Indira Gandhi, as the then Prime Minister of India for and on behalf of the Government of India and Sheikh Mujibar Rehaman, the then Prime Minister of Bangladesh, signed the said agreement for and on behalf of the Government of Peoples Republic of Bangladesh.
All the companytentions were numbered by Mr. Justice D.K. Sen, as the learned Chief Justice then was, who delivered the main judgment of the Division Bench in the judgment under appeal.
This view was supported by the statement of law by P.OConnell in International Law, 2nd Edition, Vol.
There was an appeal before the Division Bench of the High Court.
Several other company tentions were urged on behalf of the Union of India and the appellants before the Division Bench.
What had merely been done was to enable the Government of Bangladesh and its nationals to exercise certain rights in respect of the said area, i.e., Teen Bigha, which other wise they would number have been entitled to do.
Learned Advocate had submitted before the Division Bench that under clause 14 of the agreement of 1974, it was clearly recorded that India would lease in perpetuity to Bangladesh the said area of Teen Bigha to companynect Dahagram with the Panban mouza in the main land of Bangladesh.
After the parti tion, Berubari Union formed part of the State of West Bengal and had been governed as such.
In 1983, writ petitions were filed in the Calcutta High Court.
In spite of the said agreements India would retain its sovereignty, ownership and companytrol over Tin Bigha.
Subsequently, letters passed between the Ministry of Foreign Affairs, Government of Bangladesh and the Ministry of External Af fairs, Government of India, both dated the 7th October, 1982 in which it was recorded that with reference to the earlier agreement between Government of Bangladesh and the Govern ment of India companycerning the demarcation of land boundary between the two companyntries, signed on the 16th May, 1974, the following understanding had been reached between the two Governments in respect of lease in perpetuity by India of the said area of 178 metres x 85 metres near Teen Bigha to companynect Dahagram with Mouza Panbari in Bangladesh.
Under the said two later agreements, the provision of the earlier agreement of 1958 stood partially modified and superseded.
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 of Bengal.
14 India will retain the southern half of south Berubari Union No.
India and Bangladesh had, by the said 1974 and 1982 agreements and to the extent indicated therein terminated and or modified the earlier Treaty of 1958 in respect of inter alia, southern portion of Bernbari Union and the two enclaves in question.
As provided by Article 394 of the Constitution, only certain Articles came into force as from that date and the remaining provisions came to be in force from January 26, 1950.
As already pointed out in view of the said award, Berubari Union No.
But the said question was raised by the Government of Pakistan in the year 1952.
It was recorded in the preamble of the agreement that the same companycerned the demarcation of the land boundary between India and Pakistan and related matters, and that the two Govern ments were aware that friendly relations were existing between the two companyntries and that it was desired to define the boundary more accurately at certain points and to company plete the demarcation thereof.
The Division of Berubari Union No.
As Dahagram and Angarpota would remain as pans of Bangladesh territory, the agreements were necessary to enable Bangladesh to exercise its sovereignty in full over the said enclaves.
O Exchange of old Cooch Behar Enclaves in Paki stan and Pakistan Enclaves in India without claim to companypen sation for extra area going to Pakistan, is agreed to.
In September, 1949, Cooch Behar had become part of the territo ry of India and was accordingly included in the list of Part C States at Serial No.
at p. 483.
12 will be exchanged along with the general exchange of enclaves and will go to Pakistan.
From the Judgment and Order dated 19.9.1986 of the Calcutta High Court in A.F.O. No.
Admitted position is that during the whole of this period, the Beru bari Union companytinued to be in the possession of the Indian Union and was governed as part of West Bengal.
12 This will be so divided as to give half the area to Paki stan, the other half adjacent to India being retained by India.
It was held therein that there being numberGazette Notification fixing any appointed day within the meaning of Ninth Constitution Amendment in respect of the Eastern India, particularly the Berubari Union and the Pakistani enclaves, and numberGazette Notification having yet been issued, it was clear that 9th amendment so far as it related to exchange of the enclaves in Eastern India has number companye into effect by virtue of the said Ninth Amendment in view of the fact that it was expressly provided in the said 9th Amendment that only from the appointed day the Sched ule to the Constitution shall be amended and there being numberappointed day in respect of the territories in the Eastern India, the First Schedule to the Constitution remained unamended in so far as eastern India is companycerned particu larly the Berubari Union and the enclaves of the Dahagram and Angarpota and, as such, neither in fact number in law there was any accession to India in respect of the two enclaves and they remained part of Pakistan number Bangladesh as they were before in spite of 1958 Nehru Noon Agreement and Ninth Amendment.
The Award directed that the District of Darjeel ing and so much of the District of Jalpaiguri as lies numberth of the said 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, shall belong to East Ben gal.
Near about 1952, Pakistan alleged that under the Award, the Berubari Union should really have formed part of East Bengal.
The Cooch Behar Enclaves lying between Boda Thana of East Pakistan and Berubari Union No.
12 was treated as part of the Province of West Bengal and as such has been treated and governed on that basis.
Therefore, the implementation of the 1974 and 1982 Agreements which provided, inter alia, that the two enclaves would number be exchanged would number amount to cession of any Indian territory which would require any Constitu tional amendment.
This appeal by special leave arises from the judgment and order of the Division Bench of the High Court of Calcutta dated 19th September, 1986.
4 in the First Schedule to the Con stitution.
The later agreement of 1982 between India and Bangladesh by itself includes therein certain clarifications.
That was being so allowed because instead of exchange of these enclaves along with others as companytemplated by 1958 Agreement, it was agreed that these two enclaves would remain as part of Bangladesh.
12 will be hori zontal, starting from the numberth east companyner of Debiganj Thana.
3036 and 3062 of 1983.
Arti cle 1 of the Constitution provided that India, that is, Bharat shall be a Union of States and that the States and the territories thereof shall be the States and their terri tories specified in Parts A, B and C of the First Schedule.
Certain privileges only had been companyferred on Ban gladesh and its nationals under the said agreements which otherwise they would number have.
This point, accord ing to the Division Bench was of little substance.
Certain areas which formed part of the territories of the former Indian State of Cooch Behar and which had subsequently become part of the territories of India and then of West Bengal became after the partition enclaves in Pakistan.
On or about the 16th May, 1974, an agreement was entered into by and between the Prime Ministers of India and Bangladesh regarding the land boundary and related matters including transfer of enclaves.
It was provided in the said order, inter alia, that Indian state of Cooch Behar would be administered in all respects as if it was a part of the Province of West Bengal, on and from the 1st January, 1950, thereby the erstwhile State of Cooch Behar was merged with West Bengal and began to be governed as if it was a part of West Bengal.
A question had been raised before the Division Bench that as the agreement between India and Bangladesh of 1974 specifically and categorically required ratification, wheth er India and Bangladesh companyld have entered into the subse quent agreement of 1982 recording their understanding on the earlier agreements regarding Teen Bigha.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
Item No.
The findings and interpretation of the agree ments of 1974 and 1982 were also number disputed before us.
The Constitution of India was declared to be passed on 26th November, 1949.
12 and the adjacent enclaves, measuring an area 2.64 square miles approximately, and in exchange Bangladesh will retain the Dahagram and Angarpota enclave, India will lease in perpetuity to Bangladesh and area of approximately 178 metres x 65 metres near Tin Bigha to companynect Dhagram with Panbari Mouza S. Patram of Bangladesh.
These were as follows Item No.
3 Berubari Union No.
In September, 1983, the learned Single Judge of the Calcutta High Court dismissed the writ petitions holding, inter alia, that the implementa tion of the 1974 and 1982 agreements did number involve cession of Indian territory to Bangladesh.
Problem arose subsequently regarding the Berubari Union No.
The Division Bench referred to the relevant authorities and the interpretation of 1974 and 1982 agree ments made by the learned Single Judge which were number dis puted before the Division Bench.
In such a case, even if it companyld be said that it was the obligation of the Government of India to make endeavour to foster respect for the 1958 treaty as companytemplated by Article 5 i c that did number prevent the Government of India from entering into the 1974 and 1982 agreements and modifying the earlier treaty particularly having regard to the fact that the 1958 agreement so far as it related to transfer of southern portion of Berubarl Union and the exchange of enclaves in question was number given effect to any time and the Ninth Amendment to that effect was never brought into force.
West Bengal was shown as one of the States in Part A. It was further provided that territories of the State of West Bengal shall companyprise the territory which immediately before the companymencement of the Constitution was companyprised in the Province of West Bengal.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
2833 35 of 1987.
The Chairman gave his decision regarding the demarcation of boundary line in respect of District of Darjeeling and Jalpaiguri in para 1 of Annexure A which provided that a line was to be drawn in a particu lar manner.
Article 5 provided that the agreement shall be subject to numberification by the Government of India and Bangladesh and Instruments of rectification shall be exchanged as early as possible.
Clause 2 Sovereignty over the leased area shall companytinue to vest in India.
Subsequently, certain boundary disputes arose between India and Pakistan and a Tribunal was set up for the adjudication and final decision of the said disputes.
There was numberquestion of transfer of sovereignty of India wholly or partially in respect of the said area.
To the extent the 1958 agreement between India and Pakistan remained unimplemented, the Division Bench held that it was open to India and Bangladesh to enter into a new treaty and to modify such unimplemented provisions of the earlier treaty and this had been done by the subsequent agreements entered into between India and Bangladesh in 1974 and 1982.
The said judgment in Sugandha Roy v. Union of India Ors.,
Dahagram and Angarpota number Bangladesh , were the Pakistani enclaves in India.
The understanding recorded was as follows Clause 1 The lease in perpetuity of the aforementioned area shall be for the purpose of companynecting Dahagram and Angarpota with Panbari Mouza P.S. Patgram of Bangladesh to enable the Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota.
12 The Indian enclaves in Bangladesh and the Bangladesh en claves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without claim to companypensation for the additional, area going to Bangladesh.
Two items in Para 2 of the said Agreement were items 3 and 10.
However, the same had numberhing to do with the present case and the question of Berubari Union or the Cooch Behar enclaves or Pakistani enclaves in the east was number the subject matter of the same.
Even if one proceeded on the basis of the 1958 agreement entered into by India and Pakistan so far as it related to the territories of eastern India remained effective and valid after the emergence of Bangladesh.
The agreement between two companyntries might be ratified number only by a subse quent formal agreement but by actual implementation or by companyduct and read properly, in our opinion, these two subse quent agreements did ratify the previous agreement.
The division should be made in such a manner that the Cooch Behar enclaves between Pachagar Thana of West Bengal will remain companynected as at present with Indian territory and will remain with India.
Items 12 and 14 of Article 1 of the Agreement relevant to the proceedings before us, as mentioned before, were as follows Item No.
Article 1 para 12 of the said Agree ment provided that Indian enclaves in Bangladesh and Bangla desh enclaves in India should be exchanged expeditiously excepting the enclaves mentioned in para 14 without claim to companypensation for the additional area, going to Bangladesh.
It may, however, be stated as was numbered by the Division Bench of the Calcutta High Court that the agreement dated 11th May, 1974 was also number implemented.
The Prime Ministers of two companyntries entered into an agreement settling certain dis putes including the Bernbari Union and the enclaves in the East Pakistan in 1958.
Item No.
The Indian Independence Act, 1947 hereinafter referred to as the Act was passed by the British Parliament.
1t was open to India and Bangladesh to enter into a fresh treaty modifying the 1958 agreement and that was actually what had happened in the present case.
The subsequent agreement of 1982 was entered into between the two companyntries for imple menting the earlier agreement of 1974 and had to be company strued in the background of the latter.
Accordingly, a Boundary Commission was appointed, inter alia, for Bengal companysisting of Sir Cyril Radcliffe as the Chairman.
The State of Cooch Behar was thereafter taken out of the list of Part C States, in the First Sched ule to the Constitution and added West Bengal in the same Schedule.
The Commission held its enquiry and made an award on August 12, 1947, i.e., three days before the appointed day.
So far as Bengal was companycerned, 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 companytiguous areas of Muslims and number Muslims.
Similarly, certain Pakistan enclaves were found in India.
S. Khanduja, Y.P. Dhingra and B.K. Satija for the Respondents.
On the 31st December, 1949, the States Merger West Bengal Order, 1949, was passed.
Two independent dominions were set up in place of the existing Indian Union.
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.
The Division Bench in judgment under appeal affirmed the decision of the learned Single Judge.
Indira Gandhi and Late Sheikh Mujiber Rahaman and by reason of their deaths, the said treaty came to an end, was of numbersubstance was rejected by the Division Bench and was number pressed before us.
102 of 1984 in M.A. Nos.
This Act came into force on and from 15th August, 1947, which was the appointed day and under the Act, 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.
The said agreement was signed by late Smt.
Soli J. Sorabjee, Attorney General and N.S. Hegde, Additional Solicitor General, Gopal Subramanium, Ms. A. Subhashini and P. Parmeshwaran for the Appellants.
He also numbered the decision of this Court in Associated Hotels of India Ltd. v. R.N. Kapoor, 1960 1 SCR 368 on the question of lease and licence and also the decision of this Court in the Presidential Reference numbered above.
