1964 Supreme(Cal) 230

HIGH COURT OF CALCUTTA
D. N. Sinha
RAM KISHORE SEN - Appellant
Versus
UNION OF INDIA (UOI) - Respondent
Civil Revn.  849 (W)  Of  1963
Decided On : NOVEMBER 17, 1964

The cession of territory to a foreign power does not require a law passed by Parliament under Article 3 of the Constitution or an amendment to Article 3 under Article 368.

Headnote:

CONSTITUTION OF INDIA, 1950 - ARTICLE 141 - BINDING NATURE OF SUPREME COURT DECISIONS - ARTICLE 3 - CESSION OF TERRITORY - WHETHER REQUIRES PARLIAMENTARY STATUTE - ARTICLE 368 - AMENDMENT OF CONSTITUTION - WHETHER NECESSARY - NINTH AMENDMENT ACT, 1960 - VALIDITY - BERUBARI UNION NO. 12 - DIVISION INTO TWO EQUAL HALVES - HORIZONTAL LINE - INTERPRETATION - CHILAHTI VILLAGE - STATUS - ADVERSE POSSESSION - INTERNATIONAL LAW - PRESCRIPTION - ACQUISITION OF TERRITORIAL SOVEREIGNTY.

Fact of the Case:

The petitioners, original inhabitants of villages in Berubari Union No. 12 and Chilahati, challenged the demarcation of Berubari Union No. 12 and the proposed transfer of a portion of Chilahati to Pakistan under the Indo-Pakistan Agreements of 1958, 1959, and 1960. The agreements were implemented through the Ninth Amendment Act, 1960, which amended the First Schedule of the Constitution to exclude the transferred territories from India. The petitioners contended that the horizontal line method prescribed for dividing Berubari Union No. 12 was mathematically impossible and resulted in an unequal division, violating the terms of the agreement. They also argued that the cession of territory required a law passed by Parliament under Article 3 of the Constitution or an amendment to Article 3 under Article 368, and that the Ninth Amendment Act was insufficient. Additionally, they claimed that Chilahati, which was being transferred to Pakistan, was actually part of India and had been adversely possessed by India for many years, giving India title under international law.

Finding of the Court:

1. The horizontal line method prescribed for dividing Berubari Union No. 12 was not mathematically impossible and could be implemented to achieve an equal division, as per the terms of the agreement. The court relied on the congregated map prepared by the Survey of India, which showed that a horizontal line could be drawn to divide the union into two approximately equal halves. 2. The cession of territory under the Indo-Pakistan Agreements did not require a law passed by Parliament under Article 3 of the Constitution or an amendment to Article 3 under Article 368. The Supreme Court had previously held that Article 3 did not apply to the cession of territory to a foreign power, and this decision was binding on the High Court under Article 141 of the Constitution. 3. The claim of adverse possession over Chilahati by India was not established. The evidence showed that Chilahati was part of Police Station Debiganj, which had been awarded to Pakistan under the Radcliffe Award. India's possession of a portion of Chilahati was not open and hostile, and the period of possession was too short to establish a prescriptive right under international law.

Issues: 1. Whether the horizontal line method prescribed for dividing Berubari Union No. 12 was mathematically impossible and resulted in an unequal division, violating the terms of the agreement. 2. Whether the cession of territory under the Indo-Pakistan Agreements required a law passed by Parliament under Article 3 of the Constitution or an amendment to Article 3 under Article 368. 3. Whether Chilahati, which was being transferred to Pakistan, was actually part of India and had been adversely possessed by India for many years, giving India title under international law.

Ratio Decidendi: 1. The court interpreted the terms of the agreement and the relevant provisions of the Constitution to determine the validity of the horizontal line method for dividing Berubari Union No. 12 and the necessity of a law passed by Parliament or an amendment to the Constitution for the cession of territory. 2. The court relied on the principle of stare decisis and the binding nature of Supreme Court decisions under Article 141 of the Constitution to uphold the Supreme Court's previous decision that Article 3 did not apply to the cession of territory to a foreign power. 3. The court applied the principles of adverse possession under international law to determine whether India had acquired title to Chilahati through its possession.

Final Decision: The court dismissed the petitioners' application, holding that the horizontal line method for dividing Berubari Union No. 12 was valid, that a law passed by Parliament or an amendment to the Constitution was not required for the cession of territory under the Indo-Pakistan Agreements, and that India had not acquired title to Chilahati through adverse possession.