear the Respondents (appellants hj!rein) or any representative of their group. Accordingly we direct that an opportunity be afforded to the appellants by the Chief Minister and grant such relief as he deems fit. We make it clear that it will be a post-decisional hearing.

Accordinlgy we dismiss civil appeal arising out of SLP (C) No. 13767 of 1992 filed by Khudiram Chakma while civil appeal arising out of SLP(C) No. 12429of1992 filed by State of Arunachal Pradesh is allowed. However, there shall be no order as to costs.

R.P.

SLP (C) No. 13767/92 dismissed.

SLP (C) No. 12429/92 allowed. --