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HIGH COURT OF CALCUTTA
D. N. Sinha
NIRMAL BOSE - Appellant
Versus
UNION OF INDIA - Respondent
Civil Revn. 3531 Of 1958
Decided On : APRIL 08, 1959
The Court held that the agreement between India and Pakistan to exchange territories, including the Berubari Union, was not an act of state and was subject to judicial review. The Court further held that the agreement required the sanction of Parliament under Article 3 of the Constitution, as it involved the diminution of the area of a State. The Court also held that the State of West Bengal could be prevented from taking steps to implement the agreement if it was unconstitutional or illegal, but that there was no evidence that the State had yet taken any such steps.
Fact of the Case:
The Government of India and Pakistan entered into an agreement to exchange territories, including the Berubari Union, which was located in the State of West Bengal. The agreement was not submitted to Parliament for approval, and the petitioner, a citizen of India, filed a petition in the Supreme Court challenging the agreement on the grounds that it was unconstitutional and illegal.
Finding of the Court:
The Supreme Court held that the agreement between India and Pakistan to exchange territories, including the Berubari Union, was not an act of state and was subject to judicial review. The Court further held that the agreement required the sanction of Parliament under Article 3 of the Constitution, as it involved the diminution of the area of a State. The Court also held that the State of West Bengal could be prevented from taking steps to implement the agreement if it was unconstitutional or illegal, but that there was no evidence that the State had yet taken any such steps.
Issues: 1. Whether the agreement between India and Pakistan to exchange territories, including the Berubari Union, was an act of state and was subject to judicial review. 2. Whether the agreement required the sanction of Parliament under Article 3 of the Constitution. 3. Whether the State of West Bengal could be prevented from taking steps to implement the agreement if it was unconstitutional or illegal.
Ratio Decidendi: 1. The Court held that the agreement between India and Pakistan to exchange territories, including the Berubari Union, was not an act of state and was subject to judicial review. The Court reasoned that the agreement was an executive action and not a legislative act, and that it was therefore subject to judicial review. 2. The Court held that the agreement required the sanction of Parliament under Article 3 of the Constitution, as it involved the diminution of the area of a State. The Court reasoned that Article 3 of the Constitution specifically provides for Parliament to approve any agreement that involves the diminution of the area of a State. 3. The Court held that the State of West Bengal could be prevented from taking steps to implement the agreement if it was unconstitutional or illegal. The Court reasoned that the State of West Bengal was bound to comply with the Constitution and the laws of India, and that it could not take any steps to implement an agreement that was unconstitutional or illegal.
Final Decision: The Supreme Court discharged the rule nisi, but it must be clearly understood that it fails not necessarily upon the merits but because of an insufficiency of materials, without which the wheels of law cannot be made to move.
( 1 ) THE petitioner in this case is a citizen of India, having his permanent residence in the District of Jalpaiguri in the State of West Bengal. The subject-matter of this application is the proposed transfer to Pakistan of a portion of Berubari Union No. 12, which is now situated in Police Station, Jalpaiguri, District Jalpaiguri. In order to appreciate the exact nature of the dispute it is necessary to understand the facts relating to the proposed transfer, and for this purpose, a historical survey is inevitable. On 20-2-1947, the British Government announced its intention of transferring power in British India to Indian hands by June, 1948. On 3-6-1947 a statement was made by the said Government on the method of transfer of power in India. On 18-7-1947 the British Parliament passed the Indian Independence Act, 1947. This Act was to come into operation from the "appointed date," namely the 15th August, 1947. It was indicated that as from the 15th day of August, 1947 two independent Dominions shall be set up in India, to be known respectively as India and Pakistan. By Section 2 of the said Act, it was laid down that subject to the provisions of Sub-sections (3) and (4) of Section 2, the territories of India shall be the territories under the sovereignty of His Majesty which, immediately before the appointed date, were included in British India, except the territories which under Sub-section (2) of Section 2 were to be the territories of Pakistan, I shall presently refer to the said Act once again, since it will have to be considered in greater detail. It will be appropriate to state here that so far as India is concerned. The Constituent Assembly, which at first sat on 9-12-1946 re-assembled after the midnight of 34-8-1947, as the Sovereign Constituent Assembly for India. On 13-12-1946 had been introduced the historic objective resolution of Sri Nehru, which was adopted on 22-1-1947. The Constituent Assembly next considered the salient principles of the proposed Constitution as outlined by various committees, and thereafter appointed a drafting committee on 29-8-1947. The drafting committee embodied the decision of the Assembly with alternative and additional proposals in the form of a "draft constitution" which was published in February, 1948. The draft was presented to the Constituent Assembly on 4-11-1948 and after three readings was finalised and received the signature of the President of the Assembly and declared as passed on 26-11-1949 and became the Constitution of India. A few of the articles contained in the Constitution as set out in Article 394 came into force at once, and the remaining provisions of the Constitution came into force on 26-1-1950 which day is referred to in the Constitution as the 'commencement of the Constitution. ' For purposes of this application, our real starting point is the Indian Independence Act, 1947. I have already referred to certain portions of it. I shall now proceed to consider Section 3 thereof, which is the section which is really relevant for our purposes. The relevant part thereof is set out below:"3 (1) As from the appointed date-- (a) the province of Bengal as constituted under the Government of India Act, 1935, shall cease to exist;-- (b) there shall be constituted in lieu thereof two new provinces to be known respectively as East Bengal and West Bengal (2 ). . . . . . . . . . . . . . . . . . . 3. The boundaries of the new provinces aforesaid shall be such as may be determined whether before or after the appointed date, by the award of a Boundary Commission appointed or to be appointed by the Governor General in that behalf, but until boundaries are so determined-- (a) The Bengal District specified in the First Schedule to this Act, together with, in the event mentioned in Sub-section (2) of this section, the Assam District of Sylhet, shall be treated as the territories which are to be comprised in the new province of East Bengal; (b) The remainder of the ter
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