judgement:
Appeal Nos.
2182/93 with 2181/93.
From the Judgment and Order dated 30.4.1992 of the Gauhati High Court in Civil Rule No. 166 of 1984.
A.M. Mazumdar, Attorney General, Arunachal, K.K. Venugopal, Shahid Rizvi and Ms. Manjula Gupta, Appellant in C.A. No. 2182 of 93 and for the Respondent in C.A. No. 2181/93.
Govind Mukhoty and S.K. Bhattacharya for the respondent in C.A. No. 2182/93 and for the Appellant in C.A. No. 2181/93.
The Judgment of the Court was delivered by MOHAN.J.
Leave granted.
Both these civil appeals arise out of the judgment of the Gauhati High Court dated 30th April, 1992 rendered in CR.
No. 166 of 1984.
The short facts are as under: The parties will be referred to as the appellant and the State of Arunachal Pradesh.
The appellant alongwith his family members and other 56 families migrated to India on 30th March, 1964 from erstwhile East Pakistan, now Bangladesh, due to disturbances prevailing at that time.
They took shelter in a government camp at Abhayapur Block in Tirap District.
The appellant and other 56 families are known as Chakmas of the erstwhile East Pakistan.
They being the refugees were given shelter in government camp at Ledo in the District of Dibrugarh, Assam.
Later on, in 1966, they were shifted to the Camp at Miao within the State of Arunachal Pradesh.
Arunachal Pradesh was called NEFA (North East Frontier Agency) prior to 1972.
On 21st January, 1972 it was given the status of Union Territory of 406 Arunachal Pradesh.
It became a full fledged State on 20th February, 1987, Geooraphically, it is situated on the north east of India and has a long international border with Bhutan, China and Burma (Burma presently called Myanmar).
It is the largest State areawise in the north east region, even larger than Assam which is the most populous State.
The population of Arunachal Pradesh, according to the 1981 census is 6.32 lakhs.
It is scattered over 12 towns and 3,257 villages.
There are 26 Major tribes.
Broadly speaking, the people in the State can be divided into three cultural groups, on the basis of their socio regional affirmities.
i) The monpas and Sherdukpens of Tawang and West Kemeng District; ii)Khamptis and Singhphos inhabiting the entire easternpart of the State , and iii)The Neotes and Wanchos adjoining, Negal and in the Tirup District; In the year 1966, the State Government drew the Scheme known as Chakma Resettlement Scheme for these refugees.
Areas were earmarked for their settlement at different parts of the State and accordingly they were asked to move to the areas earmaked for them, In all, 5 Schemes were sanctioned for their settlement (comprising of about 3100 families of refugees) at the cost of more than Rs. 2 crores.
The appellants along with 56 families were allotted lands in the villages of Gautampur and Maitripur.
There were already a good number of Chakma refugee families who were allotted lands and were living there peacefully.
The appellants instead of residing in the said allotted areas under the Resettlement Scheme drawn by the Government, strayed away from it and negotiated with the Local Raja namely Nigrumong Singpho of Damba for an area of one sq.
mile of his private land and got the same from the said Singpho through an unregistered deed dated 20th November, 1972.
The State would contend that the said transfer is illegal because as per section 7 of the BEFR, 1873 (Regulation 5 of 1873) no person, who is not a native of the District, would acquire any interest in the land or the produce of the land beyond the inner line without the sanction of the State Government or such officer as the State Government may appoint in this behalf.
On the contrary, the stand of the appellant is that since the date of donation they have been residing and cultivating 407 the said land and they have developed the area for habitation purposes.
It is further alleged on behalf of the appellant that in 1975, a village panchayat of Joypur village was formed after election of the members.
The appellant was appointed as the Gaon Bura of the village.
This was with the approval of the Government, in token of which a sanad dated 20.11.75 was issued in his name.
The Deputt Commissioner at kenosa approved the transfer and the Extra Assistant Commissioner, Miao by his memorandum No. MR S (A) n5/8648 51 dated 26.4.70 issued instructions against any attempt to allot the land to other and generally against any eviction of the appellants from the said land.
Some Deori families who were allotted lands in the adjacant area of Joypur village attempted to encroach upon the lands of the appellant and on a complaint lodged, the authorities concerned i.e. Executive Magistrate at Miao by his letter dated 30.5.77 issued instructions to Ningronong Singpho Rajkumar to turn out the extra families from the appellant 's village with a direction to the Circle Officer, Diyun to report compliance.
It was after such intervention that such outsiders in due course were expelled.
After obtaining the donation from the Raja by dint of hard labour they developed the jungle area which was a hillly uneven tract of land.
In view of the tremendous agricultural success the Tirup District authorities granted two Rice Hullar Units in the name of the appellant.
The Chakmas transformed the land into a truly self sufficient village.
In view of prosperity and growth of land the nearby villagers sought to dislodge the appellant and families by raising various disputes, one of which was that the place cannot be utilised as refuge settlement and that they should be shifted to another place.
Circle Officer, Diyun issued an order dated 15.2.84 directing the appellant to shift to the vacant land at Gautampur and Maitripur villages latest by 24th of February, 1984.
The representation requesting the Chief Minister of Arunachal Pradesh to interfere was of no avail.
The appellant after settling in this unauthorised land started committing criminal and illegal activities.
There were several complaints to the effect that the appellant is encroaching upon the private lands illegally in connivance with the local people, particularly, Singphos.
In order to investigate the matter fully, the Government, vide its letter dated 4.4.1979, directed an enquiry into the whole matter through a Committee compris 408 ing of 9 persons with the Deputy Commissioner of the area as the Chairman.
The said committee after the investigation submitted its report on 11.6.79, stating therein that about 788 families of Refugees (Chakmas, Deori, and Bhufia) have illegally encroached upon about 872 Hectares in Miao Sub Division alone.
The said Committee observed that: "7.
The fear of the local people regarding heavy growth of population among the Chaknias has already been stated above and it is also well known to the Government.
But such fear maybe true in the case of Deoris and Ahoms too because it has been seen that in their case too the irpopulation is increasing by leaps and bounds, for instance it is learnt that when they were inducted there were only 6 Ahom families and 32 Deoria, where as this has now increased to 23 and 106 respectively, We should, therefore, watch by one method or the other that flow of Chakmas, Deoris and Ahoms does not at all take place.
For this purpose formal allotment of land to each family is very necessary and further in order to guard against new entrents, the DCs office is said to be taking up the issue of identity cards." "9.2 Land is still available in Innano, Dumba and Modoi, especially after the eviction of four Chakma villages during March last.
Singphos have been known to induct outsiders not only without Govt.
's approval but also by various undesirable mathods, this has to be properly watched and if found necessary we may have to give exemplary punishment to those who indulge in such practice.
Already there is some sign of dissension among the local people due to the activities of one Nirunong of Kumchai village who was mainly responsible for inducting Chaknias in Jaipur village, 10 Deori families and some other from outside.
It has also been seen that in Innano village there are six tea garden tribals who have been living and working since the last 10 years with Inner Line passes renewed from time to time but obviously with the understanding that the local people would subseqently give them land for permanent resettlement.
" The State received complaints that Chakma people were indulging in illegal activities such as commission of offences under various lands, collection of arms and anununitions, establishing conteracts with the Extremist groups, encroachment of adjoining areas.
The State, therefore, found it necessary to shift them to 409 a site where other Chakma families were already residing.
It was in these circumstances, by order dated 15.2.84, the State directed the appellant and the other Chakmas to shift.
The said order is to the following effect: "In connection to this office memoranodum No. LS 4/83/84/ 2478 79 dated 6.2.84, the Chakma of Joypur village are hereby directed to shift to the vacant land allotted at Gautampur and Maitripur village latest by 25.2.1984.
This may be treated as final notice, failing whichlegal action will be taken against the defaulters.
" Questioning the correctness of the order CR No. 166 of 1984 was filed before the High Court of Gauhati: It was urged: (i) The petitioners are citizens of India.
(ii) Their fundamental rights have been infringed.
(iii) The impugned notice dated 15th of February, 1984 is illegal, arbitrary and had been issued in violation of the principles of natural justice.
The High Court of Gauhati formulated three questions for determination: 1.
Whether the writ petitioner and the 56 chakma familes now settled in Joypur village, Miao subdivision, Arunachal Pradesh are citizens of India or foreigners, 2.
If they are not citizens of India, whether the authorities concerned have right to give direction to these Chakma people to move to another place.
Whether the impugned order dated 15.2.1984 is arbitrary, devoid of reason and violative of the provisions of the Constitution.
While urging the first question it was contended that the petitioner and the other Chakma families came to Assam in 1964 and stayed there for some time.
They were shifted to Miao Sub Division in Arunachal Pradesh.
In 1964, the territory of Arunachal Pradesh was included in Assam.
Since they stayed in Assam 410 they must be deemed to be citizens of India within the meaning of Section 6 A of the as amended in 1985.
They also contended that proviso to Section 2 of Immigrants (Expulsion from Assam) Act, 1950 would also protect them.
The High Court, on an elaborate consideration of the provisions of , came to the conclusion that language of Section 6 A of the is very clear.
It states that person who have come into Assam before January 1966 from the specified territory and who have been ordinarily resident in Assam since the date of their entry shall be deemed to be citizens.
Admittedly, the petitioners therein would not fell under this category as they stayed in Assam for a short while in 1964.
Accordingly, they will not be citizens of India.
On the second question, the High Court referred to Section 7 of the Bengal Eastern Frontier Regulation, 1873.
That section specifically prohibits the acquisition of interest in land by other than the natives of the district without the sanction of the State Government.
Admittedly, there was no sanction of the State Government in favour of the petitioners under the said Regulation which is applicable to Arunachal Pradesh.
Besides, clause 9 (2) (a) of the Foreigners Order 1948 prohibits acquisition of land or any interest thoreon or within the prohibited area by any foreigner.
Clause 9 (2) (b) states that the local authority may impose conditions regarding acquisition of land or any interest thereof or any other matter deemed necessary in the interest of public safety.
There was no controversy that the place where chakmas were staying is within the inner line which is protected area notified by the State Government.
In view of the facts, the High Court came to the conclusion that the petitioners had no right to seek a permanent place of abode in that area.
The authority had every right requiring them to shift.
On the third question.
after going through the various files produced by the State Government, in the court, the High Court found various complaints against these chakmas.
They were indulging in procuring arms and ammunation and were actively, associating with anti social elements Accordingly, it was concluded that the impugned order is not devoid of any reason.
Lastly, the High Court, on humanitarian grounds, directed the State Government to give adequate compensation in the event of these chakmas being evicted from the place.
The State of Arunachal Pradesh has preferred S.L.P. (C) No. 12429 of 1992 while Khudiram Chakma has filed S.L.P. (C) No. 13767 of 1992.
411 Mr. Govind Mukhoty, learned counsel for the appellant urges that in 1947 the appellants were Indian citizens.
Because of the partition of the country they went over to the then East Pakistan, presently Bangladesh.
But when they returned in 1964 to the erstwhile Assam State they stayed there for some time and shifted to Arunachal Pradesh.
To deprive them of the citizenship would be violative of Article 14 of the Constitution of India.
By mere accident of their going over to Arunachal Pradesh, they cannot lose their citizenship.
The learned counsel referred us to the various provisions of the .
He urges that there is evidence, in this case, of donation of lands in favour of these appellants by Raja Nirunong Singpho of Dumba.
That was approved by the Deputy Commissioner as seen from memorandum dated 26th of April, 1976.
The appellant was appointed Gaon Bura of Joypur village.
In proof of that Sanad was issued by the Deputy Commissioner.
Again, the Executive Magistrate had directed the Raja to turn out the extra families occupying lands at Joypur in the area allotted to the appellants and other Chakmas.
There is also evidence on record to show that chakmas have been paying taxes including house tax.
When that be the position, there is no justification at all calling upon the appellants and the other 56 families to shift.
There was no notice before calling upon the appellants to shift.
This Court in Scheduled Caste and Weaker Section Walfare Association vs
State of Karnataka ; , a case arising under karnataka Slum Areas (Improvement and Clearance) Act, 1973, held that before eviction a slum dweller does have a right to say.
Therefore, it is submitted that the principle of natural justice applies to noncitizens also.
In Louis De Raedt vs Union of India ; this Court took the view that the fundamental rights are available to foreigners as well, including Article 21 of the Constitution.
Mr. K.K. Venugopal, learned senior counsel, appearing for the State of Assam contends in opposition: The appellants cannot claim to be citizens of India by invoking Section 6 A of the as amended and incorporated on 7.12.85 in pursuance of the Assam Accord.
In order to get the benefit of Section 6 A two conditions mentioned in sub section (2) of the said Section must be satisifed simultaneously: (i) The persons who are of Indian origin (viz. undivided India) came before 1.1.66 to Assam from the specified territory ', and 412 (ii) have been "ordinarily resident ' in Assam (as it existed in 1985) since the date of their entry into Assam.
In so far as the appellants were residing in Miao sub division of Tirup District, Arunachal Pradesh since 1968 they did not satisfy these conditions.
As to what exactly is the meaning of "ordinarily resident" could be seen from Shanno Devi vs Mangal Saini ; at 590.
It is true that this Court in Louis De Raedt (supra) took the view that even foreigner has a fundamental right, but that fundemental right is confined only to Article 21 and does not include the right to move freely throughout and to reside and stay in any part of the territory of India, as conferred under Article 19(1) (d) and (e).
Such a right is available only to the citizens.
The appellants being foreigners, cannot invoke Article 14 of the Constitution to get the same right denied to them under Article 19 since Article 14 cannot operate in regard to a right specifically withheld from non citizens.
In support of this submission, reliance is placed on Indo China Steam Navigation Co vs Jasjit Singh 94 at 621 to 622 and Louis De Readt (supra).
The land donated in favour of the appellants by Raja Nirunong Singpho of Dumba by donation deed dated 20.11.72 is illegal.
Section 7 of the Bengal Eastern Frontier Regulation 1873 and clause 9 of the Foreigners under 1948, which are applicable to Arunachal Pradesh, specifically prohibit such transfer without prior permission of State Government.
No such permission, in this case, was obtained.
The tribals of North eastern States are historically protected races.
Part x of the Constitution of India contains provisions and laws goveming them.
The decision re arding settlement of foreigners is a matter of policy.
It is well settled in law that the Court does not interfere in a matter of governmental policy since it is for the Government to decide.
On the quesion of natural justice before passing the impugned order dated 15.2.84 the learned counsel.
, producing the relevant material from the file, would urge that it is not correct to state that the order came to be issued all of a sudden.
There is abundant material to show that the question of eviction was an ongoing process.
right from 1978.
Many notices were issued over a period of years to shift to villages Maitripur and Gautampur.
There were protests from chakmas.
From the file it is seen that the appellant was aware of the shift order dated 26.9.83.
There was also an oral hearing of the same.
It was because of the complaints filed by the residents of the locality against the appellant and in view of the report that they were induling in procuring arms and ammunition and were in close contact with anti social elements.
Taking an overall view of the matter, the impugned order 413 came to be passed.
On ground realities, natural justice is fully satisfied.
In support of the above submissions, the learned counsel relied on the following cases: p. 331 A to 332 H, 334 A to J: R.v.
Secretary of State for the Home Department ex party Cheblak.
; , Lord Bridge of Harwich, p. 723 F to 724G Lord Templeman, p. 725 J, 726 A to C. Lord Ackner.
p. 73 1 H 732G H 735 F J Lord Lowry, p. 737 D J. Brind vs Secretary of State ; Council of Civil Service Unions vs Minister for the Civil Service D) p. 219, 223 A J, 229 McInnes vs onslow Farne & Anr.
; at p. 722 723 para 12, 13 JR Vohra vs India Export House Pvt. Ltd. at p. 738 para 20 22 Maharashtra State Board of Secondary & Higher Education.
vs KS.
Gandhi at p. 263 Satya Vir Singh vs Union of India However, the learned counsel fairly conceded that the Chief Minister was willing to hear the appellants or any representative of their group, additionally, as a post decisional hearing, even though they had full opportunities over a period of four years.
It is his submission that it must be a post decisional hearing as otherwise, if the decisions were against the appellants a further round of litigation would be embarked upon.
We will proceed to consider the correctness of the above submissions 414 providing the necessary background and the factual matrix.
The history of the mountainous and multitribal north east frontier region which is now known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology.
According to Puranic legend, Rukmini, the daughter of king Bhishmak, was carried away on the eve of her marriage by Lord Krishna himself.
the ruins of the fort at Bhalukpung are claimed by the Akas as the original home of their ancestor Bhaluka, the grandson of Banna Raja, who was defeated by Lord Krishnaat Tezpur (Assam).
A Kalita Kinu, Ramachandra, driven from his kingdom in the plains of Assam, fled to the Dafla (now Nishan) foothills and established there his capital of Mayapore, which is identified with the ruins on the It a hill.
A place of great sanctity in the beautiful lower reaches of the Lohit River, the Brahmakund, where Parasuram opened a passage through the hills with a single blow of his mighty axe, still attracts the Hindu pilgrims from all over the counrty.
In the year 1838, when the British took over the administrative control of Assam from the last Ahom king, Shri Purander Singh, it was thought necessary to extend elementary regular administration to the adjoining north east frontier region.
The first import and step in this direction was as such initiated with adoption of Regulation V of 1873 empowering the then Lieutenant Governor of Assam to prescribe a Line, called 'Inner Line ' with a view (1) "to bring the commercial relations of the hills with the plains under more, stringent control, (2) to prevent of operation of speculators in "caoutchouc" (raw rubber), (3) to prevent the spread of tea gardens, and (4) to lay down rules for the possession of land and property beyond the 'Inner Line ' without special permit.
" A Notification bearing No. 1486, dated June 21, 1876 was issued by the Government of India, foreign Department to the effect that the Governor General was pleased to prohibit all British Subjects from going beyond the inner line without a pass under the hand and seal of Deputy Commissioner.
After covering the hilly areas administratively, the whole of tribal region was divided into two Frontier Tracts in 1915.
By 1937, the administrative status of North East Frontier Tract could be effected to under the Govemment of India 's (Excluded and Partially Excluded Area) Order of 1936.
Under the effective provision of the Section 91 (i) of the governmentoflndia Act, 1935, the above Frontier Tract came to be known as Excluded Area of Assam.
Again, the 1942 administrative change took place as a consequence of which Tirap Frontier Tract was carved out of the Sadiya Frountier Tract.
In 1943.
an adviser was appointed as the administrative head with a purpose to develop the region 415 through gradual penetration of the administrative machinery.
Another change was effected in the administrative set up on the 26th of January 1950 when the Government of Assam was relieved of its responsibility for looking after the administration of the Excluded Area.
However, the discretionary power was vested in the Governor of Assam, under the provision of the paragraph 18 of the Sixth Schedule to the Constitution and Part 8 of the Table 20 of the Schedule, who served as the agent of the President of the Union of the Republic of India.
In the course of administrative and political events Arunachal Pradesh has travelled from the Tract to the Union Territory.
Under the provision of (Central Act 81 of 1971), the present status of Union Territory was granted to the erstwhile North East Frontier Agency and renamed as Arunachal Pradesh on January 21,1972.
The Union Territory of Arunachal Pradesh was placed under the charge of Chief Commissioner during that year.
The year of 1975 also proved eventful for Arunachal Pradesh.
On 15 August, 1975, then existing Pradesh Council was constituted into the Union Territory legislature.
The panel of then existing five counsellors was constituted into provisional Council of Ministers.
Consequent upon the above change, the post of Chief Commissioner was further elevated to the position of Leutenant Governor on 15 August, 1975.
The first general election to Arunachal Legislature was held in the month of February, 1978.
The Arunachal Pradesh Legislative Assembly has 33 members in total, out of which 3 members are nominated.
Earlier, Arunachal Pradesh had nominated a representative in the Parliament.
By an Act of the Government of India in 1971, the Union Territory was provided with one seat each in Lok Sabha and Rajya Sabha, but these representatives were nominated by the President of India.
But at present, Arunachal Pradesh enjoys two elective seats in the Lok Sabha based on the Universal franchise.
On 20th of February, 1987 Arunachal Pradesh was made a full fledged State.
Thus, it will be seen that at no time Arunachal Pradesh was part of the Territory of the State of the Assam though it was being administered by the Governor of Assam or the President of India, as the case may be.
The following Charonological Statment of changes in the pattern of Administration in NEFA occuring in P.N. Luthra 's constitutional and Administrative Growth of the North East Frontier Agency is useful: 416 1 2 3 4 5 6 1914 1919 1937 1947.
1950 1965 Adminis Administ Adminis Adminis Admin Admini tered by ered by tered by tered by tered by tered the Gove the Gov the Gov the Gov the Pre as be rnment of ernment ernor of ernor of sident fore by Assam of Assam Assam Assam through theGov with acting in acting on the Gover erner special his disc the nor of as agent safe retion advice of Assam as of the guards.
indepen the Pro his agent Presi dently of vincial acting in dentbut the provi Ministry, his disc under ncial Minis retion the try underthe general general supervi super sion and visionand control control of the of Mini Minis try of try of External Home Affairs.
Affairs.
Arunachal Pradesh is situate in the North East of India skirted by Bhutan in West, Tibet and China in North and North East, Burma (Myanmar) in East and Assam in South.
It consists of the sub mountains and mountainous ranges sloping to the plains of Asswn.
It 's capital is Itanagar.
It is the largest state areas wise (33,743 sq kms.) in the North East region even larger than Assam which is the most populous.
Arunachal Pradesh is the most thinly populated state in India.
According to 1991 census the population of Arunachal Pradesh is 6.32 lakh and is scattered over 12 towns and 3,257 villages.
There ate 26 major tribes in Arunachal Pradesh.
Broadly speaking, the people in the state may be divided into three cultural groups on the basis of their socio regional affinities.
i) The Monpas and Sherdukpens of Tawang and West Kemeng District; ii) Khamptis and Singphos inhabiting the entire eastern part of the State; and 417 iii) The Noetes and Wanchos adjoining Negaland in the Tirap District.
This is the history of Arunachal Pradesh, a rich land and poor people.
It was in the year 1964 thousands of chakma families migrated from the then East Pakistan to India.
The appellant along with other 56 families also migrated to India.
Being refugees they were given shelter in government camps at Ledo within the district of Dibrugarh, Assam.
Later on they were shifted to the camp at Miao subdivision in Tirap District, now within the State of Arunachal Pradesh which was then known as North East Frontier Agency (NEFA).
In the years 1966 68 the then Government drew up the Chakma resettlement schemes.
Altogether 5 schemes were sancitioned for settlement of 3100 families at a cost of more than rupees two crores.
The appellants were allotted lands in the villages of Gautampur and Maitripur.
The other Chakmas were also staying there.
As stated earlier, on 2 1st January, 1972 NEFA was given the status of Union Territory and was renamed as Arunachal Pradesh.
The appellants strayed away from the original settlement area allotted to them by the Government under the schemes.
They got donation from the local Raja namely Ningrunong Singpho of Dumba, an area of 1 sq. mile at Joypur village which is inside the Inner Line.
Earlier we were referred to Bengal Eastern Frontier Regulation 1873.
Clause 2 of the said Regulation states thus: "It shall be lawful for the State Government to prescribe and from time to time to alter by notificaton in the Official Gazette line to be called "The inner Line" in each or any of the above named districts.
The State Government may, by notification in the Arunachal Pradesh Gazette prohibit all citizens of India or any class of such citizens or any persons residing in or passing through such districts from going beyond such line without a pass under the hand and seal of the Chief Executive Officer of such district or of such other officer as he may, authorise to grant such pass ', and the State Government may, from time to time, cancel or very such prohibition.
" Clause 7 is important.
That reads as follows: "It shall not be lawful for any person, not being a Native of the district comprised in the preamble of this Regulation, to acquire any interest in land or the product of land beyond the said "Inner Line" without the sanction of the State Government or such officer as the 418 State Government shall appoint in this behalf.
Any interest so acquired may be dealt with as the State Government or its said officer shall direct.
The State Government may also, by notification in the Arunachal Pradesh Gazette extend the prohibition contained in this section to any class of persons, natives of the said districts, and may from time to time in like manner cancel or very such extensions Under Section 3 of the of 1946, the central Government may.
by order, make provision for prohibiting regulating or restricting the entrt of foreioners into India.
In exercise of power conferred under Section 3 of the said Act Foreigners Order of 1948 dated 10.2.48 was issued.
Under clause 9 of tile said Order the Central Government or with prior sanction, a civil authority may, by order, declareany area to be a protected area for the purposes of this order.
On such declaration, the civil authority may, as to any protected area ,prohibit any forging or any class of foreigners from entering or remaining in the area, impose on any foreigner or class of foreigners entering or being entered in the area.
such conditions as may be mentioned under clause 9.
Clause 9 of the Foreigers Order of 1948 in sub clause (2) prohibits the acquisition of any land or anv interest thereon within the prohibited area by any foreigner.
Under Clause 9 the authorities concerned, by an order, may prohibit any foreigner from remaining in any part of the protected area as stated in the Foreigners Protected Area 0rder of 1958 which includes the territory of arunachal Pradesh.
Examined in this light, the donation by Raja is clearly invalid.
However, the memorandum dated 26th of April, 1976 issued by the Extra Assistant Commissioner Miao states that the agreement between the 'appellant, Khudiram Chakma and the local Raja dated 20.11.72 has been approved by the Deputy Commissioner.
That is again mentioned in the direction given by the Executive Magistrate Miao on 30th of May, 1977.
The effect of approval by the Deputy Commissioner will be considered later.
In this factual background, the question arises whether the appellants could claim citizenship under Section 6 A of of 1955.
We will now extract the said Section: 419 "6 A. Special Provisions as to the citizenship of persons covered by the Assam Accord: (1) For the purposes of this section: (a) "Assam" means the territories included in the State of Assam immediately before the commencement of the citizenship (Amendment) Act, 1985; (b) "detected to be a foreigner" means detected to be a foreigner in accordance with the provisions of the (31 of 1946) and the Foreigners (Tribunals) Order 1964 by a Tribunal constituted under the said Order, (c) "specified territory" means the territorises included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985; (d) a person shall be deemed to be of Indian origin, if he, or either of his parents or any of his grandparents was born in undivided India; (e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opnion to the effect that he is a foreigner to the officer or authority concerned.
(2) Subject to the provisions of sub sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.
(3)to(8). . . (unnecessary)" As rightly urged by Mr. K.K. Venugopal, learned counsel for the State of Assam, two conditions are required to be satisfied under sub section (2).
They are: (i) Persons who are of Indian origin (undivided India) came before 1.1.66 to, 420 Assam from the specified territory; and (ii) have been "ordinarily resident" in assam as it existed in 1985 since their date of entry in Assam.
The appellants were no doubt persons of Indian origin.
They came to Assam prior to 1. 1.66, namely, 3 1.3.64 from the then East Pakistan, (presently Bangladesh) which is undoubtedly one of the specified territories under Section 6 (1) (c).
Assam, as seen from 6A (a), means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985.
It is the common case that chama people entered into Assam and stayed their for some time in Ledo within Dibrugarh District.
Thereafter they shifted to Miao, Arunachal Pradesh.
According to the appellant, since the territory of Arunachal Pradesh in 1964 was included in the State of Assam they would be entitled to the benefit of Section 6A.
This contention overlooks the fact the Immigrants (Expulsion from Assam) Act, 1950 (Act X of 1950) applied to the territories presently forming part of Meghalaya, Nagaland and Arunachal Pradesh.
However, by the , 197 1, the territories of Arunachal Pradesh were excluded from the purview of the Immigrants (Expulsion from Assam) Act of 1950.
Turning to Condition No. 2 the requirement is ordinarily resident in Assam from the date of entry till the incorporation of Section 6A, namely, 7.12.85.
As to the meaning of "ordinarily resident" we may refer to Smt.
Shanno Devi vs Mangal Saini ; We find the following observations at page 590 apposite: "It is not necessary that for every day of this period he should have resided in India.
In the absence of the definition of the words ,. 'ordinarily resident" in the constitution it is reasonable to take the words to mean "resident during this period without any serious break".
In so far as the appellants and the chakmas were residing in Miao subdivision of Tirap District in Arunachal Pradesh long before 1985, they cannot be regarded as citizens of India.
We find it difficult to appreciate the argument of Mr. Govind Mukhoty, learned counsel, that the accident of the appellants living in Arunachal Pradesh should not deprive them of citizenship.
In this connection, it 421 is worthwhile to note that Secion 6A of the came to be incorporated by Amending Act as a result of Assam Accord.
If law lays down certain conditions for acquiring citizenship, we cannot disregard the law.
As laid down in Kennedy, vs Mendoza Martinez ; , 159 [1963] "Citizenship is a most precious right.
" Aristotle, Politics, III, 5 States thus: "From earliest times, it has been such status alone that has enabled the individual to share fully in the benafits of the community in which he resides: "Compare Homer 's words, like some dishonored stranger ': he who is excluded from the honors of the state is no better than an alien.
" That is the position of appellant and the other 56 families.
If they are aliens, the donation deed dated 20th November, 1972 is illegal.
The Raja did not obtain any permission for sale from the Government.
From the records it is also clear that the Rajs had been donating the lands and wag indulging in anti social activities for which he was warned.
We do not know how the Deputy Commissioner or the Extra Assistant Commissioner ever approve of this donation without there being an express authorisation by the State.
It is an admitted fact that the place where the chakma families are residing is within the inner line notified by the State Government.
Therefore, the argument that they have cleared the forest and reclaimed the land and as such would be entitled to a permanent abode, cannot be accepted.
Now we come to the validity of the impugned order.
Mr. K.K. Venugopal, learned counsel has filed various notings and the orders from the relevant files.
From the files it is clear that there have been complaints against chakmas that they were procuring arms and ammunition and indulging in anti social activities.
The Deputy Commissioner, Tirap District on 19.8.81 wrote to the Extra Assistant Commissioner, Miao as follows: "Please refer to your report under reference, wherein it is indicated that a large number of arms and ammunitions seized from the possession of the Chakmas and are still kept in Quarterguard.
It is, therefore, requested to send us a detailed report indicating datails of arms and ammunitions seized.
422 2.It is further seen from your report regarding judicial cases, submitted to this office, that there are altogether 76 cases registered upto November, 1979 against the Chakmas and most of them were related to theft, assault and offences under Forest Act.
It is also therefore requested that more details on specific offences and results thereof may be furnished urgently.
3.The above two informations are urgently required by the Govt.
" A list of cases including ones under Section 302 I.P.C. and other offences under Section 25A of the Arms Act is enclosed to the letter quoted above.
The chakmas also encroached Upon the neighbouring area by unfair means and created trouble to the local people.
An appeal was made to the Chief Minister in 1980 itself that because of these criminal activities they should be removed.
It is not correct to state that the impugned notice came to be issued like a bolt from the blue.
The following letter of the appellant addressed to the Deputy Commissioner speaks eloquently: "With reference to the subject quoted above, 1 on behalf of the villagers of Joypur Village have the honour to draw your kind attention to the following few lines for favour of your needful action.
That, being landless in Abhoypur Village, a few Villagers consisting of fifty six families have been settled in Joypur Village in the year, 1968 with the mutual help of Sri Ningronong Rajkumar (Singphoo) and the same was approved by the then Deputy Commissioner, Khonsa in accordance with the agreement adopted by Sri Rajkumar Singphoo dated 20th Novn2.
Now, the most regretful matter is that in spite of our permanent cultivation on the area for long sixteen years.
keeping all conformities with the Govt.
as well as the neighbouring local people, we are being harassed by notice after notice to shift from the area.
On the contrary, I am to state that the land where we have been directed to shift is quite short and extremely unfit for cultivation due to which those vacant lands are not yet accupied by anybody in spite of lying considerable landless families in the said villages.
423 All documents created in regard to this matter are attached herewith for favour of your kind perusal necessary action.
Under the circumstances stated here, I earnestly pray and request you afresh to look into the matter and thereby revoke the shifting order at an early date.
I shall remain greteful to you thereor From the endorsement.
it is also seen that two representatives met the Deputy Commissioner on 13th Februaty, 1984.
Therefore, there was an oral hearing.
The above letter mentions notice after notice to shift.
It was alleged by a petition to the Chief Minister that the Extra Assistant Commissioner had been paid handsomely to allow chakma families to stay on illegally.
On 16th of November, 1982 the Extra Assisstant Commissioner called upon the Circle Officer, Diyum to issue notices to the chakms families 'staying at Joypur village to return to their original place of settlement within 31.12.82.
The survey Reports for resettlement of these chakmas dated 27.4.83 inter alia states: "Survey had been done in Maitripur and Gautampur areas where they have found 110 acres and 245 acres respectively which are liable for settlement of Chakma settlers.
" Thus, it will be clear that the reason for shifting these chakma families are: (1) They are in illegal occupation of the protected area.
(ii) They are indulging in procurement of arms and ammunition.
(iii) They are indulging in criminal activities and associating with anti social elements.
(iv) They have been source of constant/trouble to the other tribals.
As regards notice, it is seen from the above, that the very appellant had notice after notice proposing to evict which was resisted.
Therefore, as rightly urged by Mr. K.K. Venugopal, learned counsel on ground realities, the plea of natural justice is fully satisfied.
424 Ruling in Scheduled Caste and Weaker Section Welfare Association vs State of Karnataka ; affording a hearing to slum dwellers under the Karnataka Slum Areas (Improvement and Clearance) Act, 1973, relied on by Mr. Govind Mukhoty, learned counsel, has no application in the above circumstances.
Even then what is that is sought to be done to the appellants? They are asked to settle in Maitripur and Gautampur villages from Miao.
Cartainly, settling the chakmas in a particular place is a matter of policy.
This Court cannot enter into the wisdom of such a policy, in view of what has been stated above, Arunachal Pradesh is strategically important with Bhutan in the West, Tibet and China in the North and North East, Burma (Myanmar) in the East.
It is true that fundamental right is available to a foreigner as held in Louis De Raedt vs Union of India ; at 562.
"The next point taken on behalf of petitioners, that the foreigners also enjoy some fundamental rights under the Constitution of this country, is also of not much help to them.
The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19 (1) (e) which is applicable only to the citizens of this country As such Articles 19 (1) (d) and (e) are unavailable to foreigners because those rights are conferred only on the citizens.
Certainly, the machinery of Article 14 cannot be invoked to obtain that fundamental right.
Rights under Article 19 (1) (d) and (e) are expressly withheld to foreigners.
Now we come to the humanitarian grounds which prompted the High Court of Gauhati to direct compensation to the appellants in the event of their being evicted.
Blackburn and Taylor speaking on the right enjoy asylum in Human Rights for the 1990 s state at page 51 as under: "The most urgent need of a fugitive is a place of refuge.
His or her most fundamental right is to be granted asylum.
The Universal Declaration of Human Rights addressed this issue in deceptive language.
To the inexpert reader there is great comfort in Article 14 (1) of that Declaration, which provides that: 'Everyone has the right 425 to seek and enjoy in other cuntries ' asylum from persecution, it seems tolerably clear, however, that the right to enjoy asylum means no more than the right to enjoy it if is granted.
" Again at page 52 it is stated thus: "Article 14 of the Universal.
Declaration of Human Rights, which speaks of the right to enjoy asylum has to be interpreted in the light of the instrument as a whole; and must be taken to mean something.
It implies that although an asylum seeker has no right to be granted admission to a foreign state, equally a state which has granted him asylum must not later return him to the country whence he came.
Moreover, the Article carries considerable moral authority and embodies the legal prerequisite of regional declarations and instruments.
" Warwick Mckean, dealing with the equality in the treatment of aliens, states in Equality and Discrimination under International Law at pace 194 as under: "It has long been recognized that persons who reside on the territory of countries of which they are not nationals possess a special status under international law.
States have traditionally reserved the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals, e.g. the right to vote, hold public office or to engage in political activities.
Aliens may be prohibited from joining the, civil service or certain professions, or from owning some categories of property, and states may place them under restrictions in the interests of nations security or public order.
Nevertheless, once lawfully admitted to a territory, they are entitled to certain minimum rights necessary to the enjoyment of ordinary private life.
" At pages 195 196 it is stated thus: "General international law provides that aliens should not be discriminated against in their enjoyment of property rights once they have been acquired.
If alien property is nationalized whereas the property of nationals remains unaffected then that act is dis criminatory and prohibited under international law.
As Fitzmaurice points out, it has long been recognized that in certain matters, e.g. 426 the general treatment of foreigeners in a country, or compensation for property which may be expropriated or nationalized, non discrimination as between persons of different nationality or against foreigners as compared with persons of local nationality, amounts to a rule of international law, the breach of which gives rise to a valid claim on the part of the foreign government whose national is involved." Certainly, if the acquisition had been legal, compensation could have been awarded.
But in view of the Bengal Eastern Frontier Regulation, 1873 and clause 9 (2) of the Foreigners Order 1948 we do not think this is a case for award of ' compenstion.
Though we have held that the principles of natural justice have been fully complied with in this case, we record the statement made by learned counsel for the State that the Chief Minister is ready to hear the Respondents (appellants herein) or any representative of their group.
Accordingly we direct that an opportunity be afforded to the appellants by the Chief Minister and grant such relief as he deems fit.
We make it clear that it will be a post decisional hearing.
Accordingly we dismiss civil appeal arising out of SLP (C) No. 13767 of 1992 filed by Khudiram Chakma while civil appeal arising out of SLP(C) No.12429 of 1992 filed by State of Arunachal Pradesh is allowed.
However,there shall be no order as to costs.
R.P. SLP (C) No. 13767/92 dismissed.
SLP (C) No. 12429/92 allowed.

summary/full:
The appellant in Civil Appeal No.481 of 1983, and thousands of other families, known as Chakmas, migrated from the erstwhile East Pakistan to Assam where they were given shelter as refugees in 1964.
In the year 1966 the Government drew up the Chakma resettlement Schemes whereunder they were allotted lands within the North East Frontier Agency, which later became State of Arunachal Pradesh.
The appellant and 56 other Chakma families strayed away from the original settlement area and negotiated with the local Raja who through an unregistered deed donated land to them inside the inner line which was a protected area under the Foreigners ' Protection Area Order 1958.
Later, the State Govenment received complaints that the 402 Chakmas were making encroachment on lands of local people, indulging in illegal collection of arms and ammunition and establishing contacts with the extremist groups.
An inquiry into the matter was directed.
The Government found it necessary to shift them, and by order dated 15.2.1984 directed the appellant and the other Chakma families to vacate the land and to shift to the original settlementarea where other Chakma families were already` residing.
The appellant challenged the order before the High Court by filing a writ petition which was dismissed.
However, the High Court, on humanitarian grounds, directed the State Government to give adequate compensation to the Chakmas.
Both, the appellant and the State Government filed the appeals by special leave.
It was contended on behalf of the appellant that the appellant and the other Chakmas being of Indian origin and having returned to Assam State in 1964, would be entitled to citizenship under Section 6A of the , and by mere accident of their going to Arunachal Pradesh they cannot lose their citizenship; and that the order dated 15.2.1984, besides being against the principles of natunal justice, was violative of Article 14 of the Constitution as it infringed the rights of the appellant and other Chakmas under Articles 19(1) (d) and (e) of the Constitution.
Dismissing the appeal on behalf of the Chakmas and allowing that of the State, this Court, HELD : 1.1 The appellant and other Chakmas residing in Arunachal Pradesh long before 1985 cannot be regarded as citizens of India.
[420 H] 1.2 Under Section 6 A of the , which was incorporated by the Amending Act, 1985 as a result of Assam Accord, two conditions are required to be satisfied: (1) Persons of Indian origin (undivided India) who came before 1.1.1966 to Assam from the specified territory; and (2) they have been "ordinarily resident" in Assam as it existed in 1985 since their date of entry in Assam.
[411 G H; 412 A] 1.3 Though the appellant and other Chakmas were of Indian origin and came to Assam prior to 1.1.1966 from the then East Pakistan, one of the specified territories but, in 1966 they shifted to the area within North East Frontier Agency which later became State of Arunachal Pradesh, and at no time was part of the Territory of the State of Assam though was being administered by the Governors of Assam or the President of India, as the case 403 may be.
Besides, bt the , the territories of Arunachal Pradesh were excluded from the purview of the Immigrants (Explusion from Assam) Act, 1950.
The appellant and the other Chakmas were residing in Arunachal Pradesh long before 1985, and as such cannot be said to be "ordinarly resident" in Assam as it existed in 1985 since their date of en try in Assam.
(420 A F) Smt.
Shanno Devi vs Mangal Saini ; , relied on.
1.4 If the law lays down certain conditions for acquiring citizenship, the same cannot be disregarded.
(421 A) Kennedy vs Mendoza Martinez ; ,159 [1963], referred to.
Arstotle, Politics, III, 5, referred to.
2.The place where the Chakma families are residing is within the inner line notified by the State Government.
The place is the protected one under the Foreigners 'Protection Area Order, 1958, wherein acquisition of any land or any interest thereon by any foreigner is prohibited as envisaged by clause section 7 of the Bengal Eastern Frontier Regulation, 1873 and Clause 9(2) of the Foreigners ' Order 1948 issued under Section 3 of the .
(410 DE) 2.2Accordingly, the donation deed through which the Raja gave land to the appellant and the other Chakmas is illegal.(421 D) 2.3Unlike article 21, rights under Articles 19(1) (d) and (e) of the Constitution are unavailable to foreigners because these rights are conferred only on the citizens and are expressly withheld to foreigners.
The machinery of Article 14 cannot be invoked to obtain that fundamental right.(424 E) Indo China Steam Navigation Co. vs Jasjit Singh, [1964]6 SCR 594 at 621 to 622, followed.
Louis De Raedt vs Union of Indian ; , referredto.(412 CD) 404 3.1 Settling the Chakmas in a particular place is a matter of policy.
This Court cannot enter into the wisdom of such a policy.
Besides, the reasons for shifting the Chakma families are : they are in illegal occupation of the protected are, they are indulging in procurement of arms and anununitions and other criminal activities; they are associating with anti social elements, and have been source of constant trouble to the local tribals.
Arunachal Pradesh being a Border State is stategically important (424B, 423EFG) 4.
In the instant case, the principles of natural justice were fully complied with.
It cannot he said that the order dated 15.2.1984 for shifting the Chakmas came to be issued like 'a bolt from the blue '.
The record mentions that before passing of the shifting order, notice after notice were issued to chakma families to return to their original place of settlement.
Survey Reports for their settlement were submitted and representation were made to the authorities concerned who gave oral hearing to the representatives of Chakmas.
(412 GH) Scheduled Caste and Weaker Section Welfare Association vs State of Karnataka, [1991]2 SCC 604, inapplicable.
R. vs Secretary of Stale for the Home Department, ; Brind vs Secretary of State ; ; Council of Civil Service Unions vs Minister for the Civil Service; ; ; McInnes vs onslow Farme & Anr., D) p. 219; JR Vohra vs India Export House pvt.
Ltd.; , ; Maharashtra State Board of Secondary & Higher Education vs K.S. Gandhi, and Satya Vir Singh vs Union of India, , referred to.
5.1 In view of the Bengal Eastern Frontier Regulation, 1873 and Clause 9(2) of the Foreigners 'Order 1948 the acquisition of the land being illegal, the instant one is not a case for award of compensation.
(426 C) 5.2 However, having regard to the statement made on bahalf of the State that the Chief Minister is ready to hear the Chakmas, an opportunity be afforded to them by the Chief Minister who may grant such relief as may be deemed fit.
It is made clear that it will be a post decisional hearing.
(426 D) 405 Blackburn and Taylor on the right to enjoy asyum in Hussan Rightsior the 1990s, 'Equality and Discrimination under International Law ' by Warwick Mckean, referred to.


judgement:
Appeal No. 4851 (NT) of 1990.
From the Judgment and Order dated 31.1.89 of the Madras High Court in Tax Case No. 900 of 1979, K.N. Shukla, R. Satish for Ms. A. Subhashini for the Appellant.
T.A. Ramachandran and Mrs. Janaki Ramachandran for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY.J.
This appeal is preferred by the assessee against the judgment of the Madras High Court answering the question referred to it under section 256 (1) of the Income tax Act in favour of the Revenue and against the assessee.
The question stated, at the instance of the High Court reads: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the assessable capital gain would be only Rs. 1,81,671 computed in the manner set out in paragraph 14 of the order of the tribunal? The assessee is a registered firm.
The assessment year concerned is 1973 74, the relevant previous year being the financial year 1972 73.
During the said previous year, the assessee sold shares held by him in several companies.
From the sale of 'shares in three companies, it secured a gross long term capital gain of Rs. 5,61,508.
However, in the sale of shares in six other companies, it sustained a long term capital loss in a sum of Rs. 96,583.
The assessee computed the capital gains on the aforesaid transaction of sale of shares in the following manner: Gross long term capital gains Rs. 5,61,508.00 LESS, Deduction under Rs. 5,000.00 Section 80 T (b) Rs. 5,65,508.00 LESS:Deduction under section 80 T (b) (ii) at 50% Rs. 2,78,254.00 449 LESS Loss on sale Rs. 2,76,254.00 of shares Rs. 96,583.00 Profits: Rs. 1,81,671.00 The Income tax Officer did not agree with said mode of computation.
He set off the long term capital loss against the long term capital gain in the first instance and then applied the deductions provided by section 80 T to the balance figure of Rs. 4,64,925.
His computation was in the following terms: Gross long term capital gain Rs. 5.61,508 LESS: Long term capital loss of the same year Rs. 96,583 Balance of long term capital gains of the year Rs. 4,64,925 LESS: Deduction under section 80 T(b) (ii) at 50% Rs. 2,29,962 Capital gains included in the total income Rs. 2,29,963 Aggrieved by the order of assessment, the assessee preferred an appeal which was dismissed by the Appellate Assistant Commissioner.
On further appeal, however, the Tribunal agreed with his mode of computation.
Thereupon the Revenue asked for and obtained the said reference.
The High Court answered the said question in the negative i.e., in favour of the Revenue, on the following reasoning: the income from capital gains constitutes a separate head of income under the Act.
Capital gains are bifurcated into long term capital gains and shurt term capital gains.
In this case the Court is concerned only with long term capital gains.
Section 70 (2) (ii) prescribes the manner in which the loss from sale of longterm capital asset is to be set off.
According to the said provision, the assessee " shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under the similar computation made for the assessment year in respect of any other capital asset not being a short term capital asset".
Support for the said proposition was derived from the decision in Commissioner of Income Tax vs 450 Sigappi Achi, The correctness of the view taken by the High Court is questioned in this appeal.
Shri T.A. Ramachandran, learned counsel for the appellant submitted that according to the provisions and scheme of the Act, capital gains have to be computed in respect of each asset separately.
Section 80 T prescribes different percentages of deduction for different types of capital assets: If the capital asset sold consists of "buildings or land or any rights in buildings or lands", the deduction provided is 35% in addition to the standard deduction of Rs. 5,000 Whereas in the case of any other capital asset, the percentage of deduction provided is 50%, in addition to the standard deduction of Rs. 5,000/ .
The deductions have to be worked out separately where the capital assets transferred during a previous year fall in both the categories.
Even the proviso to section 80T shows that the gains arising from the transfer of these two types of capital assets must be treated as separate and distrinct.
If the capital gains arising from the transfer of both the types of capital assets are clubbed together, it would not be possible to work out the provisions of section 80 T.
The correct method, therefore, is to compute the capital gains with respect to each asset transferred separately, in accordance with section 80 T, before setting off the losses.
We are afraid the arguments advanced by Mr. Ramachandran travel far beyond the controversy involved herein.
This is not a case where the assets transferred by the assessee during the relevant previous year consisted both the types of capital assets.
They were of only one type namely shares.
From the sale of certain shares the assessee derived profit and from the sale of certain other shares, he suffered loss.
The simple question is how to work out and apply the deductions provided by section 80 T in such a case.
For answering this question, it is necessary to notice the provisions of section 80 T and section 70, as they stood during the relevant previous year. "80 T. Where the gross total income of an assessee not being a company includes any income chargeable under the head "Capital gains" relating to capital assets other than short term capital assets (such income being, hereinafter , referred to as long term capital gains), there shall be allowed, in computing the total income of the assessee, a deduction from such income of an amount equal to, (a)in a case where the gross total income does not exceed ten thousand rupees or where the long term capital gains do not exceed five thousand rupees, the whole of such long term capital gains; 451 (b)in any other case, five thousand rupees as increased by a sum equal to, (i)(thirty five percent) of the amount by which the long term capital gains relating to capital assets, being buildings or lands, or any rights in buildings or lands, exceed five thousand rupees; (ii)(fifty per cent.) of the amount by which the long term capital gains relating to any other capital assets exceed five thousand rupees: Provided that in a case where the long term capital gains relate to buildings or lands, or any rights in buildings or lands, as well as to other assets, the sum referred to in sub clause (ii) of clause (b) shall be taken to be (A)where the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i) is less than five thousend rupees, (fifty percent.) of the amount by which the long term capital gains relating to any other capital assets exceed the difference between five thousand rupees and the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i); and (B)where the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i) is equal to or more than five thousand rupees, (fifty percent.) of the long term capital gains relating to any other capital assets.
70(1) Save as otherwise provided in this Act, where the net result for any assessment year in respect of any source falling under any head of income other than 'Capital gains ' is a loss, the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head.
(2)(i) Where the result of the computation made for any assessment year under sections 48 to 55 in respect of any short term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset.
452 (ii)Where the result of the computation made for any assessment year under sections 48 to 55 in respect of any capital asset other than a short term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset not being a short term capital asset.
" The opening words of section 80 T are relevant.
If the gross total income of an assessee (not being a company) "includes any income chargeable under the head "capital gains" relating to capital assets (referred to as long term capital gains) there shall be allowed in computing the total income of the assessee a deduction from such income of an amount equal to. . . . .
In our Judgment delivered on April 13, 1993 in Civil Appeal No. 3044 of 1983 (Commissioner of Income Tax vs V Venkatachalam) we have held that the deductions provided by section 80 T have to be applied to the "capital gains" arising from sale of long term capital assets.
In other words, the deductions provided by the said section have to be applied to the amount representing the capital gains during the relevant previous year.
The amount of capital gains during the relevant previous year means the profits derived minus the losses suffered.
This is precisely the opinion of the High Court, with which view we agree.
It is not possible to treat the transfer of each asset separately and apply the deductions separately.
If the argument of the learned counsel for the appellant is logically extended it would mean that even the deduction of Rs. 5,000 should be applied in each case separately.
Learned counsel, however, did not take that stand.
He agreed that the standard deduction of Rs. 5,000 must be applied to the totality of the capital gains.
At the same time, he says, the deductions provided in clause (b) should be applied separately to each asset.
We have not been able to appreciate the logic behind the contention of the learned counsel.
This is not a case where the capital assets transferred consist of two types mentioned in sub clauses (i) and (ii) of clause (b) of section 80 T.
They are only of one type namely those falling under sub clause (ii).
We need not, therefore, deal with or answer the hypothetical contention raised by the learned counsel.
Further as pointed out by the High Court the provision contained in clause (ii) of subsection (2) of section 70, as it stood at the relevant time, supports the conclusion arrived at by us.
The learned counsel for the appellant relied upon the decision of this Court in Commissioner of Income Tar (Central), Madras vs Canara Workshops Private 453 Limited, That was a case arising under section 80 E of the Act, as it stood during the assessment years 1966 67 and 1967 68.
On the language of section 80 E, it was held that in computing the profits for the purpose of deduction under the said section, each 'priority industry ' must be treated separately.
We do not see how the principle of the said decision has any application to the facts of this case, which has to be decided on the language of a different provision namely section 80 T read with section 70 (2) (ii).
For the above reasons, we agree with the opinion expressed by the High Court and dismiss this appeal.
No order as to costs.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant assessee was a Registered Firm.
The assessment year concerned was 1973 74.
During the relevant previous year being the financial year 1972 73, the assessee sold shares it held in several companies; from the sale in three companies it secured a gross long terms capital gain of Rs.5,61,508 However, in the sale of shares in six other companies it sustained a long term capital loss in a sum of Rs. 96,583.
The assessee computed the capital gains on these transactions of sale of shares less the deductions under Section 80 T(b) and Section 80T (b) (ii) (1) and showed a profit of Rs. 1,81,671.00 The Income Tax Officer did not agree with the mode of computation indicated by the asssessee; and set off the long term capital loss against the long term capital gain in the first instance and then applied the deductions, provided by Section 80 T to the balance figure and ultimately computed the capital gains included in the total income at Rs. 2,29,963.
The assessee aggrieved by the aforesaid assessment preferred an appeal which was dismissed by the Appellate Assistant Commissioner.
In further appeal by the assessee the Tribunal agreed with the assessee 's computation.
Revenue asked for and obtained a reference which the High Court answered in the negative i.e. in favour of the Revenue.
The High Court held that the income from capital gains constituted a separate head of income under the Income Tax Act and that capital gains are bifurcated into long term capital gains and short term capital gains, and 446 447 relying on the decision in Commissioner of income Tax vs Sigappi Achi, held that in the instant case it was concerned only with long term capital gains, and that Section 70 (2) (ii) prescribes the manner in which the loss from sale of long term capital asset is to be set off.
In the appeal to this Court it was submitted on behalf of the appellant assessee that according to the provisions and scheme of the Income Tax Act capital gains had to be computed in respect of each asset separately and that Section 80 T prescribes different percentages of deduction for different types of capital assets, and that the correct method, therefore, is to compute the capital gains with respect to each asset transferred saparately, in accordance with Section 80 T before setting off the losses.
Dismissing the appeal, this Court, HELD: 1.
This is not a case where the assets transferred by the assessee during the relevant previous year consisted of both the types of capital assets, mentioned in sub clauses (i) and (ii) of clause (b) of Section 80 T.
They were of only one type namely those failing under sub clause (ii) viz. shares.
From the sale of certain shares the assessee derived profit and from the sale of certain other shares, he suffered loss.
(450 E) 2.
The deductions provided by Section 80 T have to be applied to the " capital gains" arising from sale of long term capital assets.
In other words, the deductions provided by the said section have to be applied to the amount representing the capital gains during the relevant previous year.
The amount of capital gains during the relevant previous year means the profits derived minus the losses suffered.
(452 D) 3.
It is not possible to treat the transfer of each asset separately and apply the deductions separately.
(452 E) Commissioner of Income Tax vs V Venkarachalam, Civil Appeal No. 3044 of 1993, dated April 13,1993, relied on.
Commissioner of Income Tax (Central) Madras v, Canara Workshops Private Limited, , distinguished.


judgement:
l Leave Petition (Civil) No. 4460 of 1993.
From the Judgment and Order dated 15.1.1993 of the Himachal Pradesh High Court in Civil Writ Petition No. 566 of 1990.
Arun Jaitley and Maninder Singh for the Petitioner.
The following Order of the Court was delivered: How statutory bodies waste public money in fruitless litigation to satisfy 479 misplaced ego is demonstrated by this petition.
The opposite party was appointed as Sales Girl by the petitioner, a cooperative society registered under Cooperative Societies Act, running a Super Bazar in Shimla.
When one of the managers came there on transfer, her trouble started.
Apart from insult, humiliaton and harassment thrust on her, that manager terminated her services illegally without being authorised to do so and without obtaining permission of the Administrator and without giving any notice or hearing her.
The opposite party who had been apprising her superiors of that manager 's misbehaviour and of her apprehensions that he was out to get rid of her although was assured not only of his good behaviour and security of her services, immediately took recourse to legal action.
To her misfortune the Assistant Registrar decided her case after seven years.
It was held by him that the order of termination was illegal, arbitrary and was passed without obtaining approval of the Administrator.
He directed the petitioner to reinstate her but did not grant any back wages.
Even with this order which was prejudicial to her the opposite party was satisfied but the ego of petitioner was hurt.
For eight months the order was not implemented by the petitioner as it was contemplating to file the appeal.
And when the petitioner succeeded in obtaining the order it informed the opposite party that her Joining Report could not be entertained.
Since then the opposite party has been knocking at the door of the petitioner but she was made to approach the appellate authority, the revising authority, the High Court, the Labour Court and finally the High Court again as the petitioner did not succeed anywhere but went on filing appeal and revision forcing the opposite party to file cross appeal or revision or even writ for her back wages and other benefits.
Not one authority, even in the cooperative department found in favour of petitioner.
Yet the petitioner had the obstinacy not only to approach this Court but to place the blame of inordinate delay on adjudicatory process.
Such obstinacy without the least regard of the financial implications could only be indulged by a public body like the petitioner as those entrusted to look after public bodies affairs do not have any personal involvement and the money that they squander in such litigation is not their own.
Sri Arun Jaitley the learned senior counsel attempted to assail the finding recorded by the High Court and the Labour Court.
Suffice it to say that the conclusions arrived at are not only well reasoned but are based on material on record and could not be demonstrated to be vitiated by any error of Law.
Having failed to persuade us on merits the Learned counsel attempted to highlight the financial difficulty of the petitioner and placed reliance on Surendra Kumar Verma & Ors.
vs Central Government Industrial Tribunal cum Labour Court New, Delhi & Another [1980]4 SCC 443 in support of the submission that 480 the Courts while directing payment of back wages should exercise discretion considering the financial viability of the employer.
It was urged that the respondent has been pursuing her remedy for 16 years therefore the petitioner whose profit margin is very low and the overhead expenses are very high resulting in accumulation of losses for which financial assistance has been granted by State as well as the Central Government for rehabilitation subject to the condition that the amount shall not be utilised towards past debts, shall be rendered in serious predicament brought upon it by the respondent for which it is not responsible.
Nothing is farther than truth.
It was other way round.
In fact it was the petitioner who had disputed, the finding of the Registrar, directing reinstatment without back wages, and made respondent to run from court to court.
When the petitioner did not reinstate her and filed an appeal she too filed a cross appeal for back wages.
It is more than apparent that it was the petitioner who was not complying with the orders passed by the authorities from time to time and was leaving no stone unturned to see that an illegal order passed by its officer was upheld.
We, therefore, do not see any justification for exercising discretion in favour of such a litigant.
Public money has been wasted due to adamant behaviour not only of the officer who terminated the services but also due to cantankerous attitude adoped by those responsible for pursuing the litigation before the one or the other authority.
They have literally persecuted her.
Despite unequal strenght the opposite party has managed to survive.
We are informed that the opposite party has been reinstated.
This was put forward as bonafide conduct of petitioner to persuade us to modify the order in respect of back wages.
Facts speak otherwise.
Working life of opposite party has been lost in this tortuous and painful litigation of more than twenty years.
For such thoughtless acts of its officers the petitioner society has to suffer and pay an amount exceeding three lakhs is indeed pitiable.
But considering the agony and suffering of the opposite party that amount cannot be a proper recompense.
We, therefore, dismiss this petition as devoid of any merit and direct the petitioner to comply with the directions of the High Court within the time granted by it.
We however leave it open to the society to replenish itself and recover the amount of back wages paid by it to the opposite party from the personal salary of the officers of the society who have been responsible for this endless litigation including the officer who was responsible for terminating the services of the opposite patty.
We may clarify that the permission given, shall have nothing to do with the direction to pay the respondent her back wages.
Step if any to recover the amount shall be taken only after payment is made to the opposite party as directed by the High Court.
SLP dismissed.

summary/full:
The private respondent was appointed as sales girl with the petitioner.
The new manager not only insulted, humiliated and he her, he also terminated her services.
On ber plea, the Assistant Registrar who decided the case after seven years, held the Impugned order as Illegal, arbitrary and passed without obtaining the requisite approval.
He ordered reinstatement of the private respondent but did am grant back wages.
The petitioner Informed the private respondent that her joining report could not be entertained.
The letter was forced to approach the appellate and revising authorities the labour court and finally the High Court for back wages and other benefits.
The petitioner approached this court to assail well reasoned finding recorded by the High Court, without the least regard of the financial implications.
Meanwhile as the petitioner was unable to persuade this courtes of the case, the petitioner made attempt to highlight the financial difficulties in payment of back wages.
Surendra Kumar Varma and others vs Central Government Industrial Tribunal Cum Labour Court, New Delhi & Anr. ; , referred to.
The petitioner urged that the private respondent had been pursuing the 478 ` remedy for 16 years.
And the profit margin of the petitioner being very low and the overhead expenses high.
The State and the Centre who granted financial assistance for rehabilitation subject to the condition that the amount be not paid towards past debts, would be rendered in serious predicament.
On facts this court found that it was the petitioner who was not complying with the orders passed by the authorities from time to time, so there was no justification for exercising discretion in favour of the petitioner.
Dismissing the SLP and upholding the order of the High Court, this Court, HELD: Public money has been wasted due to adamant behaviour not only of the Officer who terminated the services of the private respondent but also due to cantankerous attitude adopted by those who were responsible for pursuing the litigation, and literally persecuted her.
Working life of the private respondent has been lost for more than twenty years.
While considering the agony and suffering, the amount of back wages exceeding three lakhs could not be a proper recompense.
And the reinstatement of the private respondent could not be considered as bonafide conduct for modification of the order of back wages.
(480 D) Leaving it open to the petitioner to replenish itself and recover the amount of back wages from personal salary of its officers who were responsible for the endless litigation and for terminating the services of the private respondents this Court clarified that this permission shall have nothing to do with the direction and the step for recovery be taken only after payment of back wages to the private respondent.
(480 G)


judgement:
on (c) Nos. 9835 38 of 1983.
(Under Article 32 of the Constitution of India) WITH W.P.(C)Nos.7468 7469/81,3838 39/83,5398/85,5435/85,386/84, 1489/ 86, 12691/85, 489 90/83, 81/83, 68/86 & 1065/87 Lakshmi Chandra Goyal, B.B. Sahni and Serve Mitter for the Petitioners D.P. Gupta, Solicitor General, Ms. Indu Malhotra, Ms. Aysha Khatri, Ms. V. Mohana and Ms. Nisha Bagchi for the Respondents.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY J.
A common question arises in this batch of writ petitions.
We may take the facts in writ petition (C) No. 9835 of 1983 filed by M/s K. B. Handicrafts Emporium & Ors., as representative of the facts in all the cases.
The petitioners are firms engaged in the manufacture and sale of handicrafts items.
They are registered Sales Tax Dealers in the State of Haryana.
They purchased raw material within the State against declaration forms ST 15 prescribed under Rule 21 of the Haryana General Sales Tax Rules read with Section 24 of the Act.
By issuing Form ST. 15, the petitioners undertook that the goods manufactured by them out of the said raw material would be sold by them either within the State or in the course of inter state trade and commerce or in the course of export within the meaning of Section 5(1) of the Central Sales Tax Act.
A dealer issuing the said Form need not pay the purchase tax on such raw material.
After manufacturing the items of handicrafts, the petitioners say, they sold them to dealers in Delhi who, in turn, exported them out of India.
At the time of sale of handicrafts to Delhi dealers, the Delhi dealers issued Form H, prescribed under the Central Sales Tax Rules which means that the goods purchased were meant for export.
Neither party paid tax on the said sale/purchase.
457 For the assessment years in question, the Sales Tax Authorities of Haryana levied purchase tax on the purchase of raw material made by the petitioner, following the decision of the Punjab and Haryana High Court in M/s. Murli.
Manohar and Company Panipat & Ors.
V. State of Haryana & 0rs.
(Civil Writ., Petition No. 1227 of 1980), under section 9 of the Haryana General Sales Tax.
Act, 1973.
However, the assessing authority computed the tax with reference to the purchase value of the goods exported against Form H. The petitioners.
did not choose to file an appeal but directly approached this Court by way of this writ petition on the ground that in view of the decision of the Punjab and Haryana.
Hig h Court in Murli Manohar there was no point in their pursuing the remedies under the Act in that State.
Appeals were preferred in this court against the decision of the Punjab and Haryana High Court in Murli manohar which have been disposed of by this Court on October 25, 1990 (reported in ; This.
Court allowed the appeal and set aside the judgment of the High Court.
When these writ petitions came up for hearing, it was, urged by the learned counsel for the petitioners that in view of the decision of this Court in Murli Manohar the writ petitions must be allowed stria ghtway.
This was demurred to by the learned Solicitor General appearing for the respondent State.
We are of the opinion that the decision of this Court in Murli Manohardoes cover the point raised in these appeals but it is necesary to add a clarification.
Before we do that, it is necessary to state a little background.
Earlier to the.
rendering of the decision in Murli Manohar, a Bench of this.
Court comparising Sabyasachi Mukharji and Ranganathan, JJ.
held in Good year India Ltd. and Ors.
vs State ofHaryana and Anr.
[1990] 2 S.C.C.71 that where the goods manufactured are taken out of Haryana (without effecting a sale) to the branch office or depot of the Manufacturer or to the office or depot of his agent, no purchase tax can be levied under section 9 of the Act on the raw material purchased within the State and used in the manufacture of such goods.
It was held that imposing such ta would amount to levying tax on consignment, which the State Legislature was not ' competent to do.
Section 9 as it then stood, stated expressly that no such purchase tax on raw material was leviable, if the goods manufactured out of such raw material were sold either within the State or were sold in the course of inter state Trade and Commerce or were sold in the course of export within the meaning of Section 5(1) of the Central Sales Tax Act.
MurliManohar was decided in the light.
of the law declared,in Goodyear.
Later, However, a Bench of three.
Judges comprising S.Ran anathan, vs Ramaswami, JJ.
and one of us(B.P.Jeevan Reddy, J.) held that.
Goodyear does not lay down the correct law vide Hotel Balaji and 458 Ors.
vs State of Andhra Pradesh & Ors. etc.
JT It was held in Hotel Balaji that having regard to the scheme of and the objective underlying section 9 it was competent for the State Legislature to levy purchase tax on raw material purchased within the State where the goods manufactured out of such raw material are taken out of the State (without effecting a sale within the State or otherwise than by way of aninter state sale or by way of an export sale within 'the meaning of Section 5(1) of the Central Sales Tax Act).
It was held that such a tax does not amount to consignment tax.
It is this decision in Balaji that calls for a certain clarification of the principles enunciated in Murli Manohar.
The facts in Murli Manohar Were substantially similar to the facts herein.
The dealers within the State of Haryana purchased raw material without paying tax, manufactured goods out of the same and sold the manufactured goods to dealers who in turn exported those goods out of India.
On these facts it was held by the Punjab and Haryana High Court that inasmuch as the sale to exporters was a penultimate sale falling under section 5(3) of the Central Sales Tax Act and further inasmuch as Section 9 of the State Act exempted only export sales within the meaning of section 5(1) of the Central Sales Tax Act but not the penultimate sale falling under Section 5(3), tax under Section 9 was leviable.
On appeal, this court affirmed that Section 9 of the Haryana Act (before it was amended by Haryana Act 1 of 1988) did not exempt as sale falling under Section 5(3) but exempted only a sale failing under section 5(1).
Even so, the appeal was allowed on the following reasoning "the sales made by the assesses can only fall within one of the three categories.
They are either local sales or inter state sales or export sales. . .
We are unable to conceive of a fourth category of sale which could, be neither a local sale nor an interstate sale nor an export sale.
" In other words, the decision says that there can be only three types of sales, namely, intrastate sales, inter :state sales,and export sales and no other.
A sale to an exporter would be either an intrastate sale or an inter state sale; in either case, it does not attract the purchase tax (on raw material) under Section 9 of the Haryana Act, says the decision: It is on this reasoning that the appeals were allowed inspite of the clear enunciation that the sales failing under Section 5(3) of the Central Sales Tax Act were not exempt under Section 9 of the Haryana Act, as it then stood.
The above holding is evidently influenced by the decision in Goodyear, which was good law at the time Murli Manohar was decided.
However, in the light of the decision of Hotel Balaji, it must be held that there is one more category in addition to the three categories mentioned above.
The fourth category is where a dealer in Haryana takes, his goods out of the Haryana without effecting a sale.
An illustration would serve to highlight what we say: a Haryana manufacturer takes his goods to Delhi without effecting a sale.
In Delhi.
if he finds it more profitable, 459 he will sell it to a dealer in Delhi.
Or if he finds it more profitable to sell it to an exporter in Delhi he will sell the same to such exporter.
These two sales are neither intrastate sales nor inter state sales, nor export sales within the meaning of Section 5(1) of the Central Sales Tax Act.
In one Case, it is a sale in Delhi and.
the other, it is a punultimate sale within the meaning of Section 5(3) of the Central Sales Tax Act.
According to Section 9 of the Haryapa Act, as explained in Hotel Balaji and Murli Manohar purchase tax can be levied and collected on the raw.
material purchased by the manufacturer within Haryana, which was utlised for manufacturing the goods so sold in these two situations.
We must make it clear that in a petition under Article 32 of the Constitution, it is not our province to go into facts.
As repeatedlly emphasised by this court, the.
question whether a particular sale is an intra state sale,an inter state sale ,an export sale within the meaning of section 5(1) or a penultimate sale within the meaning of section 5(3), or otherwise, is always a question of fact to be decided by the apporiate authority in the light of the principles enunciated by Courts.
In these circumstances, we content ourselves by declaring the law and leave it to be applied by the appropriate authorities.
Counsel for the petitioners says that all the sales effected by all the petitioners are inter State sales.
May be,or may not be.
We leave the matters to be, disposed of by the authorities under the Act in the light of the law declared by &.Is Court in Murli Manohar, Hotel Balaji and in this judgment.
The writ petitions are disposed of with the aforementioned clarification and, observations.
No costs.
V.P.R. Petitions disposed of.

summary/full:
Petitioners firms were registered sales tax dealers.
They manufactured and sold handicraft items.
As they purchased raw material within the State against declaration forms ST 15 prescribed under Rule 21 of the Haryana general Sales Tax Rules read with Section 24 of the Haryana General Sales tax Act, purchase tax was not paid.
The petitioners sold the items of handicrafts to dealers in Delhi who exported the same out of India.
As the Delhi dealers issued Form H, prescribed under the Cectral Sales Tax Rules, they did not pay tax on the said sale/purchase.
Following the High court decision in M/s. Murli Manohar and company, Panipat & ors.
vs State of Haryana & Ors.
C.W. P. No. 1227 of 1980.
The Sales Tax Authorities levied purchase tax u/s 9 of the Haryana General Sales Tax Act for the assessment years in question on the purchase of raw material made by the petitioners, computing the tax with reference ' to the purchase value of the goods exported against Form H. Hence the present writ petition before this Court was filed challenging 454 155 the impugned order of levying purchase tax.
Meanwhile this court allowed the appeals preferred against the decision of the High Court in Murli Manohar and Company 's case, setting aside the judgment of the High Court.
As a common question arose in this batch of writ petitions, all petitions heard together.
The petitioners contended that in view of the decision of this Court in Murli Manohar 1991 [1] SCC 377, the writ petitions were to be allowed.
Disposing of the writ petitions, this Court, section HELD: 1.1,.
The decision in Murli Manohar says that there can be only three types of sales, namely, intra state sales, inter state sales and export sales a nd no other.
A sale to an exporter would be either at% intrastate sale or an inter state sale; in either case, the decision says, it does not attract the purchase tax(on raw material) under Section 9 of the Haryana General Sales Tax Act.
However, in the light of the decision in Hotel Balaji, it must be held that there is one more category in addition to the three categories mentioned above.
The fourth category is where a dealer in Haryana takes his goods (out of Haryana (without effecting a sale, within the State), and effects the sale in the other State.
According to Section 9 of the Haryana Act, as explained in Hotel Balaji, purchase tax can be levied and collected on the raw material purchased by the manufacture within Haryana, which was utilised for manufacturing the goods so sold in the other State.
(458 D F) Murli Manohar case.
; , followed.
Good year India Lid.
and Ors.
vs State of Haryana and Anr.
; , referred to.
Hotel Balaji and Ors.
vs State of Andhra Pradesh & ors.
J.T. explained 2.1.
In a petition under article 32 of the Constitution it is not the province of the Supreme Court to go into facts.
As repeatedly emphasised by this Court, the question whether a particular sale is an intra state sale, an inter state sale, an export sale within the meaning of Section 5(1) or a 456 penultimate sale within the meaning of section 5(3), or otherwise, is always a question of fact to be decided by the appropriate authority in the light of the principles enunciated by Courts.
(459 C) 2.2.
In these circumstances, it is directed that the matters be disposed of by the authorities under the Act in the light of the law declared by this Court in Murli Manohar, Hotel Balaji and in this judgment.
(459 D)


judgement:
Appeal No. 2476 of 1993.
From the Judgment and Order dated 21.2.1992 of the Orissa High Court in O.J.S. No. 4866 of 1991.
476 R. K. Mehta for the Appellants.
H.L. Aggarwal, S.K. Patri, Abhijat P. Medh, Ms. Kirti Mishra and A.K. Panda for the Respondents.
The following Order of the Court was delivered Service of the appellants employed in the school established in the year 1981 recognised in 1983 brought on grants in aid in 1988, were terminated in 1986.
Their termination was not approved by the Inspector of Schools.
Since the order not approving termination was not given effect to by the Institution the appellants approached the High Court by way of a writ petition for a mandamus to reinstate them and grant them their salaries from the date the school became an aided institution.
The High Court did not find any merit in the claim for various reasons.
Section 10 A of the Orissa Education Act provides that the termination of a teacher of an aided institution shall be subject to the approval of the Inspector.
Use of the word 'aided institution ' is clear indication that the provisions of approval apply only to the aided schools.
Since on the date the services of the appellants were terminated the institution was recognised only and not aided the Inspector could not have exercised the power of disapproval.
Consequently no right vested in the appellant which he could get enforced in a court of law.
The submission that the principle of Section 10 A being benevolent in nature should be extended to teachers of the institution once it has been granted recognition to avoid exploitation and undue harassment of those who are unequal in the bargain cannot be accepted.
Recognition of an institution for purpose of imparting education is different than bringing it on grants in aid.
To the former the regulatory provisions of the Education Act or the rules do not apply.
The Education Departments has no control either on admission of students or members of staff.
The High Court, therefore. did not commit any error of law in dismissing the writ petition.
The appeal accordingly fails and is dismissed.
But there shall be no order as Appeal dismissed.

summary/full:
The services of the appellants were terminated by the Management of a recognised school.
The termination was not approved by the Inspector of Schools.
The appellants filed a writ petition before the High Court for reinstatement and salaries from the date the school became an aided institution.
The High Court having dismissed the writ petition, appellants preferred the present appeal.
Dismissing the appeal, this Court, HELD: Section 10 A of the Orissa Education Act provides that the termination of a teacher of an aided institution shall be subject to the approval of the Inspector of Schools.
Use of the word 'aided institution ' is dear indication that the provisions of approval apply only to the aided schools.
Since on the date the services of the appellants were terminated the institution was recognised only and not aided, the Inspector could not have exercised the power of disapproval.
Recognition of a institution for purposes of imparting education is different than bringing It on grants in aid.
To the former the regulatory provisions of the Education Act or the rules do, not apply.
The Education Department has no control either on admission of students or members of staff.
(476 D F)