1. Writ petition challenging the transfer of territories to another country pursuant to a constitutional amendment and international agreement. (Para 1 , 3 )
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1965 Supreme(SC) 178
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI, JJ.
Ram Kishore Sen and others, Appellants
Versus
Union of India and others, Respondents.
Civil Appeal No. 436 of 1965.
Advocates appeared
Mr. A. D. Mukherjee, Senior Advocate, (M/s. Arun Dutta, S. P. Mukhopadhyaya, M. Rajagopalan, D. N. Mukherjee, K. Rajendra Chaudhury and K. R. Chaudhury, Advocates, with him), for Appellants; Mr. C. K. Daphtary, Attorney General for India and B. Sen, Senior Advocate, (Mr. B. R. G.K. Achar, Advocate, with them), for Respondents Nos. 1 and 2; Mr. B. Sen, Senior Advocate (M/s. S. C. Bose and P. K. Bose, Advocates, with him), for Respondents Nos. 3 and 4.
Advocates:
A.D.MUKHERJI, ARUN DUTTA, B.R.G.K.Achar, B.SEN, C.K.DAFTARY, D.N.MUKHERJI, K.R.CHAUDHARY, K.RAJENDRA CHAUDHARY, M.RAJAGOPAL, P.K.BOSH, S.C.BOSE, S.P.MUKHOPADHYAYA
A.D.MUKHERJI, ARUN DUTTA, B.R.G.K.Achar, B.SEN, C.K.DAFTARY, D.N.MUKHERJI, K.R.CHAUDHARY, K.RAJENDRA CHAUDHARY, M.RAJAGOPAL, P.K.BOSH, S.C.BOSE, S.P.MUKHOPADHYAYA
Ceding national territory requires a constitutional amendment under Article 368 as it is an attribute of sovereignty. Territories administered accidentally after a boundary award do not become part of a state under the "administered as if" clause of the First Schedule.
Headnote:(A) Constitution of India - Articles 1, 3, and 368; First Schedule - Entry 13 - Constitution (Ninth Amendment) Act, 1960 - Power to cede national territory - The power to cede a part of the national territory is an inherent attribute of sovereignty and is outside the scope of Article 3; therefore, a law of Parliament relatable to Article 368 is competent and necessary for the purpose of ceding territory. (Para 8)
(B) Indian Evidence Act, 1872 - Sections 36 and 83 - Admissibility and accuracy of maps - Statements of facts in published maps generally offered for public sale or maps made under the authority of the Central or State Government are relevant - A private map not proven to be generally offered for public sale is irrelevant, and no presumption of accuracy can be drawn in its favor. (Paras 10-12)
(C) Constitution of India - First Schedule - Interpretation of "administered as if they formed part of that Province" - The phrase refers to territories that became part of a state through merger agreements and does not include territories administered due to an accidental failure to transfer them to another country under a boundary award. (Paras 21-25)
Facts of the case:
Appellants challenged the transfer of a portion of a territory and a village to a foreign country, alleging that the legislative provisions for the division of the territory were vague and incapable of implementation. They contended that the division required a strict mathematical horizontal line which would result in no territory being transferred. Regarding the village, they argued it was not covered by the agreements or the amendment act and had become part of the state through administration and adverse possession.
Findings of Court:
The court found that the division of the territory was implementable and that the term "horizontal" indicated a general direction (latitude) to achieve a half-and-half division rather than a strict geometric line. The private map produced by the appellants was held to be irrelevant and unreliable. The village was found to be part of the area originally allotted to the foreign country under a boundary award, and its continued administration by the state did not constitutionally incorporate it into the state.
Issues: Whether the legislative action for the division of territory was implementable; whether a private map could be relied upon to challenge the division; and whether the administration of a village not delivered under a boundary award made it part of the state's territory under the First Schedule.
Ratio Decidendi: The power to cede national territory requires a constitutional amendment under Article 368. In interpreting boundary divisions, "horizontal" indicates a general direction rather than a strict geometric line. Under the Evidence Act, private maps must be proven to be generally offered for public sale to be relevant. The phrase "administered as if" in the First Schedule relates specifically to merger agreements and not to accidental possession of territory.
Result: Appeal dismissed.
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2. Whether the constitutional amendment is incapable of implementation due to vagueness and whether certain territories were erroneously included or excluded from the transfer. (Para 3 , 4 , 19 )
3. The court found government maps reliable, the term horizontal not strictly mathematical, and the administration of territory not creating constitutional ownership. (Para 15 , 17 , 25 )
4. Ceding national territory requires a constitutional amendment under Article 368; administration of territory as if part of a state refers to merger agreements. (Para 8 , 25 )
5. Appeal dismissed. (Para 27 )
6. Is a law under Article 3 of the Constitution sufficient to cede national territory?
No, the power to cede a part of national territory is an inherent attribute of sovereignty and requires a law passed under Article 368 of the Constitution. (Para 8 )
7. When are published maps relevant under Section 36 of the Evidence Act?
Maps are relevant if they are made under the authority of the Central or State Government, or are published maps generally offered for public sale. (Para 11 )
8. What is the meaning of territories administered as if they formed part of a Province under the First Schedule?
This phrase refers to territories that became part of a state through merger agreements, not territories administered accidentally or with knowledge that they belong to another country. (Para 21 , 23 , 24 , 25 )
9. Does a requirement for a horizontal division of territory imply a strict mathematical or geometrical line?
No, horizontal indicates a general direction (east-to-west) and latitude rather than longitude, intended to achieve a fair division rather than mathematical precision. (Para 16 , 17 )
Judgment
GAJENDRAGADKAR, C.J.I.: The writ petition from which this appeal arises was filed by the six appellants who reside within the limits of Thana Jalpaiguri in the district of Jalpaiguri. To their petition, they had impleaded as opponents the four respondents, the Union of India, the Secretary of External Affairs, Government of India, the State of West Bengal, and the Collector of Jalpaiguri. The substance of the prayer made by the appellants in their writ petition was that the respondents were attempting or taking steps to transfer a portion of Berubari Union No. 12 and the village of Chilahati to Pakistan and they urged that the said attempted transfer was illegal. That is why the writ petition prayed that appropriate writs or directions should be issued restraining the respondents from taking any action in pursuance of their intention to make the said transfer. Appellants 1 and 2 are the original inhabitants of villages Senpara and Deuniapara respectively which are within the limits of Berubari Union No. 12. They own ancestral homes and cultivated lands in the said villages and they live in the homesteads. Appellants Nos. 3 and 4 originally resided in villages in Thana Boda adjoining Thana Jalpaiguri; but when Thana Boda was transferred to Pakistan as a result of the partition in 1947, they came over to the villages of Senpara and Gouranga bazar respectively within the limits of Berubari Union No. 12; since then, they have acquired lands there and built their homesteads in which they live. Appellants Nos. 5 and 6 are the inhabitants of village Chilahati, and according to them, this village is situated in Thana Jalpaiguri. In this village, these two appellants have their ancestral homes and cultivated lands.
2. It is a matter of common knowledge that on September 10, 1956, an agreement was reached between the Prime Ministers of India, and Pakistan with a view to settle some of the disputes and problems pending between the two countries. This agreement was set out in the note jointly recorded by the Commonwealth Secretary, Ministry of External Affairs, Government of India, and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth Relations, Government of Pakistan. After this agreement was entered into, the President of India referred three questions to this Court for consideration and report thereon, under Art. 143 (1) of the Constitution, because he took the view that the said questions had arisen and were of such nature and of such importance that it was expedient that the opinion of the SC of India should be obtained thereon. (Spl. Ref. No. 1 of 1959, In re: Berubari Union and Exchange of Enclaves , (1960) 3 SCR 250 at pp 256, 295-96. These three questions were thus formulated :-
"(1) Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union?
(2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary, in addition or in the alternative ?
(3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the Agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose, in addition or in the alternative ?
On the above Reference, this Court endered the following answers:-
Q. (1). Yes.
Q. (2) (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetent ;
(b) A law of Parliament relatable to Art. 368 of the Constitution is competent and necessary;
(c) A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above; in that case, Parliament may have to pass a law on those lines under Art. 368 and then follow it up with a law relatable to the amended Art. 3 to implement the Agreement.
