Citations: (1966) 1 SCR 430; AIR 1966 SC 644
Court: Supreme Court
Case Type: Civil Appeal
Case No.: 436 of 1965
Decided on: 11th August, 1965
Appellants: Ram Kishore Sen and Others
Respondents: Union of India and Others
Bench: Constitutional Bench comprising of- Chief Justice P.B. Gajendragadkar, Justice K.N. Wanchoo, Justice M. Hidayatullah, Justice J.C. Shah and Justice S.M. Sikri.
Statutes Referred: Constitution of India, 1950; General Clauses Act, 1897: Constitution (Ninth Amendment) Act, 1960; Constitution (Seventh Amendment) Act, 1956; Evidence Act, 1872, Government of India Act, 1935.
- A writ petition was filed by 6 appellants against 4 respondents- Union of India; Secretary of External Affairs, Government of India; the State of West Bengal along with the Collector of the district of Jalpaiguri with regard to illegal steps taken by them to transfer a part of Berubari Union No. 12 along with the Chilahati village to the nation of Pakistan.
- The appellants comprise of the original inhabitants of villages such as Senpara, Deuniapa, Chilahati (situated in Thana Jalpaiguri) as well as some who were originally inhabitants of village Thana Boda, adjacent Thana Jalpaiguri, but when their village (Thana Boda) was transferred to the nation of Pakistan due to the 1947 partition, they shifted to the Senpara vllage and Gouranga bazar which is within Berubari Union No. 12.
- These appellants had their ancestral homes, cultivated lands in such villages.
- An agreement took place between the Prime Minister of India and Pakistan to settle some of the issues and conflicts between the two concerned nations, which was jointly recorded by the Commonwealth Secretary, Ministry of External Affairs from the Government of India as well as the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth Relations from the Government of Pakistan.
- The President of India, after the above mentioned agreement, referred questions to the Supreme Court of India under Article 143(1) of the Constitution with respect to the implementation of the Agreement relating to Enclaves, for which Article 3 as well as Article 368 of the Constitution were taken into consideration.
- The Supreme Court rendered that a law enacted by the Parliament of India which will be related to Article 3 and 368 of the Constitution would be essential only if the Parliament decides to enact a law firstly to amend Article 3 under Article 368 of the Constitution and then enact a law related to the Article 3 (amended) to implement the Agreement.
- Due to Supreme Court’s opinion, the Parliament brought the Constitution (Ninth Amendment) Act, 1960, in which the Central Government, via a notification in the Official Gazzette, may appoint a date on which territories with reference to the “Indo-Pakistan” Agreements will be transferred to Pakistan.
- According to the Second Schedule of the Ninth Amendment Act, the division of Berubari Union No. 12 was to be done horizontally from the northeast region of Debiganj Thana by giving half the portion to the nation of Pakistan and other half portion was to be retained by India.
- According to the division written in the Schedule, the Cooch Behar enclaves (between Pachagar Thana of the nation of East Pakistan and Jalpaiguri Thana of West Bengal’s Berubari Union No. 12) will remain in India but the Cooch Behar enclaves which is “lower down between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan.”
- The appellants filed a writ petition in the Calcutta High Court on 4th Dcember, 1963 claiming the issue of writ of mandamus to command the respondents to withhold
- The process of any survey as well as demarcation of the region of Chilahati and the Berubari Union No. 12 and
- From “giving effect to their intentions to transfer a part of Berubari Union No. 12, and Chilahati to Pakistan.”
- The respective parties led evidence on these pleadings in the form of maps and argued their contentions elaborately.
- The Calcutta High Court rejected appellant’s prayer to issue a writ on all important issues.
- The appellants asked for a certificate to present an appeal to the Supreme Court which was granted by the learned judge of Calcutta High Court.
- Whether the provisions regarding partition of Berubari Union No. 12 in the Second Schedule of the Constitution (Ninth Amendment) Act, 1960 were capable of implementation?
- Whether the proposed transfer of the village Chilahati to Pakistan was constitutionally valid?
- Whether the present plea of the appellants can come within the ambit of international law and whether it can be sustained via any evidence on record?
- Whether it was necessary to enact the Constitution (Ninth Amendment) Act, 1960 with respect to Article 3 of the Constitution?
- Whether the learned Judge was wrong in holding the map, Ext. A-1, on which appellants had raised their contentions, irrelevant and not be relied upon?
Contentions by parties
- Arguments advanced by the Appellants:
- It had come to appellant’s knowledge that 2 officers of the concerned two Governments had about a month before their petition, had gone to the locality to demarcate by holding a survey for the same.
- The intention of the respondents was to transfer the southern portion to the nation of Pakistan and a similar effort to transfer Chilahati village was also made.
- The language of the Ninth Amendment Act is confusing and incapable of implementation.
- If the separation of Berubari Union No. 12 is made according to the Amendment Act, no part of the said region would be “south of the horizontal line starting from the north-east corner of Debiganj Thana, and so, no portion of the said Union can be transferred to Pakistan”
- The village of Chilahati was neither covered by the Ninth Amendment Act nor by the Indo-Pakistan Agreements; it was a portion of West Bengal and it was incompetent of the Government to transfer the village to the nation of Pakistan without following the opinion given by the Supreme Court.
- Since the Radcliffe Award, the village of Chilahati is part of West Bengal and thereby a part of the Union of India due to adverse possession by which Pakistan has lost its title to the said area.
- The respondents should withhold the process of any survey as well as demarcation of the region of Chilahati and the Berubari Union No. 12 and from “giving effect to their intentions to transfer a part of Berubari Union No. 12, and Chilahati to Pakistan.”
- The onus to prove that the material provision of the Amendment Act were capable of being implemented lies on the respondent due to the allegations and evidence adduced by the appellants.
- The respondents purposefully suppressed relevant evidence. Under Section 106 of the Evidence Act, the respondents should be required to adduce evidence to show the relevant fact.
- Arguments advanced by the Respondents:
- Appellant’s have no right according to their claim to acquire any writ of mandamus.
- The relevant sections of the Ninth Amendment Act, contrary to the appellant’s claim, are neither unclear nor confusing and can be implemented.
- Assumption of the appellants regarding a “strict horizontal line had to be drawn from the north-east corner of Debiganj Thana” in pursuance of the relevant provisions of the Amendment Act was invalid.
- The Ninth Amendment Act indicated the division of the area of Berubari Union No. 12 in half and half.
- The respondents were reasonable in implementation of the relevant sections of the Amendment Act.
- The village of Chilahati was a portion of Debiganj Thana and had been allotted to Pakistan’s share due to the Radcliffe Award. Respondent’s intention was to transfer an area of approximately 512 acres of Chilahati to Pakistan which hadn’t been transferred to Pakistan when previously partition was made.
- The transfer of Chilahati was not only legal and valid but it also did not infringe any Articles of the Constitution.
- According to the agreement, Berubari Union No. 12 is to be divided in half so that the southern part of the division can go to Pakistan and the northern remains with India since it’s adjacent to it.
- ‘Horizontal’ division from Debiganj Thana’s north-east corner does not mean a mathematical line. The provision only directs that the division has to start from east to west and does not discuss about any line. While making the division, it’s essential that the Berubari Union should be separated in half but even this separation cannot be half mathematically.
- The phrase “as if” in Entry 13 in the First Schedule of the Indian Constitution is not aimed to take the cases of those territories which are belonging to West Bengal and which have to be transferred to Pakistan in due course. The provision specifically aims to refer those territories which were fused with the attached States. Thus, it does not include Chilahati’s part which was administered by West Bengal.
- The appellants were not open to raise the contention of adverse possession by which Pakistan’s title to the village of Chilahati will allegedly be lost since it had not been raise by the appellants in the writ petition filed by them.
- The appellants should not intervene and object Pakistan’s title to Chilahati as The Union of India and West Bengal expressly mention that under the Radcliffe Award, it belongs to and must be delivered to Pakistan. Therefore, no need to examine whether this plea can be sustained due to any evidence on record under international law.
- Relevant and essential words concerned in the present case have been produced from Section 290-A of the Government of India Act, 1934 and have been reproduced in the relevant provision of Schedule 1 of the Constitution.
- No justification proving that the learned Judge erred in rejecting appellants contentions.
- No valid objection regarding the proposed transfer of Chilahati village as it is common knowledge that Chilahati village, which is a part of Debiganj Thana, has to be transferred to Pakistan which was due to be transferred before.
- The Ninth Amendment Act enacted by the Parliament, is indicated to have been passed in the view rendered by the Supreme Court on the previous reference.
- The theory of the appellant regarding the maps being deliberately withdrawn by the respondents is not accepted.
- Since, Ext. A-1 does not satisfy the requirements as per Section 83 of the Evidence Act, therefore, there can be no presumption regarding the accuracy of the said map.
- The learned Judge has rightly opined that the map in question does not seem accurate and even if it’s believed to be relevant, it’s accuracy is not recognized.
- The interpretation of the word “State” taken into consideration in Article 3 of the Constitution has to be according to Sec. 3(58)(b) of the General Clauses Act, 1897, which provides that after the Seventh Amendment of the Constitution Act, 1956, a State shall mean one which is provided in the First Schedule of the Constitution and as well as a Union Territory.
- Article 367(1) of the Constitution lays down specifically that the General Clauses Act shall be applied for interpretation of the Constitution as well as any Act of the legislature of India.
- It is primarily appellant’s onus to prove that the respondent’s attempt in fulfilment of the Amendment Act is unconstitutional in nature; but if no evidence is produced in support of such a plea then they cannot oblige the respondents to prove that appellant’s plea is untenable.
- According to Section 83 of the Evidence Act, 1872,
“83. Presumption as to maps or plans made by authority of Government –– The Court shall presume that maps or plans purporting to be made by the authority of [the Central Government or any State Government] were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate”
Thus, only those maps which fulfill the requirements as per Section 83 can be presumed to be accurate.
- The General Clauses Act of 1897 is applied to interpret Article 367(1) as well as 372 of the Constitution of India.
- Transfer of Chilahati village to Pakistan was valid
- The relevant portion of the Ninth Amendment Act regarding Berubari Union No. 12 is capable of implementation.
- Appellants’ plea regarding adverse possession cannot be made under international law and cannot be sustained.
- The learned Judge was correct in adjudicating the contentions before it.
- The appeal was dismissed.
- No order on costs.
The present case laid down a significant impact on not only the village of Chilahati and Berubari Union No. 12 which were in question but also gave effect to the Radcliffe Award along with the relation of India with its neighboring country, Pakistan.
The constitutional bench meticulously discussed the various issues involved as well as the relevant material provisions in question by thoroughly analyzing the constitutional background as well as intention of the Parliament while enacting the relevant provisions in the legislation.
Prepared by Nikita Sethi