Judgment

SABYASACHI MUKHARJ1, C.J.I. :- This appeal by special leave arises from the judgment and order of the Division Bench of the High Court of Calcutta dated 19th Sept., 1986.

2. The Indian Independence Act, 1947 (hereinafter referred to as "the Act" ) was passed by the British Parliament. This Act came into force on and from 15th August, 1947, which was the appointed day and under the Act, as from the appointed day, two independent dominions were to be set up in place of the existing India known, respectively as India and Pakistan. Two independent dominions were set up in place of the existing Indian Union. Section 3(1) of the Act provided, inter alia, that as from the appointed day the Province of Bengal as constituted under the Government of India Act, 1935 shall cease to exist and in lieu thereof two new provinces known respectively as East Bengal and West Bengal shall be constituted under Sec. 3(3) of the Act. Under S. 3(3) of the Act, it was provided that the boundaries of the new provinces as aforesaid shall be such as may be determined whether before or after the appointed day by the award of a Boundary Commission appointed or to be appointed by the Governor General in that behalf. On 30th June, 1947, the Governor General made an announcement that it had been decided that the Province of Bengal and Punjab shall be partitioned. Accordingly, a Boundary Commission was appointed inter alia, for Bengal consisting of Sir Cyril Radcliffe as the Chairman. So far as Bengal was concerned, the material terms of reference provided that the Boundary Commission should demarcate the boundaries of two parts of Bengal on the basis of, inter alia, the contiguous areas of Muslims and non-Muslims. The Commission held its enquiry and made an award on August 12, 1947, i.e., three days before the appointed day. The Chairman gave his decision regarding the demarcation of boundary line in respect of District of Darjeeling and Jalpaiguri in para 1 of the Annexure A which provided that a line was to be drawn in a particular manner. The award directed that the District of Darjeeling and so much of the District of Jalpaiguri as lies north of the said line shall belong to West Bengal but the Thana of Phatgram and any other portion of Jalpaiguri District, which lies to the East or South, shall belong to East Bengal. Problem arose subsequently regarding the Berubari Union No. 12 which was situated in the Police Station, Jalpaiguri in the District of Jalpaiguri, which was at the relevant time a part of Raisahi Division of Bengal. After the partition, Berubari Union formed part of the State of West Bengal and had been governed as such. The Constitution of India was declared to be passed on 26th November, 1949. As provided by Article 394 of the Constitution, only certain Articles came into force as from that date and the remaining provisions came to be in force from Jan. 26, 1950. Article 1 of the Constitution provided that India, that is, Bharat shall be a Union of States and that the States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule. West Bengal was shown as one of the States in Part A. It was further provided that the territories of the State of West Bengal shall comprise the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal, As already pointed out in view of the said award, Berubari Union No. 12 was treated as part of the Province of West Best Bengal and as such has been treated and governed on that basis. Subsequently, certain boundary disputes arose between India and Pakistan and a Tribunal was set up for the adjudication and final decision of the said disputes. However, the same had nothing to do with the present case and the question of Berubari Union or the Cooch-Behar enclaves or Pakistani enclaves in the east was not the subject-matter of the same. But the said question was raised by the Governmen