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2009 DIGILAW 824 (GAU)

Subin Payeng v. State of Arunachal Pradesh

2009-11-23

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. I. Choudhury, learned Counsel for the petitioners. Also heard Mr. R.H. Nabam, learned Senior Govt. Advocate, for the State-respondents. 2. These bunch of writ petitions involve similar facts and question of law pertaining to issuance of Permanent Residential Certificates (hereinafter referred to as PRCs in short). The common challenge is to the Government Order No. ST-2/94 dated 9.2.1994 issued by the Secretary (Political), Government of Arunachal Pradesh, Itanagar, issuing direction to all Deputy Commissioners/Addl. Deputy Commissioners in the State of Arunachal Pradesh regarding issuance of PRCs to indigenous Scheduled Tribes of Arunachal Pradesh, which is reproduced below: Government of Arunachal Pradesh Scheduled Castes AND Scheduled Tribes Cell: Itanagar. No. Scheduled Tribes-2/94, dated Itanagar the 9th Feb' 94. To, All Deputy Commissioner/Addl. Deputy Commissioner, Arunachal Pradesh. Sub: Issuance of Permanent Residential Certificate to indigenous Scheduled Tribes of Arunachal Pradesh. Sir, I am directed to request you that Permanent Residential Certificate may be issued to indigenous Scheduled Tribes of Arunachal Pradesh, who possess genuine Scheduled Tribe Certificates. Further, you are requested that Scheduled Tribe Certificates may be issued to indigenous Scheduled Tribes of Arunachal Pradesh, if sought with proper verifications. Yours faithfully, Sd/- (Obang Dai) Secretary (Political), Government of Arunachal Pradesh Itanagar. 3. The petitioners in the above writ petitions claim that they have been residing in the State of Arunachal Pradesh at places mentioned in the Cause-titles for last 5 to 6 decades with due approval/sanction of the Government of Arunachal Pradesh. They have been allowed to enjoy all the rights, privileges and protections like any other citizens permanently residing and settling in any part of the territory of India. Many of the petitioners belong to the indigenous tribes like Deori, Kachari, Moran, Mishing, etc., which are recognised as Scheduled Tribes in the State of Assam but they are not recognised as Scheduled Tribes in the State of Arunachal Pradesh. Among them, there are members from Ahom, Nepalese, adivasi, etc., communities too. The petitioners and their forefathers have been occupying and enjoying the lands peacefully and many of them are also carrying on business in the State of Arunachal Pradesh. The PRCs are required for all purposes like employment, higher education, business, profession, vocation, etc. Among them, there are members from Ahom, Nepalese, adivasi, etc., communities too. The petitioners and their forefathers have been occupying and enjoying the lands peacefully and many of them are also carrying on business in the State of Arunachal Pradesh. The PRCs are required for all purposes like employment, higher education, business, profession, vocation, etc. The petitioners and their children, for want of PRCs, have been deprived of availing the chances of admission in higher educational institutions, particularly, technical institutions and also securing jobs inside and outside the State of Arunachal Pradesh. 4. Mr. Choudhury, learned Counsel for the petitioners, submits that the Government of Arunachal Pradesh by issuing the impugned order, dated 9.2.1994, have denied PRCs forever to the Non-Arunachal Pradesh Scheduled Tribes (hereinafter referred to as Non-APST in short) which is violative of Article 19(1)(e) of the Constitution of India i.e. protection of rights of citizen to reside and settle in any part of the territory of India. According to him, Article 19(1)(e) guarantees to the citizens the right to reside and settle in any part of the territory of India, however, the said fundamental right is couched with a rider in the form of Article 19(5) which provides that- the State may make law imposing reasonable restrictions either in the interest of general public or for the protection of the interest of any Scheduled Tribe. The aforesaid impugned order, is, therefore, in violation of Clause (5) of Article 19 of the Constitution of India which provides that nothing in sub-clauses (d) and (e) of Clause (1) of Article 19 shall affect the operation of any existing law insofar as it imposes, or prevents the State from making in law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interest of the general public or for the protection of the interests of any Scheduled Tribe. The moot submission of the learned Counsel for the petitioners is that reasonable restrictions on the rights as provided under Article 19(1) of the Constitution of India can be imposed only by 'law' and not by any executive or departmental instruction. The impugned order is nothing but departmental instruction and as such, it cannot have any binding force depriving fundamental right guaranteed to the citizens of India under Article 19 of Constitution of India. The impugned order is nothing but departmental instruction and as such, it cannot have any binding force depriving fundamental right guaranteed to the citizens of India under Article 19 of Constitution of India. The impugned order, dated 9.2.2004 is, therefore, liable to be set aside and quashed as violative of fundamental right guaranteed to the citizens of India. 5. In support of his submissions, Mr. Choudhury, learned Counsel for the petitioners, would refer to Punit Rai v. Dinesh Chaudhary reported in (2003) 8 SCC 204 wherein a circular issued by the State of Bihar for determination of the caste of a child born from a non-scheduled caste Hindu father and a scheduled tribe mother has been held to be not a law within the meaning of Article 13 of the Constitution of India. He would further refer to the case of Union of India v. Navin Jindal and Anr. reported in (2004) 2 SCC 570 , wherein an issue arose as to whether the right to fly the national flag is a fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) and whether reasonable restrictions can be brought by way of the Flag Code which is an exclusive instruction issued by the Ministry of Home, Government of India. The Apex Court answered the said issue by holding that in respect of the fundamental rights given under Articles 19(1)(a) to 19(1)(g), reasonable restrictions thereupon can be brought in only by way of statutory law and not by executive instructions. He would also refer to the case of Bijoe Emmanuel v. State of Kerala and Anr. reported in (1986) 3 SCC 615 , wherein the Apex Court conclusively held that the law is now well settled that any law which is made under Clauses (2) to "(6) of Article 19 to regulate the exercise of right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be a 'law' having statutory force and not a mere executive and departmental instruction. The above view has been consistently followed all along since the same was originally propounded by a Constitution Bench of the Apex Court in the case of Dwarka Nath Tiwari v. State of Bihar and Ors. reported in AIR 1959 SC 249 and by a seven-Judge Bench in Harak Singh v. State of Uttar Pradesh and Ors. reported in AIR 1963 SC 1295 . 6. Mr. reported in AIR 1959 SC 249 and by a seven-Judge Bench in Harak Singh v. State of Uttar Pradesh and Ors. reported in AIR 1963 SC 1295 . 6. Mr. R.H. Nabam, learned Senior Govt. Advocate, submits that the matter of issuance of PRCs is a policy decision of the State Government and the same cannot be challenged in the writ proceeding. The State of Arunachal Pradesh has its distinctive and peculiar political background for which the Inner Line Permit (ILP) system under the Bengal Eastern Frontier Regulation, 1873 (Regulation 5 of 1873) has been introduced for the greater interest of the State. In the affidavit-in-opposition filed by the State respondents, it is stated that the Government has already constituted a committee under the Chairmanship of State RWD/RD minister and Committee is yet to submit the report vide order No. POL-193/2004 dated 21.1.2008 to examine the issue of PRCs relating to Non-APST residing in Mahadevpur (Lekang Circle) and Namsai in Lohit District and Diyun Circle in Changlang District. The said committee was reconstituted vide order No. POL-193/2004/750 dated 23.1.2008 with the State Home Minister as Chairman. At the time of filing the affidavit-in-opposition, the report of the sub-committee aforesaid was awaited. However, at the time of hearing the matter today, Mr. Nabam, learned Senior Govt. Advocate, on written instruction from the State Government, submits that the Political Department has received the Cabinet Sub-committee report on 22.10.2009 which is pending approval of the Cabinet for taking further necessary action. The said instruction has been furnished by the Under Secretary (Political), Government of Arunachal Pradesh, Itanagar, in his letter No. POL-193/2004/337 dated 28.10.2009. 7. There is no dispute at the Bar that issuance of PRC is a public policy to be adopted by the State Government. Since the report of the Sub-committee has been received, the same is required to be placed before the State Cabinet for its approval. The same is yet to be done. On the other hand, the State Cabinet has the power to approve or not to approve the report of the Sub-committee. It is also not known as to what recommendations have been made by the Sub-committee so appointed by the State Government. The same is yet to be done. On the other hand, the State Cabinet has the power to approve or not to approve the report of the Sub-committee. It is also not known as to what recommendations have been made by the Sub-committee so appointed by the State Government. However, the parties are in agreement at the Bar that the decision of the Cabinet decision may be awaited and the present set of writ petitions may be disposed of with a direction to the respondent authorities to take appropriate decision within a reasonable time frame. The learned Counsel for the petitioners would still insist that the impugned order dated 9.2.1994 should be set aside. 8. It is difficult to allow the prayer of the petitioners to set aside the impugned order inasmuch as quashing or setting aside the said Government order, dated 9.2.1994, would amount to refusal of PRCs to the members of APST communities and there would be a floodgate of cases from the APST members questioning the propriety and validity of such order. The members of the APST communities have their rights to get the PRC issued in their favour. Issuance or non-issuance of PRC to the members of Non- APST communities cannot be mixed up with the issuance of PRC to the members of APST communities. The question of issuance of PRC to the members of Non-APST members is a separate issue altogether and policy decision must be taken by the State Government in that regard. From the affidavit-in-opposition filed by the respondent authorities, it is discernible that the Government of Arunachal Pradesh has recognised the issue and it has taken steps in right earnest for addressing the same. Moreover, the impugned order dated 9.2.1994 has not specifically denied issuance of PRC to the members of Non-APST. It only needs a policy decision of the Government to clarify in certainty as to whether the members of Non-APST should get the PRC upon fulfilment of certain conditions(s). The question of setting aside/quashing of the said impugned order dated 9.2.1994 would arise only at a stage when the Government takes a decision denying PRCs to the members of Non-APST. In view of the above, I would refrain from passing any order quashing/setting aside the impugned Government order, dated 9.2.1994, at this stage. 9. The question of setting aside/quashing of the said impugned order dated 9.2.1994 would arise only at a stage when the Government takes a decision denying PRCs to the members of Non-APST. In view of the above, I would refrain from passing any order quashing/setting aside the impugned Government order, dated 9.2.1994, at this stage. 9. In the aforesaid attending facts and circumstances of the cases, these writ petitions would stand disposed of with a direction to the Chief Secretary to the Government of Arunachal Pradesh to place the report of the Sub-committee on the question of issuance of PRC to Non-APST members in the State of Arunachal Pradesh forthwith before the State Cabinet so that it can take appropriate decision within a period of 3 (three) months from today and publish the decision so taken, in the official gazette as well as in the print media for information of the members of the public. Be it made clear that the petitioners, if aggrieved by any decision taken by the State Cabinet on the said issue, shall have the liberty to approach this Court again for appropriate relief. 10. With the aforesaid observations and directions, these petitions stand disposed of. There shall be no order as to cost. 11. Registry is directed to furnish a copy of this order to Mr. R.H. Nabam, learned Senior Govt. Advocate, by tomorrow, for his needful and taking necessary steps by the respondent State.