GAJENDRAGADKAR, C.J. – 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. 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 3 and 4 originally resided in villages in Thana Boda adjoining Thana Jalpaiguri;
but when Thana Boda was transfererd 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 5 and 6 are the inhabitants of Village Chilahati, and according
to them, the 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 Article 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 Supreme Court of India should be obtained thereon In re: The
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 rendered the following answers:
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Q. (1) Yes.
Q. (2)(a) A law of Parliament relatable to Article 3 of the Constitution would be
incompetent;
(b) A law of Parliament relatable to Article 368 of the Constitution is competent
and necessary;
(c) A law of Parliament relatable to both Article 368 and Article 3 would be
necessary only if Parliament chooses first to pass a law amending Article 3 as
indicated above; in that case, Parliament may have to pass a law on those lines under
Article 368 and then follow it up with a law relatable to the amended Article 3 to
implement the Agreement.
Q. (3) Same as answers (a), (b) and (c) to Question 2.
3. As a result of the opinion thus rendered, Parliament passed the Constitution (Ninth
Amendment) Act, 1960 which came into operation on December 28, 1960. Under this
amendment, “appointed day” means such date as the Central Government may, by
notification in the Official Gazette, appoint as the date for the transfer of territories to
Pakistan in pursuance of the “Indo-Pakistan Agreements” which means the Agreements dated
10th September, 1958, 23rd October, 1959, and 11th January, 1960 entered into between the
Governments of India and Pakistan.
5. In regard to the appellants’ case about the village of Chilahati, the learned Judge held
that Chilahati was a part of Debiganj Thana and had been allotted to the share of Pakistan
under the Radcliffe Award. The theory set up by the appellants that the village of Chilahati
which was being transferred to Pakistan was different from Chilahati which was a part of the
Debiganj Thana, was rejected by the learned Judge; and he found that a small area of 512
acres appertaining to the said village had not been delivered to Pakistan at the time of the
partition; and so, when the respondents were attempting to transfer that area to Pakistan, it
was merely intended to give to Pakistan what really belonged to her, the said area was not, in
law, a part of West Bengal, and no question in relation to the constitutional validity of the said
proposed transfer can, therefore, arise. The plea of adverse possession which was made by the
appellants alternatively in respect of Chilahati was rejected by the learned Judge. In the result,
the appellants’ prayer for the issue of a writ or order in the nature of mandamus in respect of
the said proposed transfer of Chilahati was also disallowed.
6. It appears to have been urged before the learned Judge that in order to make the
transfer of a part of Berubari Union No. 12 to Pakistan, it was necessary to make a law
relating to Article 3 of the Constitution. The learned Judge held that this plea had been
rejected by this Court in the opinion rendered by it on the earlier Reference; and so, an
attempt made by the respondents to implement the material provisions of the Ninth
Amendment Act was fully valid and justified. That is how the writ petition filed by the
appellants came to be dismissed.
7. The appellants then moved the learned Judge for a certificate to prefer in appeal to this
Court; and after the learned Judge was pleased to grant them the said certificate, they have
come to this Court by their present appeal.
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8. Before proceeding to deal with the points which have been raised before us by Mr
Mukherjee on behalf of the appellants, it is necessary to advert to the opinion expressed by
this Court in Re: The Berubari Union and Exchange of Enclaves with a view to correct an
error which has crept into the opinion through inadvertence. On that occasion, it was urged on
behalf of the Union of India that if any legislative action is held to be necessary for the
implementation of the Indo-Pakistan Agreement, a law of Parliament relating to Article 3 of
the Constitution would be sufficient for the purpose and that it would not be necessary to take
any action under Article 368. This argument was rejected. In dealing with this contention, it
was observed by this Court that the power to acquire new territory and the power to cede a
part of the national territory were outside the scope of Article 3(c) of the Constitution. This
Court then took the view that both the powers were the essential attributes of sovereignty and
vested in India as an independent Sovereign Republic. While discussing the significance of
the several clauses of Article 3 in that behalf, it seems to have been assumed that the Union
territories were outside the purview of the said provisions. In other words, the opinion
proceeded on the basis that the word “State” used in all the said clauses of Article 3 did not
include the Union territories specified in the First Schedule.
9. Reverting then to the points urged before us by Mr Mukerjee, the first question which
falls to be considered is whether the learned trial Judge was in error in holding that the map
Ext. A-l on which the appellants had rested their case was neither relevant nor reliable. There
is no doubt that the sole basis on which the appellants challenged the validity of the intended
transfer of a part of Berubari Union No. 12 was that the division had to be made by a strict
horizontal line beginning with the north-east corner of the Debiganj Thana and drawn eastwest, and that if such a division is made, no part of Berubari Union No. 12 could go to
Pakistan. It is common ground that the intention of the relevant provision is that after
Berubari Union No. 12 is divided, its northern portion should remain with India and the
southern portion should go to Pakistan. The appellants, urged that if a horizontal line is drawn
from the north-east corner of Debiganj Thana from east to west, no part of Berubari Union
No. 12 falls to the south of the horizontal line, and therefore, it is impossible to divide
Berubari Union No. 12 into two halves by the process intended by the Amendment Act.
18. In the course of his arguments, Mr Mukerjee no doubt faintly suggested that the
Schedule annexed to the Amendment Act should itself have shown how the division had to be
made. In other words, the argument was that more details should have been given and specific
directions issued by the Ninth Amendment Act itself as to the manner of making the division.
This contention is clearly misconceived and must be rejected. All that the relevant provision
has done is to record the decision reached by the Prime Ministers of the two countries and
make it effective by including it in the Constitution Amendment Act as suggested by this
Court in its opinion on the Reference in respect of this case.
20. Mr Mukerjee very strongly relied on certain private documents produced by the
appellants in the form of transfer deeds. In these documents,, no doubt Chilahati has been
referred to as forming part of District Jalpaiguri. These documents range between 1925 AD to
1945 AD. It may well be that a part of this elongated village of Chilahati admeasuring about
15 to 16 square miles may have been described in certain private documents as falling under
the district of Jalpaiguri. But, as pointed out by the learned Judge in view of the maps
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produced by the respondents it is difficult to attach any importance to the recitals made by
individuals in their respective documents which tend to show that Chilahati is a part of Police
Station Jalpaiguri. Indeed, no attempt was made to identify the lands concerning the said
deeds with the Taluka maps with the object of showing that there was another Taluka
Chilahati away from Berubari Union No. 12. The learned Judge has also referred to the fact
that Mr Mukerjee himself relied upon a map of Taluka Chilahati which is in Police Station
Debiganj and not Jalpaiguri. Therefore, we see no justification for Mr Mukerjee’s contention
that the learned Judge was in error in rejecting the appellants’ case that a part of Chilahati
which is being handed over to Pakistan does not pertain to Village Chilahati which is situated
in Debiganj Police Station, but is a part of another Chilahati in the district of Jalpaiguri. There
is no doubt that if a small portion of land admeasuring about 512 acres which is being
transferred to Pakistan is a part of Chilahati situated within the jurisdiction of Debiganj
Thana, there can be no valid objection to the proposed transfer. It is common ground that the
village of Chilahati in the Debiganj Thana has been allotted to Pakistan; and it appears that
through inadvertence, a part of it was not delivered to Pakistan on the occasion of the partition
which followed the Radcliffe Award. It is not surprising that in dividing territories under the
Radcliffe Award, such a mistake should have occurred; but it is plain that what the
respondents now propose to do is to transfer to Pakistan the area in question which really
belongs to her. In our opinion, this conduct on the part of the respondents speaks for their fair
and straightforward approach in this matter.
21. That takes us to another contention raised by Mr Mukerjee in respect of the village of
Chilahati. He argues that having regard to the provisions contained in Entry 13 in the First
Schedule to the Constitution of India, it must be held that even though a portion of Chilahati
which is being transferred to Pakistan may have formed part of Chilahati allotted to Pakistan
under the Radcliffe Award, it has now become a part of West Bengal and cannot be ceded to
Pakistan without following the procedure prescribed by this Court in its opinion on the earlier
Reference. Entry 13 in the First Schedule on which this argument is based, provides, inter
alia, that West Bengal means the territories which immediately before the commencement of
this Constitution were either comprised in the Province of West Bengal or were being
administered as if they formed part of that Province. Mr Mukerjee’s argument is that it is
common ground that this portion of Chilahati was being administered as if it was a part of the
Province of West Bengal; and so, it must be deemed to have been included in the territory of
West Bengal within the meaning of the First Schedule, and if that is so, it is a part of the
territory of India under Article 1 of the Constitution. It is true that since this part of Chilahati
was not transferred to Pakistan at the proper time, it has been regarded as part of West Bengal
and administered as such. But the question is: does this fact satisfy the requirement of Entry
13 on which the argument is based? In other words, what is the meaning of the clause “the
territories which were being administered as if they formed part of that Province”; what do
the words “as if” indicate in the context? The interpretation of this clause necessarily takes us
to its previous history.
22. When the Constitution was first adopted, Part A of the First Schedule enumerated Part
A States. The territory of the State of West Bengal was one of such States. The Schedule then
provided that the territory of the State of West Bengal shall comprise the territory which
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immediately before the commencement of this Constitution was comprised in the Province of
West Bengal. The territory of the State of Assam was differently described; but with the
description of the said territory we are not concerned in the present appeal. The territory of
each of the other States was, however, described as comprising the territories which
immediately before the commencement of this Constitution were comprised in the
corresponding Province and the territories which, by virtue of an order made under Section
290-A of the Government of India Act, 1935, were immediately before such commencement
being administered as if they formed part of that Province. It is significant that this descriptive
clause was not used while describing the territory of the State of West Bengal by the
Constitution as it was first enacted.
23. The Constitution (Amendment of the First and Fourth Schedules) Order 1950,
however, made a change and brought the territory of the State of West Bengal into line with
the territories of the other States covered by the clause which we have just quoted. This Order
was passed on January 25, 1950, and it deleted the paragraph relating to the territory of the
State of West Bengal, with the result that the last clause of the First Schedule became
applicable to it. In other words, as a result of the said Order, the territory of the State of West
Bengal must be deemed to have always comprised the territory which immediately before the
commencement of the Constitution was comprised in the Province of West Bengal, as well as
the territories which, by virtue of an order made under Section 290-A of the Government of
India Act, 1935, were immediately before such commencement being administered as if they
formed part of West Bengal.
25. In view of this Constitutional background, the words “as if” have a special
significance. They refer to territories which originally did not belong to West Bengal but
which became a part of West Bengal by reason of merger agreements. Therefore, it would be
impossible to hold that a portion of Chilahati is a territory which was administered as if it was
a part of West Bengal. Chilahati may have been administered as a part of West Bengal; but
the said administration cannot attract the provisions of Entry 13 in the First Schedule, because
it was not administered as if it was a part of West Bengal within the meaning of that Entry.
The physical fact of administering the said area was not referable to any merger at all; it was
referable to the accidental circumstance that the said area had not been transferred to Pakistan
as it should have been. In other words, the clause “as if” is not intended to take in cases of
territories which are administered with the full knowledge that they do not belong to West
Bengal and had to be transferred in due course to Pakistan. The said clause is clearly and
specifically intended to refer to territories which merged with the adjoining States at the
crucial time, and so, it cannot include a part of Chilahati that was administered by West
Bengal under the circumstance to which we have just referred. That is why we think Mr
Mukerjee is not right in contending that by reason of the fact that about 512 acres of Chilahati
were not transferred to Pakistan and continued to be administered by the West Bengal
Government, that area became a part of West Bengal within the meaning of Entry 13 in
Schedule I. The West Bengal Government knew all the time that it was an area which
belonged to Pakistan and which had to be transferred to it. That is, in fact, what the
respondents are seeking to do; and so, it would be idle to contend that by virtue of the
accidental fact that this area was administered by West Bengal, it has constitutionally and
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validly become a part of West Bengal itself. That being so, there can be no question about the
constitutional validity of the proposed transfer of this area to Pakistan. What the respondents
are seeking to do is to give to Pakistan what belongs to Pakistan under the Radcliffe Award.
26. Mr Dutt, who followed Mr Mukerjee, attempted to argue that the village of Chilahati
has become a part of West Bengal and as such, a part of the Union of India because of
adverse possession. He contends that ever since the Radcliffe Award was made and
implemented, the possession of West Bengal in respect of this area is adverse; and he argues
that by adverse possession, Pakistan’s title to this area has been lost. We do not think it is
open to the appellants to raise this contention. It has been fairly conceded by Mr Dutt that no
such plea had been raised in the writ petition filed by the appellants. Besides, it is plain that
neither the Union of India, nor the States of West Bengal which are impleaded to the present
proceedings make such a claim. It would indeed be surprising that even though the Union of
India and the State of West Bengal expressly say that this area belongs to Pakistan under the
Radcliffe Award and has to be delivered over to Pakistan, the petitioners should intervene and
contend that Pakistan’s title to this property has been lost because West Bengal had been
adversely in possession of it. It is, therefore, unnecessary to examine the point whether a plea
of this kind can be made under international law and if yes, whether it is sustained by any
evidence on the record.
27. The result is, the appeal fails and is dismissed.
