Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 481 (GAU)

Amal Kumar Chakma v. State Of Arunachal Pradesh

2022-05-10

KALYAN RAI SURANA, ROBIN PHUKAN

body2022
JUDGMENT : (Kalyan Rai Surana, J.) 1. Heard Mr. N.K. Singh, learned counsel for the petitioners. Also heard Mr. R.H. Nabam, learned Additional Advocate General for the State, assisted by Ms. P. Pangu, learned Junior Government Advocate, representing respondent nos. 1, 3, 4 and 5, Mr. A. Apang, learned senior counsel, assisted by Ms. N. Anju, learned standing counsel for the respondent no.2 and Mr. M. Kato, learned counsel for the respondent no. 6. 2. The 9 (nine) petitioners herein claim themselves to be members of Chakma and Hajong communities, who are residing in the State of Arunachal Pradesh since birth. They claim themselves to be citizens of India. It is also claimed that although the petitioners are voters for Parliamentary and Assembly Constituencies, the State respondents are adopting discriminatory attitude against the petitioners and other members of their community and thereby the petitioners have been illegally deprived of their right to participate in Panch-ayat Elections in the State in respect of their respective villages. Accordingly, by filing this PIL under Article 226 of the Constitution of India, the petitioners have prayed, inter alia, for a direction to the respondent no. 2 to notify/declare the 46 Chakma and Hajong villages in Changlang, Namsai and Papum Pare Districts as Gram Panchayats/Anchal Samiti/Zila Parishad Constituencies under the provisions of Arunachal Pradesh Panchayat Raj Act, 1997 (Act V of 2001) (hereinafter referred to as the "1997 Act" for brevity), further directing the respondent no. 2 to include the members of the Chakma and Hajong community in the electoral rolls for the purpose of such elections. Submissions by the learned counsel for the petitioners: 3. The learned counsel for the petitioners has submitted while he is placing reliance on the herein below mentioned cases, but on facts, their case is distinguishable from the facts on which the following cases were decided, viz., (i) State of Arunachal Pradesh Vs. Khudiram Chakma, (1994) Supp (1) SCC 615, (ii) Committee for CR of CAP and Ors. Vs. State of Arunachal Pradesh and Ors., AIR 2015 SC 3750 : 2015 (5) GLT 1, (iii) National Human Rights Commission Vs. State of Arunachal Pradesh and Ors., (1996) 1 SCC 742 and some other cases were decided. Khudiram Chakma, (1994) Supp (1) SCC 615, (ii) Committee for CR of CAP and Ors. Vs. State of Arunachal Pradesh and Ors., AIR 2015 SC 3750 : 2015 (5) GLT 1, (iii) National Human Rights Commission Vs. State of Arunachal Pradesh and Ors., (1996) 1 SCC 742 and some other cases were decided. It is submitted that the point of difference is that while in other cases, the Court was considering rights of the Chakma and Hajong people flowing from Sec. 5 of the Citizenship Act, 1955 but in the present case, the petitioners are claiming rights flowing to them and to other people from Chakma and Hajong communities under Sec. 3(1)(a) of the Citizenship Act, 1955 as they are born within the territory of India. 4. The learned counsel for the petitioners has submitted that the 1997 Act had come into force on 14/11/2001. Thereafter, by notification dtd. 18/6/2002, the Arunachal Pradesh Panchayats (Preparation of Electoral Rolls) Rules, 2002 was brought into force for the purpose of regulating the preparation of electoral rolls for conducting elections in Gram Panchayats/Anchal Samiti/Zila Parishad Constituencies. Thereafter, first elections in Panchayat institutions were held on 2/4/2003. However, the petitioners and other member of Chakma and Hajong communities were not included in the electoral rolls as such a delegation of these two communities including some of the petitioners met the Secretary, State Election Commission on 2/12/2015 and 21/3/2017, and a demand was made to include the names of the members of their communities in the electoral rolls and to notify their villages as Panchayat constituencies. Similar representation was given to the Minister of Panchayat Raj on 23/2/2017. Thereafter, this PIL has been filed by the petitioners. 5. It is submitted that like the petitioners, many members of the Chakma and Hajong community are bona fide voters for Parliamentary and Assembly Constituency and as such the respondent authorities have illegally deprived the petitioners of their voting right in Panchayat elections. It is submitted that in order to counter the stand of the respondent no. 6 that issues involved in matters pending before the Supreme Court are similar, the petitioners have filed an additional affidavit on 9/11/2021 to demonstrate that the issues involved are dissimilar. 6. It is submitted that in order to counter the stand of the respondent no. 6 that issues involved in matters pending before the Supreme Court are similar, the petitioners have filed an additional affidavit on 9/11/2021 to demonstrate that the issues involved are dissimilar. 6. It was also submitted that the actions of the State Government in not notifying villages where the Hajong and Chakma people are residing is vitiated by legal malice and/or malice in law. It was submitted that by refraining to notify the areas where people of these two communities are residing the State is discriminating against these two communities and depriving them from the benefit of the 1997 Act although the petitioners are voters in the concerned Parliamentary and Legislative constituencies. It is submitted that in such manner, the people of these two communities have been deprived from the benefit constitutional mandate flowing from Article 243-B of the Constitution of India. 7. In support of his submissions, the learned counsel for the petitioners has placed reliance on the following cases, viz., (i) Rajneesh Khajuria Vs. Wokhardt Ltd. and Ors., (2020) 3 SCC 86 , (ii) Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh and Ors., (2016) 15 SCC 540, (iii) Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Ors., (2010) 9 SCC 437 , (iv) Pukhraj D. Jain and Ors. Vs. Gopala Krishna, (2004) 7 SCC 251 ; (v) S.P. Chengalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs., (1994) 1 SCC 1 ; (vi) State of Arunachal Pradesh Vs. Khudiram Chakma and Ors., (1993) 3 SCR 401 ; (vii) Lal Chand (Dead) by LRs and Ors. Vs. Radha Kishan, AIR 1977 SC 789 , (viii) Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 ; (ix) Daryao and Ors. Vs. State of U.P. and Ors., 1962 SCR 574 ; (x) Satya-dhyan Ghosal and Ors. Vs. Deorajin Debi and Anr., AIR 1960 SC 941 . Submissions made by the learned Additional Advocate General for the State respondents: 8. The learned Additional Advocate General has opposed this writ petition and it is submitted that the people of Chakma and Hajong community had entered India with "refugee" status and that to his knowledge, no Court in the Country has declared the people of these two communities to be citizens of the Country. The learned Additional Advocate General has opposed this writ petition and it is submitted that the people of Chakma and Hajong community had entered India with "refugee" status and that to his knowledge, no Court in the Country has declared the people of these two communities to be citizens of the Country. It is submitted that persons from Chakma and Hajong community are not indigenous inhabitants of the State and by some arrangement with the then administrators of North East Frontier Agency (NEFA for short), now State of Arunachal Pradesh, a group of such people came to be settled in certain refugee camps. It was further submitted that there is no pleading in this PIL to show that the petitioners or others for whom relief is being claimed are descendants of lawful refugee, who had come with due permission from the competent authority. 9. In this regard, it was also submitted that the Chakma and Hajong refugees originally hailed from the Chittagong Hill Tracts and Mymensingh District of erstwhile East Pakistan, now Bangladesh. The said refugees had arrived in India during 1964-69. In 1964, NEFA was administered by the Central Government through the Governor of Assam. It was submitted that the original proposal was to settle them in the State of Mizoram. However, the then Governor of Assam and the then Chief Minister of Assam had decided to settle these refugees in Tirap District of NEFA without any consultation from the people of NEFA, now State of Arunachal Pradesh. It was submitted that ever since the arrival of the Chakma and Hajong refugees, indigenous people of the State have been demanding for the removal and deportation of these refugees out of the State. It was submitted that since their arrival, the people of the State have been pointing out the various problem they are facing because of socio-economic disaster, disturbance of peace and tranquility by criminal misconduct, territorial expansion, population expansion, etc. It was submitted that in 1964-69, 2748 Chakma and Hajong refugee families consisting of 14,888 persons were settled in NEFA (now Arunachal Pradesh), which has now crossed one lakh population, which is alarming to the indigenous people of the State, where birth rate of indigenous people is somewhat low and that these refugees have started to encroach large areas of the State. 10. 10. The learned Additional Advocate General has also questioned the maintainability of this PIL on the ground that Chakma refugees practice Hindu religion and the Hajong refugees practice Buddhist religion. It was submitted that although the prayers made in this PIL would benefit the petitioners, as such, they have made false statement in the PIL that "they have no personal interest in the litigation and the petition is not guided by self-gain or gain for any other person." Hence, it was submitted that the PIL is in violation of guidelines of Supreme Court of India dtd. 1/12/1988 as well as Gauhati High Court Rules. It was submitted that there is no explanation why the affected persons cannot approach the Court. It was also submitted that if reliefs are granted in this PIL, indigenous people of three Districts would be adversely affected and therefore, the Deputy Commissioners of the District cannot effectively represent the indigenous people of these districts, but the elected representatives of these District can only effectively represent the indigenous people. It was further submitted that this PIL had been filed without submitting representations before the concerned authority of Department of Panchayati Raj, Government of Arunachal Pradesh for remedial actions. In this regard, it was further submitted that neither the Election Commission of India, nor the State Election Commission are competent to take a decision of whether or not the various refugee camps are to be notified as villages within the meaning of 1997 Act. It was submitted that as per the requirement of the 1997 Act, the Government must notify a particular village to be a village. However, the 45 temporary refugee camps where these two refugee communities have been residing have not been notified to be a village within the meaning of Sec. 2(xvii) of the 1997 Act and the said areas cannot be covered within the meaning of Article 243-B of the Constitution of India. It was submitted that as these two refugee groups are not the indigenous native of the State and therefore, therefugee camp areas cannot be notified as 'village'. 11. It was also submitted that the State of Arunachal Pradesh is a Tribal State with a casteless society and covered by the Presidential Order 1950 and re-affirmed by 73rd amendment to the Constitution of India which had come into effect from 24/4/1993. 11. It was also submitted that the State of Arunachal Pradesh is a Tribal State with a casteless society and covered by the Presidential Order 1950 and re-affirmed by 73rd amendment to the Constitution of India which had come into effect from 24/4/1993. There are several provisions and safeguards for protection of Scheduled Tribes, including Bengal Eastern Frontier Regulation, 1873 and Chin Hills Regulations, 1896 by virtue of which a non-native cannot own land in the State. For an example, it was submitted that if some migrant labourers set up a temporary camp in an area and enjoy some basic amenities like electricity, water, etc., they cannot, after passage of some time, claim that their area be declared as notified village and hold and occupy land in violation of legal safeguards currently available in the State. It was further submitted that the Hajong and Chakma refugees have been granted electoral rights, yet a non-native and non- indigenous people cannot be given electoral rights in Panchayati Raj institutions and thereby allowing them right of self-governance and in this regard, reference has been made to the provisions of Ss. 107 and 110 of the 1997 Act and Rules 9 and 12 of 2002 Rules. It was submitted that as these refugees are not ordinary indigenous local residents of concerned Panchayati area, theHajong and Chakma people are not entitled to benefit of 1997 Act and that if any such right is conferred, people from these Hajong and Chakma communities would pre-dominate over the indigenous natives in the concerned areas. 12. Accordingly, it is submitted that the petitioners can only claim to be residing in India in the designated refugee camps in the State of Arunachal Pradesh and electors in concerned Parliamentary and Legislative constituencies. It was submitted that some of the petitioners may be from the lineage of some of the legal refugees, but it cannot be ruled out that some people of these communities may not be descendants of refugees who had lawfully entered into the Country with such refugee status. 13. It was also submitted that in the disputed factual matrix, the only remedy available to the petitioners would be to apply for registration as citizens under Sec. 5(1)(a) of the Citizenship Act, and to obtain rights flowing through such process. 13. It was also submitted that in the disputed factual matrix, the only remedy available to the petitioners would be to apply for registration as citizens under Sec. 5(1)(a) of the Citizenship Act, and to obtain rights flowing through such process. It is also submitted that the entry of non-indigenous persons into the erstwhile NEFA, now State of Arunachal Pradesh would be governed and/or regulated under the provisions of Bengal Frontier Regulation Act, 1873 which contains requirement of holding a valid "Inner line permit" to enter into the then NEFA and present State of Arunachal Pradesh. It is also submitted that the petitioners or other members of the Chakma and Hajong communities cannot claim better rights than what their predecessors had. It is submitted that neither the petitioners nor other persons from these two communities have any legal or fundamental right to be declared as Indian citizens. It is also submitted that Panchayati Raj institutions cannot be opened up for non-indigenous people. It is submitted that notwithstanding that some village names have been given to the refugee camps where the persons from these two communities have been residing, but the competent authority have not issued any declaration to include the said villages as Gram Panchayats/Anchal Samiti/Zila Parishad Constituencies under the 1997 Act. Accordingly, it was submitted that no mandamus can be issued to the State respondents to declare an area as Panchayati Raj area. 14. It is further submitted that the issue as to eligibility of descendants of non-citizens to claim citizenship under Sec. 3(1)(a) and (b) of the Citizenship Act, 1955 is an issue which is pending for decision by the Constitution Bench of the Supreme Court of India as per orders passed in the case of Assam Public Works Vs. Union of India, (2019) 9 SCC 70 : (2019) 0 Supreme(SC) 851. Accordingly, it is submitted that the said issue having not been raised in this PIL ought not to be heard and/or decided in this case. 15. It was submitted that no positive statement has been made in this PIL to show whether the petitioners were born within the territory of India. Accordingly, it is submitted that the said issue having not been raised in this PIL ought not to be heard and/or decided in this case. 15. It was submitted that no positive statement has been made in this PIL to show whether the petitioners were born within the territory of India. Accordingly, it was submitted that in order to claim themselves as a citizen born in India, the petitioners and all the persons claiming to be from Chakma and Hajong communities, would have to satisfy the test of Sec. 3(1)(a) of the Citizenship Act of having been born on or after 26/1/1987, but before 1/7/1987. The learned Additional Advocate General has referred to para-4 of the order dtd. 13/8/2019, passed by the Supreme Court of India in W.P.(C) No. 274/2009 - Assam Public Works (supra). The said para-4 is as follows:- "The purport and effect of the provisions of Sec. 3(1)(a) and (b) of the Act is presently pending consideration before a Constitution Bench of this Court in Writ Petition (Civil) No. 311 of 2015. Reference to the Constitution Bench was made by order of this Court dtd. 21/7/2015 in the said Writ Petition (Civil) No. 311 of 2015. The issue pending is whether the expression "every person born in India" would apply only to persons born to Indian citizens and whether the expression "either of whose parents is a citizen of India at the time of his birth" in S.3(1)(b) of the Citizenship Act, 1955 would apply to only a person who is born to parents one of whom is a citizen of India and the other a foreigner, provided he or she has entered India lawfully and his/her stay in India is not in contravention of applicable Indian laws." 16. It was submitted that in para-7 of the affidavit filed by the State Government before the Supreme Court of India in W.P.(C) No. 510/2007, it was stated that as per order dtd. It was submitted that in para-7 of the affidavit filed by the State Government before the Supreme Court of India in W.P.(C) No. 510/2007, it was stated that as per order dtd. 12/12/2017, the Ministry of Home Affairs, Government of India had forwarded 4637 applications to the Government of Arunachal Pradesh for consideration as per Citizenship Act, 1955 and out of which 3837 applicants were heard and 1798 applications were forwarded to the Ministry of Home Affairs, Government of India with a recommendation that none of the applicants were found eligible under the Citizenship Act and Rules and that remaining 2029 applications were found to be case of duplicate/triplicate applications who were either absent at the time of hearing or had expired. Hence, it was submitted that any decision, which may touch upon the interpretation of Sec. 3(1)(a) and 3(1)(b) of the Citizenship Act, 1955 may not be adjudicated in this case to avoid contradictory judicial opinions. The learned Additional Advocate General has submitted a written note of his submissions. Submissions made by the learned counsel for respondent no. 6: 17. The submissions made by the learned counsel for the respondent no. 6 are almost a reiteration of the submissions made by the learned Additional Advocate General for the State. In support of his submissions, the learned counsel for the respondent no. 6 has placed reliance on the order dtd. 12/3/2018, passed by the Supreme Court of India in (a) SLP (Civil) CC No. 21861/2015 - All Arunachal Pradesh Students' Union v. Election Commission of India and Ors., and (b) SLP (Civil) No. 17762/2016 - State of Arunachal Pradesh v. Election Commission of India and Ors. It was submitted that the Arunachal Pradesh Students' Union had moved this Court by filing PIL No. 52/2010, to assail the guidelines dtd. 3/10/2004, for summary revision of electoral rolls in four State Legislative Assembly Constituency on the ground that the Chakma and Hajong refugees were not eligible for enrollment in the electoral roll, which was dismissed and thereafter, an SLP was preferred before the Supreme Court of India, which was pending adjudication. Reliance was also placed on the case of Khudiram Chakma (supra), to project that rights of a foreigner was confined to protection of their life and liberty under Article 21 of the Constitution of India, which does not include the right to reside and settle in the State of Arunachal Pradesh. Reliance was also placed on the case of Khudiram Chakma (supra), to project that rights of a foreigner was confined to protection of their life and liberty under Article 21 of the Constitution of India, which does not include the right to reside and settle in the State of Arunachal Pradesh. It was also submitted that the citizenship status of these refugees had not been settled in terms of directions contained in the case of Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (supra) and therefore, the petitioners and the Chakma and Hajong people would not be entitled to be included in electoral roll for the purpose of 1997 Act and 2002 Rules framed thereunder. 18. Perused the following, viz., (1) writ petition, (2) additional affidavit filed by the petitioners on 25/8/2017, (3) additional affidavit filed by the petitioners on 27/11/2017, (4) affidavit- in- opposition filed by respondent no.3, (5) affidavit- in- opposition filed by respondent no.1, (6) affidavit- in- reply of the petitioners against affidavit- in- opposition filed by respondent no.3, (7) affidavit- in- reply of the petitioners against affidavit- in- opposition filed by respondent no.1, (8) additional affidavit filed by the State on 6/3/2019, (9) reply affidavit by petitioners against additional affidavit filed by State, (10) additional affidavit filed by petitioners on 6/12/2019, (11) affidavit-in-opposition filed on 8/11/2021 by respondent no. 2, (12) additional affidavit filed on 9/11/2021 by petitioners, and (13) affidavit-in- opposition filed by respondent no. 6 on 10/11/2021. Point to be decided: 19. The only point to be decided is whether in the petitioners are entitled to a relief for directing the State respondent authorities to notify/declare the 46 (forty six) Chakma and Hajong villages in Changlang, Namsai and Papum Pare Districts as Gram Panchayat, Anchal Samiti and Zila Parishad Constituencies. Reasons and decision: 20. The basic background facts are not in dispute. For the purpose of this order, it would suffice to mention that in the herein before referred case of Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (supra), it has been mentioned to the effect that the said writ petition under Article 32 of the Constitution of India was filed for seeking direction against Union of India through Ministry of Home Affairs to grant citizenship to the Chakma and Hajongtribal who migrated to India in 1964-1969 and were settled in the State of Arunachal Pradesh. Similarly, in the herein before referred case of National Human Rights Commission (supra), it has been mentioned to the effect that a large number of Chakmas from erstwhile East Pakistan (now Bangladesh) were displaced by Kaptai Hydel Power Project in 1964. They had taken shelter in the States of Assam and Tripura. Since large number of Chakmas had settled in the State of Assam, the Government of the State of Assam expressed its inability to rehabilitate all of them. Thereafter, in consultation with the erstwhile NEFA, now State of Arunachal Pradesh, about 4012 Chakmas were settled in various parts of NEFA. They were also allotted land in consultation of local tribal. The Government of India had also sanctioned rehabilitation assistance at the rate of Rs.4,200.00 per family and it has been mentioned therein that the then estimated population of Chakmas in the State of Arunachal Pradesh was about 65,000. The issue of granting citizenship to the Chakmas was considered by the Government of India, Ministry of Home Affairs and groups of Chakmas had made representations before the concerned Deputy Commissioners for grant of citizenship under Sec. 5(1)(a) of the Citizenship Act, 1955, but the applicants were not provided with the decision on their representation. By passage of time, relations between the Chakmas and people of Arunachal Pradesh had deteriorated and the Chakmas alleged their persecution. We do not intend to burden this order with other facts and details as narrated in the said judgments. 21. For considering the rival submissions, it is necessary to refer to Article 243-B of the Constitution of India, which reads as follows:- "243-B. Constitution of Panchayats.-(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. (2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs." 22. It would now be relevant to refer to certain provisions of the 1997 Act and 2002 Rules, which are as follows:- Sec. 2(xviii). 'Zila Parishad' means a Zila Parishad constituted under Sec. 85. Sec. 9. It would now be relevant to refer to certain provisions of the 1997 Act and 2002 Rules, which are as follows:- Sec. 2(xviii). 'Zila Parishad' means a Zila Parishad constituted under Sec. 85. Sec. 9. (1) Subject to the general or special order of the State Election Commission, the Deputy Commissioner may, if, in his opinion it is expedient to declare any area comprising a village or group of villages having a population of not less than three hundred to be a Panchayat area, after previous publication, declare such area as a Panchayat area for the purposes of this Act. Provided that the Deputy Commissioner may, with the previous approval of the State Election Commission, declare any area comprising a village or group of villages having a population of less than three hundred as special cases, as Panchayat area for the purposes this Act. (2) Subject to the provisions of this Act, the Deputy Commissioner may at the request of the Gram Panchayat concerned- (i) increase the area of any Panchayat area by including within such Panchayat area, any village or group; (ii) diminish area of any Panchayat area by excluding from such Panchayat area, any village or group of villages; (iii) after the name of any Panchayat area; or (3) There shall be an established a Gram Panchayat in every Panchayat area declared as such under this sec. *** Provided that the State Government may review the size of the population determining the area of Gram Panchayats from time to time. Rule 9 (1). A person shall be disqualified for registration in a electoral roll if he- (a) is not a citizen of India; (b) is of unsound mind or insolvent and stands so declared by a Competent Court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offence in connection with election. Rule 18 (1). Rule 18 (1). Every claim for the inclusion of a name in the Electoral Roll shall be:- (a) in form 4; (b) signed by the person desiring his name to be included in the electoral roll; and (c) countersigned by another person whose name is already included in that part of the roll in which the claimant desires his name to be included; (2) Every objection to be inclusion of a name in the roll shall be- (a) In form 5; (b) Preferred only by a person whose name is already included in that roll; and (c) Countersigned by another person whose name is already included in that roll; (3) Every objection to a particulars in a entry in the roll shall be- (a) In form 6; and (b) Preferred only by the person to whom that entry relates. Declaration as required under Form-4. I hereby declare to the best of my knowledge and belief: (i) That I am a Citizen of India (ii) That my age on qualifying date, i.e.. was .. (iii) *that I am ordinarily indigenous local resident at the address given above; (iv) That I have not applied for inclusion of my name in the electoral roll for any other Constituency or Municipality or Notified Area Authority; (v) That my name has not been included in the electoral roll for any other Constituency or Municipality or Notified Area Authority. Or That my name has been included in the electoral roll in constituency No of Gram Panchayat/Zila Parishad and I request that the same may be excluded from that electoral roll:- 23. At the cost of repetition, it is reiterated that as per the case of National Human Rights Commission (supra), about 4012 Chakmas were settled in erstwhile NEFA in the year 1965-1969, and that at the time when the Government of India had also sanctioned rehabilitation assistance at the rate of Rs.4,200.00 per family, the then estimated population of Chakmas in the State of Arunachal Pradesh was about 65,000. The learned Additional Advocate General and the learned counsel for the respondent no. 6 had, in unison, submitted that the present population of these two communities would exceed about 1,00,000 (one lakh). The learned Additional Advocate General and the learned counsel for the respondent no. 6 had, in unison, submitted that the present population of these two communities would exceed about 1,00,000 (one lakh). In this regard, in the absence of any material on record, it is difficult for the Court to accept that such a huge population of the said Chakma and Hajong communities are all residing only in the designated refugee camps. 24. Moreover, from the submissions made at the Bar, and specifically with regard to the order dated order dtd. 13/8/2019, passed by the Supreme Court of India in W.P.(C) No. 274/2009 - Assam Public Works (supra), the issue relating to interpretation of the provisions of Sec. 3(1)(a) and (b) of the Citizenship Act, 1955 is presently pending consideration before a Constitution Bench of the Supreme Court of India in Writ Petition (Civil) No. 311 of 2015. 25. It appears from the contention of the learned counsel for the petitioners that the issues that have been raised by the respondent no. 6 in SLP No. 17762/2016 (Civil Appeal No. 2798/2018) is similar to the one decided by the Supreme Court in the case of Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (supra). In this regard, the Court is of the considered opinion that in this case, the Court is not called upon to find out whether or not the issues in those cases are similar. Therefore, no comment is made on the said contention of the learned counsel for the petitioners. 26. The case of S.P. Chengalvaraya (supra), cited by the learned counsel for the petitioners is on the point that the non-production and even non-mentioning of documents at the trial would tantamount to playing fraud on the Court. In the facts of the present case, the said decision appears to have no application. 27. The case of Manohar Lal Chopra (supra), amongst others, is on the issue relating to the provisions of sec. 10 of the Civil Procedure Code and in the said decision, the Supreme Court of India had held that the provisions of sec. 10 are clear, definite and mandatory, further holding that a Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. In the case of Pukhraj D. Jain (supra), the same issue relating to sec. 10 are clear, definite and mandatory, further holding that a Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. In the case of Pukhraj D. Jain (supra), the same issue relating to sec. 10 of the CPC was involved. These two cases do not appear to help the petitioners in any manner. 28. In the case of Lal Chand (dead) (supra), the point decided by the Supreme Court of India was with reference to the provisions of Order-XLI, Rule 4 of the CPC and it was held that the case of death of one defendant when the joint eviction decree was passed against several defendants, appeal by the remaining defendants against whole decree was maintainable. Therefore, the said decision does not help the petitioners in any manner. 29. In the case of Daryao and Ors. (supra), the Constitution Bench of the Supreme Court of India had held to the effect that where the High Court dismisses a writ petition under Article 226 of the Constitution of India after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court of India under Article 32 of the Constitution of India on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata. The said decision also does not help the petitioners in any way. 30. In the case of Satyadhyan Ghosal (supra), the issue of principles of res judicata was involved and that it was also held that the said principles have been applied by Courts for the purpose of achieving finality in litigation. The said issue would be adverted to in subsequent paragraph. 31. The cases of Kala Bharati Advertising (supra) and Rajneesh Khajuria (supra), the issue involved, amongst others, is the issue relating to "legal malice" or "malice in law". The said principle has been argued is support of the contention that the State respondents, without any lawful excuse and without any reasonable cause had omitted to notify the areas where the Chakma and Hajong population was residing to be a village within the meaning of sec. The said principle has been argued is support of the contention that the State respondents, without any lawful excuse and without any reasonable cause had omitted to notify the areas where the Chakma and Hajong population was residing to be a village within the meaning of sec. 2 (xvii) of the 1997 Act in order to prevent the Panchayati Raj institutions to be constituted in these areas and to prevent participation of the people of these two communities in Panchayati Raj Institutions and to prevent the entry of the names of the eligible voters from these two communities in the electoral rolls which are prepared under the 2002 Rules. 32. In the case of Khudiram Chakma (supra), the Supreme Court of India, while examining the donation of land in favour of the Chakma refugees by Raja Nirunong Singpho of Domba by donation deed dt. 20/11/1972, held that the same was illegal and in the said regard, reference was made to Sec. 7 of the Bengal Eastern Frontier Regulation, 1873 and Clause-9 of the Foreigner's Order, 1948, which are applicable to Arunachal Pradesh and it was held that the said provisions specifically prohibit such transfer without prior permission of the State Govt. and it was held that no such permission was obtained in this case. In this regard, the Supreme Court of India had also taken note of the fact that the tribal of North-Eastern States are historically protected races and that Part X of the Constitution of India contains provisions and laws governing them. Nonetheless, the Court opined that the decision regarding settlement of foreigners is a matter of policy and it is well-settled in law that the Court does not interfere in a matter of governmental policy since it is for the government to decide. While deciding the claim of the Chakma refugees for citizenship under sec. 6-A of the Citizenship Act, 1955, it was observed by the Supreme Court of India that since the territory of Arunachal Pradesh in the year 1964 was included in the State of Assam, they would be entitled to the benefit of sec. 6-A of the Citizenship Act, 1955 and it was held that sec. 6-A of the Citizenship Act, 1955, it was observed by the Supreme Court of India that since the territory of Arunachal Pradesh in the year 1964 was included in the State of Assam, they would be entitled to the benefit of sec. 6-A of the Citizenship Act, 1955 and it was held that sec. 6-A of the Citizenship Act, 1955 came to be incorporated by amending Act as a result of Assam Accord and further observed that if the law lays down certain conditions for acquiring citizenship, we cannot disregard the law and accordingly, it was held that the fundamental right to foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this Country and accordingly, it was held that Article 19(1)(e) was applicable only to the citizens of this Country and Articles 19(1)(d) and (e) are non-available to the foreigners. It may be stated that the facts of the said case was that the land of the Chakma refugees was acquired and the authorities were proposing to shift them to another place. On these facts, the High Court come to a conclusion that the Chakma people had no right to seek a permanent place of abode in that area and that the authorities had every right requiring them to shift. However, the High Court on humanitarian grounds, directed the State Govt. to give adequate compensation to the Chakma people being evicted from the place. On such factual matrix, the appeal filed by Khudiram Chakma was dismissed and the appeal filed by the State of Arunachal Pradesh was allowed. However, as a statement was made before the Supreme Court of India by the learned counsel for the State that the Chief Minister was ready to hear the representative of Chakma group, it was directed that an opportunity be afforded to the appellants by the Chief Minister and grant such relief as he deems fit and it was also made clear that it would be a post-decisional hearing. 33. In the case of Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (supra), the petitioner therein had filed a petition under Article 32 of the Constitution of India seeking a direction from the Supreme Court regarding grant of citizenship to Chakma and Hajong refugees by contenting that in the case of National Human Rights Commission Vs. 33. In the case of Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (supra), the petitioner therein had filed a petition under Article 32 of the Constitution of India seeking a direction from the Supreme Court regarding grant of citizenship to Chakma and Hajong refugees by contenting that in the case of National Human Rights Commission Vs. State of Arunachal Pradesh, (1996) 1 SCC 742 , their rights were recognized but still no substantial actions had been taken to grant citizenship and accordingly, directions was issued to the Govt. of India and the State of Arunachal Pradesh to finalize the conferment of citizenship rights on eligible Chakma and Hajong people and also to ensure compliance with judicial decisions referred in the said order, further directing that the exercise may be completed at the earliest preferably within 3 (three) months from the date of the order. 34. It is observed that from time to time separate groups of petitioners have been invoking the jurisdiction of the Supreme Court of India under Article 32 of the Constitution of India, as well as the jurisdiction of the Delhi High Court and also of this Court under Article 226 of the Constitution of India by filing writ petitions and PILs, and that separate issues are raised from time to time. This can be seen from the fact that although the 1997 Act had received the consent of the President of India on 13/4/2001 and notified in the Gazette on 30/4/2001, but when the Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (supra)was filed in the year 2007, the petitioners before the Supreme Court of India did not claim any relief for inclusion of the names of Chakma and Hajong refugees in the electoral roll prepared under the 1997 Act and 2002 Rules. In the case in hand, the categorical submissions of the learned counsel for the petitioners is that in the herein before referred cases of Khudiram Chakma (supra), Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh (supra), and National Human Rights Commission (supra), had been decided in light of the provisions of Sec. 5 of the Citizenship Act, 1955 and that in the present case, the petitioners are claiming rights flowing to the Chakma and Hajong communities under Sec. 3(1)(a) of the Citizenship Act. Therefore, if the cases of this nature are not filed in a representative capacity, there is every likelihood that other group of people would claim not to be bound by the judgments and orders passed by Courts and again approach the Court with some distinctive facts. If this is allowed, there would possibly be no quietus to the issues raised and decided from time to time before various Courts and forums including (i) the Supreme Court of India, (ii) various High Courts of the Country, (iii) National Human Rights Commission, (iv) Election Commission of India, (v) the State Election Department, etc. because some other groups would raise another issues. Moreover, there would also be a likelihood of divergent opinion of various Courts and forums. 35. While filing this present PIL, no leave, as envisaged under the provisions of Rule 8 of Order I of the CPC, was obtained by the petitioners from the Court to sue in a representative capacity. Similarly, none of the parties are arrayed as respondents in a representative capacity to represent the indigenous native people of the State of Arunachal Pradesh, who are ordinary inhabitants of the respective districts where the petitioners are seeking rights under the 2007 Act and Rules framed thereunder. The Court finds force in the submissions made by the learned Additional Advocate General and the learned counsel for respondent no.6 that the people of the State, who have been vehemently opposing the grant of right of residence, right to hold land and right to reside within the State of Arunachal Pradesh had not been arrayed as party respondents in the representative capacity. It is too well settled that only when a case is permitted to proceed in a representative capacity, the persons in whose benefit the litigation has been filed or defended would be bound by the judgment, order or decree. In matters where the rights of the indigenous native people are at stake, in the event any direction is issued by the Court to the State Election Commission to declare the 46 Chakma andHajong village areas in the three districts of Changlang, Namsai, and Papum Pare District as Gram Panchayat/Anchal Samiti/Zila Parishad Constituencies, it would materially affect such people. In matters where the rights of the indigenous native people are at stake, in the event any direction is issued by the Court to the State Election Commission to declare the 46 Chakma andHajong village areas in the three districts of Changlang, Namsai, and Papum Pare District as Gram Panchayat/Anchal Samiti/Zila Parishad Constituencies, it would materially affect such people. Therefore, in the opinion of the Court, such a direction ought not to be issued in the absence of native/indigenous people of these areas having been arrayed as a party respondent in this litigation, at least in representative capacity. In this regard, it is seen that the Supreme Court of India in the case of Khudiram Chakma (supra) had observed that the Chakma refugees had no right under Articles 19(1)(d) and (e), being unavailable to foreigners, and it was further held that the land held by the Chakma refugees by donation of land by the Raja was clearly invalid, which was held in light of (i) Sec. 3 of the Foreigner's Act, 1946, (ii) Clause-9 of the Foreigner's Order, 1948, and (iii) by respecting the provisions of Sec. 6-A of the Citizenship Act, 1955. It was also observed that the tribal of North-Eastern States are historically protected races and that Part X of the Constitution of India contains provisions and laws governing them. In light of such observation, in cases of this nature where the relief sought for would materially affect the protection given to the indigenous natives of the State of Arunachal Pradesh, the people of the State are required to be heard, at least in representative capacity. 36. In view of the discussions above, the Court is of the considered opinion that in cases of the present nature, where there is likelihood of protections granted to the indigenous native tribal people of the State being diluted and in the absence of any leave to proceed with this litigation in representative capacity, the Court is not inclined to grant any relief to the petitioners in this PIL. However, it is made clear that this order would not preclude the petitioners or any other member of Chakma and Hajong refugees to approach this Court again with an appropriate application by applying for leave to sue in representative capacity, by impleading such appropriate persons as party respondents by suing them in representative capacity. However, it is made clear that this order would not preclude the petitioners or any other member of Chakma and Hajong refugees to approach this Court again with an appropriate application by applying for leave to sue in representative capacity, by impleading such appropriate persons as party respondents by suing them in representative capacity. The Court is inclined to accept the submissions made by the learned Additional Advocate General and the learned counsel for the respondent no. 6 that Deputy Commissioners of the three districts cannot be stated to be representatives of the people of the three districts where the refugees of Chakma and Hajong communities have been settled. 37. Moreover, as indicated herein before, as the issue relating to citizenship as provided for in Sec. 3(1)(a) and (b) of the Citizenship Act, 1955 is now sub judice before the Constitution Bench of the Supreme Court of India, which would have some implication on the status of the persons from Chakma and Hajong communities, this Court would be a loath to hold that the petitioners and other Chakmaand Hajong community persons are entitled to be enrolled as voters for the purpose of 1997 Act and 2002 Rules framed thereunder notwithstanding that a sec. of the said community have been conferred with voting rights in Parliamentary and Legislative constituencies. Each voter would have to be enrolled in the electoral rolls as per his/her own entitlement. 38. From a conjoint reading of the provisions of Article 243-B of the Constitution of India and the provisions of Sec. 2 (xvii), Sub-sec. (1) of Sec. 9 of the said 1997 Act, it appears that there is a Constitutional mandate to constitute Panchayat at village, intermediate and district levels in all the States. The provisions for composition of Panchayat and other provisions relating to Panchayat is provided under Article 243-C to Article 243-O of the Constitution of India, which need not be elaborated for the purpose of this writ petition. Although, no precedent on Panchayat has been cited at the Bar, but it may be relevant to mention herein that the Supreme Court of India in the case of Sundarjas Kanyalal Bhatija and Ors. Vs. Although, no precedent on Panchayat has been cited at the Bar, but it may be relevant to mention herein that the Supreme Court of India in the case of Sundarjas Kanyalal Bhatija and Ors. Vs. Collector, Thane, Maharashtra and Ors., AIR 1990 SC 261 , inter alia, had held to the effect that since the specification of an "urban area" and the constitution of the "Municipal Council" for the said area are the legislative functions, applicability of the rule of natural justice is excluded therefrom. Para-23 of the said judgment is quoted below:- "23. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative. Counsel for the appellants was right in his submission that it is legislative process indeed. No judicial duty is laid on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with, then, the court could say no more. In the present case the Government did publish the proposal by a draft notification and also considered the representations received. It was only thereafter, a decision was taken to exclude Ulhasnagar for the time being. That decision became final when it was notified under Sec. 3(2). The court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even "its juster will for theirs. 24. Equally, the rule issued by the High Court to hear the parties is untenable. The Government in the exercise of its powers under Sec. 3 is not subject to the rules of natural justice any more than is legislature itself. The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to hear the parties who are not entitled to be heard under law." 39. The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to hear the parties who are not entitled to be heard under law." 39. Thus, from the above, it appears that in so far as the issue of establishing a "Municipal Corporation" is concerned, the Supreme Court of India, in clear terms, has held that the function of the Government in establishing a Corporation is neither executive nor administrative but there is a legislative process. There cannot be a different view when it comes to establishing 'village' for the purpose of 1997 Act and 2002 Rules. Therefore, no directions can be issued on the Government in discharge of its legislative duties. From the said judgment it is also seen that the procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. 40. Moreover, from a perusal of Sec. 9(1) of the 1997 Act, it appears that the State Government, having regard to the factors mentioned in Article 243-B of the Constitution of India is empowered by notification in the official Gazette to specify the local area of having regard to population of not less than 300 to be a Panchayati Raj areas. 41. The Court finds force in the submissions made by the learned Additional Advocate General as well as the learned counsel for respondent no.6 that as per sec. 2 (xvii) of the 1997 Act, it would be the prerogative of the Govt. to declare an area recognize to be village. Therefore, whether the Govt. would notify an area to be a village within the meaning of 1997 Act would be the policy decision of the State. In this regard, the Court takes note of the observations of the Supreme Court of India in the case of Khudiram Chakma (supra) that the Court cannot enter into the wisdom of a policy of the State. Therefore, bound by the precedent on the point, this Court would refrain from venturing into the prerogative of the State to take a policy decision as to whether they would notify any particular area to be a village within the meaning of sec. 2 (17) of the 1997 Act. 42. Therefore, bound by the precedent on the point, this Court would refrain from venturing into the prerogative of the State to take a policy decision as to whether they would notify any particular area to be a village within the meaning of sec. 2 (17) of the 1997 Act. 42. The Court is aware about the limitations for exercising the power of judicial review under Article 226 of the Constitution of India. The Court cannot sit in judgment over the decision of the State Government as to whether the State Government has rightly or wrongly not declared 46 villages where the Chakma and Hajong community people are residing, being a policy decision. However, while exercising our jurisdiction under Article 226 of the Constitution of India, the Court finds that there are no materials available on record to show that the competent authorities of the State have taken into consideration the factors relevant factors in terms of the mandate of Article 243-B of the Constitution of India in respect of the said specific areas. 43. Therefore, the Court cannot hold that the decision making process of the State Government is vitiated by not taking into consideration the relevant factors and taking into consideration the irrelevant factors or that the inaction on part of the Government is vitiated by legal malice or malice in law. 44. Nonetheless, the prayer made in the PIL for a direction to the respondent no. 2 to notify/declare the 46 Chakma and Hajong villages in Changlang, Namsai and Papum Pare Districts as Gram Panchayat/Anchal Samiti/Zila Parishad Constituencies under the provisions of Arunachal Pradesh Panchayat Raj Act, 1997 (Act V of 2001) (hereinafter referred to as the "1997 Act" for brevity), further directing the respondent no. 2 to include the members of the Chakma and Hajong community in the electoral rolls for the purpose of such elections are found to be beyond our jurisdiction. In this regard, the Court is constrained to hold that if such a mandamus is issued, the Court would be clearly encroaching upon the jurisdiction of the State Government to exercise the powers under Sec. 9 of the 1997 Act. In this regard, the Court is constrained to hold that if such a mandamus is issued, the Court would be clearly encroaching upon the jurisdiction of the State Government to exercise the powers under Sec. 9 of the 1997 Act. Therefore, we deem it appropriate to leave it open for the State Government to decide as to what future course of action it proposes to take having regard to the mandate of Article 243-B of the Constitution of India and Sec. 9 of the 1997 Act. 45. This PIL stands dismissed, leaving the parties to bear their own cost. 46. Before parting with the records, it is clarified that none of the observations made herein is intended to prejudice any of the parties whose litigations are now pending before the Supreme Court of India and the observations made herein are qua the issues which have been raised in this PIL.