Gauhati High Court
Khudiram Chakma vs Union Territory Of Arunachal Pradesh ... on 30 April, 1992
Equivalent citations: AIR1992GAU105, AIR 1992 GAUHATI 105, (1993) 1 GAU LR 43
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Baruah, J.
1. Petitioner has filed this writ petition us Gaon Bura of Joypur Village Diyun Circle of Miao Sub-Division, Tirap District, Arunachal Pradesh, for himself and on behalf of his co-villagers challenging the Annexure 5 notice dated 15-2-84 issued by the fourth respondent directing them to shift to vacant land at Gautompur and Moitripur village in the District of Tirap, Arunachal Pradesh.
2. The case of the petitioner's, that, he along with 56 families migrated to India on 30th March, 1964 from erstwhile East Pakistan, now Bangladesh, due to disturbances and fear of disturbances prevailing there at that time and took shelter in a Government camp. They first came to Ledo in Assam and thereafter they were taken to Bettiah, Bihar and later they were taken to Abhayapur Block in Diyun Circle of Tirap District. Arunachal Pradesh in 1966. The petitioner and other 56 families are Chakma of erstwhile East Pakistan. While in Abhayapur block the petitioner and other families negotiated with local Raja, Ningrunong Singpho of Dhomba Basti, who donated one sq. mile area of his land in favour of the petitioner as per the Annexure I document dated 20-11-72. In the said Annexure 1, the Raja specifically mentioned that the land which he proposed to donate was jungle land and it was not possible for him to cultivate the land as wild beasts created troubles by damaging crops. The Raja felt that if he donated the said land to the Chakma people, they would be able to clear the land and cultivate thereon and that would help him to protect his crops from wild beasts in his other land. On these considerations, the Raja donated the said land. Thereafter, the petitioner was appointed Gaon Bura (Village Headman) of Miao Circle of Tirap District by the then Deputy Commissioner of Khonsa District by Annexure 2 order dated 20-11-75. By Annexure 2 letter dated 26-4-76, the then Extra Assistant Commissioner, KVR Chari, declared that the land donated by the Rajaningrunong Singpho of Joypur village was approved by the Deputy Commissioner, Khonsa.
3. The petitioner further stated that some Deori families who were also allotted lands adjacent to their land, attempted to encroach upon their land and, therefore, a complaint was lodged before the authority concerned. On their complaint, the Executive Magistrate, Miao, by Annexure 4 order dated 30-5-77 informed the Raja, Ningrunong Rajkumar of Joypur village that the Chakma people would be allowed to continue to cultivate on the land under their occupation. He was further informed that some Deori families attempted to encroach upon the land and, therefore, he was directed to turn, them put from the land allotted to Chakma people. Copies of this order were sent to the petitioner, the Circle Officer, Diyun and Gaonbura of Joypur village. The petitioner averred that by, dint of their labour and efforts they developed the land and started cultivation. Besides, they also established a few small scale industries on the said land. On their achievement the people living in the adjoining areas became jealous, and, therefore, attempted to dislodge them from the land in various ways. The petitioner as well as the other Chakma people made complaints to various authorities, but no action was taken by any authority. On the other hand, to their utter surprise, by impugned Annexure 5 order dated 15-2-84, the fourth respondent directed the Chakma of Joypur village to shift to the vacant land at Gautampur and Mohripur village latest by 25-2-84. Copies of this order were also sent to the petitioner the Deputy Commissioner, Tirap District, Khonsa and Extra Assistant Commissioner, Miao, for information and necessary action. On receipt of Annexure 5 order, the petitioner on behalf of Chakma people submitted a representation to the Chief Minister, Arunachal Pradesh, stating the entire facts and prayed for his intervention in the matter and also for direction to the authority to stay further proceedings in the matter of eviction and also to give formal settlement of the said land to them. In spite of the representation, no action was taken; hence the petitioner has filed this writ petition challenging the Annexure 5 order dated 15-2-84 praying for issue of a writ in the nature of Mandamus and/or certiorari or prohibition or any other appropriate writ or direction.
4. The petitioner has contended that fundamental rights guaranteed under the Constitution of India are violated and the actions of the respondents are violative of principles of natural justice. The impugned Annexure 5 notice is illegal, arbitrary and not informed of any reasons.
5. The Respondents filed affidavit-in-opposition, controverting the averments made in the writ petition. They stated, inter alia, that the petitioner and other Chakma families were not citizens of India, and, therefore, they were not entitled to any fundamental rights as guaranteed under Article 19(1)(d)(e)(q) of the Constitution of India. The counter-affidavit further stated that the petitioner on his own admission along with 56 families migrated to India on 31-3-64 from erstwhile East Pakistan (now Bangladesh). Being refugees, they were given shelter in government camp at Ledo within the district of Dibrugarh, Assam, and later they were removed to the camp at Kiao, now within the territory of Arunachal Pradesh. The petitioner wrongly mentioned that they took shelter in the Government camp first at Bettiah in Bihar and later they were shifted to Miao camp. They further stated that from the writ petition itself it would appear that the petitioners gave different versions at different times to suit their purposes.
6. The respondents also categorically denied that the petitioner along with 56 families came to Joypur village. Besides the petitioner and other Chakma families admittedly came to India as refugees, and therefore, none of the Chakmas can acquire citizenship or right of citizenship unless legal formalities are observed in accordance with the provisions of the Citizenship Act. The respondents also stated that the petitioner has not produced any document to prove his citizenship. As they came in the year 1964, they are governed by Citizenship Act, 1955. However, they are allowed to stay in Arunachal Pradesh subject to the control of the State Government. The counter-affidavit further stated that the State Government could have refused their stay in view of the growth of local population, however, for their welfare a scheme for settlement has been chalked out and they have been asked to move out to the area earmarked for their settlement.
7. The respondents stated that the Government has full authority and control over the movement of these people and has authority and power to direct them to stay in a particular place and that authority cannot be questioned. The Annexure 1 order dated 20-11-72 is not a valid document in the eye of law. The appointment of petitioner as Gaonbura referred to in the writ petition has no relevance to the legality with the Annexure 5 order. Under the provisions of law applicable to the Arunachal Pradesh the transfer of land by Raja to these Chakma families is not a valid document, inasmuch as, no person not being a native of the "district "can acquire any interest in land or the product of land beyond the inner line without the sanction of the State Government or such officer as the State Government appoints in this behalf. The respondents also challenged the validity and legality of the Annexure 3 order issued by the then. Extra Assistant Commissioner, Miao and contended that any observation made in Annexure 3 order is not binding on the State. The respondents further stated that the Chakma people were indulging in illegal activities such as commission of offences under various laws, collection of arms and ammunitions, establishing contacts with extremists groups, encroachment of adjoining areas, and it is, therefore, necessary for the State Government to shift them to a site where other Chakma families are already residing. They have been provided with all amenities, so that, they can reside there peacefully. In view of this, the Annexure 5 order has been issued directing them to move to the place earmarked for them, but the petitioner and other Chakma families avoided the said order and filed this writ petition.
8. The petitioner filed a reply affidavit. In the reply affidavit the petitioner reiterated the statements made in the writ petition and also annexed a copy of cash dole card No. 271 issued by the Refugee Relief Camp at Bettiah, Bihar as Annexure 7 and a copy of the Family Ration Card issued by the Circle Officer. Miao, as Annexure 8. In his reply affidavit, the petitioner stated that the Deori people who are living on the eastern side of the village are still residing there and they are not disturbed even though they are also not natives of Arunachal Pradesh. The petitioner stated that they are law-abiding citizens and they have never engaged in any unlawful activities.
9. We have heard both sides. Mr. S.K. Senapati, learned counsel for the petitioner submitted that the petitioner with 56 families migrated to India from Bangladesh in 1964. They being refugees from erstwhile East Pakistan were allowed to stay on the land. They are citizens of India and as such they cannot be evicted now from the place where they are residing in the name of maintenance of law and order. Mr. Senapati has further stated that by the Annexure 5 order, the petitioner and other Chakma families have been directed to shift to the land at Gautampur and Moitripur village without assigning any reason. He has denied that there was any thing to show that these Chakma people were indulging in illegal activities. The impugned Annexure 5 order was hot for avoiding strained relations with the neighbouring local people. The averments made in the counter reveal that the actions of the respondents are for some oblique purposes. He further stated that as they came to Assam in 1964 and the Government allowed them to stay in the State, they must be deemed to be citizens of India within the meaning of Section 6A of the Citizenship Act, 1955 as amended in 1985. He has stated that after 1964 they were shifted to Miao in the District of Tirap, Arunachal Pradesh, which was at one time a part of Assam. In this regard, Mr. Senapati has drawn our attention to the provisions of Immigrants (Expulsion from Assam) Act, 1950 (Act X of 1950). Relying on the said Act, he has stated that under the Act, the Central Government may direct such person or class of persons to remove himself or themselves from India or Assam within such time and by such route as may be specified in the order; and give such directions in regard to his or their removal from India or Assam as it may consider necessary or expedient, provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place or residence in such area and who has been subsequently residing in Assam. Emphasising on this provision, Mr. Senapati has further submitted that it is an admitted fact that the Chakma people migrated to India from erstwhile East Pakistan, because of the disturbances and out of fear. On account of such disturbances in East Pakistan, it was not possible on the part of the petitioner and other Chakma families to continue their stay in East Pakistan and had to come to India and accordingly the Government gave them shelter as mentioned above. Since for sometime they were allowed to remain in Assam they cannot be evicted.
10. Mr. Senapati has further stated that "Assam" in Clause (b) of Section 3 of the Act, 1950 included the territory of Arunachal Pradesh also, therefore, Chakmas having stayed in "Assam" within the meaning of the said Act, they cannot be evicted, and therefore, they are all citizens of India within the meaning of Section 6A of the Citizenship Act, 1955.
11. Mr. A. Roy, the learned Government Advocate for the respondents has challenged the contentions of Mr. Senapati. He has stated that the petitioner and other Chakma families are not citizens of India as envisaged under the Citizenship Act, 1955 and they are foreigners under the Foreigners Act, 1946. Under the Foreigners Order, 1948, the State Government has power to restrict the movement of foreigners. He has drawn our attention to Clause 8 of the Foreigners Order, 1948. Under this clause no foreigner shall, without the permission of the civil authority having jurisdiction at such place, visit, or reside in any prohibited place as defined in the Indian Official Secrets Act, 1923 (19 of 1923). Under Clause 9 of the said Order, the Central Government or, with its prior sanction, a civil authority may by order declare any area to be a protected area for the purposes of this Order. For such declaration, the civil authority may, as to any protected area, by order, prohibit any foreigner or any class of foreigners from entering into or remaining in the area, or impose on any foreigner or class of foreigners entering or being entered in the area, such conditions or restrictions as it may think fit.
12. Mr. Roy has further drawn our attention to the Bengal Eastern Frontier Regulation, 1873. Under Clause 2 of this 1873 Regulation, it shall be lawful for the State.
Government to prescribe and from time to time alter, by notification in the Official Gazette a line to be called "The Inner Line" in each of any, of the districts within the territory of Arunachal Pradesh. The State Government may also prohibit all citizens of India or any class of such citizens or any persons reading in or passing through such districts from going beyond such line without a pass.
13. Under Clause 7 of the said Regulation, 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 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 Official 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 vary such extension. Mr. Roy has submitted that the said Regulation 5 of 1873 is also applicable to the State of Arunachal Pradesh. Erstwhile North East Frontier Agency (NEFA), now known as Arunachal Pradesh; was not included under this Regulation.
14. Mr. Roy however, has drawn our attention to the provisions of Scheduled District Act, 1874 (XIV of 1874). Under Section 5 of the 1874 Act, the local government may from time to time by notification in the local gazette extend to any of the Scheduled Districts or to any part of any such district, any enactment which is in force in any part of British India at the date of such extension. Mr. Roy has further drawn our attention to the three notifications issued from time to time extending the Bengal Eastern Frontier Regulation 1873 (5 of 1873). By notifications No. 8050P dated 13-10-1917, No.4207AP dated 25-8-1925 and No. 3145 AP dated 7-5-1928, the Governor General in Council, in exercise of power under Section 5 of the Scheduled district Act, 1874, the Bengal Eastern Frontier Act was extended to the western section of North East, Frontier Tract, Balipara Frontier Tract and Lakhimpur Frontier Tract, These three tracts are now part of the territories of Arunachal Pradesh. Thus, in the entire erstwhile NEFA, now Arunachal Pradesh, the provisions of Regulation 5 of 1873 became applicable. Mr. Roy has submitted that under Regulation 5 no person who is not a native of the "district" can have any right to acquire any interest on the land or the product of the land beyond the "Inner Line." It was mentioned that the said "Inner Line" is somewhat different from inner line mentioned in Protected Area Order, 1953. Under the Protected Area. Order, the entire Arunachal Pradesh is within the protected area. There is, however, no dispute that the, Miao Sub-division of Tirap District is very much within the limits of Inner Line.
15. On the rival contentions of the parties, the following questions require determination: (i) Whether the petitioner and 56 Ghakma families now settled in Miao, Arunachal Pradesh, are citizens of India or foreigners; (ii) If they are not citizens of India, whether the authorities concerned have right to give direction to those Chakma people to move to another place; and (iii) Whether the impugned Annexure 5 order dated 15-2-84 is arbitrary, devoid of reason and violative of the provisions of Constitution.
Point No. (i)
16. Under Section 3 of the Citizenship Act, 1955 (Shortly the 1955 Act), every person born in India, on or after the 26-1-1950, but before the commencement of the Citizenship (Amendment) Act, 1985, on or after such commencement and either of whose parents is a citizen of India at the time of his birth, shall be a citizen of India by birth. A person shall not be such a citizen by virtue of this section if at the time of his birth, his father possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and is not a citizen of India; or his father is an enemy alien and the birth occurs in a place then under occupation. Under the said Act, only those mentioned in the said section can be regarded as citizens of India. The word "India" mentioned in the Constitution of India is the territory which now comprised in India. From the above, it is an admitted fact that the petitioner and other members of the Chakma families cannot be regarded as Citizens of India by birth under Section 3 of the Act, 1955. Under Section 4 of the Act, 1955 also the petitioner and other Chakma people cannot be regarded as citizens of India.
17. Section 5 of the Act, 1955 provides for registration of a person as citizen and such registration can only be made if the Central Government is satisfied about the special circumstances stated therein. However, grant of citizenship by registration is entirely a matter for the Central Government and unless the Central Government so decides, registration cannot be done. Under Section 6 of the Act, a person can acquire citizenship of the country if the Central Government grants a certificate of naturalisation. Section 6A was inserted in the Act by an Amending Act which received the assent of the President on 7-12-1985. This amendment was necessitated in view of Assam Accord dated 15-8-85. Section 6A(2) of the Act runs thus:--
6A(2). "Subject to the provisions of Subsections (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 a citizen of India as from the 1st day of January, 1966.
(3) Subject to the provisions of Sub-sections (6) and (7), every person of Indian origin who--
(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and
(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and
(c) has been detected to be a foreigner; , shall register himself in accordance with the rules made by the Central Government in this behalf under Section 18 with such authority (hereinafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.....".
18. Mr. Senapati, learned counsel for the petitioner has laid much stress on this section and contended that it is an admitted fact that the Chakma people entered into India (Assam) and stayed for some time in Ledo within the Dibrugarh District and thereafter shifted to Miao, Arunachal Pradesh. Therefore, these persons should also be regarded as citizens of India by virtue of Section 6A of the Act, 1955. Mr. Senapati has further stated that the territory of Arunachal Pradesh in 1964 was included in the State of Assam. The Immigrants (Expulsion from Assam) Act, 1950 (Act X of 1950) applied to the territories now forming the part of Meghalaya, Nagaland and Arunachal Pradesh. But by the North Eastern Areas (Reorganisation) Act, 1971, the territories of Arunachal Pradesh are excluded from the purview of the Act X of 1950. Hence, the petitioner and other Chakma people cannot claim to be citizens of India by taking the aid of Section 6A of the 1955 Act. Sub-section (2) of Section 6A specifically mentions that all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India. From the language of Sub-section (2) it is clear that the person who came before 1-1-1966 must also ordinarily be, a resident in Assam from the date of entry till the incorporation of Section 6A, i.e. 7-12-1985. The word "Assam" is defined in Section 6A(a). As per the said definition, the "Assam" means, the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985. The petitioner and other Chakma people who have been residing in Miao sub-division of Tirap District, Arunachal Pradesh long before 1985 cannot be regarded as Citizens of India. Hence, we hold that the petitioners are not citizens of India and, therefore, they are foreigners.
Point No. (ii):
19. The next question is whether the State Government has any right to control their movement and stay or not? In this regard, Mr. Roy has placed reliance on Regulation 5 of 1873. Under Section 2 of the Regulation, it is lawful for the State Government to prescribe and from time to time to alter by notification in the Official Gazette a line to be called "The Inner Line" in each or any of the named districts. Under Section 7, it shall not be lawful for any person, not being a native of the district named 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 State Government shall appoint in this behalf. Any interest so acquired may be dealt with as the State Government or its paid officer shall direct, and the State Government is further empowered to extend the prohibition contained in this section to any class of persons, natives of the said districts, and from time to time in like manner to cancel or vary such extension. The preamble of the said Regulation 5 of 1873 states that this regulation was made applicable to the districts of Kamrup, Darrang, Nowgong, Sibsagar, Lakhimpur (Garo Hills) Khasi and Jaintia Hills, Naga Hill, Cachar. Section 5 is extracted below:--
"5. The local government may from time to time, by notification in the local Gazette extend to any of the Scheduled Districts or to any part of any such district, any enactment which is in any part of British India at the date of such extension."
20. In exercise of power conferred under Scheduled District Act, 1874 by notifications No. 8050AP dated 13-10-1917, No. 4207AP dated 25-8-1925 and No. 3145 AP dated 7-5-1928, the Governor General in Council extended the entire Regulation, 1873 to the said three Frontier Tracts, which now form part of the territories of Arunachal Pradesh. Therefore, as per the said Regulation, no person other than a native has any right to acquire any right on the land or product within the inner line. The 'Inner Line' is demarcated by issuing notifications from time to time by the State Government. According to the notifications, this 'Inner Line' is within the territory of Arunachal Pradesh.
21. Under Section 3 of the Foreigners Act, 1946, the Central Government may by order make provision for prohibiting, regulating or restricting the entry of foreigners into India. In exercise of power conferred by Section 3 of Foreigners Act, 1946 and in supersession of the Foreigners Order, 1939, the Central Government by notification dated 10-2-1948 made and issued "Foreigners Order, 1948". Under Clause 9 of the said Order, 1948, the Central Government or with prior sanction, a civil authority may by order declare any 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 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, that may be mentioned in the said Clause 9. Order 9 of the Foreigners Order 1948 run as follows:
"9. Protected areas: (1) The Central Government or with its prior sanction, a civil authority may by order declare any area to be a protected area for the purposes of this Order.
(2) On such declaration, the civil authority may, as to any protected area, by Order-(a) prohibit any foreigner or any class of foreigners from entering or remaining in the area;
(b) impose on any foreigner or class of foreigners entering or being entered in the area, such conditions or restrictions as it may think fit as to,--
(i) reporting to the Police or any Naval, Military, or Air Force authority;
(ii) surveying or making sketches or photographs;
(iii) the use or possession of any machine, apparatus or other article of any description;
(iv) the acquisition of land or any interest in land within the area;
(v) any other matter or thing as to which it may deem it necessary in the interests of public safety to impose conditions or restrictions..."
Clause 9(2) prohibits acquisition of land or any interest thereon within the prohibited area by any foreigners. Clause 9(2)(a) prohibits any foreigner or any class of foreigners from entering or remaining in the area; under Clause 9(2)(b) the authority may impose on any foreigner in any class of foreigners entering or being entered in the area, conditions or restrictions regarding acquisition of land or any interest thereof, and any other matter deemed necessary in the interest of public safety.
22. Under Clause 9 of the Foreigners Order, 1948 the authority concerned by any order, may prohibit any foreigner from remaining in any part of the protected area as shown in the Foreigners Protected Area Order, 1958 including the territory of Arunachal Pradesh has full authority and jurisdiction to pass any order restraining the movement of any foreigner or any class of foreigners from remaining in any part of Arunachal Pradesh. It has not been contended that the authority who issued the impugned order has not been so authorised under the order of 1948. Besides, even under the Regulation 1873, the State Government have the authority to issue any prohibitory order regarding stay or residence at any particular place within the inner line. As stated earlier, it is an admitted fact that Miao, where the Chakma families are residing, is within the limits of inner line notified by the State Government. In view of the above position, the petitioner and other Chakma families have no right and claim to have a permanent abode in the place. The authorities concerned may at any time ask them to move or to vacate the place, and the authorities have the right to ask them to quit the State if they so desire. Point No. (iii):
23. Next submission of Mr. Senapati was that the impugned Annexure-5 order dated 15-2-84 is devoid of any reason. According to him, this order was passed with an oblique motive. He has further submitted that the Chakma people are law abiding persons, they were never engaged in any unlawful activities not to speak collection of arms and ammunitions as alleged in the counter-affidavit. On going through the records, we find support for the averments in the counter-affidavit. One of the reports produced before us shows that they had held secret meeting for procuring arms and ammunitions. The files show some complaints lodged against the members of this group. Their continued presence in this locality, according to the authorities, may not be conducive for maintenance of law and order and peace and tranquillity in the area. Therefore, to avoid disturbance and to maintain peace and tranquillity in the area, the authorities decided to settle them in a different place earmarked for such purpose. It is true that such shifting may cause hardship to the Chakma people. At the same time, the State Government have the power to pass any prohibitory order in respect of their stay in any particular place, more so, for maintenance of public order. It is not shown that the impugned notice to devoid of reason or is arbitrary or has been issued with oblique motive. This Court, therefore, cannot pass any order to strike down the impugned Annexure-5 order dated 15-2-84. It cannot also be said that the Annexure-5 order was passed without proper application of mind. As we have stated earlier, it appears from the record that the authority have applied their mind to relevant matters and issued the impugned order or notice directing them to move to the new place earmarked for their settlement.
24. Mr. Senapati's further submission was that even if the petitioner and other Chakma families are not Indian Citizens and are foreigners, the State cannot set arbitrarily. Any order passed by the State even if in respect of the foreigners must be informed of reason. In this connection, Mr. Senapati has placed reliance on the following decisions:
(i) AIR 1967 SC 1170; (ii) AIR 1988 SC 686; (iii) AIR 1989 SC 1642; (iv) AIR 1991 SC 537; (v) AIR 1991 SC 1117; and (vi) AIR 1991 SC 1886.
Relying on these decisions, the learned Counsel for the petitioner submitted that the action of the respondents is arbitrary and cannot stand.
25. In Kumari Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537, the Supreme Court held as follows (at p. 549 of AIR):
"....Non-arbitrariness which is basic to rule of law -- from State actions in contractual field When all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional Scheme to accept the argument of exclusions of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that they are not negotiated contracts but standard form contracts between unequals...".
We have already indicated that the impugned notice does not suffer from the vice of arbitrariness.
26. In a recent decision in M/s. Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642, the Apex Court held thus (at p. 1648 of AIR):
"...Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14..." .
This decision also does not help the petitioner as we have already held that the impugned Annexure-5 order is not devoid of reason as will appear from the record,
27. In K.I. Shephard v. Union of India, AIR 1988 SC 686, dealt with the application of principles of natural justice. This decision cannot have application to the facts and circumstances of the instant case.
28. In State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170, the Supreme Court observed that all Executive action which operates to the prejudice of any person must have the authority of law, to support it. Under the Constitution the State is not invested with arbitrary authority to take action to the prejudice of the citizen and others. In the present case, it has not been shown that the impugned action is arbitrary.
29. In Scheduled Caste and Weaker Section Welfare Association v. State of Karnataka, AIR 1991 SC 1117, the Supreme Court observed as follows (at p. 1121 of AIR):
"...It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported, Thus in applying the test to the provisions of the earlier Act, The Mysore Slum Areas (Improvement and Clearance) Act, 1958, this Court held in Govt. of Mysore v. J.V. Bhat, (1975), 2 SCR 407 : (AIR 1975 SC 5%) thus:--
"There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under Section 3 or an area as a clearance area under Section 9 or before taking action under Section 10. All these difficulties will be removed if the affected persons are given an opportunity to be heard in respect of the action proposed..."
In the particular facts and circumstances, we do not think that the right of hearing can be read into the Statute or Regulation.
30. In a recent decision in Louis De Raedt v. Union of India, AIR 1991 SC 1886, the Apex Court had occasion to consider whether fundamental rights guaranteed under the Constitution are available to a foreigner. In this case, the Supreme Court has held as follows (at p. 1890 of AIR):
"...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 mental 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. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, (1,955) 1 SCR 1284 : (AIR 1955 SC 367), that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries, but so far the law which operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner. So far the right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing the impugned order, the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship, which they failed to do in the absence of a notice.
31. From the above observations of the Apex Court in various decisions, it is now (not) clear that foreigner has protection of Article 21. It cannot be said such a person has an enforceable right to property or right to insist that his place of residence or movements cannot be restricted.
32. Now we are left to deal with another import ant aspect of the matter in this case. That is the humane aspect. These Chakma people came as refugees and were given shelter initially at Ledo in Assam and later allowed to stay in Diyun Circle within the State of Arunachal Pradesh obviously in accordance with the policy adopted by the Government of India. Thereafter, these people settled on a land belonging to the Raja, Nongrmong Syngpho, who donated the land not for the benefit of these Chakma people only, but also for the protection of his crops, as it would appear from the Annexure-1 document. Moreover, Annexure-1 document was approved by the then Extra Assistant Commissioner, KVR Chari. In his report, Annexure-3, it was mentioned that the Deputy Commissioner approved the Annexure-1 document. Of course, the Deputy Commissioner as well as the Extra Assistant Commissioner had no jurisdiction to give such approval under the law. They contended that they have cleared the jungle and started cultivation thereon by dint of their labour. They claimed to have started small scale industries on the land. These facts cannot be overlooked. The State Government which tolerated the Chakma staying in this land for several years has an obligation to compensate them for the money and labour invested by them in this land. This shall be done before they are removed from this land to be settled elsewhere. The State Government shall also make all arrangements for settling them in the alternative land by constructing houses and other structures and arranging for supply of drinking water before they are shifted.
33. This judgment shall not stand in the way of the State Government reviewing its' earlier decision to shift the Chakmas from their existing land and allowing them to stay on in the land or any part pf it, considering the public interest.
34. In the result, the writ petition is disposed of as follows:
(a) We decline to quash Annexure-5 notice;
(b) We direct the State of Arunachal Pradesh to --
(i) compensate the Chakmas represented by the petitioner for the money and labour invested by them in the present land before they are shifted to the alternate site; and
(ii) make all arrangements for settling down them in the alternative land by constructing houses and other necessary structures and arranging for supply of drinking water before they are shifted to the alternate site.
(c) This judgment shall not stand in the way of the Government reviewing its' earlier decision to shift the Chakmas from the existing land and allowing them to stay on in the land or any part of it, considering the public interest; and
(d) There shall be no order as to costs.
U.L. Bhat, C.J.
35. I agree.