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High Court Of Calcutta
Bimal Chandra Basak
SUGANDHA ROY - Appellant
Versus
UNION OF INDIA - Respondent
Matter 371 Of 1983
Decided On : 09/01/1983
The Court's primary concern was whether the 1974 and 1982 Agreements, in relation to Tin Bigha, amounted to a cession of Indian territory, requiring constitutional amendment. The Court held that the agreements did not involve cession or transfer of sovereignty and did not require constitutional amendment.
Fact of the Case:
Two agreements were made between India and Bangladesh: the 1974 Agreement and the 1982 Agreement. The 1974 Agreement provided for the demarcation of boundaries and the exchange of enclaves. The 1982 Agreement provided the terms and conditions of the "lease in perpetuity" of Tin Bigha, an Indian territory, to Bangladesh, to connect two of its enclaves. Petitioners challenged the validity of these agreements, arguing that they amounted to cession of Indian territory and required constitutional amendment.
Finding of the Court:
The Court found that the 1974 and 1982 Agreements did not involve cession or transfer of sovereignty and did not require constitutional amendment. The Court held that the agreements merely allowed Bangladesh and its nationals certain rights and privileges in respect of Tin Bigha, but that India retained its sovereignty, ownership, and control over the area.
Issues: 1. Whether the 1974 and 1982 Agreements amounted to cession of Indian territory, requiring constitutional amendment. 2. Whether the agreements involved transfer of sovereignty.
Ratio Decidendi: 1. Cession of territory involves transfer of sovereignty from one state to another. The 1974 and 1982 Agreements did not involve transfer of sovereignty over Tin Bigha from India to Bangladesh. India retained its sovereignty, ownership, and control over the area. 2. The agreements merely allowed Bangladesh and its nationals certain rights and privileges in respect of Tin Bigha, such as the right of free and unfettered movement and the right to lay cables and electric lines. These rights and privileges did not amount to transfer of sovereignty.
Final Decision: The Court dismissed the writ petitions, holding that the 1974 and 1982 Agreements did not involve cession or transfer of sovereignty and did not require constitutional amendment.
( 1 ) IN this application under Article 226 of the Constitulion the petitioner is challenging the validity of two agreements dt. the 16th May. 1974 and 6th/7th Oct. , 1982 entered into by and between the Government of India and the Government of Bangladesh.
( 2 ) THIS matter has been heard alone with two other matters, being C. O. 4696 -- Nirmal Sen Gupta v. Union of India and C. O. 4537 -- Subrata Chatterjee v. Union of India, where similar points have been raised.
( 3 ) CERTAIN important points of law, including Constitutional and Public International Law. arising out of certain Treaties and Agreements entered into by and between India and Pakistan and thereafter India and Bangladesh are raised in this case. In the facts of this case it is necessary to give the background of this case with some details. These are admitted facts and these facts would also appear from various judg- ments of the Supreme Court.
( 4 ) THE Indian Independence Act. 1947 (hereinafter referred to as the 1947 Act) was passed by the British Parliament. This Act was to come into force from August 15. 1947 which was the appoint-ed day. 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. Section 2 of the 1947 Act provided that subiect to the provisions of Sub-sections (3) and (4) of Section 2, the territories of India will be the territories under the sovereignty of His Maiesty which immediately before the appointed day were included in British India except the territories which under Sub-section (2) of Section 2 were to be the territories of Pakistan. Section 3. Sub-seciton (1) 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 there shall be constituted in lieu thereof two new provinces to be known respectively as East Bengal and West Bengal. Sub-section (3) of Section 3 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. Certain provisions were made for the interim period until boundaries were so determined but we are not concerned with the same in the present case. 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 the 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 (hereinafter referred to as the Radcliffe Award ). The Chairman gave his decision regarding the demarcation of boundary line in respect of District of Darjeeling and Jalpaiguri in para 1 in Annexure 'a' which provided that a line is to be drawn in a particular manner. The Award directed that the District, of Darieeling and so much of the District of Jalpaiguri as lies north of this 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. Khali 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. After the partition. Berubari Union formed part of the State of West Bengal and has been governed as such. The Constitution of India was declared to be passed on 26th Nov. , 1949. As provided by Article 394. only certain Article
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